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 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018825970 
 
A 
 
 PRACTICAL TREATISE 
 
 ON THE LAW 
 
 RELATING TO 
 
 TRUSTEES 
 
 POWERS, DUTIES, PRIVILEGES, 
 AND LIABILITIES. 
 
 BY JAMES HILL, ESQ., 
 
 OP THE INNER TEMPLE, B ARRIS TER-AT-L AW, AND FELLOW OF NEW COLLEGE, OXFORD. 
 
 THIRD AMERICAN EDITION, 
 
 CONTAINING THE NOTES TO THE FIRST EDITION, 
 
 BY FRANCIS J. TROUBAT, 
 
 WITH FULL NOTES AND REFERENCES TO RECENT ENGLISH AND AMERICAN DECISIONS, 
 
 BY HENRY WHARTON. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 
 
 535 CHESTNUT STREET. 
 1857. 
 
<)3y?2s5;r 
 
 Entered, according to Act of Congress, in the year 1857, 
 
 BY T. AND J. W. JOHNSON & CO., 
 
 In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. 
 
 C. SHERMAN 4 SON, PRINT* 
 
TO 
 
 THE HON. SIR WILLIAM ERLE, 
 
 ONE OP THE JUDGES OP HER MAJESTY'S COURT OP COMMON PLEAS, 
 
 (by permission) 
 
 MOST RESPECTFULLY DEDICATED 
 
 BY THE AUTHOR. 
 
ADVERTISEMENT 
 
 TO THE THIRD AMERICAN EDITION. 
 
 In the present edition the notes to the previous edition, have, been 
 revised, and the references carefully corrected. New notes have been 
 added, and the English and American authorities brought down to the 
 latest period. The size of the page has been at the same time increased, 
 so as to prevent any inconvenient addition to the bulk of the volume. 
 
 H. "W. 
 
 May, 1857. 
 
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. 
 
 Henry 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, per- 
 haps, 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 dissimilar in many material 
 respects. The present work, as appears from its title, is written princi- 
 pally 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. How- 
 ever, even with this limited purpose in view, a Treatise on the Law 
 relating to Trustees involved, in a greater or less degree, the considera- 
 tion of the whole Law of Real 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 con- 
 fidence in bringing his work before the public. 
 
 6 New Square, Lincoln's Inn, 
 26th May, 1845. 
 
CONTENTS. 
 
 [n. B. THE REFERENCES ABE TO THE STAR PAGING.] 
 
 PAGE 
 
 INTRODUCTION, 41 
 
 PRELIMINARY CHAPTER, 44 
 
 I. What may be the Subjeot-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 
 
 PART I. 
 
 OF THE CONSTITUTION OF TRUSTEES. 
 DIVISION I. 
 
 OF THE CREATION OF TRUSTEES BY EXPRESS DECLARATION. 
 CHAPTER I. 
 
 OF THE CREATION OF TRUSTIES BY PAROL. 
 
 1. What may be the Subject of a Parol Trust, . . . .55 
 
 2. What will be a valid Trust by Parol, .... 59 
 
 CHAPTER II. 
 
 OF THE CREATION OF TRUSTEES 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 
 
xii CONTENTS. 
 
 DIVISION II. 
 
 OF THE CONSTITUTION OF TRUSTEES BY IMPLICATION OR 
 CONSTRUCTION OF LAW. 
 
 CHAPTER I. 
 
 OF TRUSTEES BY VIRTUE 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 Interest, 118 
 
 Exception in case of Trusts for Charity, . . . 128 
 
 IV. Where the Trusts Declared are void, or lapse, . . 134 
 
 CHAPTER II. 
 
 OP TRUSTEES ET VIRTUE OF A CONSTRUCTIVE TRUST. 
 
 1. Where the Acquisition of the Legal Estate is affected with Fraud, . 144 
 
 I. Fraud arising from Facts of Imposition, . . . 145 
 
 H. 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 Transaction, 163 
 
 Proof of the Fraud, . . . . .166 
 
 Effect 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. 
 
 OF THE SUBSTITUTIONARY CREATION OF TRUSTEES UNDER A POWER, 175 
 
CONTENTS. Xlll 
 
 CHAPTER II. 
 
 OP THE SUBSTITUTION OP TRUSTEES BY THE COURT OP CHANCERY. 
 
 I. In what Cases the Court will act, .... 190 
 
 II. How the Court acts in appointing new Trustees, . . 194 
 
 1st. On a Bill filed, . . . . .194 
 
 2d. On Petition— when ? . . . .197 
 
 HE. Whom the Court will appoint to be new Trustee, and the effect 
 
 of the Appointment, ..... 210 
 
 DIVISION IV. 
 
 OP THE ACCEPTANCE OR REFUSAL OF THE OFFICE OF TRUSTEE. 
 CHAPTER I. 
 
 WHAT WILL BE AN ACCEPTANCE OP THE OPFICE OP TRUSTEE, . 214 
 
 CHAPTER II. 
 
 OF THE REFUSAL OR DISCLAIMER OF THE OPFICE OP TRUSTEE. 
 
 I. When a Trustee may Disclaim, .... 221 
 
 II. How he may Disclaim, ..... 223 
 
 III. The Effect of a Disclaimer, . . . . .225 
 
 PART II. 
 
 OP THE ESTATE OP TRUSTEES. 
 CHAPTER I. 
 
 OP 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 OP THE ESTATE OF TRUSTEES. 
 
 I. Where their Estate is created by Will, . . . 239 
 
 II. Where their Estate is created by Deed, . . . 248 
 
 III. Of the Merger of their Estate, .... 252 
 
 IV. Of the Presumption of a Reconveyance or Surrender, . 253 
 
XIV CONTENTS. 
 
 V. Of the Application of the Statutes of Limitation to the Estate 
 
 of Trustees, . . . . . .263 
 
 CHAPTEK III. 
 
 OP THE INCIDENTS TO, AND LEGAL PROPERTIES OP, THE ESTATE 
 
 OP TRUSTEES, ....... 270 
 
 CHAPTER IV. 
 
 OP THE DISPOSITION OP THEIR 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. 
 
 OP THE LEGAL DEVOLUTION OP THE ESTATE OP TRUSTEES, 303 
 
 PART III. 
 
 OP THE DISCHARGE OP THE OFFICE OF TRUSTEE. 
 DIVISION I. 
 
 OF THE POWERS AND DUTIES OF TRUSTEES. 
 CHAPTER I. 
 
 OP THE POWERS AND DUTIES OF CO-TRUSTEES AS BETWEEN 
 EACH OTHER. 
 
 I. Where the Concurrence of all the Co-Trustees is requisite, . 305 
 II. Of the liability of a Trustee for the acts of his Co-Trustees, 309 
 
 CHAPTER II. 
 
 OP THE POWERS AND DUTIES OP TRUSTEES, AS BETWEEN THEM 
 AND THE CESTUI QUE TRUSTS. 
 
 Of Trustees of a Dormant Estate, 
 
 I. Of Trustees of a Dry Legal Estate, 
 II. Of Trustees to preserve Contingent Remainders, 
 III. Of Trustees of Attendant Terms of Years, 
 Of Trustees of an Estate clothed with Active Duties, 
 I. Of Trustees of Executory Trusts, . 
 II. Of Trustees for the payment of Debts, 
 1st. Under a Deed, 
 2d. Under a Will 
 
 316 
 
 316 
 317 
 324 
 328 
 328 
 336 
 336 
 341 
 
CONTENTS. 
 
 XV 
 
 III. Of Trustees for 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 
 
 VII. Of Trustees for Infants, 395 
 
 VIII. 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 HI. 
 
 OP THE POWERS AND DUTIES OP TRUSTEES, AS BETWEEN THEM AND 
 THIRD PERSONS, ...... 
 
 503 
 
 DIVISION II. 
 
 OF THE LIABILITIES AND PRIVILEGES OP TRUSTEES. 
 CHAPTER I. 
 
 OP 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. 
 
 OP THE BANKRUPTCY AND INSOLVENCY OP TRUSTEES, 
 
 CHAPTER IH. 
 
 OP THE DISABILITIES OP TRUSTEES, . . 
 
 518 
 
 525 
 
 530 
 
 535 
 
XVI CONTENTS. 
 
 CHAPTER IV. 
 
 OF 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. 
 
 OF THE DISCHARGE AND RELEASE OE TRUSTEES, . . 579 
 
TABLE OF AMERICAN CASES. 
 
 Abbott v.Clark, . 
 Abeel v. Radcliffe, 
 Aberdeen R. R. v. Blaikie Bros 
 Abercrombie v. Bradford, 
 Abney v.Kingsland, 
 Acker v. PhcEnix, . 
 Ackerman v. Emott, 
 Adams v. Adams, . 
 
 Brackett, . 501, 
 
 B rough ton, . 
 
 Mackey, 
 Addison v. Bowie, . 
 Adey v. Arnold, 
 Adlum v. Yard, 
 Affleck v. James, . 
 Agnew v. Fetterman, . 499, 
 Ahearne v. Hogan, 
 Aiken v. Smith, . 342, 359, 
 Albany Fire Ins. Co. v. Bay, 
 Albert v. Savings Bank, 
 Aldborough, Lord v. Trye 
 Aldrich v. Cooper, . 505, 
 Alexander v. Alexander, 
 Cana, 
 
 McMurray, 
 Pendleton, 
 Warrance, 
 Aleyn v. Belchier, . 
 Allen, Ex parte, 
 
 v. Allen, . 
 
 Bryant, . 
 
 De Witt, 
 
 Knight, . 
 
 Macpherson, 
 
 Mandaville, 
 
 Randolph, 
 Allis v. Billings, 
 Allison v. Allison, . 
 Allsup v. Allsup, . 
 Alston v. Boyd, 
 Altimus v. Elliott, . 
 Ames v. Browning, 
 . Downing, 
 Am. Ex. Bk. v. Imloes, 
 Ancaster v.' Mayer, 507,511, 
 Anderson v. Anderson, 
 Burrell, 
 Lemon, 
 Neff, . 
 Anderton v. Yates, 
 Andress v. Miller, , 
 Andrew v. N. Y. Bible Soc, 
 
 Arfdrews v. Jones, . . 
 
 I>iOE 
 
 . 810 
 . 94 
 . 239 
 . 499 
 . 157 
 . 130 
 538, 551, 557 
 222, 355 
 
 502, 513, 525 
 . 140 
 . 639 
 . 118 
 
 778, 779 
 
 490, 505 
 
 . 708 
 
 503, 518, 519 
 232, 235 
 
 366, 375, 376 
 
 634, 636 
 
 . 265 
 
 . 227 
 
 507, 522, 531 
 
 589, 825 
 
 . 816 
 
 500, 518 
 
 . 247 
 
 140, 152, 153 
 
 735, 742 
 
 229, 594 
 
 . 608 
 
 . 805 
 
 . 705 
 
 . 769 
 
 . 223 
 
 . 764 
 
 . 673 
 
 . 73 
 
 . 225 
 
 . 70 
 
 . 72 
 
 . 851 
 
 . 238 
 
 647, 786, 851 
 
 . 498 
 
 520, 522, 525 
 
 . 643 
 
 255, 257 
 
 . 809 
 
 . 810 
 
 . 599 
 
 . 490 
 
 70,76,192, 
 
 194, 195, 674 
 
 88, 620, 627 
 
 B 
 
 Andrews v. Sparhawk, . 
 
 PAOE 
 
 i . 529 
 
 Angerstein v. Martin, . 
 
 . 575 
 
 Anon, 
 
 . 818 
 
 Anstice v. Brown, . 
 
 83, 140, 388 
 
 App v. Lutheran Congregation, 
 
 . 699 
 
 Appleton v. Boyd, . 
 
 . 145 
 
 Archbold v. Comrn. Charitab. D 
 
 onat's. 704 
 
 Archer v. Hudson, 
 
 . 234 
 
 Arms v. Ashley, . . 
 
 . 94 
 
 Armsteadv. Hundley, . 
 
 . 218 
 
 Armstrong's Est., . 
 
 . 826 
 
 Armstrong, 
 
 . 147 
 
 v. Campbell, 
 
 . 236, 775 
 
 Miller, . 
 
 . 550 
 
 Park, 
 
 . 708, 732 
 
 Zane, 
 
 . 840 
 
 Arnold v. Gilbert, . 
 
 . 70, 735 
 
 Brown, . 
 
 . 808 
 
 Ruggles, 
 
 . 621 
 
 Arnoux v. Steinbrenner, 
 
 . 825 
 
 Arrington v. Yarborough, 
 
 . 619 
 
 Arthur v. Arthur, . 
 
 . 221 
 
 Master in Eq., 
 
 . 550 
 
 Comm. Bank, 
 
 . 73 
 
 Asay v. Hoover, . 
 
 . 417, 714 
 
 Ashby v. Ashby, . 
 
 . 620 
 
 Ashcraft v. Little, . . 630, 
 
 631, 632, 633 
 
 Ashley v. Denton, . 
 
 . 777 
 
 Ashhurst v. Given, 
 
 81, 342, 588 
 
 Ashurst v. Ashurst, 
 
 . 723 
 
 Mill, . 
 
 . 221 
 
 Ashton v. Lord Langdale, 
 
 89, 199, 683 
 
 Aspinall v. Jones, . 
 
 . 725 
 
 Aston's Estate, 
 
 . 550, 554 
 
 Astorv. Wells, 
 
 . 248, 766 
 
 Astreen v. Flanagan, 
 
 . 152, 153 
 
 Atcheson v. Atcheson, . 
 
 . 623 
 
 Lindsey, . 
 
 . 70 
 
 Robertson, . 
 
 . 833, 845 
 
 Atkins v. Kron, 
 
 83,513, 586 
 
 Atkinson v. Jordan, 
 
 . 485, 489 
 
 Att.-Gen. v. Alford, . 
 
 . 549 
 
 Att.-Gen. v. Andrews, . 
 
 . 690, 829 
 
 BaliolColl., ._ 
 
 . 676 
 
 Beverley, . 
 
 . 691, 692 
 
 tfovill, 
 
 . 688, 698 
 
 Bowyer, . 
 
 . 687 
 
 Bristol, 
 
 . 688 
 
 Brown's Hospital, 
 
 . 69» 
 
 Clapham, . 
 
 . 699 
 
 Devon (Earl of), 
 
 . 688, 689 
 
 Donnington, 
 
 . 694 
 
 East Retford Gra 
 
 b. School, 
 
 
 688 
 
 
 
XV111 
 
 TABLE OP AMERICAN CASES. 
 
 
 
 
 
 PAGE 
 
 Att. -Gen. v. Gardner, . 
 
 
 
 . 683 
 
 Gibba, 
 
 , 
 
 
 . 837 
 
 Hardy, 
 
 
 
 . 809 
 
 Hull, 
 
 , 
 
 
 . 684 
 
 Hulton, 
 
 
 
 . 699 
 
 Ironmongers' 
 
 Co., . 
 
 . 688 
 
 Jolly, 
 
 
 
 192, 674 
 
 Lawea, 
 
 123, iy.-» 
 
 676, 699 
 
 Ludlow, . 
 
 
 t 
 
 . 689 
 
 Norwich (Corp. 
 
 of), 
 
 689, 690 
 
 Norwich (Mayor of), 
 
 .' 829 
 
 Magdalen College, 
 
 259, 687, 
 
 
 
 690 
 
 694, 701 
 
 Mansfield (Earl) 
 
 . 
 
 . 693 
 
 Merchant Venturers' Co., 692 
 
 Moseley, . 
 
 
 
 697, 735 
 
 Munro, 
 
 
 
 . 683 
 
 Murdock, . 
 
 
 
 . 699 
 
 Pilgrim, 
 
 
 
 . 694 
 
 Plymouth, . 
 
 
 
 . 679 
 
 Rochester (Dean 
 
 , &c, 
 
 of), 690 
 
 Shore, 
 
 
 
 . 699 
 
 Stamford (Earl o 
 
 n, ! 
 
 688, 689 
 
 Slurge, 
 
 
 
 . 681 
 
 Vint, . 
 
 
 
 . 676 
 
 Wallace, 
 
 192, 198, 
 
 674, 676, 
 
 
 687, 693 
 
 697, 701 
 
 Ward, 
 
 
 684 
 
 687, 688 
 
 Wilkins, 
 
 
 
 775, 776 
 
 Wilson, 
 
 
 
 699, 781 
 
 Worcester (Bishop of), 
 
 688, 689 
 
 Atwood v. Small, . 
 
 
 
 . 216 
 
 Austen v. Bell, 
 
 
 
 . 489 
 
 Aycinena v. Peries, 
 
 
 
 . 778 
 
 Ayer v. Ayer, . . 
 
 
 
 . 345 
 
 Ayers v. Trustees, . 
 
 
 
 . 674 
 
 Ayres v. Melhodist Ch., 
 
 
 76 
 
 , 194, 199 
 
 Mitchell, . 
 
 
 
 . 221 
 
 Weed, . 
 
 
 
 . 331 
 
 B. 
 
 
 
 
 Babb v. Reed, 
 
 
 
 680, 681 
 
 Babcock v. Smith, . 
 
 
 
 
 . 88 
 
 Backhouse v. Patton, 
 
 
 
 
 . 521 
 
 Baggett v. Meux, . 
 
 
 
 
 . 636 
 
 Bagshaw v. Winter, 
 Bailey v. Inglee, 
 
 
 
 
 614, 627 
 
 
 
 
 781, 784 
 
 Richardson, 
 
 
 
 
 . 768 
 
 Robinson, 
 
 
 
 
 . 238 
 
 Stiles, 
 
 
 
 
 . 225 
 
 Watkins, 
 
 
 
 
 . 240 
 
 Wilson, . 
 
 
 
 
 . 247 
 
 Baines v. McGee, . 
 
 
 
 
 238, 250 
 
 Baird's App., . 
 
 
 
 
 . 443 
 
 Baird v. Corwin, 
 
 
 
 
 . 765 
 
 Baker v. Biddle, 
 
 
 
 
 • 777 
 
 Bradley, . 
 
 
 
 234 
 
 251, 636 
 
 Crookshank, 
 
 
 
 
 . 495 
 
 Leathers, . 
 
 
 
 
 . 152 
 
 Lorillard, . 
 
 
 
 
 . 590 
 
 Mosley, . 
 
 
 
 
 . 109 
 
 Read, 
 
 
 
 
 238, 258 
 
 Smith, 
 
 
 
 
 192, 676 
 
 Vining, . I< 
 
 12 
 
 U 
 
 4, 148 
 
 150, 152 
 
 Washington, 
 
 
 
 
 . 404 
 
 Baldwin v. Carter, 
 
 
 
 
 . 626 
 
 Johnson, 
 
 
 
 
 . 142 
 
 Baldy v. Brady, 
 
 
 
 
 500, 518 
 
 Ball v. Carew, 
 
 
 
 
 . 803 
 
 Harris, 
 
 
 
 
 . 516 
 
 Montgomery, 
 
 
 
 
 . 608 
 
 B allard v. Carter, . 
 
 
 
 
 . 417 
 
 Ballard v. Taylor, . 
 Ballew v. Clark, 
 Band v. Fardell, 
 Bangley's Trust, Re, 
 Bank v, Campbell, 
 
 Foster, , '. 
 
 Phelan, . 
 Bank of N. A. v. Pollock, 
 
 Orleans v. Torrey, 
 
 U. S. v. Biddle, 
 Coram., 
 
 PAGE 
 
 . 530 
 
 . 72 
 
 542, 562, 564 
 
 . 814, 848 
 
 . 397 
 
 . 241 
 
 . 191, 674 
 
 . 143, 817 
 
 . 238, 239 
 
 . 255, 257 
 
 487 
 
 Beverly, 349,501, 518, 520,|528 
 
 Carrington, . . 87, 142 
 
 Houseman, . . . 164 
 
 Virginia v. Adams, ... 69 
 
 Craig, . . 265,589 
 
 Banks v. Judah, 239 
 
 May 130 
 
 Wilkes, 450 
 
 Banister v. McKenzie, .... 540 
 Baptist Association v. Hart's Ex'rs, 192, 199, 
 
 674, 688 
 Barber v. Cary, .... 719,736 
 
 Barbour v. Morris, 221 
 
 Whitlock 257 
 
 Barclay v. Talman, . ... 69 
 
 Bardwell v. Bardwell, . . . .531 
 
 Barker v. Greenwood, . 344, 345, 346, 355 
 
 Hall, .... 485,486 
 
 Parkenhorn, .... 847 
 
 Woods 627 
 
 Barnes v. McClinton 768 
 
 Pearson 619 
 
 Barnett v. Spratt, 226 
 
 Sheffield 539 
 
 Barney v. Saunders, . 550,551,552,553 
 Barnhart v. Greenshields, . . . 768 
 Barnum v. Hemstead, .... 499 
 
 Barrett v. Buck, 584 
 
 Reads 485 
 
 Barribeau v. Brant 316 
 
 Barrington (Lord) v. Liddell, . . 537 
 
 Barron v. Barron, 94, 140, 143, 147, 604, 614, 
 
 621, 630, 641, 643 
 
 Barrow v. Barrow, . . . 609,614,616 
 
 Barry, Re, 427 
 
 v. Marriot, 540 
 
 73 
 240 
 636 
 814 
 823 
 708 
 537,551,564 
 344, 347 
 
 Merchants' Exchange Co. 
 Whitney, 
 
 Barrymore v. Ellis, 
 Bartholomew's Will, Re, 
 Bartlett v. Bartlett, 
 
 Southerland, 
 Burton's Est., 
 Bass v.Scott,. . . . ..,,.<. ,«, 
 
 Bassett v. Nosworthy, 247, 248, 397, 773, 776 
 
 583 
 781 
 262 
 255 
 411 
 238 
 291 
 376, 403, 404 
 778 
 492 
 405 
 192, 674 
 73 
 218 
 232 
 220 
 
 Bassil v. Lister, 
 Bateman v. Hotchkin, 
 
 Margerison, 
 Bates v. Norcross, . 
 Battle v. Durham, . 
 
 Petway, . 
 Baxter v. Costin, . 
 Bayles v. Staats, . 
 Beach v. Beach, 
 
 Dor win, . 
 
 Fulton Bank, 
 Beale v. Coon K 
 Beall v. Fox, . 
 Beals v. See, . 
 Bean v. Herrick, . 
 Beanland v. Bradley, 
 Beard v. Campbell, 
 
TABLE OF AMERICAN CASES. 
 
 XIX 
 
 PAOE 
 
 Beard v. Hubbell 252 
 
 Beasley v. Wilkinson 418 
 
 Beattie v. Johnstone 782 
 
 Beatty v. Kurtz 674 
 
 Beaubien v. Ponpard, .... 238 
 Beauchamp v. Davis, .... 825 
 Beaufort v. Collier, . . . 628, 630 
 Beaufoy's Est., . . . . . 576 
 Beaumont v. Marg. of Salisbury, 356, 366, 
 368, 370, 371 
 
 Beavan v. Ld. Oxford 671 
 
 Beaver v. Filson, . 
 Beck v. Uhrich, 
 Beech v. Ld. St. Vincent, 
 Keep; 
 
 Beebe v. De Baun, 
 
 Beeson v. Beeson, . 238, 239, 790 
 
 Belcher v. Belcher, 
 
 Belknap v. Sealey, 
 
 Belke's Charity, Re, 
 
 Bell v. Bell, . 
 
 Hallenbach,. 
 
 Henderson, . 
 
 Kellar, 
 
 Twilight, . 
 
 Webb, 
 Bellamy v. Sabine, 
 Bellas v. Lloyd, . 
 
 McCarty, 
 Bellinger v. Shafer, 
 Bellows v. Patridge, 
 Stone, . 
 Belvedere v. Rochford, 
 Benbury v. Benbury, 
 Bench v. Biles, 
 Bendall v. Bendall, 
 Bender v. Reynolds, 
 Bennett v. Biddies, 
 
 Dillingham, 
 Benningv. Benning's Ex'rs, 
 Bensell v. Chancellor, 
 Benson v. Benson, . 
 Davies, . 
 Le Roy, 
 Bensusan v. Nchemias, 
 Bent v. Young, 
 Bentley v. Shreve, . 
 Benzein v. Lenoir,. 
 Bernard v. Bougard, 
 Beresford, Matter of, 
 Berger v. Duff, 
 Berkhard v. Flyne, 
 Berrett v. Oliver, . 
 Berrien v McLane, 
 Berry v. Hamilton, 
 Ins. Co., . 
 Williamson, 
 Best v. Blackburne, 
 
 Stow, . 
 Bethea v. McCall, . 
 Beattie v. Wilson, . 
 Beverley v. Brooke, 
 Beaverleys v. Miller, 
 Bibb v. MeKinley, 
 Biggs, Re, . 
 Biggert v. Biggert, . 
 Billage v. Southee, 
 Billington's A pp., . 
 Bingaman v. Hyatt, 
 Binney v. Plumly, . 
 Binns v. Parr, 
 Birch v. Cropper, . 
 Bird v. Graham, . 
 
 248, 
 589, 
 
 396 
 
 142, 807, 808 
 
 . 537 
 
 136, 138 
 
 722, 723 
 
 793, 804 
 
 . 231 
 
 . 222 
 
 . 294 
 
 621, 627 
 
 . 157 
 
 . 217 
 
 . 639 
 
 . 767 
 
 238, 257 
 
 . 216 
 
 . 763 
 
 776 
 
 847 
 
 498 
 
 252 
 
 520 
 
 778, 779 
 
 . 525 
 
 . 845 
 
 . 631 
 
 . 828 
 
 . 621 
 
 171, 178 
 
 72, 73 
 
 . 629 
 
 . 830 
 
 . 521 
 
 . 790 
 
 . 69 
 
 . 550 
 
 . 247 
 
 144, 151 
 
 609, 610 
 
 . 711 
 
 . 66 
 
 . 614 
 
 . 240 
 
 . 735 
 
 . 769 
 
 . 474 
 
 . 217 
 
 217, 252 
 
 598, 600, 808 
 
 643 
 
 786 
 
 550 
 
 619 
 
 813 
 
 626 
 
 235 
 
 539, 556, 589 
 
 . 768 
 
 . 404 
 
 . 823 
 
 . 274 
 
 389, 390 
 
 Blenkinsopp 
 
 Bird v. Pegrnm, 
 Birdsall v. Hewitt, 
 Bishop v. Capel, . 
 Curtis, . . 
 Black v. Erwin, 
 
 Ligon, . 
 
 Ray, 
 Blackiev. Clarke, . 
 Blackman v. Gordon, 
 Blagrave v. Blagrave, 
 Blair v. Bass, 
 
 Bromley, . 
 
 Owles, 
 Blaisdellv. Stevens, 
 Blake v. Hey ward, 
 Blakely v. Brady, . 
 Blanchard v. Blood, 
 Moore, 
 Blann v. Bell, 
 Blenkinsopp v 
 Blight's Ex. v. Ewing 
 Blight v. Schenck,. 
 
 Wright, . 
 Blin v. Pierce, 
 Bliss v. Bradford, . 
 Bloodgood v. Bruen, 
 Bloomer v. Waldron, 
 Bloomfield v. Eyre, 
 Blount v. Blount, . 
 Bloye's Trust, Re, 
 Blue v. Patterson, . 
 Blyholder v. Gilson, 
 Boddy v. Lefevre, . 
 Bodine v. Edwards, 
 Bogert v. Hertell, . 
 
 Perry; 
 Boggs v. Varner, . 
 Bohannon v. Stresley. 
 Bohn v. Headley, . 
 Bold v. Hutchinson, 
 Boling v. Ewing, . 
 Boiling v. Carter, . 
 Bomar v. Mullins, . 
 Bond v. Brown, 
 
 England, . 
 
 Zeigler, 
 Bonsall's App., 
 Boone v. Chiles, . 
 Booth v. Booth, 
 
 Clark, . 
 Sineath, . 
 Borden v. Sumner, 
 Boreham v. Bignall, 
 Borneman v. Sidlinger, 
 Borst v. Corey, 
 Borton v. Borton, . 
 Boschetti v Power, 
 Bostwick, Matter of, 
 v. Atkins, 
 Bostick v. Keizer, . 
 Boswell v. Dillon, . 
 Botsford v. Burr, 142, 
 Boughton v. Boughton 
 Boulton v. Beard, . 
 Bourne v. Mole, 
 
 Buckton 
 Bowditch v. Banue! 
 Bowes v. East Lond 
 Bowens v Evans, 
 Bowers v. Clark, 
 Seeger, 
 Smith, 
 Bowles v. Weeks, 
 
 PAGE 
 
 . 641 
 . 532 
 . 118 
 83, 400 
 . 711 
 
 694, 727 
 . 578 
 
 216, 235 
 
 . 190 
 
 355, 358, 359 
 
 148, 150 
 . 216 
 
 247, 248 
 
 768, 785 
 
 764, 765, 775, 776 
 
 . 136 
 
 . 606 
 
 . 252 
 
 577, 581 
 
 244, 620 
 . 705 
 
 499, 711 
 
 . 705 
 
 80, 405, 796, 797 
 
 701, 704 
 . 718 
 . 514 
 . 263 
 . 69 
 . 813 
 222, 389, 778 
 87, 148 
 . 264 
 . 152 
 
 190, 710 
 
 . 150 
 
 247, 248, 762, 767, 7-70 
 
 . 389 
 
 123, 619 
 . 475 
 . 768 
 . 764 
 . 785 
 
 255, 257 
 . 520 
 . 250 
 539, 556, 589, 785 
 247, 248, 389, 775 
 . 251 
 69,70 
 . 598 
 . 485 
 . 818 
 . 92 
 
 . 620 
 
 . 823 
 
 594, 598, 599, 600 
 
 . 234, 238, 804 
 
 . 396, 397 
 
 . 481 
 
 144, 147, 148, 150, 151 
 
 513, 583, 584 
 
 . 832, 843 
 
 . 822 
 
 . 583 
 
 los, 267, 279, 284,288, 812 
 
 Waterw., . . 258 
 
 256, 257 
 
 643, 644 
 
 . 445 
 
 . 812 
 
 267, 317 
 
XX 
 
 TABLE OF AMERICAN CASES. 
 
 Bowling v. Winslow's Adm'r, 
 Bowman v. Bates, . 
 Bowman's App., . 
 Boyce v. Grundy, . 
 Boyd v. Boyd, . 
 
 Hawkins, . 
 McLean, . 
 Moyle, 
 Boydell v. Golightly, 
 Boykins v. Ciples, 
 Boynlon v. Reese, . 
 Bracken v. Miller, . 
 Brackenridge v. Holland 
 Bradford v. Greenway, . 
 
 Union Bk. of Ten 
 Bradish v. Gibbs, . 
 Bradley v. Chase, . 
 Emerson, 
 Hughes, 
 McBride, 
 Bradshaw, Ex parte, 
 Ellis, . 
 Fane, . 
 Bradwell v. Weeks, 
 Brady v. McCosker, 
 Braman v. Stiles, . 
 Brandon v. Woodthorpe 
 Brandt's Appeal, . 
 Brashear v. West, . 
 Brassey v. Chalmers, 
 Braswell v. Morehead 
 Breckenridge v. Ormsby 
 Bredin v. Dwen, . 
 Breedlove v. Stump, 
 Brewer v. Swirles, 
 
 Vanarsdale 
 Brewster v. Striker, . 342, 343 
 Brice v. Brice, 
 
 Bridgnorth (Corp. of) v. Colli 
 Bridge v. Bridge, . 
 Bridges v Hartley, 
 Pleasants, 
 Wood, . 
 Briers v. Hackpey, 
 Briggs v. Chamberlain, 
 Earl of Oxford, 
 Penny, . . 94, 97 
 Brightman v. Brightman, 
 Brinckerhoff'v. Wemple, 
 Bringhurst v. Cuthbert, 
 Brinton's Est., 
 Brock v. Phillipps, 
 Brogden v. Walker, 
 Brooke v. Berry, . . 216 
 
 Dent, . 
 Brooks v. Fowle, . 
 Marbury, 
 Wheelock, 
 Broome v. Curry, . 
 Brothers v. Porter, 
 Brough v. Higgins, 
 Brougham, Ld.v. Powlett. Ld 
 
 Broughton v. Broughton, 
 Browne's App., 
 
 Case, 
 Brown v. Alden, . 
 
 Armistead, 
 
 Bamford, 
 
 Bartee, . 
 
 Brown, . 
 
 Budd, . 
 
 Cavendish, 
 
 349, 
 
 485, 
 
 PAGE 
 
 . 614 Brown v. Dunham, 
 . 218 Freeman, 
 
 . 589 Hobson, 
 
 . 215 Kelsey, . 
 
 450, 451 Knox, . 
 
 236, 805 Lunt, 
 
 142, 148 Lutheran Ch 
 
 . 818 Martyn, . 
 
 . 481 Paull, 
 
 75, 260, 606 Postell, . 
 
 248 Ricketts, 
 
 248, 771 Wallace, 
 
 236, 238 Whiteway, 
 
 633, 639 Witter, . 
 
 252 Wood, . 
 
 75 Wright, . 
 
 221, 253 Browne v. Stoughton, 
 639 Browning v. Headley, 
 Bruce v. Child, 
 Bruch v. Lantz, 
 Bruen v. Hone, 
 Bruin v. Knott, 
 Brumby v. Langdon, 
 Brunner v. Storm, ... 
 Brunson v. Hunter's Adm'r, 
 Brush v. Ware, 
 Bryan v. Bradley, . 
 Bryan, 
 Duncan, . 
 Bryant v. Blackwell, 
 Craig, 
 Russell, . 
 Brysoh v. Nichols, 
 Buchanan v. Matlock, 
 Buck v. Holloway, 
 Pike, 
 
 Swazey, . 
 Buckles v. Lafferty, 
 Buckley v. Buckley, 
 Buffalow v. Buffalow, 
 Buford v. McKee, . ' 
 Bugbee v. Sargent, 
 Bull v. Bull, . 104, 107, 11 
 Bulkely v. Earl of Eglinton, 
 Bulkleyv. Bulkley, 
 
 De Peyster, . 
 Redmond, 
 Bunbury v. Bunbury, . 
 Bunce v. Vandergrift, . 
 Bunnell v. Read, . 
 Bunn v. Winthrop, 
 Burbank v. Whitney, . 
 Burrallv. Leslie, . 
 Burrill v. Sheil, . ' . 
 Burke, Matter of, . 
 Burley v. Evelyn, . 
 Russell, . 
 Burr v. McEwen 
 Sim, 
 
 629 
 
 257 
 
 814 
 
 705 
 
 714 
 
 . 83 
 
 . 222 
 
 588, 705 
 
 . 618 
 
 . 525 
 
 671 
 
 714 
 
 . 569 
 
 . 73 
 
 . 857 
 
 . 81 
 
 564, 792 
 
 . 791 
 
 344, 359 
 
 230, 233 
 
 . 583 
 
 PAGE 
 
 • 214 
 
 • 264 
 . 707, 708 
 . 191, 674 
 
 . 485 
 
 • , • 87 
 . 693 
 . 813 
 
 . 100, 599 
 . 639 
 
 . 550,815 
 . 724 
 
 . 355, 358 
 . 221 
 . 776 
 . 778 
 . 583 
 614, 619, 622 
 
 . 257, 258 
 
 236, 237, 238, 496, 790 
 
 . 221 
 
 . 599, 600 
 
 . 409 
 
 334, 718, 
 
 137, 
 
 138 
 
 . 679 
 
 . 198 
 
 . 630 
 
 . 791 
 
 . 605 
 
 . 568 
 
 101, 109, 118 
 
 . 765 
 
 . 404 
 
 . 350 
 
 . 838 
 
 . 250 
 
 . 221, 229 
 
 , 226, 227, 230 
 
 88, 143, 522 
 
 . 144 
 
 128, 486, 488 
 
 . 252 
 
 . 568 
 
 . 145, 785 
 
 . 585 
 
 320, 352, 353, 
 
 849 
 
 . 858 
 
 285, 287 
 
 . 590 
 
 641 
 
 708 
 
 636 
 
 373 
 
 641 
 
 766 
 
 127 
 
 220, 
 
 81 
 
 238 
 
 Smith, 
 Burrows v. Ragland, 
 Jennings, 
 Burt's Est., Re, . 
 Burtv. Cassety, 
 
 Stun, . 
 Burton v. Mount, . 
 Smith, . 
 Burwell v. Anderson, 
 Bush v. Bush, 
 
 Golden, . 
 Bushell v. Bushell, 
 Bute (Marquis of) v. Harman 
 
 735 
 . 110 
 . 250 
 . 339 
 . 608 
 237, 631, 805 
 . 848 
 . 551 
 489, 493, 856 
 . 202 
 . 225 
 . 767, 768 
 . 142, 148 
 . 144, 151 
 239, 804, 808 
 507, 525, 528 
 230, 233, 241 
 . 130 
 . 530 
 500, 680, 741 
 274, 315, 337 
 . 255 
 . 287 
 . 225 
 . 69 
 . 444 
 252, 772 
 129, 130 
 . 681 
 . 489 
 540, 563 
 . 600 
 . 189 
 . 214 
 . 647, 648, 723, 845, 851 
 189, 190,211,343,344,349, 
 707, 715 
 191, 198, 674, 676 
 . 222 
 . 490 
 . 418 
 . 767 
 . 537 
 577, 580 
 . 722 
 550, 551 
 781, 784 
 . 767 
 . 766 
 . 583 
 
 12' 
 
 247, 396 
 
TABLE OF AMERICAN CASES. 
 
 XXI 
 
 Butler & Baker's case, . 
 Butler v. Haskell, . 
 
 Hicks, . 
 
 Merchant's Ins. Co 
 
 Stevens, 
 Butterfield, Ex parte, 
 Butterwick Free School, 
 Butts v. Genung, . 
 Byam v. Byam, 
 Bybee v. Tharp, . 
 Byrne v. Noreott, . 
 
 Stewart, . 
 
 Van Hoesen, 
 
 Re, 
 
 PAGE 
 
 . 332 
 
 . 226,257 
 
 . 808, 809 
 
 80, 159, 160, 
 
 162, 425 
 
 . 762, 767 
 
 . 800, 801 
 
 . 688 
 
 . 848 
 
 278, 709, 719 
 
 594 
 
 547, 549, 836 
 
 . 626 
 
 . 589 
 
 Mut 
 
 Cadbury v. Duval, 396, 397, 496, 500, 531 
 Cadogan v. Earl of Essex, 
 Cafe v. Bent, . 
 Cahill v. Bigger, 
 Caines v. Grant's Lessee, 
 Cairns v. Chabert, 
 Caldwell v. Carrington, 
 Taggart, . 
 Williams, . 
 Calhoun v. Calhoun, 
 
 Furgeson, . 
 King, . 
 Callaghan v. Hall, . 
 Callender v. Colegrove, 
 Calender's Adm. v. Keystone 
 
 Co., .... 
 Callis v. Ridout, 
 Calloway v. Witherspoon, 
 Calmes, Ex parte, . 
 Calvert's Lessee v. Eden, 
 Campbell v. Drake, 
 
 Carter, • . 
 Hamilton, . 
 Johnston, . 
 Penn. Ins. Co 
 Williams, . 
 Campbell's Est 
 Camp v. Forrest, . 
 Canoy v. Troutman, 
 Capehart v. Hu«y, . 
 Caperton v. Callison, 
 Caplinger v. Stokes,- 
 
 Sullivan, 
 Carey v. Callan, . 
 ^Carleton v. Banks, 
 Carlisle's App., 
 Carmichael v. Hughes, 
 Came v. Brice, 
 Carpenter v. Cameron, 
 Carow v. Mowatt, . 
 Carr v. Bobb, . 
 
 Eastabrooke, 
 Hilton, 
 Carrington v. Didier, 
 
 Manning, 
 Carrol v. Connet, . 
 Lee, 
 
 Renick, . 
 Stewart, . 
 Carson v. O'Bannon, 
 
 Murray, 
 Carter v. Balfour, 
 Carter, 
 Cutting, 
 Jones, 
 
 541 
 
 282, 577 
 
 . 700 
 
 . 145 
 
 586, 855 
 
 247, 772 
 
 . 816 
 
 129, 130, 486 
 
 . 633 
 
 . 578 
 
 . 789 
 
 . 826 
 
 256, 258 
 
 .Ins. 
 
 . 825 
 
 . 292 
 
 . 231 
 
 . 557 
 
 . 340 
 
 . 143 
 
 . 220 
 
 . 405 
 
 236, 238, 722 
 
 . 804 
 
 . 550 
 
 129, 130 
 
 . 764 
 
 403, 409 
 
 826, 845 
 
 . 825 
 
 142, 234, 235 
 
 . 622 
 
 147, 150 
 
 604, 605, 607 
 
 . 286 
 
 . 600 
 
 . 641 
 
 . 705 
 
 826, 848 
 
 . 389 
 
 . 608 
 
 141, 167 
 
 . 764 
 
 499, 500, 518, 519 
 
 444, 781 
 
 . 630 
 
 . 475 
 
 . 710 
 
 . 623 
 
 . 643 
 
 . 192,501,525,674 
 
 320, 321, 607, 608, 643 
 
 550 
 
 817 
 
 Carter v. Rolland, 
 
 Taggart, , 
 ht v. Wii 
 
 320, 321, 326 
 
 263, 528, 
 
 Cartwright v7~Wise, . . 152, 
 
 Casboard v. Ward, 
 
 Casey's Lessee v. Inloes, 
 
 Cassel, Ex parte, . 
 
 Cassidy v. McDaniel, 
 
 Castan v. Cunningham, 
 
 Cathcart v. Robinson, 
 
 Catlin v. Eagle Bank, 
 
 Caton v. Ridout, . 
 
 Caulfield v. McGuire, 
 
 Cawood v. Thompson, 
 
 Cawthorne, Re, 
 
 Cecil v. Korbman, . 
 
 Center v. P. & M. Bk., 
 
 Chaffers v. Headlam, 
 
 Chahoon v. Hollenbach, 
 
 Chalmers v. Hack, . 
 
 Chamberlain v. Thacker, 
 
 Thompson, . 342 
 Chambers v. Chambers, 
 Mauldin, . 
 Chamness v. Crutchfield, 
 Champlin v. Champlin, . 
 
 Lay tin, 
 Chaney v. Smallwood, . 
 Chandler v. Hill, . 
 Chapin v. Weed, . 
 Chaplin v. Givens, . 
 Moore, . 
 Chapman v. Esgar, 
 Chase v. Lockerman, 
 Chaudron v. Magee, 
 Chanet v. Villeponteaux, 
 Cheshire v. Cheshire, . 
 Chesson v. Chesson, 
 Chester v. Greer, . 
 Chesterfield v. Jansen, . 
 Chesterman v. Gardner, 
 Chew's Estate, 
 Chew v. Barnett, . 
 
 Com. of Southwark 
 Child v. Brace, 
 Childsv. Woodson, 
 Chisholm v. Chisholm, . 
 Newton, . 
 Starke, 
 Choteau v. Jones, . 
 Christ v. Diffenbach, 
 Christ's Hospital v. Grainger 
 Christie v. Bishop, . 
 Christmas v. Mitchell, . 
 Christopher v. Covington, 
 Christophers v. White, . 
 Christy v. Flemington, . 
 Chronister v. Bushey, . 
 Church v. Church, . 
 Ins. Co., 
 Sterling, 
 Church Building Soc. v. Barlow, 
 Churchill v. Dibbin, 
 Cincinnati v. White, 
 City Council v. Page, 
 Clack v. Holland, . 
 Clagett v. Hall, . . .451, 
 Clapper v. House, . 
 Clarehdon, Ld., v. Barham, 
 Clark v. Bunham, . 
 
 Clark, 
 
 Cooke, 
 
 Hackethorne, . 
 
 Partridge, . . 
 
 
 PAGR 
 
 t 
 
 594 
 
 
 627 
 
 161 
 
 162 
 
 
 77 
 
 
 78 
 
 851 
 
 S56 
 
 780 
 
 817 
 
 
 140 
 
 , 
 
 139 
 
 
 73 
 
 
 641 
 
 
 586 
 
 
 175 
 
 
 813 
 
 
 847 
 
 765 
 
 766 
 
 t 
 
 848 
 
 404, 
 
 754 
 
 
 70 
 
 
 815 
 
 359 
 
 367 
 
 
 579 
 
 285 
 
 404 
 
 
 253 
 
 642, 
 
 718 
 
 216 
 
 220 
 
 
 263 
 
 
 493 
 
 
 239 
 
 328 
 
 856 
 
 
 598 
 
 
 522 
 
 550 
 
 813 
 
 , 
 
 764 
 
 
 708 
 
 569 
 
 785 
 
 
 586 
 
 
 236 
 
 , 
 
 227 
 
 , 
 
 768 
 
 , 
 
 285 
 
 
 775 
 
 . 
 
 443 
 
 
 236 
 
 
 91 
 
 597 
 
 598 
 
 
 405 
 
 
 569 
 
 
 766 
 
 251 
 
 ,253 
 
 682 
 
 701 
 
 
 248 
 
 265 
 
 770 
 
 
 486 
 
 
 858 
 
 , 
 
 494 
 
 
 803 
 
 
 809 
 
 
 239 
 
 87 
 
 142 
 
 
 684 
 
 , 
 
 641 
 
 , 
 
 674 
 
 
 764 
 
 99 
 
 671 
 
 789 
 
 822 
 
 , 
 
 213 
 
 
 520 
 
 . 
 
 140 
 
 . 
 
 451 
 
 . 
 
 604 
 
 , 
 
 247 
 
 . 
 
 253 
 
XXII 
 
 TABLE OF AMERICAN CASES. 
 
 
 
 
 
 PAGE 
 
 Clark v. Riddle, 
 
 
 , 
 
 515, 706 
 
 Lott, . 
 
 
 # 
 
 . 130 
 
 McCreary, 
 
 
 
 . 619 
 
 Minot, 
 
 
 . 80, 
 
 796, 797 
 
 Sawyer, . 
 
 
 
 . 222 
 
 Saxon, 
 
 
 75, 
 
 568, 569 
 
 Wyndham, 
 
 
 629 
 
 630, 638 
 
 Clarke, Re, . 
 
 
 
 . 595 
 
 Jenkins, 
 
 
 
 . 450 
 
 Clarkson v. De Peyster, 
 
 
 
 . 639 
 
 Morgan, 
 
 
 
 . 765 
 
 Clay v. Hart, . 
 
 
 
 . 707 
 
 Irvine, 
 
 
 
 . 626 
 
 Clemens v. Caldwell, 
 
 
 
 291, 551 
 
 Cleveland v. Hallett, 
 
 
 , 
 
 . 372 
 
 Clevenstine's App., 
 
 
 . 
 
 . 631 
 
 Clifton v. Davis, 
 
 
 
 . 231 
 
 Haig, . 
 
 
 
 . 79 
 
 Cloud v. Martin, . 
 
 
 , 
 
 . 735 
 
 Clutton, Exparte, . 
 
 
 
 284, 315 
 
 Coates Appeal, 
 
 
 
 . 113 
 
 Coats v. Robinson, . 
 
 
 
 633, 639 
 
 Cobb v. Biddle, 
 
 
 
 . 705 
 
 Cobson v. Blenton, 
 
 
 
 . 404 
 
 Cochran v. Cochran, 
 
 
 
 586, 810 
 
 O'Hern, 
 
 
 
 . 603 
 
 Paris, . 
 
 
 735 
 
 744, 745 
 
 Cockell v. Taylor, . 
 
 
 
 . 227 
 
 Codwise v. Gelston, 
 
 
 489, 
 
 490, 505 
 
 Coggeshall v. Pelton, 
 
 
 
 . 198 
 
 Cogswell v. Cogswell, 
 
 21 
 
 3, 521, 
 
 584 
 
 550, 570, 
 586, 647 
 
 Colby v. Kenniston, 
 
 , 
 
 # . 
 
 . ' 167 
 
 Cole v. Hiles, . 
 
 
 
 . 249 
 
 O'Neill, . 
 
 
 
 244, 245 
 
 Coleman v. McKinney, 
 
 
 
 . 718 
 
 Lyne, . 
 
 
 
 . 255 
 
 Wooley, 
 
 
 , . 
 
 633, 639 
 
 Collins v. Archer, . 
 
 
 
 . 776 
 
 Carlisle, 
 
 
 .' 103 
 
 111,741 
 
 Hoxie, . 
 
 
 
 84, 826 
 
 Lavenberg, 
 
 
 
 633, 639 
 
 Rudolph, 
 
 
 
 . 630 
 
 Collinson v. Lister, 
 
 
 .' 249 
 
 250, 561 
 
 Collis v. Robins, . 
 
 '. 4 
 
 99, 500 
 
 507, 509 
 
 Colmer v. Colmer, 
 
 
 
 . 608 
 
 Colt v. Lesnier, 
 
 
 
 . 250 
 
 Colton v. Ross, 
 
 
 
 . 222 
 
 Columbia Bridge Co. v. 
 
 Klin 
 
 e, 
 
 . 76 
 
 Colvin v. Menefee, 
 
 
 
 . 393 
 
 Colyer v. Finch, 
 
 
 
 679, 776 
 
 Comby v. McMiehael, 
 
 
 
 354, 367 
 
 Com. v. Forney, . 
 
 
 , . 
 
 . 708 
 
 Martin, . 
 
 
 
 
 83 
 
 Mateer, . 
 
 
 , 
 
 
 331 
 
 Nase, 
 
 
 
 
 202 
 
 Shelby, . 
 
 
 
 
 523 
 
 Sraufler, , 
 
 
 
 
 588 
 
 Commeyer v. United G 
 
 erma 
 
 n Chui 
 
 che 
 
 s, 79 
 
 Commiss v. Walker, 
 
 
 
 
 73 
 
 Comm. of Donations v. 
 
 Wyt 
 
 rants, 
 
 
 701 
 
 Conger v. Ring, 
 
 
 
 
 808 
 
 Congregational Church 
 
 v. M 
 
 orris, 
 
 
 78 
 
 Congreve, Ex parte, 
 
 
 . 
 
 
 801 
 
 Conklin v. Egerton, 
 
 Washington 
 
 
 . 
 
 
 708 
 
 Unii 
 
 ersity, 
 
 
 516 
 
 Connah v. Sedgwick, 
 
 
 
 
 486 
 
 Conner v. Lewis, . 
 
 
 , 
 
 14 
 
 J, 151 
 
 New Albany 
 
 
 
 
 404 
 
 Ogle, . 
 
 
 , 
 
 
 603 
 
 Connor, Re, 
 
 
 , , 
 
 
 84 
 
 Conplly v. Lord Howe, 
 
 
 , , 
 
 
 251 
 
 Conrad, Ex parte, . 
 
 
 . 
 
 
 . 291 
 
 Conroe v. Birdsale, 
 Contee v. Dawson, 
 Conway v. Green, . 
 Cooke v. Crawford, 
 Cook v. Bronaugh, 
 
 Kennedy, . 
 
 Lamotto, . 
 
 Nathan, . 
 
 Williams, . 
 Coombs v. Jordan, 
 
 Mansfield, 
 Coonrod v. Coonrod, 
 Coope v. Carter, . 
 Lowerre, 
 Cooper v. Cooper, . 
 Day, 
 
 Whitney, 
 Cooper's Trusts, . 
 Copenheaver v. Huffaker, 
 Copeland v. Merc. Ins. Co., 
 Copper Min. Co. v; Beach, 
 Corbin v. Wilson, . 
 Corlies v. Little, . 
 Cornish v. Wilson, 
 Cornthwaite v. Frith, 
 Cordes v. Adrian, . 
 Corne v. Byrom, . 
 Corbett v. Laurens, 
 Corning v. White, . 
 Cornwise v. Bourgum 
 Correy v. Caxton, . 
 Corser v. Craig, 
 Coryell v. Dunton,. 
 Costabadie v. Costabadie, 
 Coster v. Griswold, 
 Cotton v. Clark, . 
 Cotton, . 
 Cottrel v. Hughes, 
 Coulter v. Robertson 
 Courtenay v. Courtenay 
 Cousen, Ex parte, . 
 Coutant v. Servoss, 
 
 Schuyler, 
 Covenhoven v. Shuler 
 Covington v. Mclntyre, 
 Cowles v. Brown, . 
 Cowling v. Douglass, 
 Cowman v. Harrison, 
 Cox v. Bateman, . 
 
 Coleman, . 
 Walker, . 
 Coykendall v. Rutherford, 
 Cozine v. Graham, 
 Cradock v. Owen, 
 
 Piper, . 
 
 Crafton v. Frith, . 
 
 Craig, Matter of, . 
 
 v. Craig, . 
 
 Kettredge, 
 
 Leslie, 
 
 Radford, . 
 Cram v. Mitchell, . 
 Crane v. Concklin, 
 Crawford's Ex. v. Patterson, 
 Crawford v. Bertholf, 
 Creed v. Lancaster Bk., 
 Creigh's heirs v. Henson 
 Crenshaw v. Anthony, . 
 Crochteron v. Jaques, . 
 Crockett v. Crockett, . 
 Maguire, . 
 Crompton v. Vasser, 
 
 . 214 
 563, 789, 822 
 . 238 
 . 417, 418 
 . 144 
 . 630 
 232, 233, 243 
 . 221 
 . 389 
 . 496 
 . 147 
 515, 530, 565 
 . 727, 790 
 . 272 
 . 373, 790 
 291, 297,789 
 . 484 
 204, 205, 206 
 . 765 
 . 239 
 . 415 
 596, 597, 600 
 . 334 
 . 499, 522 
 . 127 
 . 569 
 . 274 
 . 585 
 . 489 
 . 594 
 . 766 
 . 671 
 . 639 
 100, 735, 741 
 . 226 
 836, 838, 849 
 . 576, 577 
 376, 379, 384 
 . 367 
 . 299 
 . 801 
 . 397 
 . 92 
 . 578 
 . 578 
 735, 742, 743 
 . 395 
 . 109, 116 
 . 779 
 . 641 
 403, 404, 445 
 . 707 
 93 
 179, 180, 184, 185, 189, 
 400, 513 
 . 858 
 70, 683, 684, 685 
 . 287 
 287, 291, 706 
 . 252 
 83, 189, 190, 217 
 . 79 
 . 239 
 227, 231 
 . 599 
 . 260 
 142, 143, 150, 157 
 . 389, 393 
 . 766 
 . 75 
 . 100 
 . 262 
 . 130 
 
TABLE OF AMERICAN CASES. 
 
 XX111 
 
 Crook v. Turpin, . 
 
 Crosby v. Huston, 
 
 Cross v. Beavan, . 
 Kennington, 
 Petrie, 
 
 Croft v. Arthur, 
 
 Croxion, Ex parte, 
 
 Croyden's Trust, Re, 
 
 Crozier v. Young, . 
 
 Cruger v. Cruger, . 
 
 Halliday, 287, 
 Heyward, 
 Jones, . 
 
 Cruise v. Christopher, 
 
 Crutchfield, Ex parte, 
 Haynes, 
 
 Cruys v. Coleman, . 
 
 Cryder's App., 
 
 Cuffv. Hall, . 
 
 Cullum v. Upton, . 
 
 Cumberland v. Codington, 
 
 Cumming v. Williamson, 
 
 Cummins v. Cummins, 319 
 
 Cunningham v. Antrobus, 
 Fithian, 
 Pell, 
 
 Currens v. Hart, 
 
 Currie v. Steel, 
 
 Curry v. Fulkinson, 
 
 Curtis v. Engel, 
 
 Fulbrook, 
 Mundy, . 
 Robinson, 
 
 Cushney v. Henry, 
 
 Cushing v. Ayer, . 
 
 Cutler's Trust, Re, 
 
 Cutter v. Griswold, 
 
 Cuyler v. Bradt, . 
 
 D. 
 
 PACE 
 
 . 607, 609 
 280, 284, 766 
 . 598 
 . 527 
 . 669 
 . 157 
 
 826, 845 
 . 814 
 
 140, 157 
 . 640 
 298, 326, 328, 830 
 . 598 
 . 410 
 . 230 
 . 589 
 . 809 
 . 122 
 . 513 
 
 718, 719 
 . 427 
 . 520 
 
 514, 638 
 
 ,321,506,559,778, 
 
 779 
 
 . 618 
 
 . 221 
 
 . 783 
 
 762, 763 
 . 221 
 . 626 
 . 638 
 . 710 
 
 762, 767 
 . 838 
 . 260 
 . 766 
 . 611 
 . 157 
 
 146, 389 
 
 Dabney v. Manning, .... 349 
 Daggert v. Lane, ..... 235 
 
 Dalby v. India L. Ins. Co 264 
 
 Dale v. Hamilton, 94 
 
 Dallam v. Filler 286, 486 
 
 Wampole, . . . .639 
 Dalrymple v. Tannyhill, . . 590, 591 
 Dalton's Settlement, Re, . . 599, 814 
 Dalzell v. Crawford, . . . .496 
 Dana v. Bank of U. S.,. ... 73 
 
 Daniel v. Daniel, 404 
 
 Daniell v. Hollingshead, . . . 776 
 
 Mitchell 221 
 
 Darkin v. Darkin 143, 641 
 
 Dare v. Allen 619 
 
 Darlington v. McCoole, . . . .130 
 Darwin v. Handley, .... 486 
 Darrah v. McNair, . . . 184, 398, 400 
 
 Darrington v. Borland 501 
 
 Dartmouth College v. Woodward, 73 
 
 Dashiell v. Att.-Gen., . 192,199,201,674 
 Davant v. Guerard, . 289, 316, 404, 669 
 Davenport v. Prewett's Adm., . . 622 
 
 Davidson, Re, 295 
 
 v. Graves, .... 88 
 Little, . . 226, 227, 228 
 Proctor, . . . .118 
 
 Davies, Matter of, 294 
 
 Davis's App 722,724 
 
 Est 498 
 
 PAOE 
 
 485 
 631 
 66 
 826 
 401 
 594 
 718 
 221 
 828 
 603 
 608 
 116 
 594 
 253 
 236 
 794 
 808 
 590 
 236, 238, 710, 804, 808 
 717 
 599 
 
 214, 
 
 Davis v. Anderson, 
 
 Cain, 
 
 Child, 
 
 Davis, 
 
 Earl Dysart, 
 
 Harkness, . 
 
 Howcott, . 
 
 James, ■ . 
 
 McNeill, . 
 
 Mason, 
 
 Newton, . 
 
 Richardson, 
 
 Roberts, . 
 
 Rogers, 
 
 Simpson, . 
 
 Tingle, . 
 
 Wright, . 
 Davison v. Johonnot, 
 Davoue v. Fanning, 
 Dawes v. Betts, 
 
 Howard, . 
 
 Dawson v. Dawson, 75, 97, 130, 260, 291, 626 
 Day v. Day, . . '. . .826, 845 
 Deaderick v. Cantrell, . . 450, 451, 563 
 
 Watkins 226 
 
 Dean v. Dean 86,93, 141 
 
 De Armand v. Phillips 221 
 
 Deatly v. Murphy, 229 
 
 De Barante v. Gott 75 
 
 De Beauvoir v. De Beauvoir, . . 191 
 
 De Beil v. Thompson 532 
 
 Debell v. Foxworthy, .... 765 
 De Bevoise v. Sandford, . 236, 803, 863 
 De Caters v. Le Ray de Chaumont, . 492 
 Decouchev. Savetier, .... 388 
 Dedham Bank v. Richards, . . . 492 
 Deering v. Adams, 230, 349, 354, 359, 360,365 
 De Forest v. Bacon, 
 Dehuffv. Turbett, . 
 De Klyn v. Watkins, 
 Delafield v. Anderson, 
 
 Colden, 
 De Lane v. Moore, . 
 Delameter's Est., . 
 Delany v. Hutcheson, 
 Delaplaine v. Lawrence 
 Demarre v. Driskill, 
 Denn v. Allen, 
 
 Bolton, . 
 
 McKnight. 
 
 Van Ness, 
 Denning v. Smith, . 
 Dennis v. Dennis, 
 
 Dennison v. Gcehring, 127, 129, 130, 152, 474 
 
 High, 
 Denston v. Morris, 
 De Peyster v. Clarkson, 
 
 Clendinning, 
 Ferrers, 
 Gould; 
 Desilver's Est., 
 Devey v. Thornton, 
 Devinley v. Norris, 
 Devinney v. Reynolds, 
 De Wall v. Covenhoven, 
 Dewey v. Adams, . 
 
 Littlejohn, 
 Dewitt v. Eldred, . 
 Dex v. Barford, 
 Dexter v. Arnold, . 
 Dey v. Dunham, 
 Dias v. Brunell, , 
 Dick v. Pitehford, . 
 
 488 
 . 810 
 . 69 
 . 226 
 . 826 
 . 766 
 . 809 
 . 145 
 . 724 
 . 157 
 184, 515 
 . 699 
 . 247 
 . 373 
 . 772 
 253 
 
 252. 
 
 620 
 
 . 255 
 
 . 550, 824 
 
 291,352,578 
 
 . 442 
 
 . 142, 149 
 
 . 73 
 
 . 831, 843 
 
 . 241 
 
 . 718 
 
 . 639 
 
 . 486 
 
 . 486 
 
 . 622 
 
 . 320 
 
 . 408 
 
 . 767 
 
 . 778 
 
 588, 628, 863 
 
XXIV 
 
 TABLE OP AMERICAN CASES. 
 
 
 
 
 PAGE 
 
 Dioken v. King. 
 
 
 . 70 
 
 Diokerson's App., ... 
 
 
 . 397 
 
 Dickerson v. Dickerson, 
 
 
 . 93 
 
 Dickinson v. Codwise, . 
 
 
 143, 606 
 
 Dickinson'? Trusts, 
 
 
 . 315 
 
 Dickson's Trust, . 
 
 
 . 587 
 
 v. Miller, 
 
 
 . 639 
 
 Montgomery, 
 
 
 192, 674 
 
 Dietterich v. Heft, . . 
 
 
 . 551 
 
 Diffenderfer v. Winder, . 
 
 
 550, 551 
 
 Dillard v. Dillard, . 
 
 
 . 157 
 
 Crocker, . 
 
 
 . 142 
 
 Dilliard v. Tomlinson, • 
 
 
 . 550 
 
 Dimes v. Scott, . . 
 
 
 . 575 
 
 Steinberg, 
 
 
 . 223 
 
 Dimmock v. Bixby, 
 
 
 . 812 
 
 Dinsraore v. Biggert, . 
 
 
 367, 370 
 
 Dix v. Burford, 
 
 
 352, 794 
 
 Dobbins v. Stevens, 
 
 
 . 241 
 
 Dobson v. Racey, . 
 
 236 
 
 255, 806 
 
 Scott, . 
 
 
 . 559 
 
 Doe v. Burrough, . 
 
 
 . 725 
 
 Cafe 
 
 344 
 
 358, 359 
 
 Claridge, . 343, 355, 
 
 356 
 
 358, 363 
 
 . Courtnay, . 
 
 
 . 725 
 
 Davies, ... 
 
 
 . 365 
 
 Ferrand, 
 
 
 . 725 
 
 Fricker, 
 
 
 . 373 
 
 Hole, .... 
 
 
 725, 726 
 
 Harris, 
 
 
 325, 332 
 
 Hilder, . '. 
 
 
 . 384 
 
 Hughes, . 514, 515, 
 
 516 
 
 683, 710 
 
 Langdon, . . 376, 
 
 379 
 
 380, 385 
 
 Lewis, 
 
 
 139, 245 
 
 Lord Kensington, 
 
 
 . 725 
 
 Phillips, 
 
 
 375, 393 
 
 Robinson, . 
 
 
 . 711 
 
 Rusham, 
 
 
 . 139 
 
 Slephens, 
 
 
 725, 726 
 
 Williams, . . 359 
 
 375 
 
 725, 726 
 
 .Willis,.. . 
 
 
 . 689 
 
 Dodson v. Simpson, 
 
 
 250, 697 
 
 Doggett v. iEmer,son, _ . 
 
 221 
 
 256, 258 
 
 Dold v, Geiger, . ' . 
 
 
 . 620 
 
 Dole v. Lincoln, 
 
 
 . 92 
 
 Dominick v. Michael, . 
 
 
 . 71 
 
 Donalds v. Plumb, 
 
 373 
 
 374, 810 
 
 Donaldson y. Donaldson, 
 
 135 
 
 137, 138 
 
 West Branch Bank 
 
 
 . 622 
 
 Donnington v. Mitchell, . 
 
 
 
 626 
 
 Donohoe v. Conrahy, 
 
 
 
 . 91 
 
 Doolittle v. Lewis, . 
 
 
 
 . 709 
 
 Dormah v. Fortescue, . 
 
 
 
 258 
 
 Dorsey v. Clarke, . . 86 
 
 ,91 
 
 14 
 
 2, 150 
 
 Dorsey, . 
 
 
 
 239 
 
 Gilbert, . 
 
 
 
 591 
 
 Dorland v. Dorland, 
 
 
 
 710 
 
 Dorr v. Wainright, 
 
 
 
 288 
 
 Doswell v. Buchanan, 
 
 
 
 247 
 
 Doty v. Mitchell, . 
 
 
 
 633 
 
 Douglass v. Andrews, . 
 
 
 
 599 
 
 Brice, . 
 
 
 
 152 
 
 Congreve, . 
 
 
 
 575 
 
 Russell, 
 
 
 
 68 
 
 Dow's Petition, Re, 
 
 
 
 590 
 
 Dow v. Jewell, . 
 
 
 
 150 
 
 Dower v. Former, . 
 
 
 
 221 
 
 Downe (Viscount) v. Morris, . 
 
 
 
 79 
 
 Downer v. Downer, 
 
 
 
 731 
 
 Downman v. Rust, 
 
 525, 
 
 527, 530 
 
 Doyle v. Sleeper, . 
 
 
 142, 157 
 
 Teas, 
 
 
 768. 770 
 
 D'Oyley v. Loveland, . 
 
 . 
 
 
 496 
 
 496, 
 
 Drake v. Whitmore, 
 Drane v. Bayliss, . 
 
 Gunter, . , 
 Drayton v. Drayton, 
 Grimke, 
 Drever v. Mawdesley, 
 Drew v. Earl of jforbury 
 
 Long, 
 Dring v. Greelham, 
 Drum.v. Simpson, . 
 Drummond v. Attorney 
 Drosier v. Brerejon, 
 
 Duke. St. Albans 
 Drury v. Connor, ■ 
 
 Scott, . . 
 Drysdale's App., . 
 Duberly v. Day„ . 
 Dubose v. Dubose, . 
 Duckett v. Skinner, 
 Dueommun's App., 
 Dudley v. Boswprth, 
 Duffy v. Calvert, . 
 Duke v. Fuller, 
 Dumond v. Magee, 
 Dunbar, Re., . 
 Duncan v. Bryan, . 
 
 Forrer, . . 
 Dundas v. Biddle, . 
 Dunklcy v. Dunkley,, 
 Dunlap v. Ijunlap, . 
 Gibbs, . 
 Mitchell, 
 Dunn v. Chambers, 
 
 Keeling, . 
 Dunscomb v. Dunscomb 
 Duncome v. Levy, . 
 Dunwoodie.v. Reed, 
 Dupont v. Johnspn, 
 Dupre v. Thompson, 
 Durant v. Ritchie, . 
 
 Salley, . 
 Dustan v. Dustan, . 
 Dutch Ch. v. Mott, 
 Duval v. Craig, 
 
 Farmers' Bank. 
 Dyas v. Cruise, 
 Dyer v. Potter, 
 Dyott's Est., . 
 Dyott v. N. A. Coal Co. 
 Dwight v. Pomeroy, 
 Dwinel v. Veazie, . 
 
 E. 
 
 Eagle Fire Co. v. Lent, 
 
 Earp's Will, . 
 
 Easton v. Carter, . 
 
 Eckford v. DeKay, . 
 
 Edgar v. Donnelly, . 
 
 Edgington v. Williams, 
 
 Edmonds v. Crenshaw, 
 
 Edmondson v. Dyson, 
 
 Edwards v. Jones, . 
 Mitchell, 
 Roberts, 
 Tuck, . 
 
 Egbert v. Brooks, 
 
 Egerton v. Earl Brownlow, 
 
 Eichelberger v. Barnetz, 
 
 Elcock v. Mapp, . 
 
 Elder v. Elder, 
 
 Eldredge v. Jenkins, 
 
 Ellett v. Paxson, . 
 
 General, 
 539, 566, 
 
 289, 
 
 52, 
 
 151, 1 
 529,715 
 
 609, 
 
 260, 29 
 
 1,! 
 
 PAGE 
 . 714 
 
 . 708 
 
 328, 416 
 
 . 710 
 
 . 708 
 
 546, 554 
 
 764, 765 
 
 . 618 
 
 . 523 
 
 92, 409 
 
 . 699 
 
 777, 836 
 
 . 258 
 
 . 263 
 
 . 641 
 
 238 
 
 . 618, 620, 624 
 . 498 
 . 590 
 . 450 
 159, 160 
 716, 756 
 680, 687 
 . 616 
 . 95 
 802, 813 
 . 145 
 75, 424 
 610, 614 
 201, 520 
 . 255 
 237, 238 
 . 226 
 501, 515 
 550, 836 
 818 
 . 462 
 . 598 
 70, 127 
 339, 340 
 . 621 
 . 840 
 . 375 
 . 414 
 . 617 
 . 725 
 . 825 
 . 550 
 . 633 
 . 253 
 147, 413 
 
 . 71 
 
 . 585 
 
 319 
 
 556, 589 
 . 142 
 . 157 
 
 238, 451 
 
 474, 480 
 . 136 
 . 329 
 . 255 
 . 537 
 . 851 
 
 474, 481 
 . 578 
 179, 180 
 . 252 
 . 217 
 . 723 
 
TABLE OF AMERICAN CASES. 
 
 >XV 
 
 , Wiley 
 
 Adm 
 
 507 
 
 257 
 
 142, 
 
 Elliott v. Armstrong, 87, 142, 148. 
 
 Carter, . 
 Connell, . 
 Elliott, . 
 Horn, 
 Lewis, 
 Merryman, 
 Ellis v. Amason, . 
 
 Baldwin, . 
 
 Ellis, . 
 
 Maxwell, . 
 
 Nimmo, 
 Ellison v. Cookson, 
 Ellison, . 
 Elwin, . 
 Woody, . 
 Ellison's Trusts, Re, 
 Elmendorffv. Taylor, 
 Elms v. Hughes, . 
 Elwin v. Williams, . 
 Ennisv. Leach, 
 Ensley v. Balentine, 
 Enos v. Hunter, 
 Epley v. Witherow, 
 Episcopal Church v. 
 Erickson v. Willard, 
 Erskine's Trusts, Re, 
 Ervine's App., 
 Erwin v. Parham, . 
 Escheater v. Smith, 
 Esham v. Lamar, . 
 Eschelman v. Shuman's 
 Espey v. Lake, 
 Etty v. Bridges, 
 Evans's Estate, 
 Evans v. Brown, . 
 
 Davies, . 
 
 Ellis, 
 
 Hellier, . 
 
 Inglehart, 
 
 Jones, 
 
 Knorr, 
 
 Scott, 
 Everett, Re, . 
 
 v. Winn, . 
 Evertson v. Tappan, 
 Ewing v. Fiirness, . 
 
 Higby, . 
 
 Smith, . 
 Eyre v. Countess of Shaftesbury 
 
 Potter, 
 Eyrich v. Hetrick, . 
 
 538 
 
 75, 319, 
 
 PAGE 
 
 150, 373, 
 
 396, 397 
 
 513, 522 
 . 251 
 . 791 
 . 157 
 
 444,781 
 
 496, 530 
 . 671 
 . 621 
 
 110,112 
 . 583 
 . 129 
 . 817 
 
 129, 131 
 
 620, 625 
 . 578 
 . 332 
 
 394, 395 
 . 621 
 . 620 
 . 413 
 
 143, 148 
 . 147 
 . 762 
 . 69 
 
 101,111 
 . 610 
 . 718 
 
 226, 228 
 79, 344 
 . 227 
 . 619 
 . 232 
 . 671 
 
 451,452 
 . 79 
 . 84 
 . 240 
 . 537 
 
 575, 578 
 . 766 
 
 630,631 
 . 535 
 . '813 
 . 817 
 . 809 
 . 825 
 . 724 
 . 633 
 . 594 
 216, 251 
 
 326, 588 
 
 F. 
 
 Fagg's Trust, Re, 274 
 
 Fairfax v. Hunter, 79 
 
 Fairies App 641 
 
 Fall v. Simmons, 551 
 
 Fambro v. Gantt 250 
 
 Farly v. Bryant, .... 220, 221 
 Shippen, ... 69, 83, 145 
 
 Farmer, Re, 295 
 
 Farmers' Bank v. Douglass, . . . 226 
 Farmers', &c, Bk. v.Wayman, . . 265 
 Farmers' Loan Co. v. The People, . 78 
 
 Farrar v. Barraclough, 
 Farrier v. Cairns, . 
 Farringer v. Ramsey, 
 Fay v. Fay, . 
 Fears v. Brooks, 
 
 629, 630, 631 
 
 Farnsworlh v. Childs, 
 Farnam v. Brooks, 
 Farr v. Farr, . 
 Sheriffe, 
 Farrance v. Viley, 
 
 763, 766 
 
 219, 255, 389 
 
 . 257, 805 
 
 . 828 
 
 . 593 
 
 Fellers v. Lee, 
 Feigley v. Feigley, 
 Fellows v. Tann, 
 Felton v. Hunter, 
 
 Lang, 
 Female Association v. Beekman 
 Fenwick v. Chapman, . 
 Greenwell, . 
 Feoffees of Heriot's Hospital 
 Ferguson v. Applenhite, 
 Collins, 
 Ferguson, 
 Franklins, 
 Ferraby v. Hobson,. 
 Ferebee v. Proctor, 
 Ferris v. Brush, 
 
 Henderson, 
 Field's Settlement, Re, 
 Field v. Evans, 
 Field, 
 
 Arrowsmith, 
 Lonsdale, . 
 Mayor of N. Y 
 Moore, 
 Schieffelin, 
 Wilson, . 
 Finch v. Hollingsworth, 
 
 Shaw, 
 Finden v. Stephens, 
 Fihdlay v. Patterson, 
 Findley's Lessee v. Riddle 
 Finley v. Hunter, . 
 
 Jones, 
 Finney v. Cochran, 
 Fire Ins. Co. v. Bay, 
 Firmin v. Pulham, . 
 Fish v. Howland, . 
 
 Miller, 
 Fisher v. Boody, . 
 Field, . 
 Filbert, . 
 Fisher, . 
 Knox, 
 Taylor, . 
 Worth, . 
 Fisk v. Sarber, 
 Fitch v. Ayer, 
 
 ■ Weber, 
 Fitler v. Maitland, . 
 Fitts v. Hall, . . 
 Fitzgerald v. Peck, 
 Fitzsimmons v. Joslin, 
 Fitzpatrick v. Beatty 
 Flagg v. Man, 87, 93 
 
 Fletcher, Ex parte, 
 
 v. Peck, 
 Fleming v. Buchanan, 
 Burgin, . 
 Donahoe, 
 Teran, . 
 Townshend, , 
 Flint v. Clinton Company, 
 
 Warren,* . 
 Flqry v. Becker, 
 Floyd v. Barker, . 
 Jonson, . 
 Flowers v. Franklin, 
 
 v. Ross 
 
 P/OE 
 
 539, 5,0 
 
 . 8^5 
 
 . 148 
 
 . f49 
 
 632, 633, 
 
 634, 636 
 . 255 
 . 765 
 . 629 
 . 245 
 . 781 
 . 687 
 
 501, 528 
 
 566, 836 
 . 702 
 . 816 
 . 444 
 . 220 
 . 79 
 . 648 
 . 705 
 . 613 
 255, 256, 257 
 
 814,848 
 
 . 636 
 
 . 699 
 
 81, 237, 260, 291 
 
 153, 167 
 . 68 
 72, 590 
 
 250, 589 
 
 255, 257 
 
 94. 
 
 238, 239 
 
 122 
 
 776 
 
 111 
 
 233 
 
 474 
 
 205 
 
 825 
 
 389 
 
 514 
 
 838 
 
 814, 815,817 
 
 . 791 
 
 216,251 
 
 98, 99, 359, 372 
 
 630 
 
 585 
 
 671 
 
 588 
 
 489 
 
 , 659, 808 
 
 631 
 
 173, 190, 212 
 
 466,499 
 
 . 214 
 
 . 221 
 
 . 216 
 
 251 
 
 150, 248, 762, 768, 775, 
 
 776, 786 
 
 814 
 
 248 
 
 531 
 
 767 
 
 86, 87, 152 
 
 . 238 
 
 . 140 
 
 319 320 
 
 125, 173, 212, 676 
 
 . 620 
 
 203, 848 
 
 . 514 
 
 . 578 
 
XXVI 
 
 TABLE OF AMERICAN CASES. 
 
 267, 280, 282, 
 
 541, 558, 563 
 
 Flounoy v. Johnson, 
 Fogg v. Middleton, 
 Foley v. Burnell, . 
 Fontain v. Ravenel, 
 Foote v. Colvin, 
 Forbes v. Forbes, . 
 Lemond,. 
 
 Peacock,. 514,5] 
 Ford v. Herron, 
 
 Gaithur, . 
 Forman v. Marsh, . 
 Forsyth v. Clark, . 
 Forth v. Bunch, 
 
 Gooding, . 
 Fortescue v. Barnett, 
 Forward v. Armstead, 
 Foster v. Crabb, 
 
 Craige, . 
 Crenshaw, 
 Goree, 
 Kerr, 
 Trustees, 
 Foscue v. Foscue, . 
 Fowke v. Slaughter, 
 Fowler v. Reynal, . 
 Foxhall, Re, . 
 Fox v. Cash, . 
 
 Macreth, . 
 Phelps, 
 Foy v. Foy, . 
 Fozier v. Andrews, 
 Franciscus v. Reigart, 
 Francis v. Clemow, 
 Franklin v. Creyon, 
 Franklin, 
 Osgood, 
 Frauenfelt's Estate, 
 Frazer's Adm. v. Bevill 
 Frazier v. Frazier, . 
 
 Brownlow, 
 Freeman v. Cook, . 
 Denning, 
 Flood, 
 Freeman, 
 Fairlee, 
 Hill, . 
 Kelly, . 
 Tompkins, 
 Freeport v. Bartol, . 
 Frelick v. Turner, . 
 Fremington School, Re 
 French v. French, . 
 Freto v. Brown, 
 Frost v. Beekman, . 
 Frothingham v. Stacker 
 Furman v. Coe, 
 Fulham, Re, . 
 Furguson v. Collins, 
 
 5, 516, 
 501, 
 
 P*GE 
 
 375 
 127 
 484 
 192, 674 
 142 
 681 
 488 
 530, 758 
 . 226 
 503, 513 
 590, 591 
 151,251 
 773 
 810 
 136 
 130 
 401 
 710 
 507 
 284, 723 
 . 631 
 142, 151 
 389, 390 
 . 150 
 783, 784 
 . 287 
 . 389 
 218, 236 
 . 536 
 . ' 87 
 836, 838, 843 
 . 344 
 . 525 
 . 606 
 . 291 
 . 445 
 . 620 
 . 569 
 81, 203 
 . 639 
 578, 786 
 . 248 
 . 636 
 . 93 
 . 604 
 397 
 149, 151 
 . 853 
 . 94 
 . 594 
 . 689' 
 231,339 
 . 598 
 248, 772 
 . 767 
 593, 856 
 . 295 
 . 444 
 
 220, 568, 
 
 142, : 
 
 G. 
 
 Gable v. Miller, . 
 Gabriel v. Sturgis, 
 Gadsden, Ex parte, 
 Gaffee's Trust, 
 Gage v. Rogers, 
 Gaines v. Chew, . 
 Galbraith v. Elder, 
 Gale's Petition, 
 Gallatin v. Cunningham, 
 Gallatian v. Erwin, 
 Gallego v. Att. -General, 
 
 . 699 
 
 . 830 
 
 355, 357, 360, 363 
 
 . 629, 635, 636 
 . 826 
 
 . 140, 222, 225 
 
 . 659, 808 
 
 . 291 
 
 . 234 
 
 . 772 
 
 . 192, 199, 674 
 
 Gallimere v. Gill, . 
 Galjion v. McCaslin, 
 Gait v. Dibriel, 
 Galluchat, Ex parte, 
 Gambril v. Gambril, 
 Gardner v. Astor, . 
 
 Gardner, 
 
 Heyer, . 
 
 Marshall, 
 Gardiner v. Fell, . 
 Garland v. Loving, 
 Garner v. Garner, . 
 Moore, . 
 Strode, . 
 Garnett v. Macon, 
 
 Garniss v. Gardner, 
 Garrard v. Lord Lauderdale, 
 
 TAGS 
 
 . 503, 527 
 
 . 772 
 
 . 129 
 
 . 289 
 
 . 585, 586 
 
 . 373 
 
 496, 499, 501,638 
 
 . 84 
 
 . 614 
 
 . 70 
 
 . 590 
 
 129, 137, 260, 474 
 
 . 670 
 
 . 826 
 
 250, 495, 496, 507, 520, 
 
 758 
 
 550, 551 
 
 128 
 
 Tuck, 375, 379, 385, 390, 393, 394 
 
 550, 551 
 
 142, 785 
 
 . 68 
 
 . 253 
 
 . 723 
 
 . 494 
 
 . 227 
 
 . 682 
 
 . 608 
 
 . 718 
 
 . 598 
 
 589, 591 
 
 . 641 
 
 . 619 
 
 226, 232 
 
 . 710 
 
 825, 826 
 
 . 258 
 
 . 631 
 
 . 585 
 
 . 547 
 
 . '766 
 
 291, 789 
 
 722, 723 
 
 . 102 
 
 314, 723 
 
 . 201 
 
 . 722 
 
 764, 765 
 
 806, 809 
 
 104, 110,111 
 
 220 
 
 77 
 
 252 
 
 354 
 
 767 
 
 474 
 
 Garrett v. Carr, 
 
 Garrett, 
 Garrow v. Davis, . 
 Garwood v. Eldridge, 
 Gary v. Colgin, 
 May, . 
 Gasque v. Small, . 
 Gass v. Wilhite, . 
 Gassett v. Grout, . 
 Gast v. Porter, 
 Gay v. Ballou, 
 Genet v. Talmadge, 
 Gentry v. McReynolds, 
 George v. Goldsby, 
 Gest v. Frazier, 
 Geroe v. Winter, . 
 Getman v. Beardsley, 
 Gettiward v. Prescott, 
 Geyer v. Branch Bank, 
 Gheen v. Osborn, . 
 Ghost v. Waller, . 
 Gibbes v. Cobb,", . 
 
 Smith, . 
 Gibbs v. Cunningham, 
 
 Marsh, . 
 Gibson's Case, 
 Gibson v. Armstrong, 
 
 Jones, . 
 Gibler v. Trimble, . 
 Giddings v. Eastman, 
 Gilbert v. Chapin, . 
 
 Gilbert, . 
 Giles v. Grovy, 
 Gillespie v. Moon, . 
 Gill v. Logan, 
 
 McAttee, . 
 Glenorchy (Lord) v. Bosville, 
 Gloucester, Corp. of, v. Osborn, 109, 174, 175 
 
 485 
 
 735 
 
 621, 622 
 
 . 414 
 
 . 688 
 
 Goddard v. Hapgood, _ 
 
 Gouchenaur v. Froelich, 
 
 Gouchenour's Est., 
 
 Godley v. Taylor. . 
 
 Godmanchester Gram. School, Re, 
 
 Godwin v. Yonge, . . 253, 320, 802, 813 
 
 Goepp's Appeal 143 
 
 Going v. Emery, 191, 198, 515, 674, 687, 706 
 i i 252 
 
 81, 94, 142, 
 147 
 . 813 
 630, 633 
 . 814 
 . 252 
 . 263 
 
 Goldsborough v. Ringgold, 
 Gomez v. Tradesman's Bank, 
 
 Gooch v. Gooch, . 
 Good v. Harris, 
 Goode v. West, 
 Goodell v. Field, . 
 Goodhue v. Barnell, 
 
TABLE OF AMERICAN CASES. 
 
 XXV11 
 
 Goodrich v. Downs, 
 Proctor, 
 Staples, 
 Goodrum v. Goodrum, 
 Goodwin v. Gosnell, 
 
 Moore, 
 Gowing v. Rich, 
 Gordon v. Atkinson, 
 Green, . 
 Preston, 
 Gore v. Gibson, 
 Knight, 
 Gosling v. Carter, . 
 Gott v. Cook, . 
 Gould v. Gould, 
 Lamb, 
 Gouvernour v. Elmendorff, 
 
 Titus, 
 Grower v. Grosvenor, 
 
 Sterner, 
 Glasgow v. Sands,. 
 
 Coll. v. Att.-Gen 
 Glass y. Ramsey, . 
 Glasscock v. Minor, 
 Glaze v. Drayton, . 
 Glen v. Fisher, 
 Glenn v. McKim, . 
 Randall, . 
 Grace v. Webb, 
 Gracey v. Davis, . 
 Graff v. Castleman, 
 Graham v. Austin, . 
 Davidson, 
 Graham, 
 Lambert, 
 Little, . 
 Roberts, 
 Samuel, 
 Torrance, 
 Grant, Re, . 
 
 v. Duane, . 
 Hook, 
 Thompson, 
 Van Schoonhoven 
 Grantlandv. Wight, 
 Granville (Earl) v. McNeille 
 Gratz v. Cohen, 
 Graves v. Allen, . 
 Dugan, . 
 Gray's Est., . 
 Gray v. Fox, . 
 Hill, . 
 Lynch, 
 Shaw, 
 Thompson, 
 Woods, 
 Greedy v. Lavender, 
 Green v. Beatty, . 
 Drinker, . 
 Folgham, 
 Green, . 
 Morse, 
 White, . 
 Slayter, 
 Thompson, 
 Trieber, . 
 Winter, . 
 Greene v. Borland. 
 Greenfield's Est., 70, 93, 127 
 Greening v. Fox, . 
 Greenleaf v. Queen, 
 Greenslade v. Dare, 
 Greenville Acad., Ex parte, 
 
 495, < 
 
 TAGE 
 
 485 
 
 496, 721 
 
 213 
 
 . 606 
 
 . 784 
 
 . 622 
 
 140, 157 
 
 190, 212 
 
 89,99 
 
 . 514 
 
 . 231 
 
 . 641 
 
 516, 517, 710, 758 
 
 596, 745 
 
 222, 355 
 
 . 372 
 
 . 251 
 
 . 826 
 
 . 484 
 
 . 252 
 
 . 626 
 
 676, 699 
 
 . 845 
 
 . 217 
 
 . 260 
 
 . 532 
 
 450, 451 
 
 -. 142 
 
 . 588 
 
 . 489 
 
 . 250 
 
 . 451 
 
 390, 451 
 
 . 353 
 
 94, 127 
 
 . 718 
 
 . 585 
 
 . 766 
 
 . 390 
 
 . 74 
 
 . 408 
 
 . 496 
 
 . 72 
 
 . 639 
 
 . 413 
 
 708 
 
 230 
 
 . 81 
 
 . 151 
 
 . 622 
 
 538, 558 
 
 . 488 
 
 853, 856 
 
 . 724 
 
 . 550 
 
 . 252 
 
 608, 618 
 
 . 405 
 
 . 766 
 
 . 68 
 
 . 642 
 
 . 492 
 
 . 764 
 
 . 764 
 
 226, 229 
 
 485, 486 
 
 809, 851 
 
 272 
 
 240, 243 
 
 551 
 
 816, 722, 723, 822 
 
 768 
 
 76 
 
 442, 557, 
 
 278, 
 
 647,! 
 233, : 
 
 
 
 
 PAGE 
 
 Gregory v. Marks, . 
 
 . 
 
 . 621 
 
 Smith, . 
 
 . 
 
 . 120 
 
 Gridley v. Andrews, 
 
 
 . 525 
 
 Griffin v. Graham, . 192, 198. 
 
 674, 
 
 676, 681 
 
 Macauley, 
 
 
 . 648 
 
 Griffith v. Chew, . 
 
 
 . 261 
 
 Griffith, 75, 248, 260, 
 
 630 
 
 763, 764 
 
 Van Heythuysan, . 
 
 
 781, 816 
 
 Griffitts v. Cope, . . 192, 
 
 674 
 
 693, 701 
 
 Ricketts, 
 
 
 , . 488 
 
 Grimstone v. Carter,. 
 
 
 
 767 
 
 Griswold v. Chandler, . 
 
 . 
 
 
 550 
 
 Penniman, . 
 
 
 
 619 
 
 Smith, 
 
 . 
 
 
 767 
 
 Groton v. Ruggles, 
 
 
 
 289 
 
 Grout v. Vanschoonhoven, 
 
 
 
 70 
 
 Grover v. Wakeman, 
 
 
 
 485 
 
 Groverman v. Difienderfer, . 
 
 
 
 667 
 
 Groves v. Groves, . 
 
 
 
 146 
 
 Guerrant v. Fowler, 
 
 , 
 
 
 69 
 
 Gunn v. Barrow, . 
 
 
 
 404 
 
 Brantley, . 
 
 
 236, 808 
 
 Gunter v. Thomas, 
 
 
 . 220 
 
 Guphitt v. Isbell, . 
 
 
 140, 404 
 
 Guthrie v. Gardner, 
 
 
 153, 157 
 
 Guyer v. Maynard, 
 
 , 
 
 349, 705 
 
 Guyton v. Shane, . 
 
 
 . 827 
 
 H. 
 Habershon v. Vardon, . , 
 
 
 . 199 
 
 Hadden v. Chorn, . 
 
 . 
 
 674, 700 
 
 Haden v. Ware, 
 
 
 . 220 
 
 Hadley v. Hopkins's Academy, 
 
 191, 
 
 198, 674, 
 701 
 229 
 
 Latimer, . 
 
 
 Hadley's Trust, . 
 
 270 
 
 290, 322 
 
 Hadow v. Hadow, . 
 
 
 100, 599 
 
 Hafner v. Irwin, 
 
 
 . 485 
 
 Hagthorp v. Hook, . 
 
 
 769, 776 
 
 Haigood v. Wells, . 
 
 
 289, 594 
 
 Haines v. Ellis, 
 
 
 606, 633 
 
 , O'Connor, 
 
 
 148, 151 
 
 Hake v. Fink, 
 
 
 . 621 
 
 Haldenby v. Spofforth, . 
 
 
 782, 837 
 
 Hale v. Franek, 
 
 
 . 837 
 
 Halford v. Stains, . 
 
 
 537, 583 
 
 Hallett v. Collins, . 255,256 
 
 258 
 
 775, 808 
 
 Hallett, . . ■ . 
 
 
 . 815 
 
 Thompson, . 
 
 
 . 588 
 
 Hall's Charity, Re, • . 
 
 
 . 688 
 
 Hall v. Austin, 
 
 782,783, 7C-1 
 
 Bumstead, . 
 
 
 . 518 
 
 Dennison, . 
 
 
 . 498 
 
 Hall 
 
 
 . 614 
 
 Harris, 
 
 
 . 778 
 
 Irwin, .... 
 
 
 . 708 
 
 Hugonin, 
 
 
 . 618 
 
 Macdonald, 
 
 
 . 523 
 
 Reed 
 
 
 . 220 
 
 Sayre, .... 
 
 
 . 631 
 
 Thompson, . 
 
 
 . 218 
 
 Timmons, . 
 
 
 214, 794 
 
 Halliday, Re, . 
 
 
 . 427 
 
 Halsey v._,Whitney, 
 
 
 485, 488 
 
 Van Amringe, 
 
 
 845, 849 
 
 Halstead v. Bank of Kentucky, 
 
 
 . 247 
 
 Hamberlin v. Terry, 
 
 
 202, 222 
 
 Hamersly v. Lambert, . 
 
 
 . 83 
 
 Hamersley v. De Biel, . 
 
 
 . 253 
 
 Smith, 
 
 
 628, 629 
 
 Hamilton v.. Bishop, 
 
 606 
 
 630, 633 
 
xxvm 
 
 TABLE OF AMERICAN CASES. 
 
 FAQE 
 . 838 
 
 118,848 
 . 774 
 . 496 
 
 507, 528 
 . 550 
 . 825 
 . 604 
 72, 231 
 147, 149, 151 
 . 127 
 . 94 
 
 111,122 
 221, 229, 230 
 . 216 
 . 825 
 . 486 
 . 768 
 . 810 
 . 632 
 
 636, 638 
 . 719 
 . 551 
 
 128, 488 
 
 350, 606 
 
 104, 111,117 
 
 . 766 
 
 291, 699 
 
 237, 238 
 
 100,101 
 . 767 
 92,95 
 . 764 
 . 70 
 . 525 
 
 581,584 
 . 218 
 . 317 
 . 215. 
 
 142, 149 
 
 . 389,629 
 
 Harrison, 104,108,112,117,314, 
 332 
 Howard, .... 252 
 
 Hampshire v. Bradley 
 
 Ham's Will, Re, . 
 
 Hanly v. Sprague, . 
 
 Hannum v. Spear, . 
 
 Hancock v. Minot, . 
 
 Handly v. Snodgrass, 
 
 Hanson v. Jacks, . 
 
 Keating, 
 
 Harbison v. Lemon, 
 
 Harder v. Harder, . 
 
 Hardin v. Baird, . 
 
 Bond, . 
 
 Harding v. Glyn, . 
 
 Handy, . 
 
 Randall, 
 
 Hardy v. Call, 
 
 Skinner, . 
 
 Summers, 
 Hard wick v. Hook, 
 Harkins v. Coalter, 
 Harnett v. McDougal, 
 Harlan v. Brown, . 
 Harland's Accounts, 
 Harland v. Binks, . 
 Harley v. Platts, . 
 Harper v. Phelps, . 
 
 Reno, 
 
 Straws, . 
 Harrington v. Brown, 
 Harris, Re, . 
 Harris v. Arnold, . 
 
 Barnett, . 
 
 Carter, . 
 
 Clark, . 
 
 Fly, . 
 
 Poyner, . 
 
 Tyson, . 
 
 Rucker, . 
 
 Williamson, . 
 Harrisburg Bank v. Tyler 
 Harrison v. Brolasky, 
 
 McMennomy, 
 
 Mock, . 
 
 Rowan, 
 
 Warner, 
 Harrod v. Fauntleroy, 
 Hart v. Ten Eyck, . 
 Tribe, 
 Hartman v. Dowdal, 
 Harton v. Harton, . 
 Hartnall's Will, Re, 
 Hartzell v. Brown, . 
 Harvard College v. Amory, 
 Harvey v. Alexander, 
 Hasencleverv. Tucker, 
 Haskell v. House, . 
 Hassard v. Rowe, . 
 Hastings v. Baldwin, 
 Hatfield v. Montgomery 
 Hatton v. Weems, . 
 Haughton v. Davis, 
 Hauser v. Lehman, 
 Shore, . 
 Haviland v. Myers, 
 Hawkins v. Hawkins, 
 Hawley v. Cramer, 
 
 91 
 
 239, 497, 543, 790 
 812 
 825 
 257 
 786 
 100 
 620 
 358 
 293 
 833 
 557 
 408 
 501, 525, 528 
 705 
 589 
 498 
 255 
 626, 851,853 
 489, 816 
 . 451 
 496, 530 
 . 604 
 408, 810 
 
 238, 240,255,804 
 James, 69,70,190,201,354,528, 
 532, 536, 711, 735, 812, 851 
 
 tt ,„ „ Ros9 287,297 
 
 Haxall's Exr's v. Shippen, . . .585 
 
 Haxtun v. Corse,, . 
 
 Hayden's Exrs. v. Marmaduke 
 
 Hayden v. Bucklin, 
 
 Hays, Ex parte, 
 
 Hays v. Hollis, 
 
 v. Heidleberg, 
 
 Hayes v. Jackson, . 
 Goode, 
 Kershow, 
 
 Hayward v. Hayward, 
 
 Haywood v. Craven, . 
 Ensley, 
 
 Heager's Executors,, Re 
 
 Healey v. Alston, . 
 
 Hearn v. Crutcher, . 
 
 Heath v. Bishop, . 
 Enapp, . 
 Leafs, . 
 
 Heathman v. Hall, . 
 
 Heatley v. Finster, . 
 
 Heck v. Clippinger, 
 
 Hedges v. Riker, . 
 
 Heistner v. Former, 
 
 Helferistrine v. Garrard 
 
 Helms v. Franciscus, . 614, 
 
 Helm v. Hardin, 
 
 HBtnicup, Matter of, 
 
 Hemphill's App., . 
 
 Henderson v. Hendersoi 
 Hoke, 
 Eennicott 
 Peck, 
 Vaulx, 
 Warmack 
 
 Hendrickson v. Decow, 
 
 Hennershotz's Estate, 
 
 Hennessey v. Andrews, 
 
 Western Bank 
 
 Henry v. Morgan, . 
 Raiman, . 
 
 Henson v. Kinard, . 
 
 Hepburn v. Hepburn, 
 
 Herbert v. Hanrick, 
 
 Herr's App., . 
 
 Heriell v. Bogert, . 
 
 Hester v. Hester, . 
 Wilkinson, 
 
 Heth v. Richmond R. R. Co 
 
 Hey's Will, Re, . 
 
 Heyer v. Burger, . 
 
 Heyward v. Cuthbert, 
 
 Hickey v. Young, . 
 
 Hickling v. Boyer, . 
 
 Hickmann v. Stout, 
 
 Hicks v. Sullitt, 
 
 Higgenbottom v. Peyton 
 
 Higgins v. Joyce, . 
 
 High v. Batte, . 
 
 Hill v. Edmonds, . 
 Hill, . . 
 Josselyn, 
 
 Hillegas v. Hillegas, 
 
 Hillman v. Westwood, 
 
 Hillyard v. Miller, . 
 
 Hilton v. Giraud, . 
 
 Hinchman v. Emans, 
 
 Hind's Est., . 
 
 Hindson v. Weatherill, 
 
 Hine v. Dodd, 
 
 Hines v. Spruill, . 
 
 Hinkle v. Wanzer,. 
 
 Hintze v. Stingle, . 
 
 Hinves v. Hinves, . 
 
 127 
 
 PAoa 
 . 727 
 . 812 
 . 764 
 594, 598 
 . 150 
 490, 505 
 184, 507, 522 
 258, 390 
 129, 130 
 619, 623 
 . 200 
 . 87 
 659,808 
 . 373 
 . 498 
 . 588 
 417,421 
 . 588 
 . 630 
 . 764 
 . 630 
 715, 728 
 . 397 
 . 339 
 615, 616, 627 
 814 
 520 
 540, 557, 561 
 . 69 
 . 142 
 . 535 
 . 723 
 569, 578 
 143, 641 
 . 699 
 99, 186 
 . 767 
 486, 490, 499 
 248, 404, 771 
 . 241 
 127, 394 
 . 521 
 . 723 
 . 630 
 . 250 
 198, 708, 845 
 594, 670 
 556, 784, 786 
 . 814 
 . 643 
 . 599 
 . 147 
 521,585 
 . 255 
 258, 390 
 . 89 
 . 219 
 . 772 
 . 605 
 184, 604, 627 
 . 445 
 . 723 
 . 276 
 583, 681 
 89, 683 
 214, 220 
 . 622 
 223, 236, 240 
 767 
 499, 500, 518 
 68 
 723 
 586 
 
TABLE 01 AMERICAN CASES. 
 
 XXIX 
 
 PAGE 
 
 Hitchcock v. Bank of U. S., . . . 352 
 Clendennin, . . . 615 
 
 Hite v. Hite, 258, 532 
 
 Hoare v. Harris 413 
 
 Hobart v. Andrews, .... 489 
 
 Hobbs v. Parker, 217 
 
 Hobby v. Allen, .... 605, 618 
 Hockenbury v. Carlisle, . . . 241 
 Hodge v. Atly,-Gen., .... 75 
 Hawkins, .... 551 
 Hodges v. Blagrave, .... 415 
 Mulliken, . . . 409, 810 
 Hodgson's Settlement, Re, . 279,283,293 
 
 Hodsen v. Cash, 828 
 
 Hoes v. Van Hoesen, 507, 511, 520, 525, 528 
 
 HofTs App., 520 
 
 Hogan v. Hogan, 203 
 
 Hoge v. Hoge 224 
 
 Hoghton v. Hoghton, . 221, 232, 233, 234 
 Holbrook v. Waters, .... 620 
 
 Holder v. Durbin 267, 317 
 
 Holden v. Crawford, . . . .227 
 Holdridge v. Gillespie, . . 659, 808, 809 
 Holliday v. Coleman, .... 569 
 Sommerville, . . . 528 
 Hollinshead v. Allen, .... 95 
 
 Hollis v. Hollis, 142 
 
 Holloback v. Van Buskirk, . . . 351 
 
 Holman'sApp 803,833 
 
 Holman v. Loynes, . . . 240, 241 
 
 Holmes v. Godson, 116 
 
 Mitchell, . . . .578 
 
 Nesh 226 
 
 Holt v. Dewell, .... 447, 764 
 
 Homer v. Shelton, 578 
 
 Hone v. Van Shaick 791 
 
 Honnorv. Morton 620 
 
 Honore v Bakewell, .... 770 
 
 Hood v. Bridport, 589 
 
 Clapham 580, 581 
 
 Fahnestock, . . 247, 768, 771 
 
 Hoopes v. Dundas 588 
 
 Hoot v. Sorrell 641 
 
 Hoover v. Hoover, . 499, 522, 528, 530, 531 
 Samaritan Soc, . . . 640 
 
 Hope v. Johnson, 349 
 
 Liddell 263 
 
 Hopkins v. Gerrard, .... 767 
 
 Mazyc 220 
 
 McEldery, . . . .823 
 
 Ray, 499 
 
 Turnpike Co 73 
 
 Ward 403 
 
 Hopping v. Burnham, .... 767 
 
 Horry v. Glover 568, 578 
 
 Horsely v. Fawcett 816 
 
 Home v. Lyeth, 474 
 
 Horsefall, Re, 421 
 
 Hosack v. Rogers, 291, 492, 523, 822, 823,845 
 
 Hoskins v. Miller, '626 
 
 Hospital v. Amory, .... 272 
 Hotchkiss v. Fortson, .... 231 
 
 Houck v. Houck 710 
 
 Houlditch v. Donegal, .... 69 
 Hough v. Richardson, . . 216, 217, 255 
 Houghton, Ex parte, .... 143 
 Houston v. Embry, . ■ , 603, 631 
 Hovey v. Holcomb, .... 87 
 
 Howe v. Camp, 246 
 
 Howard v. Edgell, . . . , . 226 
 Ins. Co. v. Halsey, ." . 771 
 v. Moffett, ... 627 
 
 Howe v. Earl of Dartmouth, 
 
 
 PAGE 
 
 570, 577 
 
 Howe, 
 
 576, 
 
 577, 581 
 
 Howel v. Baker, . 
 
 
 150, 224 
 
 Howell v. Edgar, . 
 
 
 . 485 
 
 Howell, . 
 
 
 569, 623 
 
 Randsom, 
 
 
 . 240 
 
 Whitechurch, 
 
 
 . 222 
 
 Hower v. Gessaman, 
 
 
 . 404 
 
 Hoxie v. Carr, 
 
 
 . 140 
 
 Hoye v. Brewer, . 
 
 
 . 513 
 
 Hoyes v. Kindersley, 
 
 
 . 159 
 
 Hoyle v. Stowe, . 
 
 
 . 725 
 
 Hoyt v.Hilton, 
 
 
 . 593 
 
 Hubbard v. Goodwin, . 
 
 
 . 83 
 
 Huckabee v. Billingsby, 
 
 
 713, 863 
 
 Huddleston v. Whelpdale, 
 
 
 . 654 
 
 Hudgin v. Hudgin, 
 
 
 . 501 
 
 Hudnal v. Wilder, . 
 
 
 
 . 140 
 
 Hudson v. Carmichael, 
 
 
 
 . 640 
 
 Hudson, . 
 
 
 
 238, 390 
 
 Maze, . 
 
 
 
 . 498 
 
 Wadsworth, 
 
 
 
 . 569 
 
 Huff, Ex parte, 
 
 
 
 540, 716 
 
 Huger v. Huger, . 
 
 
 
 . 590 
 
 Hughes v. Caldwell, 
 
 
 289 
 
 417, 423 
 
 Edwards, 
 
 
 
 . 766 
 
 Evans, . 
 
 
 
 . 177 
 
 Morris, . 
 
 
 
 . 147 
 
 Wells, . 
 
 
 261 
 
 397, 639 
 
 Hugus v. Walker, . 
 
 
 
 . 768 
 
 Hubert v. Rector of Trinity Church 
 
 , . 255 
 
 Hulme v. Tennant, 606, 628, 630, 
 
 631,633, 
 
 
 
 639 
 
 Hudley v. Mount, . 
 
 
 . 766 
 
 Hunt v. Bass, . 
 
 238 
 
 712, 804 
 
 Booth, 
 
 , , 
 
 . 631 
 
 Crawford, . 
 
 m 
 
 . 403 
 
 Holden, . 
 
 t 
 
 . 708 
 
 Hamilton, . 
 
 , 
 
 . 222 
 
 Moore, . 
 
 
 216, 810 
 
 Rousmanier, . 
 
 220 
 
 251, 253 
 
 Scott, 
 
 , 
 
 . 579 
 
 "Watkins, . 
 
 , , 
 
 . 578 
 
 Hunter v. Gibson, . 
 
 m n 
 
 . 297 
 
 Hallett, . 
 
 
 621, 626 
 
 Lawrence's Ex'rs, 
 
 
 250, 589 
 
 Marlboro, 
 
 . 70 
 
 147, 148 
 
 Stembredge, . 
 
 
 . 112 
 
 Hunter's Will, 
 
 
 . 222 
 
 Huntley v. Huntley, . 1 
 
 17, 260 
 
 , 389, 643 
 
 Hurst's Lessee v. McNeil, 
 
 , 
 
 . 340 
 
 Hunt v. Fisher, 
 
 
 . 721 
 
 Husband v. Davis, . 
 
 t 
 
 . 449 
 
 Huskisson v. Bridge, 
 
 
 109, 114 
 
 Huson v. Wallace, . 
 
 
 . 808 
 
 Hussey, Ex parte, 
 
 , 
 
 287, 295 
 
 Huston v. Hamilton, 
 
 , 
 
 . 178 
 
 Hutchings v .'Smith, 
 
 . 
 
 . 620 
 
 Hutchins v. Hutehins, . 
 
 . 
 
 . 838 
 
 Hutchinson v. Brown, . 
 
 , t 
 
 217, 231 
 
 Hutchinson, 
 
 , 
 
 . 142 
 
 Reed, . 
 
 
 . 781 
 
 Tindall, . 
 
 '. 93 
 
 230, 231 
 
 Hutton v. Duey, . 
 
 , 
 
 642, 643 
 
 Hyne v. Campbell, 
 
 . 
 
 . 222 
 
 Hynson v. Burton, 
 
 
 80 
 
 796, 797 
 
 Iddings v. Bruen, 
 Ide v. Ide, 
 
 236, 790, 806 
 . .116 
 
XXX 
 
 TABLE OF AMERICAN CASES. 
 
 PAGE 
 
 Ilchester v. Carnarvon, . . . . 520 
 Imlay v. Huntington, . . 474, 475, 633 
 Ingam v. Toulmin, .... 255 
 
 Ins. Co. v. Bay 424 
 
 Grant, 71 
 
 Smith 405, 671 
 
 Inge v. Forrester, 633 
 
 Ingersoll v. Cooper, . , . 289, 404, 669 
 Inglis v. Sailor's Snug Harbor, . . 687 
 
 Ingraham v. Regan 255 
 
 Wheeler, . . . .485 
 
 Ingram v. Kirkpatrick, . . . 129, 833 
 
 Phillips, . . . 763, 767 
 
 Iorr v. Hodges, 350 
 
 Iredell v. Langston 851 
 
 Irvin v. Smith, 766 
 
 Irving v. De Kay, .... 845, 849 
 
 Irwin v. Harris, 809 
 
 Keen, 492 
 
 Robertson 255 
 
 Is ham v. Bennington Iron Co., . . 766 
 
 Ives v. Davenport 721 
 
 Izard v. Middleton, .... 88 
 
 J. 
 
 Jackman v. Rmgland, . . . 142, 150 
 
 Jackson v. Andrews, .... 764 
 
 Bull, .1 . . . .116 
 
 Burr, . . . . .705 
 
 Burtis 707 
 
 Cadwell, . . 248, 762, 768 
 Cary, .... 340, 3il 
 Cornell, . . . .490 
 Delancy, . . . .417 
 Feller, .... 150, 154 
 
 Fish 348 
 
 Jackson, .... 589 
 Jansen, .... 719 
 
 Ketchum 764 
 
 Leek, .... -248,766 
 
 Ligon, 718 
 
 Matsdorff, . . . 152, 158 
 Moore, . . .87, 144, 375 
 Morse, ..... 142 
 
 Myers 340 
 
 Peirce, 375 
 
 Post, 397 
 
 Potter 708 
 
 Robins, . . . .116 
 
 Schauber, .... 350 
 
 Sharp 766 
 
 Sublett, . . . 622,626 
 
 Sumerville 774 
 
 Jacobs v. Locke, 260 
 
 Jacot v. Emett, . . . . , 550 
 
 James v. James, 688 
 
 Johnson 373 
 
 T .' Mmey 373, 374 
 
 Jamison v. Brady, . . .75, 606, 630 
 
 t L c', nd , sa y' .- • • • • 825 
 
 Jameson v. Shelby, ' . . . . 550 
 
 Smith, . . . .349 
 Janes v. Whitbread, . . . .499 
 
 January v. Poyntz 550 
 
 Jaques v. Methodist Church, . . 640 
 
 T Weeks, 762 
 
 Jasper v. Howard, 633 
 
 Jencks v. Alexander, . . 140, 153, 157 
 
 J emson v. Graves, . . . . 142 14s 
 
 Hapgood, . . . 237) 238 
 
 Jenkins v. Bodley, . 
 Eldridge, 
 Pye, . . 
 Robertson, . 
 Walter, . 
 Jenkinson v. Harcourt, . 
 Jenks' Lessee v. Backhouse, 
 Jennings v. Broughton, . 
 
 Davis, . 
 Jesse v. Bennett, . 
 Jewett, Ex parte, . 
 Jewett v. Palmer, . 
 
 Woodward, . 
 Johns v. Reardon, . 
 Johnson's Appeal, . 
 Johnson v. Ball, 
 
 Blackman, . 
 
 Clarkson, . 
 
 Cunningham, 
 
 Dorsey, 
 
 Johnson, 202,234, 
 
 Humphreys, 
 Lee, 
 Lewis, . 
 Richey, 
 Ronald, 
 Tucker, 
 Eason, 
 Glasscock, 
 Gwathmey, 
 Lumb, . 
 Newton, 
 Rowlands, . 
 Webster, 209, 210, 
 Zane's Trustees, 
 Joice v. Taylor, 
 J.ones, Matter of, . 
 Jones's Appeal, 
 Jones v. Bush, 
 Cole, 
 
 Dawson, 584, 586, 847, 
 Foxall, . 
 How, 
 Jones, 
 Lewis, 
 Loftin, 
 Maggs, . 
 McKee, . 
 Maffet, . 
 Morrall, . 
 Sherrard, . 
 
 Stockett, . 298, 326, 
 Strong, . 
 Ward, . 
 Wing, 
 Jopling v. Dooley, . 
 J ordan v. Jordan, . 
 
 Hunt, 
 Joseph's Will, Re, . 
 Joyce v. Cunnels, . 
 
 De Moleyns, 
 Judge v. Wilkins, . 
 Judson v. Corcoran, 
 
 Gibbons, 314, 321, 
 Julian v. Reynolds, 
 Juvenal v. Jackson, 
 
 Patterson, 
 Juzan v. Toulmin, 
 
 K. 
 
 Kaine v. Denniston, 
 
 772, 775, 776 
 . 224 
 
 227, 234 
 . 7S2 
 . 554 
 . 520 
 . 442 
 . 257 
 
 353,816 
 . 781 
 . 590 
 . 248 
 
 490, 845 
 
 766, 767 
 
 291, 789 
 94, 97, 286 
 . 236 
 97, 203, 205 
 . 409 
 
 722, 723 
 249,450,451, 
 570, 791, 863 
 . 389 
 . 397 
 . 786 
 . 786 
 . 87 
 . 818 
 
 712, 717 
 . 223 
 . 770 
 . 641 
 
 546,553 
 
 110, 118 
 212, 374,471 
 . 817 
 . 216 
 . 290 
 
 450, 451 
 . 340 
 . 404 
 848,851,853 
 
 548, 837 
 . 815 
 
 535, 654 
 
 538, 539 
 . 722 
 
 532, 537 
 . 224 
 . 334 
 . 548 
 . 586 
 328, 812, 830 
 . 404 
 . 550 
 . 221 
 . 218 
 . 777 
 . 550 
 . 813 
 . 568 
 
 775, 776 
 . 226 
 . 671 
 331, 332, 336 
 . 238 
 . 247 
 . 248 
 
 217, 226 
 
 769 
 
TABLE OF AMERICAN CASES. 
 
 XXXI 
 
 on 
 
 Kane, Matter of, . 
 v. Bloodgood, . 
 Karr v. Karr, . 
 Kaufman v. Crawford, 
 Keachv. Sandford,. 
 Keaton v. Cobb, 
 Kee v. Vosser, 
 Keim v. Taylor,' . 
 Keisselbrack v. Livings!' 
 Keister v. Howe, . 
 Kekewitch v. Manning, 
 Keller v. Beelor, . 
 
 Nutz, 
 Kellet v. Rathbun, . 
 Kellog v. Connor, . 
 Kellogg v. Slauson, 
 Kelly v. Lank, 
 Kelsey v. Western, 
 Keltner v. Keltner, 
 Kemp v. M'Pherson, 
 Keman v. Hall, 
 Kennedy's Appeal, 
 Kennedy v. Fury, . 
 Kennedy, 
 Strong, 
 Ware, 
 Kenny v. Udall, 
 Kensington v. Bouverie 
 Kent v. Plummer, . 
 Ker v. Ruxton, 
 Kerlin v. Campbell, 
 Kerr v. Day, . 
 
 Laird, . 
 
 Snead, 
 Kerns v. Swope, . 
 Ketchum v. Ketchum, 
 Keyser v. Stanisfer, 
 Keysey's Case, 
 Kidney v. Cousmaker, 
 Kimball v. Morton, 
 Kimmell v. McRight, 
 Kinard v. Hiers, 
 Kincaid's Trust, . 
 King v. Cloud, 
 
 Donnelly, . 
 
 Hill,. . 
 
 Mitchell, . 
 
 Mullin, . 
 
 Phillips, . 
 
 Savery, . 
 
 Strong, 
 
 Travis, 
 
 Woodhull, 
 Kinnard v. Kinnard, 
 Kinsley v. Abbott, . 
 Kintzinger's Eat., . 
 Kip v. Bank of New York 
 
 Deniston, 
 Kirby v. Schoonmaker, 
 
 Taylor, . 
 Kirkham v. Booth, 
 Kirkpatrick's Trust, 
 Kirkpatrick v. Davidson, 
 McDonald, 
 
 Rogers, 
 Klapp v. Skirk, 
 Knight v. Boughton, 
 
 Cawthom, 
 
 Knight, . 
 
 Leake, . 
 
 Loomis, . 
 
 Majoribanks, 
 
 PACIE 
 
 . 598 
 
 . 388 
 
 551 
 
 539, 556, 589, 785 
 
 . 808 
 
 . 153 
 
 . 641 
 
 . 409 
 
 252, 253 
 
 . 442 
 
 68, 131, 135, 136, 671 
 
 619 
 262 
 . 551 
 . 408 
 . 498 
 . 499 
 507, 520 
 . 221 
 . 530 
 . 551 
 . 855 
 . 403 
 230, 251 
 80, 796, 797 
 129, 672 
 71, 609, 614, 616 
 . 586 
 767, 768 
 . 593 
 . 201 
 . 260 
 . 550 
 . 551 
 762, 766 
 . 825 
 . 699 
 507, 520 
 499, 505 
 . 89 
 140, 152, 157 
 . 246 
 611, 614 
 409, 810 
 260,287,291, 334 
 404 
 
 178, 179, 183, 209 
 . 865 
 
 319, 329 
 221, 240 
 
 . 202 
 . 762 
 191, 202, 674 
 569, 578 
 . 145 
 . 621 
 80, 796, 797, 798 
 450, 410 
 . 490 
 . 791 
 782, 858 
 . 543 
 89, 142 
 127, 131, 142, 
 405 
 507 
 486 
 110 
 . 818 
 . 629 
 . 623 
 
 320, 708 
 236, 806 
 
 93 
 
 108, 
 
 PAGE 
 
 Knight v. Whitehead, . . . .640 
 Kniskern v. Lutheran Church, 191, 674, 699 
 Knott v. Cottee, . . 110,542,548,555 
 
 Knotts v. Geiger, 766 
 
 Knouffv. Thompson, 152, 157, 161, 162, 768, 
 
 770 
 
 Knowles, Re . . . .814 
 
 Knox v. Picket 826 
 
 Knuckolls v. Lea, . . . . .217 
 
 Knust, Ex parte 295, 299 
 
 Kottman v. Peyton 245 
 
 Kramer v. Arthurs 775 
 
 Kreider v. Boyer 620 
 
 Krider v. Lafierty 767, 768 
 
 Krumbhaar v. Burt, .... 619 
 
 Krupp v. Scholl 244, 620 
 
 Kuhler v. Hoover 285 
 
 Kuhn v.Newman,. . . 340,342,588 
 Kyle v. Barnett 551 
 
 Lacy v. McMillen 221 
 
 , Wilson, . . . . .248 
 Lady Hewley's Charities, . . . 699 
 
 Laidlaw v. Organ, 218 
 
 Lally v. Holland, 766 
 
 Lamar V.Simpson, . . . .81 
 L'Amourreux v. Van Rensselaer, . 633, 647 
 Lanahan v. Latrobe, .... 490 
 Lancashire v. Lancashire, . . 335, 838 
 Lancaster Bk. v.. Albright, . . .218 
 Lancaster v. Dolan, . . . 514, 633 
 
 Landes v. Brant, 767 
 
 Lane's App., 551 
 
 Lane, Re 595 
 
 v. Debenham, . . 278, 418, 709 
 
 Lander v. Weston 563 
 
 Langdon v. Horton 68 
 
 Laprimaudaye v. Teissier, . . . 623 
 
 Larkins v. Biddle 220 
 
 Rhodes, . . . .148 
 Larrowe v. Beam, .... 775, 776 
 
 Lasalle v. Barnett 768 
 
 Lassiter v. Dawson, .... 608 
 Latimer v. Hanson, . 320, 326, 328, 551 
 Latourette v. Williams, . . . 620, 622 
 Latrobe v. Tiernan, . . . 445, 450 
 Laurens v. Jenney, . . . 345, 350 
 Lavender v. Lee, .... 252, 396 
 Lawrence v. Bowie, . . . 789, 842 
 
 Beaubien 220 
 
 Dale 221 
 
 Lawton v. Campion, .... 221 
 
 Lay v. Prinsep, 818 
 
 Lay's Ex. v. Brown, .... 604 
 Layton v. Layton, .... 614, 615 
 
 Lazarus v. Bryson 239 
 
 Lea v. Wheeler, 626 
 
 Lea's Exrs. v. Eidson, .... 252 
 
 Leavens v. Butler, 334 
 
 Leavitt v. Beirne 735, 745 
 
 Wooster, . . . 528, 530 
 Leaycraft v. Hedden, . . . 633, C34 
 
 Leazure v. Hillegas 76 
 
 Lee v. Huntoon, 95 
 
 Hutchinson, .... 406 
 
 Randolph, .... 260, 291 
 
 Leeds, Duke of, v. Lord Amherst, . . 569 
 
 Lefort v. Delafield, . . , . .263 
 
 Leiby v. Wolfe, 770 
 
 Leigh, Lord, v. Lord Ashburton, . . 714 
 
xxxu 
 
 TABLE OF AMERICAN CASES. 
 
 Leigh v. Earl of Balcarres, 
 Leisenring v. Black, 
 Legare v. Ash, 
 Leggettv. Dubois, ■ 
 Perkins, 
 Legg v. Legg, 
 Leiper v. Hoffman, . 
 Lemond v. Peoples, 
 Lenaghan v. Smith, 
 
 . 725, 726 
 
 . 241,808 
 
 225 
 
 72, 82, 83, 140, 146 
 
 . 342, 633 
 
 . 619 
 
 . 81, 143 
 
 . 201,841 
 
 . 780 
 
 Le Neve v. Le Neve, 247, 248, 249, 762, 766 
 
 767, 768 
 Le Prince v. Guillemot, . . 485, 487, 489 
 Lerlon v. Kingston, .... 818 
 Letcher v. Letcher, . . 142, 144, 148 
 
 Schroeder, 
 Le Vasseur v. Scratton, 
 Levering v. Levering, 
 Heighe, 
 
 Lewellin v. Cobbold 
 Lewis v. Adams, . 
 
 Bacon, 
 
 Baird, . 
 
 Bradford, . 
 
 Cook, . 
 
 Darling, . 
 
 Hillman, . 
 
 Madisons, 
 
 McLemore, 
 
 Mew, 
 
 Starke, . 
 Lichfield v. Baker,. 
 Liggett v. Wall, . 
 Ligon's Adm. v. Rogers, 
 Lincoln v. Duke of N. Castle 
 Lindenberger v. Matlack, 
 Lindsay v. Harrison, 
 Lindsay, 
 Pleasants, 
 Lining v. Peyton, . 
 Lingan v. Carroll, . 
 
 Henderson, 
 Linton v. Boly, 
 Lippincott v. Barker, 
 Warder, 
 Liptrot v. Holmes, . 
 Litchfield v. White, 
 Literary Fund v. Dawson, 
 Littlefield v. Cole, . 
 Smith, 
 Litton v. Baldwin,. 
 Livermore v. Aldrich, 
 Livingston v. Livingston 
 Newkirk. 
 Lloyd, Re, . 
 Lloyd v. Carter, 
 
 Hart, 
 
 Inglis' Exr's, 
 
 Lloyd, 
 
 Taylor, . 
 Locke v. Armstrong, 
 
 Lomas, . 
 Lockart v. Northington 
 Lockhart v. Wyatt, 
 Lockridge v. Foster, 
 Lockwood v. Stockholm 
 Lodge v. Hamilton, 
 
 Simonton, 
 Logan v. Deshay, . 
 
 Simmons, 
 Lomax v. Pendleton, 
 Ripley, 
 
 620 
 
 72 
 
 72 
 
 245 
 
 630 
 
 499,501, 502, 518,519 
 
 326, 440, 766 
 
 762, 763 
 . 558 
 
 525, 528 
 
 239, 240, 803, 804 
 
 . 762 
 
 215, 216 
 . 764 
 . 373 
 . 582 
 . 247 
 . 252 
 . 484 
 . 705 
 . 628 
 . 389 
 
 189, 190 
 . 496 
 . 203 
 . 93 
 . 495 
 . 485 
 ' . 569 
 372 
 
 794, 856 
 . 199 
 . 735 
 . 671 
 , 633 
 
 142, 148 
 
 75, 424 
 . 523 
 . 290 
 . 147 
 591 
 87,92,93 
 . 588 
 . 710 
 . 256 
 
 496, 565 
 . 710 
 . 486 
 . 216 
 . 626 
 
 619, 621 
 . 765 
 . 525 
 . 245 
 . 550 
 91,93, 95, 97,98, 110, 
 175 
 Londesborough v. Somerville, . . 571 
 
 London Gas Light Co. v. Spottiswoode, 782 
 
 Railway Co. v. Winter. 
 Long v. Cason, 
 
 Israel, 
 
 Long, 
 
 Norcom, . 
 Longstaffv. Rennison, 
 Longworth v. Goforth, 
 Longworth's Est M . 
 Longworthy v. Chadwick, 
 Lonsdale (Earl of) v. Beckett 
 Loomis's Appeal, . 
 Loomis v. McClintock, . 
 Lord v. Lowry, 
 Lorrillard v. Coster, 
 Lorimer, Re, . 
 Loscome v. Wintringham, 
 Lounsbury v. Purdy, 
 Love v. Gaze. . 
 Lovell v. Minott, . 
 Loving v. Hunter, . 
 Lowe v. Morris, 
 Lowell's App., 
 Lowman's App., . 
 Lowry v. Comm. Bank, 
 Cox, 
 
 Farmers' Bank, 
 Houston, 
 Loyd v. Currin, 
 Lucas v. At wood, . 
 
 Doe, . 
 Lockhart, 
 McBlair, . 
 Price, 
 Lucknow v. Brown, 
 Ludwig v. Highley, 
 Luken's Appeal, 
 Lupton v. Lupton, . 
 Lund v. Blanshard, 
 Lyles v. Hatton, 
 Lyman v. United Ins. Co., 
 Lynch v. Cox, 
 Lyne v. Guardian, . 
 Lyon v. Lyon, 
 
 Marclay, . 
 
 Richmond, 
 
 Sanders, . 
 Lytle v. Pope, 
 
 M. 
 
 McArtee v. Engart, . . . .226 
 McAteer v. McMullen, .... 770 
 McAllister v. Montgomery, . . .145 
 McAuley v. Wilson, . . . 192, 676 
 
 McBee v. Loftis, 248 
 
 McCall's Est 551 
 
 McCall v. Coover, 260 
 
 Harrison, .... 264 
 Lenox, . . . . .263 
 Peachy, ..... 540 
 McCalmont v. Rankin, . . . 147,251 
 McCampbell v. McCampbell, . . 513 
 McCants v. Bee, .... 232,236 
 McCaskle v. Amarine, . . . .767 
 Mackreth v. Simmons, . . . .260 
 
 Macleod v. Annesley 539 
 
 Maclin v. Smith, 594 
 
 McCosker v. Golden 642 
 
 McClure v. Miller, . . . 237, 245, 804 
 
 McColl v. Atherton, . . , .679 
 
 McConnell v. Gibson, . . ; .803 
 
 Reed, . . . .766 
 
 253 
 
 394, 395 
 
 . 825 
 
 . 530 
 
 . 594 
 
 . 683 
 
 . 238 
 
 . 586 
 
 . 569 
 
 . 270 
 
 513, 531 
 
 . 718 
 
 . 96 
 
 70, 812, 813 
 
 813 
 
 199 
 
 140, 147, 396 
 
 187 
 
 538, 557, 558 
 
 . 474 
 
 . 851 
 
 679, 704 
 . 608 
 
 264, 265 
 . 221 
 . 250 
 
 619, 626 
 . 246 
 . 489 
 . 708 
 
 108, 112 
 . 814 
 . 707 
 . 599 
 
 396,410 
 551,551,791 
 501, 507,524, 525 
 . 781 
 . 550 
 . 252 
 . 151 
 . 222 
 
 237, 238 
 . 390 
 
 220, 253 
 . 220 
 . 764 
 
TABLE OF AMERICAN CASES. 
 
 XXXI11 
 
 PAGE 
 
 . 603 
 
 192, 674 
 
 . 615 
 
 . 226 
 
 287, 291, 342 
 
 263 
 
 230 
 
 778 
 
 723 
 
 643 
 
 780 
 83, 342, 34' 
 
 McCord v. Booker, 
 
 Ochiltree, . 
 McCormick v. Garnett, . 
 Malin, . 
 MoCosker v. Brady, 
 McCoy v. Scott, . 
 McCraw v, Davis, . 
 McCrea v. Purmort, 
 MoCreary v. Hamlin, . 
 McCrocklin v. McCrocklin 
 Maccubbin v. Cromwell, 86, 87, 94, 318,320. 
 332-. 450,451,790 
 McCullough v. Wilson, . 
 McCullum v. Cox, . 
 McDermutt v. Lorillard, 
 Strong, . 
 McDonald v. King, 
 
 May, 
 
 Sims, 
 
 "Walker, . 
 McDonough's Exrs. v. Murdock, 
 McDougald v. Dougherty, 
 McDowall v. Peyton, 
 
 Goldsmith, 
 McDowell v. Caldwell, . 
 
 Lawless, . 
 
 Potter, 
 McFait's Appeal, . 
 McGachen v. Dew, 
 McGaw v. Calbraith, 
 McGehee v. Gindrat, 
 McGinn v. Shaeffer, 
 McGlaughlin v. McGlaughlin 
 McGlinsey's App., 
 McGorven v. McGorven, 
 McGan v Marshall, 
 McGuire v. McGowen, . 
 
 Ramsay, 
 Mclntire v. Hughes, 
 Middleton 
 School v. Zanesville 
 
 &c, . 
 McKay v. Carrington, 
 McKennan v. Pry, . 
 
 Phillips, 
 Mackey v. Proctor, 
 Mackie v. Mackie, . 
 McKim v. Handy, . . : 
 McKinley v. Irvine, 
 McKinney v. Pinckard, . 
 Makinnon v. Stuart, 
 McKissick v. Pickle, 
 McKnight v. Taylor, 
 McKonkey's App., . 
 McLanahan v. Henderson, 
 McLanahan, 
 Wyant, . 
 McLean v. Barton, . 
 McLeod v. Annesley, 
 McRea v Farrow, . 
 McLemore v. Goode, 
 McMahon v. Harrisoji, . 
 McMechan v. Griffing, . 
 McMeeken v. Edmonds, 
 McMurray v. Montgomery, 
 McNair's App., 
 McNeely v. Steele, 
 McNeillie v. Acton, 
 McNeilledge v. Galhraith, , 
 
 Barclay, 
 McNish v. Guerard, 289, 339, 342, 344, 347 
 
 McRaeny v. Johnston, 404 
 
 McRaven v. McGuire 766 
 
 766 
 
 . 405 
 
 . 722 
 
 . 489 
 
 . 708 
 
 . 257 
 
 . 389 
 
 . 417 
 
 76, 140 
 
 129,489 
 
 . 222 
 
 . 257 
 
 594, 851 
 
 . 520 
 
 . '621,622 
 
 508, 511, 521 
 
 783, 792, 819, 820 
 
 398, 399 
 
 . 768 
 
 . 790 
 
 . 525 
 
 640,641 
 
 . 151 
 
 . 71 
 
 142, 150 
 
 . 142 
 
 129, 130 
 
 . 810 
 
 lal, 
 
 . 260 
 
 . 260 
 
 808 
 
 , 643 
 
 71 
 
 577 
 
 '8, 737, 845, 846 
 780,817 
 . 227 
 . 128 
 213,701 
 , 255 
 . 113 
 659, 808, 809 
 87 
 525 
 255 
 780 
 720 
 585 
 . 272 
 . 776 
 . 489 
 . 452 
 249, 450 
 . 719 
 249, 250, 559 
 104, 107, 122 
 122 
 
 260, 606, 641 
 
 569, 
 
 MeVey v. Boggs, . . 
 McWborter v. Agnew, 
 Maddox v. Maddox, 
 Magawley's Trust, Re, 
 Magee v. Magee, . 
 Magill v. Brown, . 
 Magniac v. Thompson, 
 Magruder v. Peter, 
 Magwood v. Johnston, 
 Manorner v. Harrison, 
 
 Hooe, 
 Mais, In re, . 
 Majoribanks v. Hoveden 
 Malin v. Malin, . 14' 
 Malins v. Greenway, 
 Mallett v. Smith, . 
 Malzy v. Edge, 
 Man v. Peay, . 
 
 Warner, 
 Manahan v. Gibbons, 
 Manes v. Durant, . 
 Manly v. Hunt, 
 Mann's App., 
 Mann v. Betterly, . 
 Butler, . 
 Darlington, 
 Manning v. Manning, 
 Many v. Phillips, . 
 Mannings v. Randolph, 
 Mansell's Est., 
 Mansfield v. Mansfield, 
 Mant v. Leith, 
 Manuf's and Mechanic: 
 
 ofPenn, 
 Mapp v. Elcock, . 
 March v. Berrier, . 
 Marignyv. Remy,. 
 Marker v. Marker, . 
 Marks v. Pell, 
 Marr v. Chester, . 
 Marsh v. Marsh, . 
 
 Wheeler, 
 
 Marshall v. Fisk, . 
 
 Means, 
 
 Sladden, 
 
 Stephens, 
 
 Martin's App., , . 
 
 Martin v. Broad us,. 
 
 Fry, . 
 
 Greer, . 
 
 Margham, 
 
 Martin, . 
 
 Poague, . 
 
 Sale, 
 
 Sedgwick, 
 
 Sherman, 
 Martzell v. Stauffer, 
 Maryat v. Maryat, . 
 Mason's Est., . 
 Mason v. Best, 
 
 Crosby, . 
 
 Jones, 
 
 McNeill,. 
 
 Martin, . 
 
 Mason, . 
 
 Williams, 
 Massey v. Mcllwaine, 
 Masselin's Will, Re, 
 Massie v. Watts, . . 
 Matheney v. Guess,. 
 Mather v. .Norton, . . 
 Matthews v. Dragaud, 
 Ward, 
 
 Bank v. 
 
 PAGE 
 
 . 614, 615 
 . 713 
 . 588 
 . 814 
 . 151 
 76, 192, 198 
 I, 220,221,251, 347 
 . 710 
 . 639 
 142, 151 
 . 201 
 291, 293 
 . 771 
 ',213,260,814,817 
 . 847 
 . 707 
 321, 332 
 . 331 
 . 518 
 . 450 
 . 245 
 . 396 
 . 493 
 226, 227, 229 
 . 816 
 . 244 
 550, 833 
 . 826 
 . 585 
 . 520 
 . 642 
 539, 564, 634, 837 
 Bank 
 
 485 
 
 174, 179, 180, 181 
 
 . 591 
 
 . 488 
 
 . 569 
 
 . 256 
 
 . 141 
 
 507, 511 
 
 202, 705 
 
 . 339 
 
 . 70 
 
 79, 297, 714 
 
 633, 723 
 
 584, 594 
 
 . 221 
 
 . 507 
 
 142, 785 
 
 194, 676 
 
 609, 613 
 
 . 411 
 
 766, 767 
 
 . 447 
 
 . 627 
 
 . 778 
 
 . 823 
 
 . 520 
 
 . 818 
 
 . 255 
 
 596, 745 
 
 621, 622 
 
 221, 720, 804, 808 
 
 99, 373, 735, 745 ' 
 
 . 229 
 
 . 247 
 
 . 814 
 
 . 69 
 
 . 619 
 
 515, 530,758 
 
 236, 808, 809, 853 
 
 78, 375, 398, 403 
 
XXXIV 
 
 TABLE OF AMERICAN CASES. 
 
 Gen. 
 
 Maudlin v. Armistead, 
 Maunaell v. Hedges, 
 Maupin v. Dulany,. 
 Maxwell v. Henderson, 
 Kennedy, 
 Pittinger, 
 May's Heirs v. Frazee, 
 Mayberry v. Neely, 
 Maybin v. Kirby, . 
 Mayer v. Galluchat, 
 Mayfield v. Clifton, 
 Mayham v. Coomba, 
 Mayor of So. Molton v. Att 
 Meacham v. Sterns, 
 Meade v. Langdon's Heirs, 
 
 Merritt, . 
 Meador v. Sorsby, . 
 Meakings v. Cromwell, 
 Meals v. Brandon, . 
 Mechanics' Bank, Matter of, 
 v. Edwards, 
 Seton, 
 Meek v. Kettlewell, 
 Melling v. Leek, . 
 Mellish's Est., 
 Mellish v. Robertson, 
 Mennard v. Welford, 
 Mense v. McLean, . , 
 Meuude v. Delair, . 
 Mercein v. People, 
 Mercer v. Stark, 
 Meriam v. Harsen, . 
 Merrick's Est., 
 Merrill v. Smith, . 
 Merritt v. Lyon, 
 
 Farmers' Ins. Co 
 
 Lambert, 
 
 Loan Co., 
 
 Wilson, . 
 Meriweather v. Herran, 
 Merriwether v. Booker, 
 Mesick v. Mesick, . 
 Messenger v. Clarke, 
 Metcalf v. Cook, . 
 Methodist Church v. Jaques, 
 
 Remington 
 Wood, 
 
 691, 
 
 83, 
 
 28 
 
 271, 
 763, 
 
 Methold v. Turner, 
 Meux v. Bell, 
 Meyer v. Montriou, 
 Simonson, 
 Michoud v. Girod, 
 
 Middleton v. Reay, 
 Mikell v. Mikell, . 
 Miles v. Bacon, 
 
 Fisher, 
 
 Irvin, 
 
 Durnford, . 
 Milledge v. Lamar, 
 Mill v. Hill, . 
 Mills v. Argall, 
 Miller's Est., . 
 Miller v. Beverleys, 
 
 Chetwood, . 
 
 Cotton, . 
 
 Cresson, . 
 
 Gable, . . 
 
 Harwell, . 
 
 Holcombe, . 
 
 Kershaw,. . 
 
 PAGE 
 
 442 
 245 
 594 
 239 
 255, 256, 257 
 . 231 
 709, 711 
 . 631 
 671, 775 
 639, 845, 859 
 621 
 766 
 692 
 498 
 225 
 69 
 722 
 710 
 . 762 
 , 291, 789 
 . 373 
 . 265 
 . 136 
 393, 395 
 . 793 
 . 221 
 284 
 772 
 . 98 
 . 643 
 91, 140 
 . 640 
 550, 787 
 143, 641 
 . 641 
 . 417 
 . 240 
 . 422 
 . 490 
 . 68 
 . 622 
 . 451 
 . 641 
 . 633 
 143, 606, 633, 
 640, 641 
 . 682 
 . 142 
 . 598 
 . 671 
 780, 781 
 571, 573, 575 
 236, 238, 256, 257, 803, 
 804 
 279 
 856 
 497, 826, 851 
 372 
 240 
 250 
 578 
 221,415, 766,808 
 . 490 
 589, 621 
 550, 851, 854 
 . 252 
 251, 253 
 . 762 
 . 699 
 . 531 
 . 808 
 . 764 
 
 PAG! 
 
 Miller v. Lerch, 76 
 
 M'Intyre, . . . . .257 
 Meetch, 102, 320, 349, 505, 707,719 
 
 Miller, 643 
 
 Pearce 224 
 
 Priddon, . . . 274, 277, 280 
 
 Whittier 851 
 
 Williamson, . . . 633, 640 
 
 Wilson 164 
 
 Milne v. Gilbert 122 
 
 Milner v. Turner's Heirs, ... 72 
 
 Minott v. Prescott 517,718 
 
 Minturn v. Seymour 130 
 
 Minuse v. Cox, . . 550, 722, 723, 837, 845 
 Mirehouse v. Scaife, . . . .531 
 Mitchell v.. Adams, . . . .330 
 
 Bunch 69 
 
 Green, 213 
 
 Mitchell,. . . . 507,520 
 
 Pitner, 295 
 
 Rice, . . . 319, 320, 321 
 
 , Winslow 68 
 
 Mitchum v. Mitchum, . . . .238 
 Mitford v. Reynolds, ... 76, 81 
 Moale v. Buchanan, . . . .252 
 Mockbee v. Gardner, . . . .724 
 
 Moddewell v. Keever 490 
 
 Moffit v. M' Donald, . . . 142,785 
 
 Mohler's Appeal 530 
 
 Mole, Re 850 
 
 Molony, Re 298,830 
 
 Molony v. Kennedy 641 
 
 Mollan v. Griffith 531 
 
 Molton v. Camroux 73 
 
 Money, Re . 813 
 
 Monell v. Monell, . . . 450, 451, 456 
 Monro v. Allaire, .... 237, 806 
 
 Taylor, 655 
 
 Monroe v. James, 320 
 
 Montefiore, Ex parte, . . . 785, 799 
 
 Montelius v. Wright 128 
 
 Montford v. Cadogan, . . . . 779 
 
 Montgomery v. Dorion 79 
 
 Eveleigh, . . .639 
 Hobson, . . .257 
 .M'Elroy, . . .525 
 Milliken, . . .708 
 Monypenny v. Dering, . . . .481 
 Moody's Lessee v. Vandyke, 236, 238, 708 
 
 Moody v. Fulmer, 285 
 
 Moone v. Henderson, . . . 444, 781 
 
 Moor's Appeal, , 869 
 
 MoorB v. Auditor 766 
 
 Burnett, 403 
 
 Clay 247,772 
 
 Crofton 129 
 
 Darton 92 
 
 Ferguson 640 
 
 Green, 150 
 
 Hilton, . . . . .238 
 Jackson, .... 375 
 
 Jones, 631 
 
 Lockett 706 
 
 Moore, . . 589,604,609,636 
 Prance, .... 127,838 
 
 Reed, 231 
 
 Shultz, . . . 341, 345, 348, 713 
 
 Thornton, 622 
 
 Whittle, .... 500, 501 
 Mordecai v. Parker, . . . .403 
 Morehouse v. Colvin, . . . .532 
 Morey v. Forsyth 816 
 
TABLE OF AMERICAN OASES. 
 
 XXXV 
 
 Morey v. Herriqk, . 
 Morgan v. Morgan, 
 
 PA8E 
 
 87, 144, 147, 148, 224 
 
 537,575,576,577, 581, 
 
 583 
 
 Holford, 
 Annis, . 
 Morland v v Isaacs, . 
 Morley v. Morley, . 
 Morningstar v. jSelby, 
 Morris Canal v Emmett 
 Morris v. Morris, . 
 Remington, 
 Wallace, . 
 Wright, . 
 Morrison v. M'Leod, 
 Morrow v. Breriizer,. 
 Morse v. Crofoot, . 
 Mortimer v. Ireland, 
 Hartley, 
 Moffat, 
 Watts, 
 Morton v. Adams, . [ 
 Barrett, . 
 Southgate, 
 Moser v. Libenguth, 
 Moses v. J\) urgatroyd, 
 Mosbyv. StelT,' ." . . 74 
 
 Wall, 252 
 
 Mott v Clark, 243 
 
 Harrington 240 
 
 Movan v. Hays, ... 87, 93, 253 
 
 Movers v. White 78 
 
 Mt. Vernon Bk. v. Stone, . . .251 
 
 Muir v. Shenck, 671 
 
 Trustees, .... 222,255 
 
 Muldrow v. Fox, 707 
 
 Mullany v. Mullany, . . . .603 
 Mumfordv. Murray,' 451, 489, 550, 609, 617, 
 
 627 
 Mumma v. The Potomac Co., . . 262 
 
 Mumper's Appeal, 826 
 
 Munch v. Cockerell, . . 559, 564, 793 
 Mundy v. Vawter, . . . 495, 516, 766 
 
 . 213 
 . 223 
 . 264 
 374,471 
 . 225 
 . 217 
 . 569 
 . 69 
 . 557 
 . 539 
 229, 231 
 189,211 
 . 492 
 278, 418 
 . 722 
 . 569 
 652, 656 
 556, 851 
 342, 826, 845, 851 
 . 735 
 . 220 
 81, 128, 442, 488, 825 
 
 ivj-umui v. muuiui, . 
 
 Murdock's Case, . 
 
 * • 
 
 236, 806 
 
 Murdock y. Hughes, 
 
 . , 
 
 . 389 
 
 Murphy v. Grice, . 
 
 
 . 6U7 
 
 Hubert, 
 
 , , 
 
 70,87 
 
 
 
 
 Murray, Matter of, . 
 
 
 . 493 
 
 Murray v. Ballou, . 
 
 247, 248 
 
 764, 770 
 
 De Rottenham, 
 
 , 
 
 . 853 
 
 Glasse, 
 
 . 64 
 
 559, 570 
 
 Lord Elibank, . 
 
 608, 609 
 
 616, 627 
 
 Mechanics'] Bank 
 
 
 . 519 
 
 Feinour, . 
 
 '. 538 
 
 563, 564 
 
 
 
 764 
 
 Lylburn, . 
 
 . , 
 
 764, 785 
 
 Murril v. Neil, 
 
 , , 
 
 . 490 
 
 Musselman v. Eshleman, 
 
 , , 
 
 . 238 
 
 Myers's Appeal, . 
 
 , 
 
 . 239 
 
 
 
 
 Myers, . 
 
 , , 
 
 808,851 
 
 Perigal, . 
 
 • 
 
 89, 683 
 
 'N. 
 
 
 
 Naglee v. Ingersoll,. 
 
 
 . 641 
 
 
 
 
 
 
 
 
 
 
 Howard, . 
 
 
 614,627 
 
 Napier, . , . 
 
 
 609, 808 
 
 Neale v. Davies, . 
 Nedby v. Nedby, . _ 
 Neill v. Keese, t 
 Neilsonv. BligKt, . 
 
 Churchill, 
 
 Lagow, . 
 Nelson v. Allen, . 
 
 Callow, . _ 
 
 Dunn, . 
 
 Buncombe, 
 
 Lee,' 
 
 Sims, . 
 Nelson's Adm. v. Cornwall, 
 Nettleton y. Stephenson, 
 Neves v. Scott,] 
 Neville v. Demeritt, 
 
 Fortescue, 
 New v. Jones, 
 Newcastle v. Att.-Gen, 
 Newcomb v. Ketteltas, 
 
 St. Peter's Church, 
 Williams, 
 N. England Bank v. Le 
 Newhall, Ex parte, 
 Newhall v. Wheeler, 
 Newlin v. Freeman, 
 Newman y. Chapman, 
 Jackson, 
 James, 
 Meek, \ 
 Montgomery, 
 Warner, 
 Newells v. Morgan, 
 Newenham v. Pemberton, 
 New Parish v. Odiorne, 
 Newport v. Cook, . 
 Newsom v. Bufferlow, 
 Newton v.Bronson, 
 Swazey, 
 N. Y. Ins. Co. v. Rpulet, 
 Nicoll v. Mumford, 
 Nicholl v. Walworth, 
 Nicholson v. Leavitt, 
 
 \ Tuton, 
 Nichols v.'Cam'pbell, 
 
 Postelthwaite 
 Nickell v. Handby, 
 Niemcewicz v. Gahn, 
 Nightingale v. Goulbourn, 
 Niles v. Stevens, . 
 Nix v. Bradley, 
 Nokes v. Seppings, 
 Nolen's App., 
 Norcross y. Widgery, 
 Noreum v..D'CEnch, 
 Norman v.] Burnett, 
 
 _ Cunningham 
 
 '_ Stover,. 
 Norris v. Clymer, . 
 
 Johnston, 
 Wriglit, . 
 N. A. Coal Oo.y. Dyett 
 North v. Phillibrooke 
 Turner, . 
 Valk, . . ' 
 Norton v Leonard, 
 
 Norton, . 
 Nott v. Foster, 
 Noyes v. Blakeman, 
 Nunn v. Harvey, . 
 Nurce v. Ld. Seymour, 
 Nyce's Est., . 
 Nyssen v/Gretton, , 
 
 82, 
 
 PAGE 
 
 813 
 
 640 
 
 149 
 
 488 
 
 818 
 
 372 
 
 770 
 
 . 714 
 
 . 128 
 
 . 854 
 
 . 591 
 
 . 763 
 
 . 390 
 
 . 584 
 
 474, 475 
 
 408, 810 
 
 •. 581 
 
 . 858 
 
 139, 687 
 
 725, 727 
 
 192, 674 
 
 . 352 
 
 . 487 
 
 . 74 
 
 . 778 
 
 . 633 
 
 . 764 
 
 . 722 
 
 . 630 
 
 . 228 
 
 . 404 
 
 316, 736 
 
 142, 157 
 
 . 604 
 
 . 346 
 
 596, 597, 600 
 
 . 252 
 
 . 711 
 
 93, 260 
 
 . 778 
 
 . 488 
 
 354, 367, 403 
 
 . 498 
 
 488, 492 
 
 . 442 
 
 . 525 
 
 342 
 
 586, 640 
 
 , 76, 81, 199 
 
 . 707 
 
 629, 633 
 
 822, 823 
 
 . 622 
 
 . 767 
 
 719, 736 
 
 . 99 
 
 603, 786 
 
 . 837 
 
 . 590 
 
 . 588 
 
 . 784 
 
 586, 638 
 
 . 372 
 
 . 488 
 
 . 198 
 
 339, 342 
 
 354, 603 
 
 . 314 
 
 631, 633, 639, 847, 848 
 
 . 595 
 
 252 
 
 557, 558, 564, 856 
 
 .527 
 
XXXVI 
 
 TABLE OP AMERICAN CASES. 
 
 O. 
 
 PAOE 
 
 Oakley, Matter of, .... 809 
 
 Obert v. Bordine, 403 
 
 Ochiltree v. Wright, . . . .450 
 Ochleston v. Heap, . . . 278,418 
 O'Connor v. Haslem, .... 519 
 Oeslager v. Fisher, . . . 556, 808 
 Ogden v. Astor 219 
 
 Kip 318 
 
 Oglander v. Oglander, . . . 267, 317 
 
 O'Hanlon v. Den 78 
 
 Ohio Ins. Co. v. Ledyard, . . . 766 
 
 Ross 767 
 
 Oldfield v. Cobbett 427 
 
 Oldhams v. Jones 239 
 
 Oliver v. Oliver, 253 
 
 Piatt, 247, 389, 768, 770, 775, 781, 
 784, 785, 786 
 
 Onslow v. Wallis 173, 399 
 
 Ontario Bank v. Mumford, . 80,796,797 
 Root, .... 93 
 O'Reilly v. Alderson, . . 272,279,284 
 Orford (Earl of) v. Earl of Albemarle, . 514 
 Organ Meeting House v. Seaford, . 
 Orleans v. Chatham, . 
 Ormsby v. Tarascon, 
 Orrett v. Corser, .... 
 Orth v. Jenning, .... 
 Osborn v. Black, .... 
 
 Tuller 
 
 Phelps, .... 
 
 Morgan 
 
 Osgood v. Franklin, 
 Otis v. Sill, . 
 Ousely y. Anstrulher, . 
 Outcalt v. Van Winkle,. 
 Outlaw v. Morris, . 
 Overseers v. Tayloe, 
 Overton v. Lacy, . 
 Owen v. Bryant, . 
 
 Cowan, . 
 Owens v. Walker, . 
 O wings v. Myers, . 
 O wing's Case, 
 
 698 
 94 
 . 718 
 . 799 
 . 397 
 . 810 
 . 486 
 . 252 
 . 618 
 226, 343, 707, 721 
 . 89 
 
 . 508, 539, 547 
 . 619 
 . 221 
 . 198 
 . 146 
 . 84 
 
 . 190, 505, 708 
 . 596 
 . 764 
 . 72 
 
 P. 
 
 Paffv. Kinney 808 
 
 Page v. Adam, 758 
 
 Booth 257 
 
 Brown 415 
 
 Page, 142, 147, 148, 150, 151, 152 
 Painter v. Henderson, .... 236 
 
 Palmer v. Armstrong 507 
 
 Oakley,. . . . .424 
 Parham v. McCravy, . . . .257 
 
 Parker v. Gilliam, 250 
 
 Kelly 405 
 
 May 687, 697 
 
 Parkhurst v. Van Cortland, . . . 253 
 Parkist v. Alexander, . . . 239, 766 
 
 Parks v. Parks 345, 348 
 
 Jackson, 764 
 
 Parr v. Appleby 147 
 
 Jewell 251 
 
 Parrish v. Rhodes 157 
 
 Parry, Re 814 
 
 Parsons v. Boyd, . . . 145, 404, 442 
 
 Parsons, . . . 608, 619 
 
 Winslow, 291, 539, 566, 584, 789 
 
 Partridge v. Havens, . . . 142, 152 
 
 Pastell v. Skirving, .... 613 
 
 Pate v. McClure, . 
 Paterson v. Scott, . 508, 
 
 Devlin, 
 Patterson v. High, . 
 
 Murphy, 
 Pattonv. Overton,. 
 
 Richardson, 
 Paull v. Choteau, . 
 
 Squibb, 
 Paup v. Mingo,- 
 Payne v. Payne, 
 
 Sale, 
 Paxson v. Potts, . 
 Peabody v. Tarbell, 
 Peacock v. Black, . 
 Pearce v. Gardner, 
 
 McClenaghan 
 Pearson v. Crosby, 
 Daniel, . 
 Jamison, 
 Rockhill, 
 Peart, Ex parte, 
 Peatsfield v. Benn, . 
 Peck v. Henderson, 
 Peck, 
 Whiting, . 
 Peebles v. Reading, 
 Peebles' Appeal, . 
 Pell v. Ball, . 
 Pembroke v. Allenstown 
 Penfield v. Skinner, 
 Pennell's App., 
 Pennel v. Deffell, . 
 Pennock's Est., . 110, 
 Penny v. Davis, 
 
 Penny, . 
 Turner, . 
 Penrhyn v. Hughes, 
 People v.Kendall, . 
 Peppard v. Kelley, 
 Peppercorn v. Wayman. 
 Perkins v. Cartmell, 
 Kershaw, 
 McGavock, 
 Moore, . 
 Perroneau v. Perroneau 
 Perry v. Boileau, . 
 Craig, 
 De Wolf, . 
 Head, 
 Knott, 
 Pearson, . 
 Peterson v. Grover, 
 Peter v. Beverly, . 
 Peters v. Goodrich, 
 Petrie v. Clark, 
 Petriken v. Davis, . 
 Pettus v. Clawson, 
 Petty v. Boothe, 
 
 Petty, 
 Peyton v. Alcorn, . 
 McDowell, 
 Smith, . 
 Phalen v. Clark, . 
 Pharis v. Leachman, 
 Phene v. Gillan, . 
 Philbrooke v. Delano, 
 Phillips v.Belden, . 
 Cramond, 
 Everard, 
 Moore, . 
 Phillips.. 
 Sargent, 
 
 PAGE 
 
 . 291 
 509, 525, 528, 531 
 . 578 
 . 578 
 . 94 
 . 70 
 . 559 
 . 142 
 238, 804 
 . 184 
 . 603 
 354, 365 
 525, 526, 527 
 142, 147 
 . 255 
 . 718 
 . 355 
 . 485 
 . 762 
 . 711 
 129, 499 
 . 814 
 . 279 
 . 705 
 722 
 486, 499 
 150, 247, 255, 397 
 . 319 
 . 883 
 . 141 
 . 681 
 851, 853 
 554 
 113,116,237, 238 
 
 325, 326 
 782, 784 
 107, 123 
 
 . 586 
 . 214 
 . 817 
 331, 335 
 . 389 
 . 851 
 
 326, 328 
 . 352 
 . 563 
 . 630 
 
 256, 257 
 . 332 
 . 142 
 . 784 
 . 252 
 25') 
 
 501,705, 707, 71L 
 . 766 
 . 250 
 . 129 
 . 550 
 . 630 
 . 244 
 . 590 
 . 826 
 . 550 
 256, 258 
 782, 784 
 . 263 
 93, 164, 165, 171 
 . 257 
 ;, 142, 146 
 . 414 
 . 231 
 . 212 
 . 576 
 
TABLE OF AMERICAN CASES. 
 
 XXXV11 
 
 Phillipson v. Gatty, 538, 539, 543, 547, 780, 
 
 793, 816 
 Phillpott v. Elliott, .... 252 
 Philpotts v. Philpotts, . . . .146 
 Phcsnix Bank v. Sullivan, . . .492 
 
 Phyfe v. Wardell, 655 
 
 Piatt v. Oliver, . 142, 239, 714, 780, 817 
 
 Vatier . 255 
 
 Pickering v. Shotwell, 76, 192, 198, 674, 676, 
 
 679 
 
 Pickett v. Everett 619,621 
 
 Johns, 643 
 
 Loggon, .... 258 
 
 Pickup v. Atkinson 576 
 
 Picquet v. SVann, 75 
 
 Pieipont v. Graham 492 
 
 Pierce v. Pierce, 144 
 
 Hakes 166 
 
 McKeehan, . . . 147, 785 
 Thompson, . . . .621 
 
 Piesch's Est., Re 493 
 
 Pike v. Armistead, .... 766 
 
 Bacon, 486 
 
 Collins, . . . 619, 621, 623 
 Pillow v Shannon, . . . 247, 772 
 Pirn v. Downing, .... 451,452 
 Pinckney v. Pinckney, .... 508 
 Pingree v. Comstock, .... 128 
 Pinkston v. Brewster, . . 389, 393, 795 
 Pinnock v. Clough, . . . 150, 151 
 Pinney v, Fellows, 87, 142, 143, 147, 151, 630 
 Pinson v. Ivey, . . ■ . . . 389 
 
 Pintard v. Martin, 221 
 
 Piper's App., 285 
 
 Pitcher v. Barrows, .... 766 
 
 Pitt v. Petway,. 804 
 
 Pitts v. Cottingham, .... 215 
 Planck v. Schermerhorn, . 267, 495, 499 
 Planters' Bank v. Clarke, . . .499 
 
 Pleasants v. Glascocke 81 
 
 Plenty v. West, .... 511,512 
 
 Plitt, Ex parte 848 
 
 Plume v. Bone, 766 
 
 Plyer's Trust, 293 
 
 Plymouth v. Jackson 698 
 
 Poage v. Bell, 404 
 
 Pod more v. Gunning 94 
 
 Poillon v. Martin 241 
 
 Poindexter v. Blackburn, . . 578,619 
 Green, . . . .501 
 
 Polk v. Gallant, 775 
 
 Pond v. Hine, 325, 332 
 
 Pool v. Cummings, .... 260 
 
 Harrison, . . . . 81,202 
 
 Pool Bathurst's Trusts, . . .274 
 
 Pooley v. Budd, 247 
 
 Poor v. Hazleton 619 
 
 Pope v. Elliott 588 
 
 Henry 766 
 
 Jackson, 590 
 
 Whitcombe 122 
 
 Portarlington v. Soulby, ... 69 
 Porter v. Bank of Rutland, 89, 99, 101, 265, 
 
 396, 606 
 Cole, 
 Dody, 
 
 Morris, . 
 
 Watts, . 
 Powell v. Glenn, . 
 Knox, . 
 Manufact. Co, 
 Merrett, 
 Murray, 
 
 766 
 342, 474 
 . 405 
 . 830 
 . 354 
 . 442 
 142, 144 
 184, 400 
 236, 255, 257, 806 
 
 PAOE 
 
 . 142, 550 
 . 343 
 . 291, 594 
 . 263 
 . 588 
 . 496 
 . 226 
 . 568 
 . 318 
 . 591 
 . 226 
 490,491,492 
 . 84 
 . 255,519 
 . 216,217 
 . 708 
 . 189 
 81, 129, 807 
 107, 573, 576, 
 577, 580, 730, 732, 735 
 Presb. Cong. v. Johnston, . . 403, 700 
 
 Prescott v. Tyler, 77 
 
 Presley v. Davis 389, 600 
 
 Stribling, .... 404 
 
 Preston v. Melville 69 
 
 Whitcomb 252 
 
 Prevost v. Gratz, 95, 238, 256, 389, 497, 793, 
 
 869 
 Prevo v. Walters, , 
 Price v. Anderson, . 
 Berrington, 
 Hewett, 
 Lovett, 
 McDonald, 
 Methodist Church, 
 Pickett, 
 
 Powell v. Powell, 
 Posey v. Cook, 
 Potts, Ex parte, 
 Potts v. Clegg, 
 
 Richards, . 
 Potter v. Gardner, . 
 Everett, . 
 Powys v. Blagrave, 
 Poythress v. Poythress, 
 Powers v. Berger, . 
 Hale, . 
 Pratt v. Adams, 
 
 Flamer, 
 
 Northam, . 
 
 Philbrooke, 
 
 Rice, . 
 
 Taliaferro, 
 
 Thornton, , 
 Prendergast v. Prendergast, 
 
 Pollard, . 
 White, 
 Prince v. Logan, . 
 Pringle v. Allen, . 
 Phillips, . 
 Pritchett v. Newbold, 
 Proudley v. Fielder, 
 Pugh, Ex parte, 
 v. Bell, 
 Currie, 
 Purdew v. Jackson, 
 Purdy v. Doyle, 
 
 Purdy, . 
 Pusey v. Clemson, , 
 
 . 142 
 
 . 570, 572 
 
 73, 228, 251 
 
 . 214 
 
 . 70 
 
 765, 767, 769 
 
 674, 694, 701 
 
 . 585 
 
 . 796 
 
 . 764, 765 
 
 . 594 
 
 . 569 
 
 . 767 
 
 . 493 
 
 . 641 
 
 . 614,615 
 
 . 805 
 
 142, 146, 247 
 
 . 620 
 
 522 
 
 140, 144, 151 
 
 261 
 
 Putnam Free School v. Fisher, 334, 515,707, 
 
 710 
 Pyronv. Mood, .... 341,352 
 
 Q. 
 
 Quackenbush v. Leonard, . 144,721,808 
 Quarles v. Lacy, .... 712, 724 
 Quennell v. Turner, . . . .509 
 
 R. 
 
 Raby v. Redchalgh, 
 
 Rackham v. Siddall, 
 
 Radcliffe v. Rowley, 
 
 Rahn v. McElrath, . 
 
 Rainsford v. Rainsford, 
 
 Ralston v. Telfair, . 
 
 Ramey v. Green, . 
 
 Ramsey v. Marsh, 339, 340, 341, 344, 345, 348 
 
 
 , 
 
 540, 564 
 
 
 263 
 
 359, 
 
 421 
 255 
 498 
 
 
 , 
 
 599 
 
 786 
 
 
 . 177 
 
 187 
 
 833 
 
 
 
 569 
 
 570 
 
xxxvm 
 
 TABLE OF AMERICAN CASES. 
 
 Randall v.PhilKps, 
 
 Silverthorn, 
 Kan kin v.'Lodor, . 
 ■Porter, . 
 Rapa'Ije v.' Nosworthy, 
 Ratcliffe v. Ellison,- 
 Ratliffv. Huntly, . 
 Rathbun v. Platner, 
 
 Rathbun, 
 Ravisies v. Alston, . 
 Rawlings v. Adams, 
 Rawson v. Lampman, 
 Raybold v. Ray bold, 
 Rayner v. Pearsall, 
 Read v. B'eazley, . 
 Robinson, 
 Reade v. Dickey, . 
 Livingston, 
 Reader v. Barr, 
 Rearich v. Swineheart, 
 Redheimer v. Pyron, 
 Redwood v. Riddick, 
 Reed v. Fitch, 
 
 Johnson, . 
 Lamar, 
 Marble, . 
 Rees v. Waters, 
 
 Williams, . 
 Reese v. Allen, 
 
 Holmes, ; 
 
 Wyrrran, . 
 
 Reeves v. Brymer, . 
 
 Baker, . 
 
 Reformed Dutch Ch. v. Veeder. 
 
 Reg. v. Darlington School, 
 
 Dean &c, of Rochester, 
 Rennie v: Ritchie, . 
 Rendlesham v. Meux, 
 Revel v. Revel, . 
 Reynell v. Sprye, . 
 Reynolds'v. Bank of Virginia 
 
 Stark County, 
 Rham v. North, .• 
 Rhinelander v.' Barrow, 
 Rice v. Burnett, 
 Catlin,' 
 Peet, . 
 Rice, ; 
 Thompson, 
 Tonnele, . 
 Richards v. Holmes, 
 Richards (Doe dem.) v. Lewis 
 Richardson v. Adams, 
 Blight, 
 Cole, 
 Eyton, 
 Jenkins, 
 Jones, 
 Richardson, 
 .Thompson, 
 Richeson v. Ryan, . 
 Richmond v. Vanhook 
 Richwine v. Heim, 
 Riddle v. Mandeville, 
 Rider v. Kidder, 
 
 Mason, : 
 Ridgely v. JohYison,' 
 Rigler v. Clou'd, ". 
 Ring v. McCotin, ; . 
 Ringgold v. Ringgold, 
 
 PASE 
 
 . 145 
 
 . 767 
 
 485, 488 
 
 . 239 
 
 . 550 
 
 . 25,3 
 
 . 643 
 
 . 497 
 
 150, 165, 171 
 
 . 486 
 
 . 603 
 
 339 
 
 94, 143, 641, 833 
 
 . 250 
 
 643, 644 
 
 129, 130, 286, 319, 326 
 
 Wilmer, 
 Ripple v. Ripple, . 
 
 247 
 
 88, 630 
 
 265, 266 
 
 . 253 
 
 . 496 
 
 444, 781 
 
 . 142 
 
 . 494 
 
 . 633 
 
 . 67] 
 
 604, 607, 608 
 
 . 547 
 
 . 403 
 
 . 622 
 
 216, 252 
 
 . 600 
 
 108, 1 1 1 
 
 . 338 
 
 . 697 
 
 . 689 
 
 . 634 
 
 . 718 
 
 . 619 
 
 216, 217, 246 
 
 489 
 
 73 
 
 238 
 
 257 
 
 96, 341, 347, 350 
 
 . 487 
 
 . 72 
 
 769, 776 
 
 . 619 
 
 598, 600 
 
 . 722 
 
 . 139 
 
 . 224 
 
 . 222 
 
 . 863 
 
 221 
 
 782 
 
 . 258 
 
 184 
 
 253 
 
 442 
 
 201 
 
 619 
 
 264 
 
 143 
 
 588 
 
 445 
 
 606 
 
 70 
 
 714, 
 
 791 
 
 550 
 
 525 
 
 779 
 236 
 
 603 
 
 451, 550, 556, 
 721 
 
 Rippy v. Gant, 
 Ritson v. Stordy, . 
 Rivers v. Thayer, . 
 Gregg, . 
 Roach v. Bennett, . 
 Robards v. Wortham, 
 Robeson v. Harwell, 
 Robert v. West, 
 Roberts v. Broom, . 
 Collett, . 
 Roberts, Ex parte, . 
 Robertson v. Collier, 
 Bullions 
 Games, 
 Maclin, 
 McGeoch, 
 S-ublett, 
 Wendell, 
 Robins v. Embry, . 
 Hayward; 
 Robinson v. Codman, 
 Briggs, 
 Geldard, 
 Howell, 
 King, . 
 Lowater, 
 Mauldin, 
 Pett, . 
 Robinson, 
 
 503, 50 
 
 PAGB 
 
 229, 230 
 83, 399 
 
 88, 623 
 . 264 
 . 641 
 
 511, 522 
 
 89, 253 
 . 629 
 . 784 
 . 611 
 
 276, 291 
 . 578 
 
 699, 704 
 320, 707, 710 
 . 150 
 
 314, 332 
 . 129 
 . 837 
 267, 485, 498 
 . 551 
 . 603 
 . 240 
 
 532, 685 
 
 . 246 
 
 496, 515, 516,517 
 
 68, 405 
 
 . 857 
 
 226, 539, 540, 543, 
 
 544, 547, 548, 575 
 
 The Governors, 190, 212, 513 
 
 Townshend, 
 Wheelright, 
 Woelpper, . 
 Robinson's Trust, Re, . 
 Robinsons v. Allen, 
 Rochford v. Hackman, . 
 Rochfort v. Battersby, . 
 Rochon v. Lecatt, . 
 Roddy v. Williams, 
 Roden v. Murphy, . 
 Rodman v. Mtinson, 
 Rogers' Lessee v. Cawood, 
 Rogers v. Acaster, . 
 Bumpass, 
 ' Dill, 
 Earl, . 
 Fales, . 
 Jones, . , 
 ■ Ludlow, 
 Murray, 
 Patterson, 
 Rogers, 
 
 Ross, 
 • Vail, . 
 White, . 
 Ronald v. Barkley, 
 Roney v. Stiltz, 
 Roosevelt v. Ellithorp 
 Fulton, 
 Mark, 
 Rorer v. O'Brien, . 
 Roseboom v. Mosher, 
 Rosenberger's App., 
 Ross's Trust, Re, . 
 Ross v. Barclay, . 
 Duncan, . 
 Gill, .- 
 Hegeman, . 
 Ross, . 
 Vertner, . 
 Wharton, . ■ 
 
 536 
 
 635 
 
 . 620 
 
 295, 297 
 
 . 104 
 
 . 587 
 
 . 75 
 
 . 603 
 
 . 769 
 
 405, 671 
 
 . 718 
 
 . 766 
 
 . 618 
 
 . 621 
 
 590, 592 
 
 . 475 
 
 . 641 
 
 . 763 
 
 344,347, 633 
 
 151 
 
 589 
 
 238, 493, 518, 519, 521, 
 
 570, 578, 643, 837 
 
 813, 849 
 
 . 486 
 
 404, 641 
 
 . 589 
 
 . 722 
 
 . 825 
 
 . 216 
 
 518, 519 
 
 604, 608 
 
 320, 331, 718 
 
 790 
 
 635, 636, 814, 848 
 
 . 708 
 
 . 81 
 
 . 589 
 
 . 141 
 
 789, 823 
 
 . 253 
 
 . 621 
 
TABLE OF AMERICAN CASES. 
 
 XXXIX 
 
 
 
 
 PAGE 
 
 Rossett v. Fisher, . . • 
 
 . 
 
 . 
 
 723 
 
 Rosslyn'a (Lady) Trust, . 
 
 . 
 
 
 583 
 
 Routh v. Hutchinson, . 
 
 
 . 
 
 583 
 
 Row v. Dawson, . 
 
 68, 70, 
 
 669 
 
 671 
 
 Rowe v. Rowe, 
 
 . 
 
 . 
 
 640 
 
 Rowell v-Freese 
 
 , 
 
 , 
 
 140 
 
 Rowland .v. Best, . 
 
 
 
 550 
 
 Morgan, 
 
 482, 
 
 483 
 
 814 
 
 Witherden, 
 
 
 
 547 
 
 Rowley v. Adams, . 
 
 
 
 293 
 
 Rowion v. Rowton, 
 
 
 
 93 
 
 Royer's App., 539, 554, 55 
 
 6, 589, 
 
 826 
 
 833 
 
 Rucker v. Abell, . 
 
 
 
 157 
 
 Rudisell v. Watson, 
 
 
 
 631 
 
 Rumph v. Abercrombie, 
 
 227 
 
 229 
 
 230 
 
 Runnells v. Jackson, 
 
 
 
 147 
 
 Runyan v. Coster's lessee, 
 
 
 
 76 
 
 Rush's Estate, 
 
 
 . 
 
 540 
 
 Russell, Trust, Re, 
 
 
 
 390 
 
 Russell v. Allen, . 
 
 
 
 142 
 
 Clark's Executors 
 
 
 
 264 
 
 Clowes, . 
 
 
 
 186 
 
 Jackson, 
 
 95, 98 
 
 143 
 
 , 201 
 
 Jjasher, . 
 
 
 
 489 
 
 . Lode, . 
 
 
 
 142 
 
 Ex parte, 
 
 
 
 293 
 
 Plaice, . 
 
 
 
 250 
 
 Ruston v. Ruston, . 
 
 '. 507 
 
 511 
 
 , 528 
 
 Rutherford v. Green, 
 
 
 
 260 
 
 Rutledge,, Ex parte, 
 
 
 
 585 
 
 Rutledge v. Smith, 
 
 87, 94 
 
 372 
 
 , 49S 
 
 Ryall v. Rowles, . 
 
 
 
 351 
 
 Ryder, Matter of, . 
 
 
 • 
 
 597 
 
 School Directors v. Dunkelberger, 
 
 Dist. v. Bragdon 
 Schrader v. Decker, 
 Schuyler y. Hoyle, . 
 Schutt v. Large, . 
 Schwartz.Estate, . 
 Schwarz v. Wendell, 
 Scott's Estate, 
 Scott v. Beecher, . 
 
 Buchanan, 
 
 Dobson, . 
 
 Freeland, . 
 
 Gallagher, 
 
 Haddock, . 
 
 James, 
 
 McCuIlock, 
 
 Spashett, . 
 
 Tyler, 
 
 Scroggins v. McDougald 
 
 Scudder v. Van Ambur 
 
 Sacia v. Berthoud, . 
 Saeger v. Wilson, . 
 Sailor v. Herizog, . 
 St. John (Lord) Boughton,' 
 St. John's Hospital, Re, 
 Sales v. Saunders, . 
 Salisbury, Matter of, 
 Salisbury v. Bigelow, 
 Salmon v. Claggett, 
 
 Cutts, . . .23' 
 
 Green, . 
 Salomons v. Laing, 
 Saloway v. Sirawbridge 
 Saltmarsh v. Beene, 
 Sanders v. Rodway, 
 Sanderson v. White, 
 Sandford y. Jodrell, 
 Sanford v. McLean, 
 Sands v. Champlin, 
 Sangston v. Gaither, 
 Saterthwaite v. Emley, 
 Saunders v. Haughtpn, 
 Savage v. Benham, 
 
 Dicksen, 
 Sawyer v. Baldwin, 
 Saxon v. Barksdale, 
 Say v. Barnes, 
 Sayre v. Flournoy, 
 
 Towrisend, 
 Scales v. Maude, ., . 130, 131 
 Schenck v. Ellingwbod. 
 Schermerhorne v. Schermerhorne,. 
 
 Schieffelin v. Stewart, 
 Schley v. Lyon, 
 
 9C 
 
 . 250 
 . 808 
 . 768 
 . 519 
 . 689 
 . 622 
 590, 591 
 . 713 
 . 776 
 
 , 240. 806 
 . 818 
 . 781 
 . 418 
 . 238 
 . 642 
 . 690 
 . 780 
 . 71 
 . 501 
 . 486 
 . 88 
 . 578 
 . 621 
 . 825 
 . 613 
 249, 250 
 . 791 
 619, 620 
 . 144 
 
 , 134, 135 
 723, 814 
 
 515, 516, 
 
 535 
 
 550, 551 
 
 , 350, 404 
 
 PAQB 
 
 . 403 
 
 . 214 
 
 . 71 
 
 619, 622 
 
 . 248 
 
 263, 705 
 
 . 805 
 
 826, 845 
 
 . 520 
 
 . 72 
 
 . 578 
 
 234, 235, 237, 238, 808 
 
 . 767 
 
 . 794 
 
 . 622 
 
 . 770 
 
 . 614 
 
 746, 748 
 
 236, 768 
 
 764, 772 
 
 619, 622, 630 
 . 319 
 233, 255 
 . 500 
 . 486 
 . 488 
 285, 596, 597 
 787 
 127 
 775 
 140 
 150 
 584 
 774 
 . 715 
 . 226 
 486, 499 
 178, 206, 211 
 221, 226 
 
 248, 
 
 139, 
 
 ■ --¥"- .... 
 
 Seaman v. Cook, 140, 142, 143, 144, 147, 809 
 
 Searing v. Searing, 
 
 Sears v. Dillingham, 
 Shafer, . 
 
 Seaver v. Lewis, . 
 
 Seaving v. Brinkerhoff, 
 
 Seggers y. Evans, , 
 
 Seibert's App., 
 
 Selleck v. French, . 
 
 temple, Re, . 
 
 Sergeant v. Ingersoll, 
 
 Sewall v. Gliddon. . 
 
 Sewell v. Baxter, . 
 Denny, . 
 
 Sexton v. Wheaton, 
 
 Seymour y. Bull, . 
 Delancy, 
 
 Shackleford v. P. & M. Bk. 
 
 Shaeffer's Appeal, . 
 
 Shaeffer v. Slade, . 
 
 Shafer v. Davis 220 
 
 Sharp v. Pratt 707 
 
 Sharplessv. Welsh, .... 671 
 
 Sharpsteen v. Tillou 719 
 
 Sharp's Trustees, Re, . . . .814 
 
 Sharshawv. G.ibbs, . . . 585,586 
 
 Shattuck v. Cassidy 69 
 
 Hexman 499 
 
 Shaw v. McCameron, .... 285 
 
 Galbrailh , 373 
 
 Mitchell, .... 609, 619 
 Thackray, . . . .231 
 
 Shay v. Sessaman, . . . . 619 
 
 Shearin v. Ealpn, ..... 390 
 
 Sheehy v. Lord Muskerry, . . . 725 
 
 Sheidle v. Weishlee 640 
 
 Shelton v. Homer, .... 236, 349 
 
 Sheppards v. Turpin, .... 389 
 
 Shepherd v. McEvers, 75, 81, 128, 325, 326, 
 
 328 
 Stark, 
 
 Sherman v. Burnham, 
 
 Sherry v. Sansberry, 
 
 Sherwood v. Smith, 
 
 Shibla v. Ely, . 
 
 Shipp v. Bowmar, . 
 Swann, , 
 
 Shirley v. Shirley, . 
 
 Shirras v. Caig, 
 
 Shiveley v. Jones, . 
 
 Shoemaker v. Smith, 
 Walker, 
 
 Shook v. £hook, . 
 
 639, 
 
 633, 
 
 550 
 816 
 589 
 600 
 568 
 634 
 . 252 
 75, 606, 629, 641 
 . 775 
 . 765 
 . 144 
 . 603 
 442, 780 
 
xl 
 
 TABLE OF AMERICAN CASES. 
 
 PAGE 
 
 Shortz v. Unangst, . . , 409, 442 
 Sholw»llT. Molt, . . . 198,198,674 
 
 Mwray 220 
 
 Shoolbred v. Drayton 710 
 
 Show v. Conway, 825 
 
 Shrewsbury Charities, Re, . . . 689 
 Grammar School, Re, . 688 
 
 Shultz v. Moore 766 
 
 Shuman v. Reigart, . . . .619 
 Shumway v. Cooper, . . . .591 
 
 Sidle v. Walters, 148 
 
 Sidmouth v. Sidmouth, .... 143 
 
 Siggers v. Evans 128 
 
 Sigourney v. Munn, . . . 146, 768 
 
 Silkv. Prime 521, 522 
 
 Sill v. Ketchum, 816 
 
 McKnight, 286 
 
 Sillibourne v. Newport, . . .735 
 
 Silverlhorn v. McKinster, 238, 710, 718, 722 
 
 Simes v. Eyre, 782 
 
 Simmons v. Drury, 525 
 
 North 253 
 
 Rose 513 
 
 Simmonds v. Palles, . . . 127, 488 
 
 Simons v. S. W. Rail'd Bk 266 
 
 Simpson v. Simpson, . . . 642, 643 
 
 Graves, 
 Sims v. Marryat, . 
 Smith, 
 Lively, 
 Richardson, 
 Sinclair v. Jackson, 
 Wilson, . 
 Siter's Case, . 
 Siter v. McLanahan. 
 Skarffv. Soulby, . 
 Skilion v. Webster, 
 Skinner's App., 
 Skinner v. Skinner, 
 Skipwith's Ex'r v. Cunningh 
 Skrine v. Simmons, 
 Walker, . 
 Slack v. Slack, 
 Slaymaker v. The Bank, 
 Sledge's Adm'r v. Clopton 
 Slifer v. Beates, 
 Sloane v. Cadogan, 
 Slocum v. Marshall, 
 Slocum, . 
 Smilie's Estate, 
 Smilie v. Biffle, 
 Smiley v. Dixon, . 
 Smith, Re, 
 Smith v. Atwood, . 
 Babcock, . 
 Bell, 
 
 Brown, . 
 Burnham, 
 Calloway, 
 Groves, . 
 Hurst, 
 Kane, 
 
 Keating, 127 
 
 McCrary, . . . 190, 708 
 
 Oliver, 683 
 
 Porter 518, 519 
 
 Ramsay 142 
 
 Richards, . . 215,216,217 
 
 Sackett, .... 142, 147 
 Shackleford, .... 334 
 Smith, . . 244,245,558,790 
 
 Starr 629 
 
 Swarmstedt, .... 700 
 
 ' 66, 68 
 . 89 
 496, 530 
 . 247 
 375, 445, 446, 711, 726 
 798 
 619, 620, 622 
 . 623 
 . 139 
 . 700 
 619, 620 
 . 390 
 485, 486 
 . 251 
 81, 113 
 . 159 
 . 619 
 . 606 
 . 127 
 136 
 234 
 719 
 622 
 392, 394, 395, 601 
 . 660 
 291, 297 
 . 617 
 . 216 
 . 116 
 . 402 
 142, 147 
 . 389 
 . 818 
 . 127 
 
 91, 
 
 Smith v. Stern, 
 
 Thompson, 
 Turrentine, 
 Warde, . 
 Wiseman, 
 Wyekoff, 
 Young, . 
 Zaner, 
 Smitheal v. Gray, . 
 Smyth's Settlement, Re 
 Smyth v. Burns' Adm., 
 Snelgrove v. Snelgrove, 
 Sneliing v. Utterback, 
 Snelson v. Franklin, 
 Snowden v. Dunlevy, 
 Snowhill v. Snowhill, 
 Snyder v. Snyder, . 
 Sponable, 
 Sohierv. Williams, 
 Solicitor- Gen. v. Bath, 
 Sollee v. Croft, 
 Solms v. McCulloch, 
 Somes v. Skinner, . 
 South Bap. Soc. v. Clapp 
 Souverbye v. Arden, 
 Southard v. Cushing, 
 Spalding v. Hedges, 
 Sparhawk v. Allen, 
 ' Buell, 
 Sparling v. Parker, 
 Spear v. Grant, 
 
 Tinkham, 
 Speed v. Nelson, . 
 Speiglemyer v. Crawford. 
 Spencer, Re, . 
 Spence v. Duren, . 
 
 Whittaker, 
 Spencer v. Hawkins, 
 Spencer, 
 Sperry's Est., 
 Spickernell v. Hotham, 
 Spindler v. Atkinson, 
 Spoffordv. Weston, 
 Spotswood v. PendletoD 
 Sprague v. Woods, 
 Spurr v. Scoville, . 
 Squire v. Harder, . 
 Stagg v. Beekman, 
 Stall v. Macalester, 
 Stallings v. Foreman, 
 Stanes v. Parker, . 
 Stenger v. Nelson, 
 Stanley's App., 
 Stanley v. Brannon, 
 Stanwood v. Stanwood, 
 Staple's Settlement, Re 
 Stapleton v. Longstaff, 
 Stapleton, 
 Starke v. Starke, . 
 Starr v. Ellis, . 
 
 Starr, 
 State Bank v. Smith, 
 State v. Bryan, 
 
 Gerard, 
 
 Guilford, . 
 
 Holloway, 
 
 Hearst, 
 
 McGowan, 
 
 Merrill, . 
 
 Nicols, 
 
 Paup, 
 
 State of Maryland v. Bank 
 Stead v. Clay, 
 
 24' 
 
 PJSGI 
 
 ■ 397 
 342, 359, 366, 367 
 . 129 
 131, 134 
 . 204 
 . 531 
 75, 314 
 . 79 
 . 140 
 . 293 
 557 
 7, 771, 772, 776 
 . 148 
 . 218 
 . 72 
 190, 590, 591, 619 
 . 630 
 . 248 
 719, 736 
 
 389, 785, 804, 856 
 
 . 766 
 
 . 234 
 
 . 809 
 
 92, 168 
 
 . 810 
 
 . 217 
 
 . 808 
 
 593, 598 
 
 . 683 
 
 . 262 
 
 550, 569 
 
 . 521 
 
 . 217 
 
 . 814 
 
 . 215 
 
 . 217 
 
 . 495 
 
 451,519,841 
 
 500, 521 
 
 390, 391 
 
 238, 808 
 
 . 767 
 
 . 591 
 
 . 339 
 
 . 69 
 
 . 171 
 
 . 588 
 
 . 724 
 
 . 238 
 
 830, 858 
 
 . 118 
 
 554, 791 
 
 152, 158 
 
 . 619 
 
 . 814 
 
 . 590 
 
 98, 131 
 
 389, 622 
 
 373 
 
 87, 9*3, 141 
 
 . 291 
 
 . 73 
 
 198, 681 
 
 450, 451 
 
 216, 255 
 
 353 
 
 192, 198, 674 
 
 802, 813 
 
 . 352 
 
 . 220 
 
 of Maryland, 73 
 
 . 641 
 
TABLE OF AMERICAN CASES. 
 
 xli 
 
 PAGE 
 
 Stearns v. Hubbard, .... 93 
 
 Palmer 372 
 
 Stedwell v. Anderson 252 
 
 Steele v. Kimble 255 
 
 Levisay, . . . . 112, 530 
 Steel v. Steel, .... 606, 631 
 Steere v. Steere, 91, 93, 94, 98, 150, 151, 160, 
 
 165 
 Stell's Appeal, .... 450 
 Stephens v. Hotham, 
 
 Ld. Newborough 
 Sterling v. Sterling, 
 
 507 
 
 142, 
 
 Sterrett's Appeal, 
 Stevens v. Ely, 
 
 Gregg, . 
 Stevenson v. Brown, 
 Steward's Est., Re, 
 Stewart's App., 
 Stewart v. Brown, . 
 Kirkland, 
 McMinn, 
 Pelius, . 
 Stewart, 
 Stiers v. Sliers, 
 Stilwell v. McNeeley, 
 Stine v. Wilkison, . 
 Stocks v. Dobson, . 
 Stockton v. Ford, . 
 Stoddart v. Allen, . 
 Stoker v. Yelby, . 
 Stokes v. Holden, . 
 McKibbin, 
 Stone v. Griffin, 
 
 Godfrey, . 
 Hale, 
 Hinton, 
 Massey, . 
 Rowton, . 
 Theed, . 
 Stoolfoss v. Jenkins, 
 Stover v. Wheatley, 
 Stout v. Higbee, . 
 
 Levan, 
 Stovel v. North Bank, Miss, 
 Strathmore v. Bowes, 
 Stretton v. Ashmall, . . 539 
 Striker v. Molt, 
 
 Strimpfler v. Roberts, . 140, 141 
 Strong's Ex. v. Brewer, 
 Strong v. Carrier, . 
 Gregory, 
 Smith, . 
 
 Willis, . . . 326, 
 Stroughill v. Anstey, 495, 496, 514, 529, 530 
 
 719, 758 
 
 Stuart v. Carson 520 
 
 Kissam, . 236, 630, 639, 805, 808 
 
 Stultz, Re, .- 588 
 
 Stump v. Gaby, 213, 236, 240, 241, 256, 790 
 
 452 
 
 414 
 
 845 
 
 643 
 
 450, 451, 843 
 
 . 172 
 
 520, 525 
 
 . 60R 
 
 570 
 
 622 
 
 144 
 
 . 68 
 
 . 851 
 
 . 442 
 
 . 641 
 
 . 722 
 
 . 814 
 
 . 722 
 
 . 671 
 
 . 241 
 
 491, 492 
 
 . 404 
 
 . 83 
 
 . 603 
 
 . 260 
 
 221, 389 
 
 . 253 
 
 . 721 
 
 . 204 
 
 276, 277 
 
 . 654 
 
 214,, 794 
 
 . 122 
 
 . 489 
 
 . 620 
 
 . 253 
 
 244, 245 
 
 , 540, 566 
 
 . 342 
 
 , 142, 389 
 
 . 578 
 
 . 486 
 
 630 
 
 620 
 
 328, 809 
 
 Sturgis v. Champneys, 
 Stuyvesant, Matter of, . 
 Stuyvesant v. Hall, 
 Hone, . 
 Styer v Freas, 
 Suarez v. Pumpelly, 
 Suir Island Charity, Re, 
 Sumner v. Rhodes, 
 
 Williams, 
 Sutherland v. Cooke, 
 Sutton v. Cradoek, . 
 Sutton, . 
 Suydam v. Martin, . 
 Swallow v. Binns, . . 
 
 604, 612 
 
 . 297 
 
 . 262 
 
 . 764 
 
 . 718 
 
 98, 287, 291 
 
 . 688, 693 
 
 . 766 
 
 . 413 
 
 . 577 
 
 . 569 
 
 . 724 
 
 . 247 
 
 . 534, 535 
 
 Swan v. Liean, 
 Swasey v. Little, . 
 Swearingen v. Slicer, 
 Sweet v. Jacoclts, . 
 Sweezy v. Thayer, 
 Sweigart v. Berk's Adm 
 Swift v. Mutual Ins. Co, 
 
 Stebbins, . 
 Swink's Adm, v. Snodgrass, 
 Swinton v. Egleston, 
 Swindall v. Swindall 
 Switzer v. Skiles, . 
 Swoyer's App., 
 
 T. 
 
 585 
 
 498, 
 
 PAUE 
 
 569, 819 
 . 530 
 . 485 
 . 239 
 591 
 718 
 . 409 
 . 814 
 . 250 
 . 202 
 . 551 
 93 
 55*8, 721 
 
 Tabb v. Baird, 
 
 
 
 , 
 
 341 
 
 Taggard v. Calcott, 
 
 
 
 
 641 
 
 Tainter v. Clark, . 
 
 
 
 705, 
 
 708 
 
 Talbot v. Cook, . 
 
 
 
 
 671 
 
 Taliaferro v. Taliaferro, 
 
 
 
 142, 
 
 150 
 
 Talley v. Starke, . 
 
 
 
 
 590 
 
 Tallman v. Wood, . 
 
 
 
 
 480 
 
 Tardy v. Morgan, . 
 
 
 
 
 768 
 
 Tarleton v. Vietes, 
 
 
 
 , 
 
 93 
 
 Tarpley v. Poage, . 
 
 
 
 . 
 
 142 
 
 Tarr v. Williams, . 
 
 
 
 g 
 
 633 
 
 Tarver v. Tarver, . 
 
 
 
 
 222 
 
 Tate v. Connor, 
 
 
 
 
 390 
 
 Leithead, . 
 
 
 
 , 
 
 92 
 
 Tatlock v. Jenkins, 
 
 
 
 
 513 
 
 Tavener v. Robinson, 
 
 
 
 . 
 
 863 
 
 Tayloe v. Bond, 
 
 
 
 578, 
 
 813 
 
 Taylor, Re, . 
 
 
 
 . 
 
 846 
 
 Taylor v. Adams, . 
 
 
 
 
 722 
 
 Anderson, 
 
 
 
 
 613 
 
 Benham, 
 
 83, 
 
 41 
 
 7, 450 
 
 705 
 
 Galloway, 
 
 
 3; 
 
 4,514 
 
 714 
 
 Haygarth, 
 
 173, 
 
 IS 
 
 4, 206 
 
 399 
 
 James, . 
 
 
 
 129, 
 
 152 
 
 King, . 
 
 
 
 . 
 
 403 
 
 Lucas, . 
 
 
 
 , 
 
 202 
 
 Moore, . 
 
 
 
 , 
 
 408 
 
 Morris, . 
 
 
 
 708, 
 
 709 
 
 Roberts, 
 
 
 
 
 450 
 
 Taylor, 152, 1 
 
 59, 190 
 
 2 
 
 2, 213 
 
 234 
 
 Tibbatts, 
 
 
 
 , 
 
 332 
 
 Taymon v. Mitchell, 
 
 
 
 
 216 
 
 Teakle v. Bailey, . 
 
 
 
 . , 
 
 239 
 
 Teas', App., . 
 
 
 
 
 531 
 
 Tebbetts, Matter of, 
 
 
 
 f , 
 
 795 
 
 Telford v. Barney, . 
 
 
 
 
 711 
 
 Temple v. Hawley, 
 Tench v. Cheese, . 
 
 
 
 7J 
 
 , 72 
 
 
 
 
 513 
 
 Ten Eyck v. Simpson, 
 
 
 
 , 
 
 260 
 
 Tenant v. Stoney, . 
 
 
 is 
 
 9,492 
 
 631 
 
 Tenison v. Sweeney, 
 
 
 
 , 
 
 764 
 
 Tennent v. Tennent, 
 
 
 
 
 481 
 
 Terry v. Brunson, . 
 
 
 
 619 
 
 622 
 
 Hopkins, . 
 
 
 
 
 245 
 
 Tevis v. Doe, . 
 
 
 
 
 140 
 
 Richardson, 
 
 
 
 
 613 
 
 Thatcher v. Omans, 
 
 
 
 t g 
 
 340 
 
 Thomas v. Ellmaker, 
 
 
 
 198 
 
 681 
 
 Grand Gulf] 
 
 3ank", 
 
 
 , g 
 
 766 
 
 Higham, 
 
 
 
 , 
 
 297 
 
 Jenks, . 
 
 129 
 
 4i 
 
 !5, 486 
 
 ,498 
 
 Kelsoe, 
 
 
 
 t 
 
 619 
 
 McCann, 
 
 
 
 
 216 
 
 Selby, . 
 
 
 
 , , 
 
 818 
 
 Scruggs, 
 
 
 
 . 
 
 451 
 
xlii 
 
 TABLE OP AMERICAN CASES. 
 
 
 
 PAGE 
 
 Thomas v. Sheppard, . . 25 
 
 ,9, 604 
 
 607 
 
 Townsend, . 
 
 
 724 
 
 . Walker,. . 
 
 141, 
 
 142 
 
 Thompson v. Blair, 
 
 
 257 
 
 Dulles, . 
 
 289, 
 
 424 
 
 Ellsworth, 
 
 , 
 
 621 
 
 Ford, 
 
 
 404 
 
 Jackson, . 
 
 
 251 
 
 McDonald, 
 
 
 411 
 
 McKisick, 
 
 112, 
 
 116 
 
 Meek, 
 
 
 331 
 
 Newlin, . 
 
 
 71 
 
 Swoope, . 
 
 681, 
 
 683 
 
 Thompson, 87, 15 
 
 2, 154 
 
 291 
 789 
 
 Wheatley, 
 
 
 236 
 
 Thompson's App 
 
 143, 
 
 247 
 
 Thomson v. Gaillard, . 
 
 
 705 
 
 Thorn v. Coles, 
 
 
 190 
 
 Thornburgh v. - Macauley , 
 
 
 314 
 
 Thornton v. Ellis, . 
 
 
 581 
 
 Henry, 
 
 
 93 
 
 Stokell, 
 
 
 785 
 
 Winston, . 
 
 
 331 
 
 Thorp v. McCullum, . 
 
 237, 
 
 804 
 
 Thorp, Re 
 
 
 550 
 
 Thurston v. Dickinson, . 
 
 
 584 
 
 Tidd v. Lister 
 
 513, 
 
 612 
 
 Tiernan v> Roland, 
 
 260, 
 
 440 
 
 Tierney v. Wood, . 
 
 
 135 
 
 Tilghman's Est., . 
 
 
 190 
 
 Tilton v. Hunter, . 
 
 
 262 
 
 Tilton, . 
 
 
 252 
 
 Timbers v. Katz, . 
 
 
 621 
 
 Titley v. Wolstenholme, 
 
 
 417 
 
 Todd v. Buckman, . 
 
 
 498 
 
 Moore, 
 
 
 238 
 
 Sterret, 
 
 
 815 
 
 Wilson, . 
 
 
 858 
 
 Toft v. Stephenson, 
 
 519 
 
 754 
 
 Tolar v. Tolar, 
 
 
 168 
 
 Tollett v. Armstrong, . 
 
 
 629 
 
 Tolson v. Tolson, . 
 
 
 118 
 
 Toman v. Dunlap, . 
 
 , 
 
 462 
 
 Tombs v. Roch, 
 
 
 531 
 
 Tonlkins v. Anthon, 
 
 
 772 
 
 Mitchell, . 
 
 
 145 
 
 Tomlinson v. Tomlinson, 
 
 
 683 
 
 Tomson v. Judge, . 
 
 
 240 
 
 Tongue v. Morton, . 
 
 
 764 
 
 Torbert v. Twining, 
 
 
 631 
 
 Torrey v. Buck, 
 
 215, 
 
 £18 
 
 Tourney v. Sinclair, 
 
 
 643 
 
 Towers v. Hagner, 
 
 
 641 
 
 Townley v. Sherborne, . . 4! 
 
 0, 461 
 
 452 
 
 Townshend v. Brooke, . 
 
 826 
 
 845 
 
 Tracey v. Sackett, . 
 
 
 229 
 
 Tracy v. Strong, . 
 
 
 585 
 
 Trafford v. Trafford, . 
 
 
 484 
 
 Transylvania Univers. v. Clay, 
 
 '. 540 
 
 563 
 
 Trask v. Donoghue, . . 31 
 
 8, 320 
 
 , 334 
 
 Treat v. Stanton, . , 
 
 
 404 
 
 Tremper v. Barton, 
 
 .' 152 
 
 159 
 
 Trent v. Trent, . 5< 
 
 )1, 502 
 
 , 528 
 
 Trenton Banking Co. v. Woodrui 
 
 r, . 
 
 606 
 
 Trevelyan v. Charter, . 
 
 
 236 
 
 Trevor v. Trevor, . 
 
 
 481 
 
 Trezevant v. Howard, . 
 
 
 83 
 
 Trimble v. Boothby, 
 
 '. 764 
 
 765 
 
 Trimmer v. Danby,- 
 
 
 586 
 
 Trippev. Frazier, . 
 
 203 
 
 532 
 
 Tritt v. Crotzer, ... 70 
 
 , 87, 92. 95 
 
 -Tiollope v. Routledge, . , 
 
 . 
 
 849 
 
 
 
 
 PASS 
 
 Trotter v.Blocker, . 
 
 81 
 
 ,812 
 
 813 
 
 Williamson, . 
 
 
 , 
 
 487 
 
 Troup v. Hurlbut, . 
 
 
 . 
 
 767 
 
 Troy v. Troy, 
 
 
 . 
 
 590 
 
 Truesdale v. Callaway, . 
 
 
 
 247 
 
 Truluck v. Peoples, 
 
 
 
 248 
 
 Trustees of Philip's Academy v 
 
 . King, 
 
 76 
 
 v. Sturgeon, . 
 
 
 
 699 
 
 of Waterford v. Cowen, . 
 
 
 408 
 
 v. Wright, 
 
 
 . 
 
 93 
 
 Try v. Capper, . . . 
 
 
 
 635 
 
 Trye v. Corporation- of Gloucester, 
 
 683, 
 
 685 
 
 Tryon, Re, 
 
 
 
 830 
 
 Tucker v. Andrews, 
 
 
 
 245 
 
 Gordon, 
 
 
 
 619 
 
 Johnston, 
 
 
 356, 
 
 358 
 
 Seaman's Aid Society,. 
 
 . 
 
 76 
 
 Tuer v. Turner, 
 
 
 , 
 
 605 
 
 Tugman v. Hopkins, 
 
 
 
 641 
 
 Tunno, Ex parte, . 
 
 289 
 
 ,291 
 
 ,297 
 
 Tupper v. Fuller, . 
 
 
 
 586 
 
 Turnbull v. Gadsden, . 
 
 
 216 
 
 217 
 
 Turner v. Crebill, . 
 
 
 
 765 
 
 Clay, . 
 
 
 
 221 
 
 Davis, . 
 
 
 
 622 
 
 Sargent, 
 
 
 , 
 
 478 
 
 Maule, . 
 
 
 , 
 
 271 
 
 Navigation Co., . 
 
 
 
 216 
 
 Petigrew-, 
 
 
 142, 
 
 785 
 
 Turney v. Williams, 
 
 
 
 550 
 
 Tunstall, Ex parte, 
 
 
 
 294 
 
 Turquand v. Knight, 
 
 
 833, 
 
 841 
 
 Tuttle v. Fowler, . 
 
 
 619, 
 
 620 
 
 Jackson, . 
 
 
 
 767 
 
 Twaddell's App., . 
 
 537 
 
 540 
 
 856 
 
 Twopenny v. Peyton, . 
 
 
 
 587 
 
 Tyler's Trust, 
 
 
 
 294 
 
 Tyler v. Black, . . 215 
 
 216 
 
 217 
 
 220 
 
 Tyree v. Williams, 
 
 
 
 723 
 
 Tyrell v. Morris, .. 
 
 
 
 250 
 
 Tyson's /ipp., 
 
 
 608 
 
 630 
 
 Tyson v. Mickel, . 
 
 
 718 
 
 723 
 
 Passmore, 
 
 
 
 260 
 
 u. 
 
 Udall v. Kenney, . . . 612, 619, 627 
 Urket v. Coryell, . . . ... 81 
 
 U. S. v. Inhabitants of Waterborough, 
 
 Munroe, . 
 
 Vaughan, . 
 U. S.Bk.v. Daniel, 
 Lee, . 
 Union Bank v. Baker, . 
 Unitarian Soc. v. Woodbury 
 Univ. of Lond. v. Garrow, 
 Upfull's Trust, Re, 
 Upham v. Brooks, . 
 Urmey's Exrs. v. Wooden, 192, 198, 674, 676 
 Utica Ins. Co. v. Lynch, . . .551 
 
 143, 
 
 247 
 
 . 252 
 
 . 671 
 
 . 220 
 
 . 766 
 
 . 143 
 
 87, 94, 149 
 
 . 679 
 
 . 814 
 
 408 
 
 V. 
 
 Vail v. Vail 
 
 Van Buskirk v. Ins. Co., 
 Vance v. McLaughlin, . 
 Vandeleur v. Vandeleur, 
 Vanderheyden .v. Ciandall, 
 
 70, 342, 344 
 
 . 671 
 
 . 620 
 
 . 520 
 
 346,461,462 
 
TABLE 01 AMERICAN CASES. 
 
 xliii 
 
 PASS 
 
 Vanderheyden v. Mallory, . . . 638 
 
 Vanderheyden, . . 551 
 
 Vanderplank v. King, . . . .481 
 
 Vandervolgen v. Yates, . . 288, 338, 680 
 
 Vanderver's App 445 
 
 Van Duzer v. Van Duzer, • . 604, 607 
 Van Epps v. Van Deusen, . . . 619 
 Van Epps, . . . .238 
 Van Hook' v. Whitlock, . . . .255 
 Vanhorne v. Fonda, 238, 319, 321, 660, 809 
 Van Kleek v. Dutch Church, . 202, 203 
 Van Meter v. McFadden, . . .766 
 Vansant v. Boileau, .... 810 
 Roberts, . . . 683, 686 
 Van Schoonhoven, Matter of, 287, 314, 332 
 Van Vechten v. Terry, .... 814 
 Van Veghten, . 595, 596 
 Van Winkle v. Van Houten, . 525, 526, 527 
 Van Wyck, Matter of, . . 287, 295, 707 
 Varick v. Edwards, . . 227, 257, 389 
 
 Vattier v. Hinde 775 
 
 Vaughan v. Barclay 69 
 
 Buck, .... 612, 615 
 Vanderstegan, . . 213, 638 
 
 Vaux v. Nesbit 79 
 
 Parke, .... 342, 588 
 Veazie v. Williams, .... 255 
 Venables v. E. I. Company, . 314, 319, 332 
 
 Verner's Est., 826 
 
 Vernon v. Morton 486, 498 
 
 Vawdry, . . . .779 
 
 Vick v. McDaniel 202 
 
 Vidal v. Girard, 76, 82, 191, 198, 260, 674, 
 
 688 
 Villard v. Chovin, . . . .594 
 
 Villines v. Norfleet, . . . 792, 793 
 
 Vincent v. Watts 818 
 
 Vizonneau v. Pegram, . . . 633, 634 
 Vorhces v. Stoothof, . . . .808 
 
 Vose v. Grant, 262 
 
 Voyle v. Hughes, ... 68, 136, 671 
 
 W. 
 
 Waddington v. Banks, . 
 Wade v. American Col. Soc, 
 
 Dick, 
 
 Green, . 
 
 Harper, . 
 Wadsworth, Matter of, . 
 Wagner v. Baird, . 
 Wales v. Cooper, .. 
 Wakefield v. Campbell, 
 Wakeman v. Grover, . 
 Waldron v. McComb, . 
 Walgrave v. Tebbs, 91, 95, 97, 98, 
 Walker's Case, .... 
 
 Estate 499, 
 
 Walker, Ex parte, .... 
 Walker v. Brungard, 142, 150, 236, 
 
 Butz, . 
 Bynum, •. 
 Campbell, 
 Crowder, 
 Drury, . 
 Fawcett, 
 Gilhert, . 
 Griffin, , 
 Locke, . 
 Milne, . 
 Ogden, . 
 Walker, 
 
 . 260 
 
 192, 674 
 . 833 
 . 140 
 
 236. 239 
 
 287, 291 
 . 255 
 
 775, 776 
 . 724 
 
 489, 498 
 . 721 
 
 224, 246 
 . 520 
 
 507, 511 
 . 293 
 271, 495, 
 673 
 . 764 
 . 550 
 . 519 
 . 598 
 . 618 
 . 404 
 
 766, 772 
 . 118 
 . 93 
 89, 683 
 . 69 
 . 257 
 
 Wall v. Arrington, 
 Walsh v. Stille, . 
 Wallace v. Costen, 
 Duffield, 
 McCullough 
 Taliaferro, 
 Waller v. Armisted, 
 Logan, . 
 Wallington's Estate, 
 Wallis v. Freestone, 
 Loubat, . 
 Thornton, 
 Walwyn v. Lee, . 
 Warburton v. Farn, 
 Ward, Re, . 
 Ward v. Amory, . 
 Arredondo, 
 Morrison, . 
 Smith, 
 
 Van Bokkalin 
 Ward, 
 Webber, . 
 Ward's Lessee v. Barrows, 
 Wardlaw v. Gray, . 
 Ware v. Ld. Egmont, 
 
 McCandlish, 
 Mallard, . 
 Richardson, 
 Warfield, Ex parte, 
 Waring, Re, .• 
 Waring v. Darnall, 
 Purcell, 
 Waring, 
 Warley v. Warley, 
 Warner v. Daniels, 
 Warren v. Copelin, 
 Hayley, 
 Warwick v. Hawkins, 
 Watchman (The), . 
 Waterman v. Cochran 
 Waters v. Groom, . 
 Lemon, . 
 Watkins v. Storkett, 
 Watkins, 
 Watson v. Bagaley, 
 Bothwell, 
 Knight, . 
 Le Row, 
 Pearson, 354, 355, 
 
 Wilson, 
 Watt's Settlement, In re, 
 Watts v. Girdlestone, 
 Waugh v. Wyche, . 
 Waymau v. Jones, . 451 
 
 Weaver v. Wible, . 
 Webb's App., 
 Webb v. Daggett, . 
 
 Deitrich, . 
 
 Grace, 
 
 Ledsam, . 
 
 Webb, . 
 
 Wools. . 
 Webster v. Boddington, 
 
 Cooper,- 339,346, 
 
 245, 
 
 PAGE 
 
 252, 253 
 265, 266 
 . 639 
 142, 143 
 . 143 
 621 
 791 
 710 
 238, 808 
 . 713 
 . 240 
 450, 451 
 775, 776 
 . 718 
 . 426 
 354, 608 
 . 69 
 . 671 
 238,239, 808 
 257 
 778 
 225 
 719 
 621 
 77° 
 570, 602 
 103, 108, 111 
 345, 355 
 613, 619 
 . 814 
 669, 721 
 . 585 
 507, 644 
 . 522 
 217, 256 
 . 671 
 
 607 
 
 Maddox, 
 Webster, 
 Weeks v. Weeks, t 
 Wier v. Tannehill, 
 Welch, Re, . 
 Welch v. Mandeville, 
 
 Allen, . 
 Wells v. Chapman, 
 
 . 630 
 
 . 631 
 
 . 485 
 
 . 841 
 
 236, 806 
 
 . 221 
 
 250, 252 
 
 608, 643 
 
 128, 485 
 
 . 222 
 
 . 492 
 
 140, 157 
 
 358, 359, 707, 
 
 710 
 
 . 765 
 
 . 271, 293 
 
 . 547 
 
 . 864 
 
 ,812,813,824 
 
 . 809 
 
 . 622 
 
 . 492 
 
 75, 287, 291 
 
 . 739 
 
 . 445, 449 
 
 . 828, 842 
 
 100, 108, 110 
 
 . 745 
 
 354, 356, 359, 
 
 366 
 
 . 767 
 
 643, 644 
 
 619, 622 
 
 128, 489 
 
 . 595 
 
 . 405 
 
 367, 372 
 
 . 405 
 
xliv 
 
 TABLE OF AMERICAN CASES. 
 
 PAGE 
 . 92 
 
 . 766 
 . 339 
 . 214 
 
 252, 253, 257 
 
 . 5G9 
 
 248, 768 
 
 . 226 
 
 . 698 
 
 . 66 
 
 488, 778 
 
 . 68 
 
 . 87 
 
 . 221 
 
 . 833 
 
 . 190 
 
 . 320 
 
 . 442 
 
 . 253 
 
 . 620 
 
 . 620 
 
 192, 198, 199, 674 
 
 229, 230, 233, 814, 816 
 
 199, 683, 686 
 . 115 
 
 i, 
 
 123, 
 
 Wells v. Tucker, . 
 Wendell v. Wadsworth, 
 West v. Biscoe, 
 Moore, 
 Westbrook v. Harbeson, 
 Westcott v. Cady, . 
 Westervelt v. Haff, 
 
 Matheson, 
 West Ham. Chanties, Re 
 Westoby v. Day, 
 Weston v. Barker, 
 Wetherhed v. Wetherhe 
 Welherill v. Hamilton, 
 Whaley v. Eliott, . 
 Wham v. Love, 
 Wharton v. Shaw, . 
 Wheatly v. Badger, . 
 
 Boyd, . 
 Wheaton v. Wheaton, 
 Wheeler v. Bowen, 
 Moore, 
 Smith, . 
 Whelanv. Whelan, 
 Whicker v. Hume, . 
 Whipple v. Adams, 
 
 Dow 599 
 
 McClure 230 
 
 Whiston v. Dean, &c, of Rochester, . 690 
 
 Whitaker v. Whitaker 62fi 
 
 Whitall v. Clark 640 
 
 White v. Albertson 404 
 
 Briggs, . . . 110,120,481 
 Carpenter, . . 144, 150, 770 
 
 Cox 218 
 
 Donnell, 100 
 
 Fisk, . . . 192,198,674 
 
 Flora, 226 
 
 Jackson 837 
 
 Kavanagh, .... 140 
 
 Olden 501 
 
 Parker, 346 
 
 Trotter 221 
 
 White, 389 
 
 Whitehall v. Reynolds 82 
 
 Whitehead v. Brown, .... 253 
 Whitehorn v. Hines, . . . 229, 235 
 Whitehurst v. Harker, . . . 105,619 
 
 Whitesides v. Dorris 607 
 
 Greenlee, . . . 231 
 
 Whined v. Webb, 855 
 
 Whitman v. Norton 525 
 
 Weston, .... 222 
 
 Whitney v. Stearns 213 
 
 Whittle v. Henning, .... 618 
 
 Wickes v. Clarke, 604 
 
 Wickliffe v. City of Lexington, . . 389 
 
 Widgeryv. Haskell, .... 129 
 
 Wiggins, Ex parte, .... 804 
 
 v. Swett, . . . .585 
 
 Wiggleworth v. Steers 231 
 
 Wightman v. Doe 723 
 
 Wilcox v. Callaway, .... 247 
 Wilderman v. Mayor, &c, of Baltimore, 674 
 
 Wilde v. Gibson, 219 
 
 Wilder v. Keeler, ..... 522 
 
 Wiles v. Cooper, 828 
 
 Gresham, 54] 
 
 Wiles 607, 609 
 
 Wiley v. Smith, 474 
 
 Wilhelm v. Folmer, . . . 142, 396 
 
 Wilkes's Charity, Re 697 
 
 Wilkes v. Ferris 485 
 
 Wilkins v. Anderson, .... 247 
 
 PA0E 
 
 . 390 
 
 . 612, 620 
 
 . 221 
 
 . 626 
 
 . 171 
 
 586, 590, 594 
 
 . 238 
 
 . 596 
 
 . 767 
 
 . 75 
 
 . 630 
 
 288, 289, 320 
 
 . 396 
 
 . 590 
 
 . 142, 247 
 
 . 776 
 
 . 825 
 
 . 631 
 
 69, 70, 285 
 
 392,394,395,495,516, 
 
 601 
 
 Powell, 234,235,548,549,550, 
 
 791 
 
 Presbyterian Church, 339,372, 
 
 389 
 
 . 140 
 
 . 340, 341, 345 
 
 108, 110, 192, 199, 
 
 674, 682 
 
 Wilkinson's Est., . 
 
 Wilkinson v. Charlesworth, 
 Fawkes, . 
 Perrin, 
 Wilkinson, 
 
 Williams's Case, . 
 
 Ex'rs v. Marshall 
 
 Williams, Ex parte, 
 
 Williams v. Brown, 
 
 Chambers, 
 Claiborne, 
 Cushing, . 
 Fullerton,. 
 Harrington, 
 Hollingsworth, 
 Lambe, . 
 Mattocks, 
 Maull, 
 Maus, 
 Otey, 
 
 Van Tuyl, 
 Waters, . 
 Williams, 
 
 Woodward, 
 Williamson v.. Beckham, 
 
 Branch Bk., 
 
 Field, 
 
 Morton, 
 
 Williamson, 
 
 Williman v. Holmes, 
 
 Willink v. Morris Canal, 
 
 Willis v. Childe, . 
 
 Snelling, . 
 Wills' App., . 
 Wills v. Cowper, . 
 
 Dunn, 
 Wilmot v. Pike, 
 Wilson's Est., 
 Wilson, Matter of, . 
 
 In Re, 
 Wilson v. Bennett, 
 
 Daniel, 
 
 Davisson, . 
 
 Edmonds, . 
 
 Hafman, . 
 
 Howser, . 
 
 McCullough, 
 
 Moore, 
 
 Troup, 
 
 . 514 
 . 634 
 . 250 
 . 255 
 . 250 
 550, 573, 575 
 345, 354, 355 
 . 814 
 689, 697 
 . 777 
 558, 561 
 . 708 
 . 255 
 . 671 
 260, 320 
 . 590 
 . 851 
 . 418 
 . 244 
 . 496 
 . 568 
 . 585 
 . 139 
 . 72 
 . 249 
 790, 809 
 
 Wilson, 184, 409, 583, 584, 639, 642, 
 
 644 
 Wilt v. Franklin 319, 486 
 
 Winborn v. Gorrell, 
 Winch v. Brutton, . 
 Winder v. DifferderrTer,. 
 Winn v. Dillon, 
 Winslow v. Ancrum, . 
 Winston v. Jones, . 
 
 Westffeldt, . 
 Winter v. Geroe, . 
 Rudge, . 
 Wintermate's Ex. v. Snyder 
 Wise v. Wise, . . 
 Wisner v. Barnett, 
 Withers v. Yeadon, 
 
 Withington v. Withington, .' .'271,284 
 Witman v. Lex, . 192, 198, 674, 678, 680 
 
 765, 775 
 . Ill 
 . 785 
 . 239 
 . 493 
 . 706 
 . 764 
 238 
 270 
 220 
 319 
 255 
 102, 103, 107, 741 
 
 s Adm., 
 
TABLE OF AMERICAN CASES. 
 
 xlv 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 Woelpper's App., . 
 
 
 . 622 
 
 Wright v. Trustees, 191, 531, 674, ( 
 
 685 
 
 Wood's Seitlement, Re, 
 
 
 . 814 
 
 Wilson, . 
 
 , 
 
 226 
 
 Wood v. Burnham, 
 
 
 . 404, 474 
 
 Wood, . 
 
 
 , 
 
 781 
 
 Cone, 
 
 
 . 190 
 
 Wright, 
 
 
 , 
 
 551 
 
 Dille, 
 
 
 . 93 
 
 Wrigley v. Swainson, 
 
 
 244, 
 
 245 
 
 Dummer, 
 
 
 . 262 
 
 Sykes, . 
 
 
 
 516 
 
 Garnett, . 
 
 
 . 550 
 
 Wyche, Re, . 
 
 
 . 
 
 858 
 
 Hardisty, 
 
 
 . 778 
 
 Wyche v. Green, . 
 
 
 , 
 
 220 
 
 Midgley, . 
 
 
 . 93 
 
 Wykoffv. WvkofF, 
 Wyley v. Collins, . 
 
 
 , 
 
 647 
 
 Savage, . 
 
 
 . 88 
 
 
 , 
 
 633 
 
 Sparks, . 314 
 
 320 
 
 332, 707, 708 
 
 Wyllie v. Ellice, . 
 
 
 263, 
 
 783 
 
 Wood, . 
 
 342, 
 
 344, 563, 564 
 
 Wynch v. Grant, . 
 
 
 
 779 
 
 Woods v. Farmere, 
 
 
 . 262, 770 
 
 Wynn v. Lee, . 
 
 
 
 404 
 
 Sullivan, 
 
 
 . 578 
 
 Wyse v. Smith, 
 
 
 
 507 
 
 Woodman v. Good, 
 
 
 . 56/ 
 . 630 
 
 
 
 
 Woodown v. Kirkpatrick, 
 
 
 
 
 
 Woodruff v. Cook, 
 
 
 . 238 
 
 Y. 
 
 
 
 Wooldridge v. Watkins, 
 
 
 . 707, 708 
 
 
 
 
 Planter's Bk., 
 
 289, 394, 395 
 
 Yarborough v. West, . , 
 
 , 
 
 130 
 
 Wolf v. Batf>,. 
 
 
 . 405 
 
 Yardly v. Raub, . 
 
 , 
 
 641 
 
 Eichelberger, . 
 
 
 . 589 
 
 Yeates v. Pryor, . 
 
 
 217 
 
 Wolfe v. Washburn, 
 
 
 669 
 
 Yeaton v. Roberts, 
 
 
 201 
 
 Woolmer's Est., . 
 
 . 
 
 . 202, 203 
 
 Yerby v. Lynch, . 
 
 
 622 
 
 Wootten v. Burch, . 
 
 
 . 578 
 
 Yerger v. Jones, . 
 
 250, 
 
 786 
 
 Woolam v. Hearne, 93, 
 
 143, 
 
 217, 251, 252, 
 
 Yohe v. Barnett, . 
 
 608 
 
 620 
 
 
 
 253, 260 
 
 
 
 
 Worchester Charities, Re 
 
 • 
 
 . 689 
 
 Yundt's App., . 
 
 . 
 
 551 
 
 Work v. Harper, . 
 
 
 . 766 
 
 Young v. Bumpass, 
 
 , 
 
 218 
 
 Worley v. Frampton, . 
 
 . 
 
 . 414 
 
 Frost, . 
 
 , 
 
 226 
 
 Wormack v. Rogers, 
 
 
 . 226 
 
 
 
 641 
 
 Wormley v. Wormiey, 
 
 247, 
 
 496, 530, 541, 
 
 Keogh, . 
 
 
 590 
 
 
 565 
 
 712, 728, 769 
 
 Lord Waterpark, . 3£ 
 
 0, 393 
 
 394 
 
 Worrell's App., 537, 538 
 
 540 
 
 550, 557, 833 
 
 Mackall, . 
 
 
 389 
 
 Worth v. McAden, 
 
 t 
 
 319,450, 451 
 
 Miles, . 
 
 567, 
 
 568 
 
 Worthington v. Evans, . 
 
 
 . 447 
 
 Young, . 
 
 
 298 
 
 Worthy v. Johnson, 
 
 394 
 
 395, 724, 803 
 
 Youst v. Martin, . 
 
 247 
 
 748 
 
 
 
 . 525 
 
 
 
 
 Wright v. Dame, . 
 
 , 
 
 . 247 
 
 
 
 
 Arnold, . 
 
 , 
 
 214, 609, 617 
 
 z. 
 
 
 
 Douglass, 
 
 , 
 
 . 94, 403 
 
 
 
 
 Henderson, . 
 
 
 . 498 
 
 Zachariasv. Zacharias, . 
 
 
 389 
 
 King, . 
 
 , 
 
 . 147, 151 
 
 Zane'sWill, .... 
 
 192 
 
 674 
 
 Linn, 
 
 198 
 
 , 678, 681, 701 
 
 Zebach v. Smith, . 
 
 705 
 
 707 
 
 Lukes, . 
 
 
 . 823 
 
 Zeiter v. Bowman, . 
 
 
 764 
 
 Miller . 
 
 
 . 566 
 
 Zellar's Lessee v. Eckert, . 
 
 f 
 
 389 
 
 Snowe, . 
 
 , 
 
 . 794 
 
 Zimmerman v. Anders, . 
 
 
 116 
 
 Snowden, 
 
 . 
 
 . 214 
 
 Harman, 
 
 
 . 
 
 236 
 
TABLE OF ENGLISH CASES. 
 
 [n.b. the references are to the star-paging in brackets.] 
 
 A. 
 
 
 
 
 
 PASS 
 
 
 
 
 Andrews v. Partington, . . 401,402 
 
 574 
 
 
 
 PAGE 
 
 Angier v. Angier, .... 426, 
 
 427 
 
 Abbott v. Abbott, . 
 
 
 . 123 
 
 Stannard, 188, 278, 280, 555 
 
 563 
 
 Gibbs, . 
 
 . 
 
 . 505 
 
 Angle, Ex parte 520, 
 
 547 
 
 Abel v. Heathcote, . 
 
 , 
 
 . 475 
 
 Anglesey v. Annesley, .... 
 
 149 
 
 Abraham v. Newcombe, 
 
 . 
 
 . 415 
 
 Angus v. Angus, 
 
 44 
 
 Ackerley v. Vernon, 
 
 . 
 
 . 51, 400 
 
 Annesley v. Simeon, . . 274, 317 
 
 448 
 
 Ackland v. Lutley, 
 
 , 
 
 . 245, 246 
 
 Anon. Cases, 277-, 289, 339, 342, 367, 
 
 372, 
 
 Ackroyd v. Smithson, . 
 
 
 . 135, 143 
 
 463, 480, 504, 511, 515, 540, 559 
 
 565 
 
 Acton v. Woodgate, 
 
 83 
 
 336, 337, 343 
 
 Anon v. Bishop of Llandaff, . . 451, 
 
 461 
 
 Adair v. Shaw, 
 
 
 164, 282, 509 
 
 Fitzgerald, . . . 277, 
 
 540 
 
 Adams v. Broke, . 
 
 
 282, 369, 478 
 
 Jolland, 
 
 540 
 
 Claxton, 
 
 
 . 375 
 
 Osborne, 
 
 185 
 
 Clifton, . 381 
 
 527 
 
 540, 559, 573 
 
 Robarts, . . . 185, 192 
 
 195 
 
 
 
 
 Anstruther v. Adair 
 
 412 
 
 Lavender, 
 
 , 
 
 . 416 
 
 Antrobus v. Smith, . 83, 84, 85, 89 
 
 448 
 
 Meyrick, 
 
 
 . 353, 354 
 
 Aplyn v. Brewer 
 
 311 
 
 Paynter, 
 
 175 
 
 177, 180, 188 
 
 Archer's Case 
 
 318 
 
 Taunton, 
 
 , 
 
 218, 226, 307 
 
 Archer v. Mosse, 
 
 150 
 
 Adamson v. Armitage, . 
 
 
 . 420 
 
 Arglasse -(Earl of) v. Muschamp, . 
 
 44 
 
 Addis v. Campbell, 
 
 
 . 152, 153 
 
 Arkell v. Fletcher, .... 
 
 286 
 
 Addison v. Mascall, 
 
 
 . 154 
 
 Armiler v. Swanton, .... 
 
 540 
 
 Adlington v. Cann, 
 
 
 59, 62, 64, 164 
 
 Arnold v. Chapman, . 139,141,456 
 
 457 
 
 Adnam v. Cole, 
 
 , 
 
 . 452 
 
 Arnott v. Biscoe, 
 
 515 
 
 Ainslie v. Meddlicott, . 
 
 
 . 146 
 
 Arthington v. Coverley, 
 
 274 
 
 Aislabie v. Rice, . 
 
 , 
 
 . 5Q1 
 
 Ashburnham v. Thompson, 374, 523, 
 
 524, 
 
 Alam v. Jourdan, . 
 
 
 . 516 
 
 
 559 
 
 Albemarle (Earl of) v. Rogers, 
 
 . 274, 439 
 
 Ashburton v. Ashburton, . . 396, 
 
 397 
 
 Alcock v. Sloper, . 
 
 
 386, 390, 391 
 
 Ashley v. Bailley, .... 165, 
 
 514 
 
 Sparhawk, 
 
 
 . 361, 362 
 
 Ashton v. 366, 
 
 367 
 
 Alder v. Gregory, . 
 
 
 . 164, 265 
 
 M'Dougall, .... 
 
 419 
 
 Aldridge v. Wallscourt (Lord) 
 
 350, 351, 352 
 
 Aspinall v. Kempson, . . . 256, 
 
 260 
 
 Westbrook, 
 
 
 . 553, 554 
 
 Astley v. Mills 325, 
 
 326 
 
 Alexander v. Alexander, 
 
 70 
 
 486, 489, 493 
 
 Aston v. Aston, . . . 425, 426 
 
 514 
 
 Wellington (Duke of), . 46 
 
 Curzon 
 
 515 
 
 Allan v. Backhouse, 
 
 
 342, 367, 435 
 
 Atherton v. Worth, .... 
 
 338 
 
 M'Pherson, 
 
 
 
 . 150 
 
 Att.-Gen. v. Arnold, . . . 128, 
 
 461 
 
 Allen v. Anthony, . 
 
 
 
 . 512 
 
 Arran, . 195, 207, 296 
 
 470 
 
 Coster, 
 
 
 
 . 403 
 
 Aspinall 
 
 47 
 
 Sayer, 
 
 
 
 268, 403, 504 
 
 Backhouse, 463, 464, 482 
 
 516 
 
 Thorp, . 
 
 
 
 . 553 
 
 Barkham 
 
 354 
 
 Alney v. Kendal, . 
 
 
 
 . 513 
 
 Baxter, .... 
 
 451 
 
 Amand v. Bradbourn, 
 
 
 
 564, 567, 572 
 
 Bedford Corporation, 460, 
 
 466 
 
 Ambrose v. Ambrose, 
 
 
 
 57, 94 
 
 Berryman 
 
 489 
 
 Amesbury v. Brown, 
 
 
 
 . 362 
 
 Black, .... 
 
 460 
 
 Amphlett v. Parke, 
 
 
 
 . 143 
 
 Boultbee, . . . 451, 
 
 462 
 
 Anderson v. Anderson, 
 
 
 
 . 419 
 
 Bowles, . . 453, 455 
 
 457 
 
 Dawson, 
 
 
 
 . 421, 422 
 
 Bowyer, . 119,212,451 
 
 462 
 
 Ex parte, 1 
 
 93, 
 
 202 
 
 207, 288, 304 
 
 Brandreth, . . 466, 
 
 467 
 
 Anderton v. Cook, . 
 
 
 
 . 353, 354 
 
 Brentwood School, . 
 
 461 
 
 Andrew v. Clark, . 
 
 
 
 . 124 
 
 Brettingham, . . 463, 
 
 470 
 
 Wrigley,- , 
 
 
 
 . 165, 265 
 
 Brewers' Company, 264, 
 
 469, 
 
 Andrews v. Brown, 
 
 
 
 . 356 
 
 
 557 
 
xlviii 
 
 TABLE OF ENGLISH CASES. 
 
 PA8E 
 
 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, 552 
 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, 465 
 
 Cumming, 308, 442, 444. 445, 
 
 454, 458, 553 
 
 Davies, . . 451, 455, 457 
 
 Davy, 443 
 
 Dixie, . 451, 460, 464, 465, 466 
 Downing, . . .48, 211 
 
 Doyley 211 
 
 Drapers' Company, 129,451, 
 
 461,462, 562, 563 
 Drummond, 191, 467, 524, 563 
 Dublin (Corporation of), . 453 
 Dudley (Lord), 169, 1'70, 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, 
 
 Foyster, 
 
 Freeman, 
 
 Gascoigne, 
 
 Gibson, 
 
 Goddard, 
 
 Goulding, 
 
 Gower, 
 
 Graves, 
 
 Green, 
 
 48, 460, 
 
 466 
 
 . 468 
 
 453 
 
 130, 462, 467 
 
 . 451 
 
 . 456 
 
 . 451 
 
 . 464, 515 
 
 . 456 
 
 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. 
 
 Gen. v. Harley, 
 
 PA0B 
 
 . 456 
 
 Harrow School, 
 
 . 466 
 
 Hartley, 
 
 . 467 
 
 Hart well, . 
 
 . 455 
 
 Heelis, 
 
 133, 453, 454 
 
 Herrick, 
 
 . 450 
 
 Hewer, 
 
 . 459 
 
 Higham, 
 
 . 381 
 
 Hinkman, . 
 
 . 451, 452 
 
 Hotham, . 
 
 . 464 
 
 ( Hungerford, 
 
 170, 463, 464 
 
 Hurst, 
 
 . 468 
 
 ,Hyde, 
 
 . 456 
 
 Ironmongers' Company, 48, 451, 
 
 
 461, 462 
 
 Jackson, 
 
 . 467 
 
 Johnson, . 
 
 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, 
 
 Mathews, . 
 Maywood, . 
 Merchant Vent. Society, 129, 
 451 
 
 467 
 
 450, 451 
 
 464 
 
 Meyrick, 
 
 Middleton, 
 
 Mill, . 
 
 Milner, 
 
 Minshull, 
 
 Morgan, 
 
 Munby, 
 
 Nash, 
 
 Nethercoat 
 
 Newark (Mayor of) 
 
 . 456 
 
 . 460, 466 
 
 . 457 
 
 . 137 
 
 129,451,461 
 
 281, 508, 547 
 
 456, 457, 459 
 
 . 456 
 
 . 463 
 
 . 463 
 
 Newcombe, 
 
 Newbury (Mayor of), 
 Norwich (Mayor of), 
 
 274,439, 454, 441, 
 442, 444 
 
 469 
 525, 547, 
 570 
 451, 461 
 463, 469 
 . 451 
 
 Oglander, . 
 
 Owen, 
 
 Oxford (Bishop of) 
 
 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 
 Richards, . . . . 47 
 
TABLE OF ENGLISH CASES. 
 
 xlix 
 
 PA8E 
 
 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 
 130, 462 
 
 Skinner's Company, 
 
 Company, 
 
 ' Smythies, 
 
 • Solly,.- 
 
 • Sothen, 
 ■ • South-Sea 
 
 Sparks, 
 
 Stamford, 
 
 Stephens, 
 
 Stewart, 
 
 Syderfen, 
 
 Todd, . 
 
 Tomkins, 
 
 Tonner, 
 
 Tyndall, 
 
 Vigor, 
 
 Vivian, 
 
 Wansey, 
 
 Ward, 
 
 Warren, 
 
 Weymouth (Lord), 
 
 Whitchurch, 
 
 Winchelsea, 
 
 Wilkinson, 
 
 Williams, 
 
 Wilson, 
 Aubrey v. Middleton, 
 Auriol v. Smith, 
 Austen v. Halsey, . 
 Austin v. England (Bank of) 
 
 Taylor, . 
 Avery v. Osborn, . 
 Ayliffe v. Murray, . 
 Aylward v. Kearney, 
 Aynsworth v. Pratchett, 
 
 469 
 
 . 460 
 
 374, 523 
 
 . 156 
 
 473, 474 
 
 129, 461, 459 
 
 464, 465, 466 
 
 . 191, 195 
 
 . 59, 457 
 
 128, 130, 451 
 130,451, 455 
 
 . 456 
 
 129, 131,451 
 456, 468 
 
 . 286 
 
 . 466 
 
 451, 462 
 
 361, 453 
 
 463, 464 
 
 135, 456 
 
 451,456,462 
 
 176,212,461, 470 
 
 . 453, 467 
 
 . 453, 457 
 
 .- 47, 521 
 
 347, 360, 361 
 
 . 526 
 
 . 361 
 
 . 174 
 
 . 332 
 
 . 562 
 
 158, 537, 558, 576 
 
 157, 169, 265 
 
 . 403 
 
 B. 
 
 Back v. Andrews, . 
 Backhouse v. Middleton, 
 Bacon v. Bacon, 
 Badham v. Mee, 
 Bagenal v. Bagenal, 
 Bagg v. Foster, 
 Baggett v. Meux, . 
 Bagot v. Bagot, . 191, 
 Bagshawe v. Spencer, 231, 
 Bailey v. Ekins, 
 
 Gould, . 
 Bainbridge v. Blair, 191, 
 Baines v. Dixon, . 
 Baker v. Diddle, . 
 
 Hall, 
 
 Martin, . 
 
 Paine, 
 
 Sutton, . 
 Balchen v. Scott, . 
 Balddck, Ex parte, . 
 Baldwin v. Banister, 
 
 Billingsley, . 
 Balfour v. Welland, 338, 
 Ball v. Coutts, 
 Harris, 
 
 :, 99, 100, 105 
 . 367 
 311, 540 
 . 403 
 . 368 
 545 
 406, 420, 423 
 212, 426, 427, 561 
 242,328, 331,333 
 348, 349, 358 
 . 379 
 194, 195, 212, 213 
 . 575 
 . 44 
 415, 456 
 . 575 
 . 167 
 79,80, 133,452 
 215, 218 
 . 480 
 . 173 
 . 281 
 342, 343, 476, 504 
 . 411 
 342, 345, 355, 504 
 
 Ball v. Montgomery, 163, 411, 413, 428, 557 
 
 Balls y. Strutt, 
 
 
 . 336 
 
 Balsh v. Higham, . 
 
 
 571, 578 
 
 Bamfield y. Wyndham, . 
 
 
 352, 354 
 
 Banerman v. Radenius, . 
 
 
 261, 503 
 
 Bank of England v. Lunn, . 
 
 
 . 174 
 
 MorTatt, . 
 
 
 . 445 
 
 Parsons, 
 
 
 174, 445 
 
 Bankes v. Le Despencer, 
 
 
 334, 335 
 
 Barber v. Barber, . . . 
 
 
 . 535 
 
 Barclay v. Collett, . 
 
 
 . 428 
 
 Bardswell v. Bardswell, . 
 
 
 67, 73, 75 
 
 Barford v. Street, . . 
 
 
 . 422 
 
 Barker v. Duke of Devonshire, 
 
 347, 3-18. 355, 
 
 
 
 363, 504 
 
 Hill, 
 
 
 . 171 
 
 Richardson, . 
 
 1 
 
 317, 503 
 
 Barkley v. Lord Reay, . 
 
 
 . 212 
 
 Barlow v. Grant, . 
 
 399, 40-3, 5';"? 
 
 Heneage, . .83,88,108,111 
 
 Barnadiston v. Lingood, . 
 
 
 . 153 
 
 Barnard v. Large, . 
 
 319,3?'; 323 
 
 Barnes v. Patch, . 
 
 
 76, 77 
 
 Barnesley v. Powell, 
 
 
 145, 150 
 
 Barnett v. McDowall, . 
 
 
 . 424 
 
 Barnewellv. Cawdor, . 
 
 
 . 358 
 
 Barrett v. Glubb, . 
 
 
 . 247 
 
 Barrough v. Greenhough, 
 
 
 . 167 
 
 Barrymore v. Ellis, 
 
 
 422, 423 
 
 Barstow v. Kilvington, . 
 
 
 . 167 
 
 Bartle v. Wilkin, . 
 
 
 . 552 
 
 Bartlet v. Hodgson, 
 
 
 518, 519 
 
 Downs, 255, 256 
 
 260, i'H, 32? 
 
 Bartlett v. Pickersgill, . 
 
 60 
 
 61,95,96 
 
 Bartram v. Whichcote, . 
 
 
 . 479 
 
 BarwelL v. Parker,. . 336 
 
 339, 341, 355 
 
 Baskerville v. Baskerville, . 
 
 , 
 
 . 332 
 
 Bossett v. Clapham, 
 
 
 • 321 
 
 Bastard v. Proby, . 
 
 
 . 331 
 
 Batchellor v Searl, 
 
 
 . 126 
 
 Bate v. Scales, . . 310, 376 
 
 ,3' 
 
 9, 522, 523 
 
 Bateman v. Bateman, . 
 
 236, 355, 561 
 
 Davis, 369, 382 
 
 526, 527, 559 
 
 Bates v. Dandy, 
 
 
 406, 436 
 
 Graves, . . 
 
 
 . 350 
 
 Heard, 
 
 , 
 
 . 351 
 
 Bath (Earl of) v. Abney, 
 
 
 270, 430 
 
 Bradford, 341 
 
 349, 356, 353 
 
 Montague's C 
 
 ase 
 
 , . 145 
 
 Batson v. Lindegreen, . 
 
 
 345, 358 
 
 Battersbee v. Farington, 
 
 , 
 
 . 57 
 
 Baugh v. Price, 
 
 
 . 539 
 
 Bawtree v. Watson, 
 
 
 . 353 
 
 Bayley v. Boulcott, 
 
 
 57,60 
 
 Mansell, . 
 
 
 176, 212 
 
 Powell, . 
 
 
 . 562 
 
 Baylis v. Att.-Gen., 
 
 
 . 450 
 
 Newton, . 
 
 105, 309, 113 
 
 Baynes v. Baynes, . 
 
 , 
 
 208, 294 
 
 Beachcroft v. Beachcroft, 
 
 
 . 345 
 
 Beadmore v. Cuttenden, 
 
 , 
 
 . 449 
 
 Beal v. Beal, .... 
 
 
 . 368 
 
 Ridge, 
 
 293,291,229 
 
 Beales v. Spencer, . 
 
 , 
 
 . 421 
 
 Beaman v. Dodd, . 
 
 
 . 430 
 
 Beatson v, Beatson, 
 
 84 
 
 87, 88, 89 
 
 Beauclerk v. Ashburnham, . 
 
 
 377, 484 
 
 Beaumont v. Boultbee, . 
 
 , 
 
 . 264 
 
 Bramley, . 
 
 
 . 350 
 
 Ex parte, . 
 
 
 . 533 
 
 Meredith, . 
 
 , 
 
 . 550 
 
 Beckett v. Cordley, 
 
 
 . 532 
 
 Marsden, 
 
 
 . 59 
 
TABLE OF ENGLISH CASES. 
 
 195, 
 
 191, 
 
 Beckfordv. Beckford, 
 
 Wade, 
 Bedford Charity, In re, 
 
 Bedwell v. Frome, . 
 Beech, In re, . 
 Begbie v. Crook, . 
 Beilby, Ex parte, . 
 Belchier, Ex pane, 
 
 v. Parsons, 
 Bellasis v. Complon, 
 Bellew v. Russell, . 
 Benbow v. Townshend, 
 Bench v. Biles, 
 Benger v. Drew, . 
 Been v. Dixon, 
 Bennett v. Atkins, 
 Colley, 
 
 Davis, . 
 Ex parte, 
 Going, . 
 Hayter, 
 Honeywood, 
 
 Vade, . 
 Benson v. Benson, . 
 Whittam, 
 Bentham v. Wiltshire, . 
 Benton v. Thornhill, 
 Benyon v. Collins, . 
 Beresford v. Archbishop of Armagh 
 
 Hobson, 
 Berkhampstead School, In re 
 Berkley v. Ryder, . 
 Berry v. Askham, . 
 
 Usher, 
 Best v. Stamford, . 
 Bethumev. Kennedy, . 
 Bettison v. Bromley, 
 Bevan v. Nunn, 
 Beveridge, Ex parte, 
 Bick v. Motley, 
 Bickham v. Crutwell, . 
 
 Freeman, . 
 Bicknell v. Page, . 
 Biddle v. Perkins, . 
 Biddulph v. St. John, . 
 Bilield v. Taylor, . 
 Bill v. Cureton, 
 
 Kynaston, . 
 Billingsley v. Critchett, . 
 Binford v. Bawden, 
 Bingham v. Bingham, . 
 
 Clanmorris, . 
 Binks v. Lord Rokeby, . 
 
 PAGE 
 . 98 
 
 96, 264, 265 
 
 198, 209, 467, 
 
 568 
 
 . 98 
 
 202, 208, 298 
 
 224, 225, 226 
 
 . 533, 540 
 
 312, 474, 541 
 
 305, 375, 578 
 
 57, 59, 62, 96 
 
 . 160, 161 
 
 57, 59, 96, 98 
 
 . 360 
 
 92,94,98,101 
 
 386, 391, 393 
 
 559 563 
 
 266,382,433,434,435, 
 
 528 
 
 . 48, 269, 406, 529 
 
 . 159, 536, 539 
 
 . 557, 558, 562 
 
 . 451 
 
 196, 210, 492, 
 
 493 
 
 . 145 
 
 . 420 
 
 . 72 
 
 473, 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 
 
 343, 363, 476, 504, 
 
 505 
 
 Binnsv. Hey, , 569 
 
 Birch v. Blagrave, . 105, 108, 109, 110, 111 
 
 Glover 357 
 
 Wade, . 68, 70, 71, 78, 79, 492 
 
 Birlsy. Betty, 314 
 
 Birmingham v. Kerwan, . . . 364 
 
 Biscoe v. Earl of Banbury, . . .513 
 
 Perkins, . . 233, 318, 320, 322 
 
 Bishop v. Talbot 144 
 
 Blackborn v. Edgly, .... 157 
 Blackburn v. Stables, 65,328,329 331,334 
 
 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, . 
 
 Blunder v. Barker, . 
 
 Boardman v. Mosman, 
 
 Blackburne, Ex parte, 
 Blackford v. Christian, 
 Blacklow v. Laws, 
 Blake v. Blake, , 
 
 191, 198 
 
 . 154 
 
 421, 478 
 
 61, 439 
 
 PAGE 
 
 273, 384 
 . 163 
 73, 74, 135 
 138, 139 
 473, 479 
 . 513 
 169, 265, 527 
 . 364 
 121, 124 
 . 409 
 60, 552 
 408, 415 
 351, 354 
 . 428 
 429, 448 
 . 157 
 309 
 
 Boazman v. Johnston, 336, 338, 339, 340, 343 
 
 Boddam v. Ryley, 375 
 
 Boddy v. Dawes, 400 
 
 Bodmin v. Vandebendy, . . 325, 515 
 Bollon v. Bolton, . . . . 82, 88 
 
 Bond v. Hopkins, 265 
 
 Simmons, 412 
 
 Bone v. Cook, . . . 313, 375, 524 
 Bonifant v. Greenfield, . . . 224, 226 
 
 Bonner v. Bonner 361, 364 
 
 Bonny v. Ridgard, . . 96, 166, 265 
 
 Booth v. Booth, 236, 309, 369, 373, 379, 382, 
 
 495, 526 
 
 . 524 
 
 . 448 
 
 351, 352, 353, 354 
 
 . 240 
 
 . 302 
 
 . 369, 484, 485 
 
 . 383, 571 
 
 . 240, 279 
 
 . 274 
 
 . 340 
 
 . 106, 111 
 
 . 354 
 
 . 409, 413 
 
 . 517 
 
 . 165, 317, 509 
 
 345 
 
 404, 429, 571 
 
 Leycester, 
 
 Lightfbot, 
 Bootle v. Blundel!,. 
 Boraston's Case, 
 Bosa nquet, Ex parte, 
 Boss v. Godsall, 
 Bostock v. Blakeney, 
 Boteler v. Allington, 
 Bottomley v. Brook, 
 Fairfax, 
 Boughton v. Boughton, 
 
 James, 
 Bourdillon v. Adair, 
 Bovey v. Leighton,. 
 
 Smith, . 
 Bowdler v. Smith, . 
 Bowes v. Earl of Strathmore, 
 
 East London Waterworks 
 
 Company, 480, 482, 527 
 
 Heaps, 
 Bowles v. Rogers, . 
 Stewart, 
 Boyce v. Hanning, . 
 Boycot v. Cotton, . 
 Boyle v. Bishop of Peterborough, 
 Boyne, Ex parte, . 
 Bozon v. Bolland, . 
 
 Stratham, 
 Brace v. Duke of Marlborough, 
 Brackenbury v. Brackenbury, 
 
 Bradford v, Belfield, 184, 287, 303, 473, 489 
 
 Bradling v. Ord, 51" 
 
 Bradshaw v. Tasker,' . . . .455 
 
 Bradwell v. Catchpole 310 
 
 Brander v. Brander, . . . 386, 446 
 Bradlyn v. Ord, .... 165, 517 
 Brandon v. Ashton, . . . .395 
 
 Braiser v. Hudson 183 
 
 Brassbridge v. Woodruff, . . .126 
 Bray v. West, . . 224, 227, 228, 547, 566 
 Braybroke (Lord) v. Inskip, 283, 284, 235, 
 
 307, 343 
 
 153 
 . 171 
 
 158, 272 
 
 . 475 
 
 . 368 
 
 . 493 
 
 193 
 
 531, 567 
 .- 164 
 . 515 
 
 109, 111 
 
TABLE OF ENGLISH CASES. 
 
 li 
 
 Breedon v. Breedon, 
 Brereton v. Brereton, 
 Brett v. Forcer, 
 
 Greenwell, 
 Brettell, Ex parte, . 
 Brewster v. Angell, 
 
 PAGE 
 
 . 398, 476, 504 
 
 476, 486, 488, 495 
 
 . 409, 432 
 
 . 412 
 
 . 284, 285 
 
 472 
 
 Brice v. Stokes, 310, 313, 314, 373, 382, 483 
 
 495 
 Bridge v. Brown, . . . 399, 402, 571 
 
 Bridgen v. Lander 347 
 
 Bridger v. Reid, 282 
 
 Bridges, Ex parte, 300 
 
 Stephens, 383 
 
 Bridget v. Hames 544 
 
 Bridgman v. Dove, . . . 345, 350 
 Green, .... 146 
 Bristed v. Wilkins, . . . 174, 445 
 Bristol (Countess of ) v. Hungerford, . 119 
 Bristow v. Bristow, .... 453 
 British Museum v. White, . . .458 
 Britton v. Twining, . . 330, 333, 335 
 
 Broad v. Bevan, 66 
 
 Broadhurst v. Balguy, _. 310, 312, 313, 373, 
 
 382, 
 Brocksopp v. Barnes, 
 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. Amyatt, . 
 
 Bam ford, 
 
 Brown, . 
 
 Carter, . 
 
 Casamajor, 
 
 Clark, . 
 
 De Tastet, 
 
 Ex parte, 
 
 Higgs, 
 
 Howe, 
 
 Jones, 
 
 Litton, . 
 
 Pocock, . 
 
 Ramsden, 
 
 Sansome, 
 
 Selwyn, . 
 
 Southouse, 
 
 Temperley, 
 Browne v. Like, 
 
 Lockhart, 
 Brudenell v. Boughton, 
 Bruere v. Pemberton, 
 Brummel v. M'Pherson 
 
 Prothero, 
 Brydges v. Brydges, 
 Phillips, 
 Buchanan v. Hamilton, 
 Buckeridge v. Glasse, 
 Ingram, 
 Buckinghamshire (Earl of) v. Hobart, 
 Buckle v. Mitchell, 
 
 74, 483, 495, 527 
 
 04, 570, 574, 577 
 
 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 
 
 410, 412, 421 
 
 . 379, 578 
 
 . 199 
 
 67, 68, 70, 79, 135, 485, 
 
 486, 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 
 
 3S5 
 
 350,351, 353,554 
 
 64, 191, 192, 195 
 
 . 526, 527, 528 
 
 362, 435 
 
 326 
 
 516 
 
 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, . 
 B urgess v. B urgess, 
 
 Lamb, . 
 
 Wheate 
 
 Burgoyne v. Fox, . 
 Burke v. Jones, 
 Burlass v. Cooke, . 
 Burleigh v. Stott, . 
 Burleton v. Humphrey, 
 Burnet v. Kynaston, 
 Burr v. Mason, 
 Burrell v. Burrell, . 
 
 Crutchley, 
 Burridge v. Row, . 
 Burrowes v. Locke, 
 Burt v. Dennet, 
 Ingram, 
 Burlon, Ex parte, . 
 v. Hastings, . 
 Knowlton, 
 Pierpont, . 
 Bush v.AHen, 
 Bushell v. Bushel!, . 
 Butcher v. Butcher, 
 Stapeley, 
 Butler v. Duncomb, 
 
 Portarlington, 
 Buxton v. Buxton, . 
 Ex parte, 
 Byrchall v. Bradford, 
 
 PA8B 
 
 .150 
 
 . 207 
 
 . 572 
 
 . 75, 123 
 
 66, 67, 68, 72 
 
 . 413 
 
 . 516 
 
 401,402,404 
 
 . 379, 380 
 
 . 424 
 
 575 
 
 405, 407, 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 
 
 238, 364, 371, 522, 
 
 523 
 
 Cadman v. Homer, .... 147 
 Cafe v Bent, . . . 184, 185, 494, 563 
 Caffrey v. Darby, . . . 447, 559, 561 
 Cagon v. Round, ..... 515 
 Caldecott v. 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, 
 Campbell v. French, 
 
 Home, 
 
 Leech, 
 
 Lord Netterville, 
 
 Thompson, . 
 
 Walker, 158, 159, 165, 168, 365. 
 479, 536, 538, 539, 564 
 Campion v. Cotton, .... 102 
 Cane v. Allen, 
 Caney v. Bond, 
 Cann v. Cann, 
 Cannings v. Flower, 
 Cant, Ex parte, 
 
 135, 136 
 
 412, 413 
 
 . 555 
 
 . 481 
 
 . 498 
 
 45 
 
 . ,160 
 . 447 
 . 525 
 . 400 
 209, 300, 568 
 
lii 
 
 TABLE OF ENGLISH CASES. 
 
 Cape v. Bent, .... 
 Capel v. Girdler, . 
 Cardigan (Earl of) v. Montague 
 Carpenter v. Heriot, 
 
 Marnell, . 
 Carr v. Bedford, 
 
 Burlington, 
 Eastabrook, 
 Ellison, 
 . Taylor, . 
 Garrick v. Errington,, 
 Cart v. Rees, . 
 Carter v. Anderson, 
 
 Barnadiston, 
 Carteret v. Carteret, 
 Pascal, . 
 Petty, . 
 Wynham, 
 Cartwright v. Pettus, 
 Radnor, 
 Carus v. Townshend, 
 Cary v. Abbot, 
 Askew, 
 Cary, . 
 Goodinge, . 
 Casborne v. English, 
 
 Scarf, . 
 Case v. Roberts, . 
 Cator v. Cooley, . 
 Cavendish v. Mercer, 
 Cecil v. Butcher, . 
 Ghadwick v. Heatley, 
 Chadwin, Ex parte, 
 Chalk v. Danvers, . 
 Challen v. Shippam, 
 Challis v. Casborne, 
 Chalmer v. Bradley, 
 Chalmers v. Brailsford, 
 Chamberlain v. Agar, . 
 
 Chamberlain 
 •Dummer, 
 Chambers v. Caulfield, . 
 Chambers, 
 Ex parte, 
 Goldlvin, 
 Minchin, 
 
 PAGE 
 . 187 
 
 . 325 
 
 . 481 
 
 . 157, 538 
 
 51,269,530 
 
 . 486 
 
 336, 338, 339, 359 
 
 . 411 
 
 . 270, 430 
 
 . 408, 412 
 
 . 134 
 
 . 418 
 
 . 410 
 
 . 243, 246, 355 
 
 . 254, 279, 281 
 
 416 
 
 44 
 
 406 
 
 44 
 
 466 
 
 452 
 
 130, 131, 455 
 
 58 
 
 71 
 
 172 
 
 269 
 
 . 284, 405 
 
 . 518, 547 
 
 . 511 
 
 . 400 
 
 83, 108,109,111, 112 
 
 . 580 
 
 . 364 
 
 93, 95 
 
 . 372, 376, 381 
 
 . 349 
 
 168, 169, 264, 538. 540 
 
 ' 119 
 
 59, 
 
 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, 
 
 61, 151 
 . 151 
 
 . 385 
 . 427 
 . 329 
 400 
 574 
 
 . 399 
 . 403 
 305, 310, 313, 373, 
 541 
 . 536 
 . 377 
 168, 169, 265 
 . 169, 514 
 . 416 
 . 370, 377 
 232, 239, 240 
 . 456 
 516 
 521 
 
 Charlton v. Wright, 
 Charter v. Trevelyan, . 
 Chasteney, Ex parte, 
 Chatham (Lord) v. Tothill, 
 Chertsey Market, Re . 
 Chesterfield (Earl of) v. Janssen, . 145, 147, 
 153, 154, 163 
 Chettom v. Lord Audley, . . . 574 
 Child v. Stephens, . . . 339,343,358 
 Cholmely v. Paxton, .... 476 
 
 568 
 De Clifford, 462 
 Sullivan, 128, 
 45) 
 344, 358 
 160, 581 
 . 288 
 . 335 
 . 314 
 
 Cholmondely v. Clinton, 168, 257, 258, 260, 
 261, 265, 267, 268, 324, 527 
 
 Christ's Hospital v. Budgin, 
 Christian v. Devereux, 
 Chudleigh's Case, . 
 Churchill v. Hobson, 
 
 Small, 
 Clark, Re 
 Clarke v. Berkely. . 
 
 Jacques, . 
 
 Parker, 
 
 100 
 
 535 
 
 318, 430 
 
 295, 312 
 
 . 272 
 
 193, 205 
 
 . 497 
 
 419 422 
 
 214, 307, 308, 485,'488, 
 
 Pistor, 
 
 Sewell, . 
 
 Smith, . 
 
 Swaile, . 
 
 Turner, . 
 Clarkson v. Hanway, 
 Clavering v. Clavering, 
 
 489, 490, 495, 496, 498, 499 
 
 422 
 345 
 . 537 
 . 538 
 . 486 
 152, 154 
 83, 84, 85, 87, 88, 
 106, 107, 111 
 476 
 
 Clay v. Sharpe, 
 Clayton v. Glengall, 
 Gresham, 
 Cleland v. Cleland, 
 Clennel v. Lethwaite, 
 Clergy (Corporation of Sons of) v. 
 
 Mose, 
 Clermont v. Tasburgh, . 
 Clifford v. Francis, . . 
 Lewis, ... 
 Clinton v. Seymour, 
 
 Clough v. Bond, 308, 310, 371, 375, 377, 378, 
 
 381,541,573 
 Clowdesley v. Pelham, . 
 Cloyne (Bishop of) v. Young, 
 Clutterbuck v. Clutterbuck, 
 
 Smith, . 
 Cochrane v. Robinson, . 
 Cockell v. Pugh, 203, 205, 293, 294, 295, 
 
 298 
 Cocker v. Quaile, . . 369, 382, 483, 495 
 
 Cockerel v. Barber 535 
 
 Cholmeley, 
 Cocking v. Pratt, . 
 Cocksedge v. Cocksedge, 
 Codrington v. Foley, 
 Cogan v. Stephens, 
 Colchester (Mayor of ) v. Lowten, 
 Cole v. Gibbons, ... 
 Gibson, 
 Robbiiis, . 
 Turner, 
 
 Wade, 184, 188, 211, 287, 489, 493 
 
 495 
 
 . 368 
 
 . 446 
 
 . 409 
 
 . 125 
 
 478 
 . 146 
 450, 452 
 345 
 365 
 
 347 
 115 
 354 
 358 
 432 
 
 476, 479 
 157, 158 
 . 427 
 . 365 
 128, 142 
 . 47 
 . 153 
 . 163 
 . 155 
 360 
 
 Colegrave v. Manby, 
 Coles v. Trecothick, 
 Collard v. Hare, 
 Collier v. Burnett, . 
 Dubley, . 
 Collingdon, Ex parte, 
 Collins v. Archer, . 
 Collins, . 
 Wakeman, 
 Collinson v. Pater, 
 
 Patrick, 83, 84 
 Collis v. Blackburn, 
 Cary, 
 Collis, . 
 Colman, Ex parte, . 
 Sarell, 
 Colmore v. Tyndal, 
 Colville v. Middleton, 
 
 . 433, 434, 435 
 
 152, 153, 158, 537, 538 
 
 159, 265 
 
 . 454 
 
 552, 559 
 
 . 532 
 
 . 517 
 
 . 391 
 
 114, 115 
 
 . 456 
 
 86, 87, 89, 448 
 
 . 400 
 
 574, 575 
 
 550, 551 
 
 . 532 
 
 83, 85, 87, 89 
 
 248, 250, 251 
 
 . 350, 358 
 
TABLE OF ENGLISH CASES. 
 
 liii 
 
 Comb v. Comb, 
 
 Page 
 . 366 
 
 Compton v. Coilinson, . 
 
 . 426 
 
 Coningham v. Coningham 
 
 215, 218, 219, 221 
 
 Mellish, . 
 
 . 121 
 
 Plunket, 
 
 . 85 
 
 Conolly v. Lord Howe, . 
 
 . 166, 167 
 
 Parsons, 
 
 . 179 
 
 Constantein v. Blache, . 
 
 . 336 
 
 Conway v. Conway, 
 
 . 365 
 
 Cook v. Burtehaell, 
 
 . 157 
 
 Clayworth, 
 
 . 155,515 
 
 Collingridge, . 
 
 . 159, 379 
 
 Cook, 
 
 . 325, 447, 546 
 
 Dunkenfield, 
 
 . 128, 451 
 
 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 
 
 Fryer 336, 543 
 
 Soltau, . 
 Wiggins, 
 Cookson v. Reay, . 
 Coombes v. Gibson, 
 Cooper v. Stationers' Company, 
 Thornton, 
 
 Wyatt, 
 Cope v. Parry, 
 Copemau v. Gallant, 
 Coppin v. Fernyaugh, 
 Corbert's Case, 
 Corbert v. Maydwell, 
 Corbyn v. French, . 
 Cordall's Case, 
 Corder v. Morgan, 
 Cornish v. Shaw, . 
 Cornwallis's Case, 
 Corrie v. Byrom, . 
 Corry v. Ellison, . 
 Cory v. Gertchken, 
 
 Cory, 
 Cosser 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, 
 
 253, 255, 257, 263 
 
 429, 427 
 
 . 369 
 
 345, 349 
 
 . 138 
 
 . 598 
 
 . 396 
 
 . 546 
 
 269, 529, 530 
 
 . 513 
 
 . 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 
 
 , 195, 196, 
 
 189, 190 
 
 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, 
 
 197, 543, 552, 554, 584 
 
 Cragg v. Holme, . 
 Crallan v. Oughton, 
 Crane v. Drake, 
 Cranstoun (Ld.) v. Johnston, 
 Crawshay v. Collins, 
 Cray v. Mansfield, 
 Creagh v. Wilson, 
 
 497 
 449, 451 
 . 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 
 
 PA&H 
 
 Creed v. Creed, . . . . .362 
 
 Creuze v.JHunter 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 
 
 71 
 
 Cunliffe v. Cunlifl'e, 
 Currant v. Jago, . 
 Currie, Ex parte, . 
 
 v. Pye, 
 Curtis v. Chandler, 
 Hutton, . 
 Lukin, 
 Mason, . 
 Perry, 
 Price, 
 Rippon, . 
 Cusack v. Cusack, 
 Cutbush v. Cutbush, 
 Culler v. Coxeter, 
 
 . 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. Coatsworth, .... 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 
 
liv 
 
 TABLE OF ENGLISH CASES. 
 
 PAGE 
 
 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. Hitson, . 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 
 Dennv. 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 
 De Theminesv. De Bonneval, 134, 451, 455, 
 
 458 
 Devenish v. Baines, 
 Devy v. Face, 
 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 
 
 83 
 
 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, 
 
 Pulland, 
 
 Read, 
 
 Roe, . 
 
 Scott, 
 
 Simpson, . 
 
 239 
 
 59, 150, 151 
 
 191,271 
 
 204, 288 
 
 . 402 
 
 367, 504 
 
 . 275 
 
 . 166 
 
 . 100 
 
 356, 478 
 
 84, 85, 89 
 
 . 421 
 
 388, 389, 523, 574 
 
 413 
 
 535 
 
 419 
 
 420 
 
 127 
 
 , 374, 522 
 
 . 125 
 
 . 3S9 
 
 232, 233 
 
 . 235 
 
 . 262 
 
 . 58 
 
 232, 242 
 
 232, 242, 247 
 
 . 242 
 
 187, 188 
 
 . 481 
 
 . 481 
 
 . 240 
 
 , 241, 251 
 
 160 
 
 240 
 
 Doe v. Smith, 
 Staples, 
 
 853, 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 | 
 
 Sybourne, 253, 254, 255, 257, 259, 261 
 
 Thornley 488 
 
 Timins 249 
 
 Walbank 232, 242 
 
 Willan, . . . 232, 242, 247 
 
 Williams, 243 
 
 Doiley v. Sharratt, . . . .171 
 
 Dolman v. Smith, . . . 350, 353 
 
 Weston,. , . . . .352 
 
 Dommet v Bedford, .... 305 
 
 Donne v. Hart, 406 
 
 Lewis, 358 
 
 Donnegal'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 
 
 Horsi'all, . . . .543 
 
 Dove v. Everard, . . , 215, 218 
 
 Dover, Ex parte, 203, 205, 206, 207, 215, 237, 
 
 297, 298 
 v. Gregory, 
 Dovenby Hospital, Re, 
 Dowell v. Dew, : 
 Down v. Worrall, . 
 
 Re, . 
 Downe v. Morris, . 
 Downes v. Grazebrook 
 
 paob 
 
 224 
 
 259. 261, 320 
 
 Timeron, 
 Powers, 
 Re, 
 Dowman's Case, 
 Doyle v. Blake, 
 Doyley v.. Att.-Gen., 
 Drake v. Robinson, 
 Drakeford v. Wilks, 
 Drayson v. Pocock, 
 Driver v. Ferrand, 
 Druce v. Denison, 
 Drury v. Hook, 
 Dryden v. Frost, . 
 Du Beil v. Thompson, 
 Dublessv. Flint, . 
 Duboise, Ex parte, 
 Dubost, Ex parte, . 
 Dues v. Smith, 
 Dummer v. Pitcher, 
 Dunbar v. Tredennick, 
 Duncan v. Campbell, 
 
 Chamberlaine 
 Duncombe v. Mayer, 
 Dunch v. Kent 
 
 . 347, 349 
 
 . 198 
 
 . 421 
 
 . 132, 489 
 
 . 205 
 
 . 270 
 
 159, 169, 479, 527, 
 
 535, 536, 539 
 
 . 421 
 
 . 514 
 
 . 569 
 
 . 56 
 
 215, 218, 219, 368, 574 
 
 . 451, 
 
 . 349 
 
 . 166 
 
 191, 211,476, 504,548 
 
 351, 352, 354 
 
 . 408 
 
 . 163 
 
 . 165, 514 
 
 . 57 
 
 Dundas v. Dutens, 
 Dunlop v. Hubbard, 
 Dunman, Ex parte, 
 Dundage v. White, 
 Durour v. Motteux, 
 Dyer v. Dyer, 92, 9 
 
 Dyster, Ex parte, . 
 
 . 550 
 
 275, 449 
 
 . 89 
 
 . 412 
 
 96, 105, 106, 108, 111 
 
 . 539 
 
 . 427 
 
 206, 448, 531 
 
 . 272, 428 
 
 336, 337, 340, 342, 343, 505, 
 
 512 
 
 .. .57 
 
 . 566, 567 
 
 . 480 
 
 . 149 
 
 142, 143, 466 
 
 100, 102, 104, 105, 
 
 107, 108 
 
 . 46 
 
 Eade v. Eade, 
 
 E. 
 
 71,75 
 
TABLE OF ENGLISH OASES. 
 
 Iv 
 
 PAGB 
 
 Ealesv. England, . . . . 71, 269 
 
 Earlom v. Saunders 369 
 
 East v. Ryal, 464, 559 
 
 East India Company v. M'Donald, . 515 
 
 Eastwood v. Brown 336 
 
 Easlon 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 
 
 Eland v. Eland, 
 Elder, Ex parte, 
 Elibank v. Montolieu, 
 Elliot v. Collier, . 
 
 Cordell, . 
 
 Elliott, . 
 
 Hancock, . 
 
 Merryman, 
 
 Remington, 
 Ellis v. Ellis, . 
 Guavas, 
 Maxwell, 
 Shelby, 
 Ellison v. Airey, 
 
 Ellison, . 
 Else v. Osborn, . 
 Eltham v. Warreyn, 
 Elton v. Harrison, . 
 
 Shepherd, 
 Elwin v. Williams, 
 Elworthy v. Bird, . 
 
 Wickslead, 
 Emblym v. Freeman, . 
 Emelie v. Emelie, . 
 Emery v. Grocock, 
 
 543, 566 
 . 360 
 . 155 
 
 518, 547 
 . 336 
 . 364 
 .92, 99 
 . 551 
 89, 448, 449 
 . 160 
 . 164 
 
 408, 411 
 
 342, 363, 504, 505, 506 
 
 425 
 
 408, 409 
 . 418 
 
 410, 412 
 . 104 
 
 360, 3C2 
 
 342, 355 
 . 413 
 
 81 
 
 Hill, 
 Emelslie v. M'Aulay, 
 Emperor v. Rolfe, . 
 England v. Downes, 
 Re, 
 
 English v. Orde, 
 Entwistle v. Markland, 
 Erratt v. Barlow, . 
 Errington v. Chapman, 
 
 Evans, 
 Essex v. Atkins, 
 Estwick v. Cailland, 
 Eure v Howard, . 
 Evans v. Bicknell, 
 
 Chesshire, 
 Jackson, . 
 John, 
 Llewellyn, 
 Massey, . 
 Tweedy, . 
 Evelyn v. Evelyn. . 
 Foster, . 
 
 . 555 
 
 . 173 
 
 394 
 
 116, 117, 132, 133, 454 
 
 . 349, 360, 575, 576 
 
 83, 84 
 
 319, 320 
 
 . 464 
 
 . 473 
 
 248, 422 
 
 . 417 
 
 426, 427 
 
 . 410 
 
 114, 115 
 
 . 378 
 
 253,255,257, 258, 261, 
 
 263 
 
 454, 468 
 
 . 166 
 
 . 366 
 
 163, 556 
 
 . 399 
 
 Slade, 252, 253, 254, 257, 258, 262 
 
 459 
 390 
 400 
 401 
 172 
 425 
 336 
 235 
 
 272,384,428,448,512, 
 
 515 
 
 . 153 
 
 . 476 
 
 . 219 
 
 . 145 
 
 399, 400 
 
 344, 357 
 
 . 367 
 
 202, 208, 594, 302 
 
 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 
 
 F. 
 
 Fairfield, Ex parte, 
 Faithful v. Hunt, . 
 Fane v. Duke of Devonshire. 
 Fareswell, Re, 
 Farmer v. Compton, 
 Farrington v. Knightly, . 
 Faulkner v. Elger, 
 Fauntleroy, Re, 
 Faversham Charities, Re, 
 Fawcett v. Lowther, 
 
 Whitehouse, 
 Fearns v.Young, 386 
 
 531, 532 
 . 545 
 . 154 
 193, 206 
 498, 500 
 123, 124 
 '441, 442 
 
 190, 205 
 188, 191, 194 
 
 . 270 
 
 . 160 
 
 393, 404, 566, 567, 570, 
 
 572, 573 
 
 Fearon, Ex parte, 150 
 
 v. Webb, . . . 439, 441, 4H 
 Featherstonhaugh v. Fenwick, . . 379 
 Fell v. Lutwidge, ..... 558 
 Fellowes v. Gwyder (Lord), . . . 146 
 Mitchell, . . 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 
 269,282,510 
 
 191, 194 
 405, 426 
 
 . 514 
 
 . 366 
 
 . 474 
 
 370, 557, 563 
 
 . 439 
 
 193, 200 
 
 438, 439 
 
 562, 563 
 
 307, 586, 489 
 
 . 127 
 
 . 426 
 
 90, 102 
 
 6, 560, 564 
 
 . 74 
 
 . 152 
 
 . 172 
 
 . 410 
 
 204, 208, 292, 296, 297 
 
 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. Gott, 
 Finch's Case, . 
 Finch v. Finch, 
 
 Hattersley, 
 Squire, 
 
 Winchelsea (Earl of) 
 Finlay v. Howard, . 
 Fitzer v Fitzer, 
 Fitzgerald v. Fauconberg, 
 Field, 
 Jervoise, . 
 Pringle, . 
 , * Raynsford, 
 Fitzgerald, Re, 
 Fitzgibbon v. Scanlan, . 
 Flanagan v. Nolan, 
 Flanders v. Clarke, 
 Fletcher v. Chapman, . 
 Fletcher, 
 Sidley,. 
 Walker, 
 Flint v. Hughes, . 
 Floyer v. Sherrard, 
 Flud v. Rumsey, . 
 Fodern v. Finney, . 
 Foley, Ex parte, . 
 
 v.Hill 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 
 
 272, 374, 3' 
 
Ivi 
 
 TABLE OF ENGLISH CASES. 
 
 
 
 
 PAGE 
 
 Forbes v. Phipps, . 
 
 , 
 
 
 . 416 
 
 Ross, . 368, 
 
 374 
 
 523 
 
 559, 564 
 
 Ford v. Fowler, 
 
 
 
 71, 76 
 
 Peering, ._ 
 
 
 
 271, 272 
 
 Fordyce v. Willis, ' 56, 
 
 57, 
 
 50,61, 'O, Jit; 
 
 Forrest v. Elwes, . 
 
 
 
 381, 522 
 
 Forster v. Blackburn, . 
 
 
 
 . 281 
 
 Blackstone, . 
 
 
 
 . 448 
 
 Hale, . 
 
 , 
 
 56, 
 
 57, 58, 61 
 
 Fort v. Fort. . 
 
 
 
 . 415 
 
 Fortescue v. Bamett, . 
 
 '83, r 
 
 448, 449 
 
 Fortherby v. Pate, 
 
 
 
 277, 540 
 
 Fountaine v. Pellet, ^ . 
 
 277, 
 
 429, 
 
 540, 569, 
 570 
 
 Fowey's Charities, Re, . 
 
 
 
 . 199 
 
 Fowle v. Green, 
 
 
 
 . 355 
 
 Jones, 
 
 
 
 . 236 
 
 Fowler v. Fowler, . 
 
 
 
 . 425 
 
 Fowler v. Garlike, . 
 
 
 
 . 116 
 
 Hunter, . 
 
 
 
 69, 492 
 
 Fowler, Re, . 
 
 
 
 206, 492 
 
 Willoughby, . 
 
 
 
 . 362 
 
 Fox v. Maekreth, 147, 
 
 148, 
 
 158, 
 
 159, 537, 
 558, 559 
 
 Wright, . 
 
 
 
 . 153 
 
 Foy v. Foy, ; 
 
 
 
 . 456 
 
 Francis v. Collier, . 
 
 
 
 362, 551 
 
 Franco v. Bolton, . 
 
 
 
 . 163 
 
 Frank v. Mainwaring, . 
 
 
 
 277, 540 
 
 Franklin v. Frith, . 
 
 374 
 
 377 
 
 523, 559 
 
 Green, 
 
 
 399 
 
 402, 572 
 
 Frampton v. Frampton, . 
 
 
 . 
 
 . 426 
 
 Fraser v. Bailie, 
 
 
 
 . 414 
 
 Palmer, . 
 
 
 . 
 
 . 575 
 
 Freake v. Cranefeldt, . 
 
 
 
 344, 357 
 
 Frederick v. Hartwell, . 
 
 
 
 . 425 
 
 Freeman v. More, . 
 
 
 
 . 425 
 
 Parsley, 
 
 
 
 . 405 
 
 Fairlee, 
 
 
 376 
 
 550, 574 
 
 Freme v. Woods, . 
 
 
 
 375, 573 
 
 Freemoult v. Dedire, 
 
 
 
 355, 358 
 
 French v. Chichester, . 
 
 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 
 
 51*9 
 
 520, 580 
 
 Fulton v. Giltnour, 
 
 
 309 
 
 314,580 
 
 Furgus v. Gore, 
 
 . 
 
 , 
 
 . 356 
 
 Furlan v. Saunders, 
 
 
 
 . 317 
 
 Fuller v. Jackson, . 
 
 , 
 
 
 . 550 
 
 Fyler v. Fyler, 
 
 . 
 
 378 
 
 581, 522 
 
 Gage v. Whatmough, . 
 
 Gainsborough v. Gainsborough, 
 
 Gait v. Osbaldeston, 
 
 Galliers v. Moss, . 
 
 Gallim v. Noble, . 
 
 Gardiner, Ex parte, 
 
 Gardner v. Rowe, . 
 
 Garforth v. Bradley, 
 
 Garland, Ex pnrte, , 
 
 Garmstone v. Gaunt, . 367, 396 
 
 Garrard v. Lauderdale, 83, 336, 
 
 118, 534 
 . 354 
 . 517 
 . 286 
 
 362, 474 
 
 . 411 
 
 57, 530 
 
 . 408 
 
 . 533 
 
 435, 436 
 
 337, 388, 
 343 
 
 Garrett v. Noble, . 
 Gartland v. Mayott, 
 Garth v. Baldwin, . 
 
 Cotton, . 
 
 Ward, . 
 Garlside v. Isherwood, 
 
 Radcliffe, 
 Gascoigne v. Thwing, 
 Gaskell v. Gaskell, 
 Go ugh, . 
 Hough, . 
 Gathorne, Re, 
 Gaunt v. Taylor, . 
 Gayner v. Wilkinson, 
 Geary v. Bearcroft, 
 George v. Howard, 
 George (St.) v. Wake, 
 Gerrard v. Gerrard, 
 Gibbons v. Hawley, 
 Gibbs, Ex parte, . 
 v. Rumsey, 
 
 66, 
 
 Giblet v. Hobson, . 
 Gibson v. Bott, 
 
 , Heyes, . 
 
 Jeyes, . 
 
 Kinven, . 
 
 Montford (Lord), 
 
 Russel, . 
 
 Scudamore, 
 Giddings v. Giddings, 
 Gifford v. Manly, . 
 
 Hart, 
 Gilbert v. Bennet, . 
 Gillv. Att.-Gen., . 
 Gillan, Ex parte, . 
 Gillett, Ex parte, . 
 v. Wray, . 
 Gillibrand v. Goold, 
 Gilten v. Birt, 
 Gingell v. Home, . 
 Girling v. Lee, 
 Gittins v. Steele, . 
 Gladding v. Yapp,. 114, 1 
 Gladstone v. Hadwen, 
 Glaister v. Hewer, . 
 Glengall v. Barnard, 
 Glisson v. Ogden, . 
 Gloucester (Corp. of) 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, 
 
 PASS 
 
 . 380, 474 
 . 184 
 232, 242, 333 
 . 318, 323 
 . 511 
 152, 154, 155, 156 
 . 151 
 94, 95, 108 
 86, 109 
 . 351 
 . 354 
 , 290, 292 
 . 553, 567 
 . 516 
 . 50 
 . 108 
 . 103 
 . 365 
 , 531, 568 
 . 568 
 117, 124, 127, 130, 
 140, 142, 485 
 142, 143, 457 
 . 379, 389 
 . 519 
 152, 157, 166 
 . 486, 490 
 231, 242, 244, 
 245, 243 
 246 
 165 
 392 
 439 
 519 
 545 
 66 
 314 
 
 154 
 
 530, 531 
 
 . 496 
 
 . 367 
 
 . 514 
 
 . 150 
 
 . 358 
 
 . 353, 362 
 
 17, 125, 126, 127 
 
 51 
 
 98, 102, 415 
 
 . 387 
 
 . 157 
 
 . 134 
 
 . 240 
 
 . 457 
 
 342, 504 
 
 . 414 
 
 . 163 
 
 . 291 
 
 . 395 
 
 . 573 
 
 . 480 
 
 67 
 
 349 
 
 87 
 
 356 
 
 402 
 
 337 
 
 392 
 
 114 
 
 286 
 
 59 
 
 325 
 
 257 
 
 345 
 
TABLE 
 
 OF 
 
 ENGLISH CASES. 
 
 
 
 Jvn 
 
 
 
 
 
 PAGE 
 
 
 
 
 PAflE 
 
 Goodson v. Ellison, 221, 
 
 222, 
 
 253 
 
 ,254, 
 
 256, 
 
 Grimmett v. Grimraett, . 
 
 
 
 456 
 
 257, 279, 280, 303, 327, 
 
 555, 
 
 556, 560, 
 
 561, 
 
 Grimstead's Case, . 
 
 
 
 540 
 
 
 
 
 579 
 
 581 
 
 Grimstone, Ex parte, . 
 
 
 , 
 
 396 
 
 Goodtitle dem. King v. Woodward, 
 
 306 
 
 Groves v. Clark, . . 
 
 
 
 418 
 
 v. Funucan, . 
 
 
 
 
 481 
 
 Groves, ■ 
 
 
 
 94 
 
 Jones, 253, 259 
 
 261, 
 
 262, V, ■!. 
 
 316, 
 
 Perkins, 
 
 
 , 
 
 418 
 
 
 
 
 
 322 
 
 Sansom, 
 
 
 , 
 
 568 
 
 Knott, . 
 
 , 
 
 
 , # 
 
 231 
 
 Guidici v. Kinton, . 
 
 
 
 429 
 
 Welford, 
 
 
 
 
 540 
 
 Gullam v. Holland, 
 
 
 
 368 
 
 Whitby, 
 
 
 
 
 240 
 
 Gullin v. Gullin, . 
 
 
 
 414 
 
 Goodwyn v. Lister, 
 
 , 
 
 
 , 
 
 288 
 
 Guth v. Guth, 
 
 
 
 426 
 
 Goose v. Davis, 
 
 , 
 
 
 , 
 
 411 
 
 Gwynne v. Heaton, 
 
 
 . 152 
 
 153 
 
 Gordon v. Gordon,. 148 
 
 , 149 
 
 , 169, •>. 
 
 ,525 
 
 Gwytter v. Allen, . 
 
 
 
 383 
 
 Trail, . 
 
 
 
 . 567 
 
 572 
 
 
 
 
 
 Gore v. Black, 
 
 
 
 , 
 
 325 
 
 H. 
 
 
 
 
 Slackpole, 
 
 , 
 
 
 
 511 
 
 
 
 
 
 Gorge's (Lady) Case, . 
 
 . 
 
 
 98, 
 
 102 
 
 Habergham v. Vincent, . 
 
 
 361, 
 
 362 
 
 v.Pye, . 
 
 
 
 
 522 
 
 Haggar, Ex parte, . 
 
 
 . 205 
 
 298 
 
 Gospel Propagation Society v. 
 
 An. -<::.' (i 
 
 ., 
 
 Haines, Ex parte, . 
 
 
 . 
 
 159 
 
 
 
 
 
 454 
 
 Haldenby v. Spofforth, . 
 
 
 
 355 
 
 Goss v. Tracy, 
 
 
 150, 277 
 
 540 
 
 Hale (Sir Edward) and Lady 
 
 Carr's Case, , 
 
 Gough v. Andrews, 
 Gould's Case, 
 
 , 
 
 
 366, 
 
 564 
 
 
 
 
 378 
 
 , 
 
 
 
 510 
 
 Haley v. Banister, . 
 
 
 394, 
 
 402 
 
 Gould v. Fleetwood, 
 
 
 
 
 576 
 
 Hall v. Carter, 
 
 365, 367 
 
 368 
 
 Gower v. Maiuwaring, . 
 
 
 
 485, 
 
 486 
 
 Dewes, 
 
 186, 303 
 
 473 
 
 Gowland v. De Faria, . 
 
 , 
 
 
 
 153 
 
 Halle tt, 
 
 160, 539 
 
 557 
 
 Goyrnour v. Pigge, 
 
 
 
 
 149 
 
 Lack, . 
 
 
 519 
 
 545 
 
 Graham v. Londonderry (Lord 
 
 , 
 
 
 537 
 
 Laver, 
 
 
 . 565 
 
 567 
 
 Granger, Ex parte, 
 
 
 
 168, 
 
 265 
 
 Smith, 
 
 
 
 513 
 
 Grant v. Lynam, . 
 
 77,'78, 7 
 
 9,485 
 
 492 
 
 Halliday v. Hudson, 
 
 
 192 
 
 359 
 
 Grantley v. Garthwaite, 
 
 
 
 
 436 
 
 Hamilton v. Fry, . 
 
 
 191, 
 
 196 
 
 Granville v. Beaufort, . 
 
 , 
 
 
 
 124 
 
 Houghton, 334, 338, 339, 
 
 341, 
 
 Gravenor v. Hallam, 
 
 , 
 
 
 142, 
 
 456 
 
 
 
 
 359 
 
 Graves v. Graves, . 
 
 , 
 
 
 345, 
 
 346 
 
 Royse, 
 
 
 . 165 
 
 510 
 
 Gray v. Matthias, . 
 
 , 
 
 
 
 163 
 
 Worley, 
 
 
 
 357 
 
 Grayden v. Grayden, 
 
 
 
 
 501 
 
 Hamley v. Gilbert, 
 
 
 
 65 
 
 Hicks, . 
 
 , 
 
 
 497, 
 
 501 
 
 Hammond v. Neame, . 
 
 
 
 402 
 
 Greaves v. Powell, 
 
 , 
 
 
 
 358 
 
 Hampden v. Hampden, . 
 
 
 
 151 
 
 Green, Ex parte, . 
 
 
 4C 
 
 1,275 
 
 449 
 
 Hampson v. Brandwood, 
 
 
 555, 
 
 566 
 
 v. Belchier, 
 
 , 
 
 
 367, 
 
 435 
 
 Hampton v. Spencer, 
 
 
 
 61 
 
 Ekins, . 
 
 
 
 329, 
 
 409 
 
 Hanbury v. Kirkland,218, 30 
 
 5, 31( 
 
 ), 313, 
 
 314, 
 
 Green, . 
 
 
 
 f 
 
 354 
 
 
 
 381 
 
 382 
 
 Holden, 
 
 
 
 
 291 
 
 Spooner, 
 
 
 
 535 
 
 Otte, . 
 
 . 
 
 
 
 411 
 
 Hanby v. Roberts, . 
 
 
 
 364 
 
 Rutherford, . 
 
 
 
 t 
 
 48 
 
 Hancom v. Allen, . 
 
 
 377, 
 
 378 
 
 Smith, . 
 
 , 
 
 
 
 171 
 
 Hancox v. Abbey, . 
 
 
 350, 
 
 354 
 
 Spicer, . 
 
 
 
 
 392 
 
 Hanington v. Du Chatel, 
 
 
 
 163 
 
 Stephens, 
 
 , 
 
 
 t 
 
 332 
 
 Hansard v. Hardy, . 
 
 
 
 512 
 
 Winter, 
 
 
 
 , 
 
 538 
 
 Hanson v. Keating, 
 
 
 
 406 
 
 Greenhouse, Ex parte, . 
 
 
 
 524, 
 
 198 
 
 Lake, . 
 
 29 
 
 3, 300 
 
 301 
 
 Greenhow v. Etheridge, 
 
 
 
 
 553 
 
 Miller, . 
 
 
 
 415 
 
 Greenlaw v. King, . 
 
 , 
 
 
 
 159 
 
 Harden v. Parsons, . . 3: 
 
 I, 31 
 
 3, 378 
 
 527 
 
 Greenwell v. Greenwell, 
 
 , 
 
 
 400, 
 
 401 
 
 Harding v. GJyn, . 68, 7C 
 
 ,71, 
 
 76,79 
 
 492 
 
 Greenwood v. Evans, . 
 
 
 43 
 
 4,436 
 
 437 
 
 Grady, . 
 
 
 t 
 
 345 
 
 Wakeford, 
 
 191, 
 
 19( 
 
 i, 197, 
 
 286, 
 
 Grey, . 
 
 
 
 357 
 
 369, 383, 483, 519, 520 
 
 526 
 
 54 
 
 3, 554 
 
 584 
 
 Hardingham v. Nicholls, 
 
 
 
 415 
 
 Gregory v. Gregory, 166, 
 
 265, 
 
 3U 
 
 ,527, 
 
 538, 
 547 
 
 Hardwick v. Mynd, 
 
 Lord Vernon, . 
 
 
 307, 
 539, 
 
 474 
 
 558 
 
 Henderson, . 
 
 
 
 233, 
 
 234 
 
 Hare v. Shearwood, 
 
 
 166, 
 
 167 
 
 Grey v. Grey, . 97, 99 
 
 10 
 
 2, 104, 
 
 352 
 
 Harewood v. Child, 
 
 
 
 352 
 
 (Lord) v. (Lady), 
 
 
 
 
 352 
 
 Hargrave v. Tindal, 
 
 
 
 350 
 
 Minnethorpe, . 
 
 350 
 
 35 
 
 1, 352 
 
 354 
 
 Hargreaves v. Mitchell, 
 
 
 341, 
 
 356 
 
 Grieves v. Case, . 
 
 . 
 
 
 452, 
 
 456 
 
 Rothwell, 
 
 
 165, 
 
 514 
 
 Griffin v. De Venill, . 
 
 
 S 
 
 154, 
 
 156 
 
 Harland v. Trigg, . 
 
 
 71 
 
 , 76 
 
 Griffin, . 
 
 . 
 
 16 
 
 0,438 
 
 539 
 
 Harmer v. Harris, , 
 
 
 
 568 
 
 Nainson, . 
 
 . 
 
 
 
 151 
 
 Harrington v. Price, 
 
 
 , 
 
 271 
 
 Ex parte, 
 
 , 
 
 , 
 
 290, 
 
 312 
 
 Harris v. Barnes, . 
 
 
 . 
 
 457 
 
 Griffith v. Robin, . 
 
 
 . 
 
 155, 
 
 162 
 
 Ex parte, 
 
 
 532, 
 
 533 
 
 Rogers, . 
 
 
 , 
 
 , 
 
 124 
 
 Ingledew, 
 
 
 338, 
 
 345 
 
 Spratley, 
 
 . 
 
 , 
 
 152, 
 
 153 
 
 Packer, . 
 
 
 
 361 
 
 Vere, 
 
 . 
 
 , 
 
 
 394 
 
 Tremenhere, . 
 
 
 160, 
 
 161 
 
 Grigby v. Cox, 
 
 . 
 
 . 
 
 
 425 
 
 Harrison v. Forth, . 
 
 
 165, 
 
 517 
 
lviii 
 
 TABLE OF ENGLISn CASES. 
 
 Harrison v. Graham, 
 
 Harrison, 
 
 Naylor, 
 
 Pryse, . 
 
 Rowley, 
 
 Southcote, 
 Hart v. Ffrench (Lord) 
 
 Ten Eyck, . 
 Hartford, Re, 
 
 Hartgav. Bank of England, . 
 Hartley v. Hurle, . 350,351,303,354,425 
 Harton v. Harton, . . . 234,241,407 
 Hartwell v. riartwell, . . . .161 
 Harvey v. Aston, . 308,496,497,498 
 
 Harvey, 392, 401, 406, 420, 494 
 
 PAOE 
 
 218, 310 
 
 215, 456 
 . 332 
 . 546 
 
 ' . 535 
 
 . 514 
 
 . 200 
 
 42, 165 
 
 193, 205 
 . 445 
 
 Montague, 
 
 Harwood v. Oglander, . 
 
 Hassel v. Hassel, . 
 
 Hatch v. Hatch, I . 
 
 Hathornthwaite v. Russell 
 
 Hatton v. Nicholl, . 
 
 Havers v. Havers, . 
 
 Hawes v. Wyatt, . 
 
 Hawker v. Buckiand, 
 Hawker, 
 
 Hawkins v. Chappel, . 
 Handock, 
 Kemp, . 
 
 Luscombe, 
 
 Obeen, . 
 Hayes v. Bayley, . 
 
 Kingdome, 
 Hayford v. Benlows, 
 Hayne v. Hayne, . 
 Hayter v. Rod, 
 
 Trego, . 
 Hayton v. Wolfe, . 
 Hazard v. Lane, 
 Hazlewood v. Pope, 
 Head v. Egerton, . 
 
 Head, 
 
 Teynham, 
 Heald, Ex parte, 
 
 511 
 
 . 267, 358 
 
 . 360 
 
 151, 158, 160 
 
 . 212 
 
 . 345 
 
 . 212 
 
 156, 157, 158 
 
 . 358 
 
 . 231 
 
 . 474 
 
 . 288 
 
 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 
 
 349, 350, 352, 355, 358 
 
 . 514 
 
 426, 427 
 
 . 547 
 
 531,532 
 
 Heardson v. Williamson, 239, 242, 244, 245, 
 
 246 
 Hearle v. Greenbank, . . 46, 402, 406 
 
 Hearn v. Wells, 543 
 
 Heathcot v. Hulme, . . . 374, 523 
 
 Paignon 152 
 
 Heatley v. Thomas 424 
 
 Heaton, Ex parte, .... 379, 532 
 v. Hassel, .... 409 
 
 Hebblethwaite v. Cartwright, . . 365 
 Hemmings v. Munckley, . . 496, 499 
 Henchman v. Att.-Gen., 140, 141, 270, 457 
 Henderson v. M'lver, .... 573 
 Henkle v. Royal Exchange Assurance 
 
 Company, 167 
 
 Henley v. Axe, 153 
 
 Phillips, . . . .558 
 
 Henshaw v. Atkinson 457 
 
 Henvell v. Whitaker 347 
 
 Herbert, Ex parte, .... 449 
 
 v. Lownes, .... 150 
 
 Herford (Bishop of) 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 
 
 Hethersell v. Hales, 
 Hewet v. Forster, . 
 Hewit v. Hewit, . 
 Hewitt v. Morris, . 
 Heygate v. Anneslcy, 
 Hibbard v. Lamb, . 
 Hibbert v. Cook, . 
 Jenkins, 
 Hickey v. Bin, 
 Hicks v. Hicks, 
 
 Wrench, . 
 Hide v. Heywood, . 
 
 Hide, 
 Hiern v. Mill,. 
 Highway v. Banner, 
 Hillary v. Walker, 
 
 PAGE 
 
 . 578 
 
 310,313, 373,378.565 
 
 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 
 
 . 119, 127 
 
 . 472 
 
 . 120 
 
 551, 567, 572 
 
 . 45 
 
 . 166 
 
 . 374, 376 
 
 . 365 
 
 . 468 
 
 236 
 
 Hill v. Cock, . 
 
 Hill, . 
 
 London (Bishop of), 
 
 Magan, 
 
 Reardon, 
 
 Simpson, 
 Hilliard, Ex parte, . 
 Hiller v. Jones, 
 Hillyard v. Taylor, 
 Hillon v. Kenworthy, . 
 Hinde v. Blake,83, 87, 336, 337, 449, 550,551 
 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 
 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 
 
 >n, 
 
 165, 515 
 
 166, 269 
 390, 391 
 243, 246 
 489, 495 
 
 . 358 
 
 426, 427 
 
 119, 122 
 
 427 
 
 479 
 
 , 364 
 
 545 
 
 . 44 
 
 . 371. 372 
 
 . 66, 69, 70 
 
 , 411,413 
 
 . 511, 512 
 
 . 281, 574 
 
 . 57 
 
 . 336 
 
 . 203 
 
 . 476 
 
 286, 
 
 Holford v. Phipps, 
 
 279, 281, 556, 565, 566, 
 579 
 
 Holdridge v. Gillespie, 
 Holford v. Wood, . 
 Holland v. Baker, . 
 Hughes, 
 Holliday v. Bowman, 
 Hollis v. Lady Carr, 
 Holloway v. Headington, 
 Holman, Ex parte, 
 Holmes v. Coghill, 
 Dring, . 
 Lysight, 
 Williams 
 Holt v. Holt, . 
 Hone v. Mecrcraft, . 
 Honer v. Morton, . 
 Honor v. Honor, 
 Hooper v. Eyles, . 
 Goodwin, 
 Rossi ter, 
 Hope v. Clifden, . 
 
 . 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 
 
 361, 362, 524 
 386 
 366 
 
TABLE OF ENGLISH CASES. 
 
 lix 
 
 Hopkins v. Hopkins, 
 
 
 PAOE 
 
 41,230, 135 
 
 Irish Incorp. Society v 
 
 Richarc 
 
 PAGE 
 
 s, 266, 471 
 
 Myall, 
 
 369,3! ! l-.»l, v." 
 
 Irnham v. Child, . 
 
 , 
 
 6C 
 
 , 61, 149, 166 
 
 Hopkinson v. Roe, 
 
 
 . 573 
 
 Isaac, Re, . . 
 
 , 
 
 
 . 302, 568 
 
 Horde v. E. of Suffolk, 79, 
 
 30,131,13:1 4(ir,,|M.; 
 
 Isherwood v. Oldknow, 
 
 . 
 
 . 481 
 
 Hore v. Woulfe, 
 
 
 . 416 
 
 lthell v. Beane, 
 
 , 
 
 , 
 
 . 349 
 
 Home v. Burton, . 
 
 
 . 332, 472 
 
 lvie v. Ivie, . 
 
 . 
 
 , 
 
 . 271 
 
 Home, 
 
 
 . 363, 505 
 
 Ivy v. Gilbert, 
 
 
 , 
 
 342. 367, 435 
 
 Hornsby v. Lee, . 
 
 
 . 415,416 
 
 
 
 
 
 Horsfall, Re, . . 
 
 
 . 286 
 
 
 
 
 
 Horsley v. Chaloner, 
 
 
 . 146, 558 
 
 J 
 
 
 
 
 Horwood v. West, 
 
 
 71,75 
 
 
 
 
 
 Hoskins v. Nicholl, 
 
 
 374,523,569 
 
 Jackson v. Castor, 
 
 
 
 . 167 
 
 Hoste v. Pratt, 
 
 
 . 501 
 
 Hobhouse 
 
 
 
 . 422 
 
 Hotchkin v. Humphrey, 
 
 
 . 166 
 
 Hurloek, 
 
 
 , 
 
 140, 141, 456 
 
 Hougham, Ex parte, 
 
 
 45, 93 
 
 Jackson, 
 
 
 , 
 
 . 377 
 
 v. Sandys, 
 
 
 . 478 
 
 Kelly, . 
 
 
 
 . 135 
 
 Hovenden v. Lord Annesley, 
 
 50,264, 465, 
 
 Rowe, . 
 
 
 512, 
 
 513, 514, 517 
 
 
 
 267, 269 
 
 Jacob v. Lucas, 
 
 
 
 448, 519, 545 
 
 Hovey v. Blakeman, 
 
 
 311,313, 574 
 
 Jacomb v. Harwood, 
 
 
 
 . 166 
 
 Howard v. Damian, 
 
 
 . 514 
 
 James v. Allen, . . 
 
 
 116 
 
 132, 133, 454 
 
 Digby, . 
 
 
 . 425 
 
 Biou, 
 
 
 
 . 277 
 
 Ducane, 
 
 
 . 478 
 
 Bydder, . 
 
 
 
 86, 89 
 
 Papera, . 
 
 
 . 212 
 
 Dean, 
 
 
 438 
 
 439, 529, 472 
 
 Rhodes, . 
 
 191 
 
 195, 196, 554 
 
 Ex parte, . 
 
 
 159, 
 
 136, 539, 567 
 
 Dean, 
 
 
 . 515 
 
 Krearson, . 
 
 
 
 218, 219, 309 
 
 Howe v. Earl of Dartmouth, 
 
 136, 377, 378, 
 
 Greaves, . 
 
 
 
 . 146, 150 
 
 381, 3S6, 
 
 387, 
 
 388, 39Q, 574 
 
 Jebb v. Abbott, 
 
 
 
 . 505 
 
 Howe, 
 
 
 . 92 
 
 Jefferys v. Jefferys, 
 
 82, 
 
 83,84, 8f», 93, ] Or; 
 
 Weldon, . 
 
 
 145, 152, 153 
 
 Small, . 
 
 
 
 . 93 
 
 Whitefield, 
 
 
 . 473 
 
 Jemmitt v. Perril, . 
 
 
 
 . 133 
 
 Howel v. Howel, . 
 
 
 . 329 
 
 Jenkins v. Hiles, . 
 
 
 
 . 342, 504 
 
 Price, 
 
 
 . 353 
 
 Jenkins, 
 
 
 
 . 247 
 
 Howell v. Howell, 
 
 
 . 570 
 
 Milford, . 
 
 
 
 273, 384, 529 
 
 Howgravo v. Cartier, . 
 
 
 . 366 
 
 Quinchant, 
 
 
 
 . 167 
 
 Howse v. Chapman, 
 
 142 
 
 349, 356, 453 
 
 Jenkins, Re, 
 
 
 
 . 415, 416 
 
 Hoye v. Master, 
 
 
 . 73 
 
 Jennings v. Moore, 
 
 
 
 . 513 
 
 Hudson's (Lady) Case, . 
 
 
 . 112 
 
 Jenour v. Jenour, . 
 
 
 
 . 568 
 
 Hughes, Ex parte, . 159 
 
 160 
 
 203, 536, 539 
 
 Jernegan v. Baxter, 
 
 
 
 . 414 
 
 v. Garth, . 
 
 
 . 512, 514 
 
 Jerrard v. Saunders, 
 
 
 
 . 515, 517 
 
 Hughes, 
 
 
 . 402 
 
 Jervoise v. Duke, . 
 
 
 
 . 146, 496 
 
 Stubbs, 
 
 
 60, 64 
 
 D. of Northumberland, 65, 81, 
 
 Wynne, 
 
 
 . 341, 365 
 
 
 328 
 
 332 
 
 333, 334, 335 
 
 Huguenin v. Baseley, . 
 
 149, 
 
 151, 155, 158, 
 161, 162, 163 
 
 Silk, . 
 Jevon v. Bush, 
 
 
 
 . 402 
 . 449, 508 
 
 Moseley, 
 
 , 
 
 . 146 
 
 Jewson v. Moulson, 
 
 „ 
 
 
 406, 408, 410 
 
 Hulkes v Barrow, . 
 
 . 
 
 . 433, "434 
 
 Johnes v. Lockhart, 
 
 
 
 . 420 
 
 Hulme v. Hulme, . 
 
 
 . 180, 540 
 
 Johnson v. Aston, . 
 
 , 
 
 
 . 550, 451 
 
 Tenant, . 
 
 
 421, 422, 424 
 
 Ex parte, 
 
 , 
 
 
 . 296 
 
 Humberstone v. Humberstone, 
 
 333, 334, 535 
 
 Johnson, 
 
 
 408 
 
 413,415,416 
 
 Hummerston's Case, 
 
 . 
 
 . 235 
 
 Kenneth, 
 
 342 
 
 363, 
 
 505, 506, 507 
 
 Humphrey v. Bullen, 
 
 
 . 418 
 
 Legard, . 
 
 
 . 
 
 . 90 
 
 Hunt v. Matthews, . 
 
 
 . 15], 166 
 
 Medlicott, 
 
 , 
 
 . 
 
 . 155 
 
 Hunter v. Atkins, 155, 
 
 156, 
 
 158, 160, 171, 
 162, 537 
 
 Telford, 
 Wood, . 
 
 • 
 
 
 568, 569, 572 
 . 143 
 
 Huntingdon (Earl of) v. Huntingdon, 504 
 
 Johnston v. Swann, 
 
 132 
 
 133 
 
 453, 456, 457 
 
 Hurh'yfEx parte, . 
 
 
 . 480 
 
 Joliffe v. East, 
 
 , 
 
 . 
 
 . 568 
 
 Hutcheson v. Hammond, 
 
 140 
 
 , 142, 143, 497 
 
 Jolland, . 
 
 t 
 
 
 . 540 
 
 Hutchens v. Lee, . 
 
 
 57, 59, 166 
 
 Jolland v. Stainbridge 
 
 » ■ 
 
 
 . 510 
 
 Smith, 
 
 , 
 
 415,417, 418 
 
 Jones v. Croucher, 
 
 
 
 . 99, 102 
 
 Hutchinson v. Stephens, 
 
 
 . 203, 292 
 
 Clough, . 
 
 , 
 
 
 . 67 
 
 Townsend 
 
 ■ 
 
 . 519, 546 
 
 Jones, 
 
 , 
 
 
 . 272, 545 
 
 Hyde v. Price, 
 
 
 . 427, 524 
 
 Kearney, . 
 
 . 
 
 
 . 145 
 
 Hyllon v. Hylton, . 
 
 . 
 
 . 157, 158 
 
 Laughton, 
 
 , 
 
 
 . 329 
 
 
 
 
 Lewis, 
 
 278 
 
 375 
 
 555, 560, 573 
 
 
 
 
 Mitchell, . 
 
 
 
 135, 136, 142 
 
 I. 
 
 
 
 Morgan, . 
 Powell, . 
 
 
 
 . 325, 333 
 . 438, 446 
 
 Inchiquin (Lord) v. French, 
 
 350, 354, 355 
 
 Price, 
 
 342, 
 
 343, 
 
 473, 476, 504 
 
 Incledon v. Northcote, . 
 
 . 
 
 . 358 
 
 Saye and Sele (Lord), 
 
 . 230, 232 
 
 Inderwick v. Inderwick, 
 
 
 . 65 
 
 Scott, 
 
 , 
 
 
 . 344, 357 
 
 Inghsby v. Dobson, 
 
 , 
 
 . 457 
 
 Selby, 
 
 
 
 . 361 
 
 Inkersole, Ex parte, 
 
 # 
 
 . 207, 532 
 
 Smith, 
 
 . 
 
 
 510, 512, 513 
 
 Iuwood v. Twynne, 
 
 . 
 
 . 396 
 
 Stanley, . 
 
 . 
 
 . 
 
 . 165, 514 
 
lx 
 
 TABLE OF ENGLISH CASES. 
 
 Jones v. Suffolk, . 
 Torin, 
 Waite, 
 Westcomb, 
 Williams, 
 
 Jortin, Ex parte, . 
 
 Josselyn v. Josselyn, 
 
 Joy v. Campbell, . 
 
 Joyce v. Joyce,- . . 
 
 Joynes v. Statham, 
 
 Jubber v. Jubber, . 
 
 PAGE 
 . 501 
 
 . 70 
 
 . 426 
 
 . 224 
 
 345, 346, 347, 453, 456 
 
 . . . .461 
 
 . 403 
 
 . 313, 530 
 
 . 212 
 
 . 167 
 
 . 65 
 
 K. 
 
 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, 
 
 Kellaway v. Johnson, 
 
 Kellett v. Kellett, . 
 
 . 393, 522 
 
 395 
 
 485, 486, 491, 492 
 
 . 400 
 
 . 310, 378, 531 
 
 . 438, 439 
 
 . 196 
 
 . 347, 366 
 
 231, 333, 235, 242, 253, 
 
 255, 256, 267 
 
 369, 382,483, 521, 
 
 526, 527, 559 
 
 . 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, 
 
 Kendal v. Granger,. 
 
 Kennedy v. Daly, . 
 
 Green, 
 
 Kingstone, 
 
 Kennell v. Abbott, . 
 
 Kenney v. Browne, 
 
 Kennerick v. Ld. Breauclerk 
 
 Kensey v. Langham, 
 
 Kensington v. Dolland, . 
 
 Ex parte, 
 
 Kent v. Burgess, . 
 
 Ex parte, . 
 
 Re. . 
 
 Kentish v. Kentis, . 
 
 Keon v. Magawjay, 
 
 Ker v. Lord Dungannon 
 
 Kerrick v. Barnsby, 
 
 Kidney v. Coussmaker, 
 
 Kilbee v. Sneyd, . 
 
 Kildare (Earl of) v. Eustace 
 
 Killick, Ex parte, . 
 
 v. Flexney, 
 
 Kilpin v. Kilpin, . 
 
 Kilvington v. Gray, 
 
 Kime v. Welfitt, . 
 
 Kinchant v. Kinchant, 
 
 King v. Coggan, . 
 
 Cotton 
 Denison, 
 Hamlet, 
 Hake, 
 King, 
 Leach, 
 Portington, 
 Re, S 
 Taylor, 
 Turner, 
 Winstanley, 
 Kingdom v. Boakes, 
 Bridges, 
 
 439 
 
 81, 133, 454 
 
 164, 509, 517 
 
 . 513, 514 
 
 69, 70, 488, 492 
 
 138, 141, 150 
 
 . 516, 539 
 
 . 232 
 
 . 440 
 
 . 406, 421 
 
 . 530 
 
 . 412 
 
 . 401 
 
 . 290 
 
 . 345, 349 
 
 476, 479, 504 
 
 158, 161, 539 
 
 . 150 
 
 345, 348, 349, 35g 
 
 . 574 
 
 44, 49 
 
 . 420 
 
 102, 160, 438, 539 
 
 60, 64, 98, 101 
 
 66 
 
 400 
 
 157 
 
 271 
 
 110 
 
 65, 114, 118, 120, 122, 141 
 
 149, 150, 153 
 
 . 366 
 
 . 345 
 
 294,295,299,301,302 
 
 59 
 
 206,208, 109,294, 301, 568 
 
 568 
 
 PAGE 
 
 Kingsman v. Kingsman, ... 59 
 
 Kinsman v. Kinsman 511 
 
 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 Plymouth, 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 
 
 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, 
 
 . 288 
 
 . 460 
 
 . 515 
 
 98, 101 
 
 Langley v. Brown, 
 Hawke, 
 
 Earl of Oxford, 
 Sneyd, 
 Langston v. Ollivant, 
 Langton's Case, 
 Lanoy v. Duke of Athol, 
 Lan'sdowne v. Lansdowne, 
 
 (Lord's) Case 
 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 y. 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, . 
 
 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 
 
 115, 118, 123,125, 
 
 126 
 
 . 167 
 
 . 212, 534 
 
 . 356, 505 
 
 . 254, 257 
 
 368, 388, 528 
 
 . 325 
 
 . 364, 409 
 
 . 149 
 
 322 
 
 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 
 
 335 
 
 299, 402, 569, 574 
 
 . 406, 420 
 
 377, 484, 488, 495 
 
 95, 96, 274, 368 
 
 . 285 
 
 . 160 
 
 . 330 
 
TABLE OF ENGLISH CASES. 
 
 lxi 
 
 Legg v. Goldwire, 
 Legge v. Asgill, 
 Legh v. Legh, 
 
 Earl of Warrington 
 Leicester v. Rose, 
 Leigh v. Barry, 
 Le Jeune v. Budd, 
 Le Maitre v. Banister, 
 Leman v. Whitley, 
 Lench, v. Lench, . 
 Le Neve v. Le Neve, 
 Leonard v. Leonard, 
 
 Earl of Sussex 
 Lethbridge v. Mytion 
 Levet 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, . 
 
 (Countess of) v 
 
 PAGE 
 
 . 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 
 Duke of Newcastle, 
 65, 325, 328, 330, 334, 335 
 v. Wright, 309, 314, 315, 373, 383, 
 526, 527, 533 
 
 Lindo v. Lindo, 
 Lindropp v. Eborall, 
 Lindow v. Fleetwood, 
 Lindsell v. Thacker, 
 Lingard v. Earl of Derby, 
 Lister v. Lister, 
 Littlehales v. Gascoigne 
 Lloyd v. Baldwin, . 
 
 Branton, . 
 
 Lloyd, 
 
 Read, 
 
 Smith, . 
 
 Spillet, . 
 
 Williams, 
 Lock v. Lock, 
 Lockhart v. Hardy, 
 Loddington v. Kime,- 
 Lomax 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, 
 Lovvden v. Lowden, 
 Lowe v. Manners, . 
 Lowry v. Fulton, . • 
 Lowson v. Copeland, 
 Lowther v. Carlton, 
 Lowther, 
 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, 218, 372 
 
 380, 381, 447, 564 
 
 165, 514, 517, 580 
 
 . 160 
 
 . 352 
 
 I 
 
 Ludlow (Corporation of ) v. Creenhouse, 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. Dolland, 
 Lyttleton's (Sir Thomas) Case, 
 
 M. 
 Maberly v. Turton, 
 M' Call v. Harrison, 
 M'Carmick v. Buller, . 
 M'Carthy v.JDecaise, . 
 Macartney v. Blackwood, 
 Macauley v. Phillips, 
 
 151, 
 
 PAGE 
 
 J 02 
 
 195 
 
 163 
 
 503 
 
 124 
 
 361 
 
 278,279,280,518, 
 
 520, 561 
 
 . 93 
 
 283, 285 
 
 402 
 173 
 414 
 147 
 424 
 
 406,408,413,414, 
 415,418,419 
 . 400, 401 
 . 135, 136, 394 
 372, 376 
 
 M'Dermott v. Kealy, 
 M'Donald v. Bryce, 
 M'Donnell v. Harding, 
 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 
 Malim v. Keighley, . . . i71, 76 
 Mallabar v. Mallabar, . . 125, 558, 562 
 
 Malpas 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, 
 v. Magnay, 
 Shaw, 
 Manton v. Moore, '. 
 March v. Att.-Gen., 
 Head, 
 Russell, 
 Mare, Ex parte, 
 Margetts v. Barringer, 
 Markby, Re, . 
 Marlborough (Duke of) v. Godolphin, 68, 69, 
 
 70, 490, 495 
 School, Re, . . 190, 194 
 
 . 208 
 
 . 292 
 
 . 534 
 
 . 336 
 
 . 457 
 
 . 409 
 
 266, 378, 382, 528, 583 
 
 . 528 
 
 . 420 
 
 . 395 
 
 Marlowv. Pitfield, 
 Smith, . 
 Marriot v. Marriot, 
 Marrow, Re, . 
 
 357 
 283 
 150 
 300 
 
lxii 
 
 TABLE OP ENSLISH CASES. 
 
 PAGE 
 
 Marsh, Ex parte, 531 
 
 v. Hunter 371 
 
 Wells, . . . 432, 438, 503 
 Marshall v. Bousfield, . . . 330, 331 
 
 Ex parte 202, 286 
 
 v. Holloway, . . . 394, 578 
 M'Avery, .... 343 
 
 Martin v. Blake, 524 
 
 Ex parte, 531 
 
 v. Martin 439, 440 
 
 Mauham 451 
 
 Mitchell, . . . 411, 418 
 
 Persse, 554 
 
 Rebow, 124 
 
 Marwood v. Darell, .... 230 
 Mason v. Limbury, . . 69,71,76,79 
 Massey v. Banner, 375, 376, 524, 556, 564, 573 
 
 37 
 
 2,376 
 
 Parker, . 
 
 Shearman, 
 Massie v. Drake, . 
 Masters v. Masters, 
 Mather v. Priestman, 
 
 Thomas, 
 
 Scott, . 
 Mathew v. Hanbury, 
 Mathews v. Brise, 
 Maughan v. Masom, 
 Maundrell v. Maundrell, 
 Maxwell v. Wettenhall, 
 May v. Selby, 
 Mayo (Earl of), Re, 
 Meacher v. Young, 
 Mead v. Hide, 
 
 Lord Orrery, . 
 Medley v. Horton, 
 Medlicottv. O'Donnel, . 
 Meek v. Kettlewell, 51,64, 84, 85 
 Meggison, v. Moore, 
 Meinertzhagen v. Davis, 
 Mence v. Mence, . 
 Mercer v. Hall, 
 Mercers (Mystery of ) v. Attorney 
 
 . 67, 
 
 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, 
 
 Cliiherow, 
 
 Dodswell, . 
 
 Middleton, 
 
 Spicer, 
 Midland Counties Railway Company v 
 
 419, 421 
 
 71, 76 
 
 . 567 
 
 361, 363, 364, 453 
 
 . 480 
 
 . 286 
 
 . 457 
 
 . 145 
 
 377, 483 
 
 . 359 
 
 261, 324, 325, 326 
 
 . 340 
 
 . 544 
 
 . 193 
 
 . 402 
 
 352, 355 
 
 164, 165, 282, 509 
 
 422. 423 
 
 168^ 265 
 
 86, 87, 89 
 
 73, 82 
 
 181, 183 
 
 . 115 
 
 . 497 
 
 Gen., 461 
 
 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 
 
 Westcomb, 
 Mildmay v. Hungerford, 
 Miles v. Leigh, 
 Neave, 
 Millar v. Craig, . . 
 Millard's Case, 
 
 v,. Eyre, . 
 Miller v. Knight, . 
 Horton, . 
 Millesv. Mills, 
 Mills v. Banks, 
 
 Farmer, . 
 
 300, 301 
 . 147 
 . 361 
 191, 209, 224, 227 
 . 582 
 282, 317, 510 
 190, 191, 195 
 . 194, 293 
 . 349 
 393, 435, 438 
 343, 355, 367, 475 
 128, 131, 450, 451 
 
 Molden v. Menill 
 Mole v. Mole, 
 Mole v. Smith, 
 Molineux, Re, . , 
 Molony v. Kirwan, 
 
 L' Estrange, . 
 Montacute v. Maxwell, . 
 Montesquieu v. Sandys, 
 Montfort (Lord) v. Cadogan, 
 
 Mills v. Mills, 
 
 Roberts, . 
 Milnes v. Busk, 
 
 Cowley, 
 
 Slater, . 
 Milsington (Lord) v. Mulgrave, 
 
 paoe 
 
 387, 392 
 
 . 400 
 
 . 425 
 
 . 528 
 
 122, 358 
 
 433, 434, 
 
 495 
 
 . 445 
 
 . 413 
 
 . 468 
 
 . 3611 
 
 345, 360 
 
 . 368 
 
 351, 352, 365, 368, 395 
 
 Milward v. Milward, 
 Minet v. Hyde, 
 
 Vulliamy, 
 Minor v. Wickstead, 
 Morehouse v. Scaife, 
 Mitchell v. Bower, 
 
 Mitchell, 
 Mitchelson v. Piper, . . . .548 
 
 Mitford v. Mitford, £ . 408, 409, 415, 416 
 
 Mithwold v. Walbank 45 
 
 Mocatta v. Lousada, .... 493 
 
 Murgatroyd, . . .512 
 
 Moggridge v. Thackwell, 53, 71, 79, 128, 
 
 130, 131, 450, 451, 452, 461, 486 
 
 Mohun v. Mohun, . . 551,565,566,567 
 
 147 
 
 . 400 
 
 . 252, 327 
 
 . 200 
 
 . 509, 514 
 
 160, 161, 265 
 
 . 57, 166 
 
 . 153, 160 
 
 212, 215, 218, 
 
 382 y 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. Dickens 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, 
 Morley v. Morley, 
 Morris v. McGullock, 
 
 Preston, 
 Morse v. Royal, . 
 
 Sadler, . 
 Mortimer v. Orchard, 
 Shortall, 
 M^est 
 Mortlock v. Buller, 
 
 Morton v. Tewart, 
 Moses v. Levi, 
 Mosely v. Ward, . 
 Moth v. Attwood, . 
 Mott v. Buxton, . 
 Mount, Re, . 
 Mountford v. Scott, 
 Mountfort, Ex parte, 
 Mouseley v. Carr, 
 
 540, 577, 578 
 
 . 404, 573 
 
 . 163 
 
 . 177, 186 
 
 159, 265, 535, 537, 538 
 
 . 543, 544 
 
 . 515 
 
 . 150, 167 
 
 . 361, 362 
 
 145, 147, 473, 474, 477, 
 
 478, 479, 480, 485, 509 
 
 61, 64 
 
 . 313 
 
 382, 559 
 
 152, 153 
 
 232, 274, 275 
 
 . 201 
 
 165, 514 
 
 . 401 
 
 374, 523, 556, 560, 563, 
 
 564 
 
TABLE OF ENGLISH CASES. 
 
 lxiii 
 
 Moyle v. Moyle, . 
 Moyse v. Giles, 
 Muckleston v. Brown, 
 Mucklow v. Fuller, 
 
 Mulcahy v. Kennedy, 
 Mulhallen v. Marum, 
 Mullen v. Bowman, 
 Mumma v. Mumtna, 
 
 PAGE 
 
 . 372, 375 
 
 93 
 
 '59,61,164, 167 
 
 214, 236, 314, 379, 
 
 381,383,447,528 
 
 . 1C9 
 
 . 157, 169 
 
 . 118, 120 
 
 97, 104, 105 
 
 Potomac Company, . . 172 
 
 ' Munch v. Coekerell, 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 Kenyon, . . .112 
 Myercough, Ex parte, .... 401 
 
 N. 
 
 Nab v. Nab, . 
 Nagle v. Baylor, . 
 Nail v. Puntor, . 
 Nairn v. Majoribanks, 
 Naldred v. Gilham, 
 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. iiine, 
 Neville v. Saunders, 
 
 Wilkinson, 
 New v. Jones, 
 Newdigate v. Newdigat 
 Newell v. Ward, . 
 Newland v. Champion, 
 
 Paynter, 
 
 Newman v. Johnson, 
 
 Payne, 
 
 Williams, 
 
 Newstead v. Searles, 
 
 Newton v. Bennett, 
 
 282,2 
 
 Hunt, . 
 Pelham, 
 Preston, 
 
 Nicholls v. Danvers, 
 Gould, 
 Nicholls, 
 Re, . 
 
 Nicholson v. Faulkener, 
 
 . 61 
 
 155, 156 
 
 382, 526 
 
 394, 571 
 
 . 110 
 
 . 416 
 
 . 362 
 
 . 411 
 
 239, 240, 241 
 
 81, 133, 452,453,454 
 
 416 
 
 119 
 
 73, 384, 429, 482 
 
 147, 159, 538 
 
 . 207, 296 
 
 . 150 
 
 205, 219, 225, 298 
 
 . 171 
 
 . 513 
 
 . 456 
 
 . 438 
 
 . 425 
 
 . 293 
 
 232, 234, 407 
 
 . 145, 147 
 
 . 574, 575 
 
 . 385 
 
 . 355 
 
 . 166 
 
 . 420 
 
 . 345, 355 
 
 . 160 
 
 . 664 
 
 165,513, 514 
 
 358, 374, 473, 523, 
 
 524, 556, 560 
 
 . 153 
 
 . 61 
 
 94, 95 
 
 . 412 
 
 . 153 
 
 . 156 
 
 193, 206 
 
 553 
 
 Nicloson v. Wordsworth, 216,224, 225, 226 
 
 Nightingale v. Lock-man, 
 Lawson, . 
 Nightingale's Charity, Re 
 Nisbett v. Murray, 
 Noel v. Bewley, 
 
 Henley, 
 
 Jevon, 
 
 Weston, . 
 Noke v. Darby, 
 Norbury v. Chalbeck, . 
 Norbury, . 
 Norfolk's (Duke of) Case, 
 
 v. Brown, 
 Norris v. Le Neve, 
 North v. Pardon, . 
 Norton v. Turville, 
 Norway v. Norway, 224, 22' 
 Nourse v. Finch, . 
 Nowlan v. Nelligan, 
 Nunn v. Wilsmore, 
 Nurse v. Yerwarth, 
 
 PAOE 
 
 . 416 
 
 . 437 
 
 194, 199, 203 
 
 . 124, 568 
 
 253, 257, 262 
 
 142,351,362,363 
 
 . 269 
 
 . 349 
 
 350, 353 
 
 . 562 
 
 377, 395 
 
 . 326 
 
 111 
 
 514 
 
 124 
 
 424 
 
 7, 228, 547, 566 
 
 124, 125, 127 
 
 . 71 
 
 . 340 
 
 . 252, 326 
 
 . 106, 
 168, 265, 
 
 66, 
 
 O. 
 
 O'Brien v. O'Brien, , 
 O'Callaghan v. Cooper, 
 Odell, Re, . 
 O'Ferrallv. O'Ferrall, 
 Offley v. Offley, . 
 Oglander v. Baston, 
 O'Harav. O'Neale, . 
 Okeden v. Okeden, 
 O'Keefe v. Calthorpe, 
 Oke v. Heath, 
 Oldfieldv. Cobbett, 
 Oldham v. Hand, . 
 
 Litchford, . 
 Slater, . 
 Oliphant v. Hendrie, 
 Ommaney v. Butcher, 
 Ex parte, 
 Only v. Walker, . 
 O'Niel v. Lucas, . 
 Onslow v. Corrie, . 
 Orbey v. Mohun, . 
 Ord v. Noel, . 
 Orgil, Ex parte, 
 Orlebar v. Fletcher, 
 Ormsby, Re, . 
 Orr v. Newton', 
 Orrok v. Binney, . 
 Osborh v. 
 
 Ex parte, . 
 
 v. Brown, . 
 Fallows, 
 
 Foreman, . 
 Osbrey v. Bury, 
 Osmond v. Fitzroy, 
 Oswell v. Probert, 
 Overton v. Bannister, 
 Owen v. Owen, . 
 Oxendon v. Oxendon, . 
 Oxford (Earl of) v. Rodney, 
 
 P. 
 
 498, 
 
 81, 
 
 281,282 
 
 405, 
 
 . 524 
 500, 556, 564 
 
 206, 294 
 . 432 
 . 367 
 . 416 
 
 61, 94, 95 
 . 367 
 
 207, 210 
 . 136 
 . 548 
 . 160 
 
 151, 166 
 
 . 124 
 
 454, 457 
 
 130, 133, 461 
 
 290, 300 
 
 . 515 
 
 . 394 
 
 . 432 
 
 . 481 
 
 479, 480, 477 
 
 . 209 
 
 . 171 
 
 404, 574 
 
 215, 218, 381 
 
 . 545 
 
 . 195 
 
 . 302 
 
 . 497 
 
 544, 545 
 
 . 545 
 
 . 320 
 
 154, 155 
 
 407, 408, 413 
 
 373, 526, 581 
 
 . 51, 186 
 
 . 411, 412 
 
 . 357 
 
 Packer v. Packer, 414 
 
 Wyndham, . . . 406, 416 
 Packwood v. Maddison, . . 525, 553 
 
 Page, Ex parte 207 
 
 v. Adam, 342, 362, 363, 504, 505, 506 
 Broom, . . .83, 336, 337 
 
lxiv 
 
 TABLE OE ENGLISH CASES. 
 
 PAGE 
 
 Page v. Leapingwell, . . 140, 142, 364 
 
 Way 395 
 
 Paget's (Lord) Case 344 
 
 Paice v. Archbishop of Canterbury, 114, 
 130, 456, 461 
 
 Paine v. Hall, 
 Painter, Ex parte, . 
 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, 
 
 Charity, Re 
 Parnell v. Lyon, 
 Parrot v. Treby, . 
 Parry v. Warrington, 
 Parslow v. Weedon, 
 Parsons v. Baker, . 
 Dunne, 
 Pascall v. Thurston, 
 Patton v. Randall, . 
 Paul v. Compton, . 
 Pawcey v. Bowen, 
 Pawlett v. Att. -Gen., 
 
 Parry, . 
 Payne v. Collier, . 
 Compton, 
 Ex parte, . 
 v. Low, 
 Rogers, . 
 Peachy v. Duke of Somerset 
 Peacock v. Evans, 
 Monk, 
 Peake v. Penlington, 
 Pearse v. Baron, . 
 Ex parte, 
 
 164 
 
 51, 209 
 
 . 207 
 
 345, 346 
 
 . 374 
 
 304, 400, 520, 546 
 
 . 439 
 
 328, 331, 333 
 
 . 386, 446 
 
 . 517 
 
 . 449 
 
 420, 438, 539 
 
 . 293, 295 
 
 354, 361, 362 
 
 158, 317, 422, 425, 538 
 
 . 463 
 
 . 497 
 
 375, 565 
 
 370, 495 
 
 . 336 
 
 71, 76 
 
 . 413 
 
 . 416 
 
 . 473 
 
 . 71 
 
 . 481 
 
 49, 50, 269 
 
 361 
 
 369, 383, 519, 551 
 
 517 
 
 72, 82, 291 
 
 . 402 
 
 274, 503 
 
 . 430 
 
 . 153 
 
 421, 425 
 
 . 472 
 
 . 482 
 
 165, 209, 568 
 
 v. Newlyn, 167, 431, 512, 513, 563, 564 
 
 Slocombe, 
 Pearson v. Bank of England 
 Lane, . 
 Morgan, 
 Pease v. Hurst, 
 Peate v. Crane, 
 Pechel v. Fowler, . 
 Pelham 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. Knolt, 
 
 Phillips, , 
 Petit v. Smith, 
 Peto v. Gardiner, , 
 Petty v. Styward, . 
 Peyton v. Bury, . 
 Phelp, Ex parte, . 
 
 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 
 
 47, 165, 514 
 
 519,520,521,546 
 
 383, 518, 522 
 
 . 124, 125 
 
 . 396 
 
 93 
 
 303,488,501,502 
 
 . 439 
 
 PAGE 
 
 Philanthropic Society v. Kemp, 364, 457 
 Phillipo v. Munnings, 215, 237, 238, 364 
 
 Phillips, Ex parte, . . 308, 396, 397, 449 
 
 v. Brydgea, 
 Phillips v. Duke of Bucks, 
 Paget, . 
 Phillips, 
 Phipps v. Annesley, 
 
 Pitcher,' 
 Pickard v. Roberts, 
 Pickering v. Pickering, 
 
 Lord Stamford 
 Vowles, 
 Picket v. Logyan, . 
 Pierce v. Scott, 
 
 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, 
 Pinkus v. 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, 
 Pocock v. Reddington, 
 
 Podmore v. Gunning 
 
 Pole v. Pole 
 
 Pollard v. Greenville, . 
 Pollexfen v. Moore, 
 Pollock v. Croft, .... 
 Pomfret (Earl of) v. Lord Windsor, 
 
 252 
 
 146, 277, 540 
 
 . 398, 574 
 
 . 143, 172 
 
 . 353, 362 
 
 . 540 
 
 . 414 
 
 387, 390, 392 
 
 . 168 
 
 284, 432, 439 
 
 152, 156, 265 
 
 . 507, 508 
 
 . 415, 416 
 
 . 157 
 
 . 395 
 
 . 71,74,76 
 
 . 396 
 
 . 128 
 
 374, 378, 523, 559 
 
 201,202,207,208 
 
 . 535 
 
 . 357 
 
 . 515 
 
 . 488, 490 
 
 65, 530, 531 
 
 . 545 
 
 . 493 
 
 . 107 
 
 . 432 
 
 . 109 
 
 . 405, 410 
 
 . 108 
 
 . 319, 321 
 
 . 296 
 
 431, 435, 436, 437 
 
 512 
 
 150 
 
 358 
 
 61 
 
 357 
 
 369, 374, 382, 495, 
 
 522, 523, 559, 564 
 
 59, 61, 150, 151, 164 
 
 . 99, 104 
 
 . 343 
 
 . 171 
 
 . 498 
 
 368, 
 
 511 515 
 Poole v. Pass, 272, 279, 344, 555, 556, 566 
 
 Poor v. Mial, 137 
 
 Pope v. Pope, . . . . 73, 75 
 
 Whichcombe, . . . .493 
 
 Popham v. Bampfield, . - . 231, 243, 353 
 
 Brooke, . . . 148, 162 
 
 Portarlington (Earl of) v. Soulby, . 517 
 
 Portington v. Eglington, . . .155 
 
 Portlock v. Gardiner, . . 168, 265, 582 
 
 Portmore (Lord) v. Morris, . . .167 
 
 (Earl of) v.Taylor, ft. .153 
 
 Portsmouth (Earl of) v. Effingham, . 267 
 
 Fellows, . . 195 
 
 Potter v. Chapman, 
 Powell v. Att. -Gen., 
 
 Cleaver, . 
 
 Dillon, . 
 
 Evans, . 
 
 Hankey, . 
 
 Pleydell, . 
 
 440, 485, 487, 488 
 , . 455 
 . 378 
 . 512 
 380, 381,447 
 . 425 
 . 516 
 
TABLE OF ENGLISH CASES. 
 
 Ixv 
 
 
 
 PACE 
 
 
 
 
 
 PAGE 
 
 Powell v. Price, . 
 
 . 
 
 . 353 
 
 Read v. Devaynes, 
 
 
 , 
 
 535 
 
 Robins, 
 
 , 
 
 . 347, 348 
 
 Lichfield , 
 
 
 
 362 
 
 Powlet (Earl of) v. Herber 
 
 , 
 
 314, 377, 381, 
 
 Read, 
 
 
 
 70 
 
 
 
 322, 559 
 
 Shaw, . 
 
 
 477, 
 
 479 
 
 Powlettv. Att.-Gen., . 
 
 
 . 269 
 
 Sparkes, . 
 
 
 552, 
 
 553 
 
 Power v. Bailey, . 
 
 
 . 424 
 
 Truelove, . 
 
 215, 
 
 219, 
 
 221 
 
 Powis v. Burdett, . 
 
 
 . 366 
 
 Reddington v. Reddington, > 
 
 102, 
 
 103, 
 
 104, 
 
 Capron, . 
 
 
 . 475 
 
 
 
 
 262 
 
 Corbet, . 
 
 
 . 358 
 
 Reech v. Kennigate, . 166 
 
 167 
 
 558, 
 
 562 
 
 Prankerd v. Prankerd, . 
 
 
 . 92, 105 
 
 Rees, Ex parte, 
 
 
 194, 
 
 198, 
 
 460 
 
 Pratt v. Barker, . 
 
 
 . 155, 162 
 
 v. Keith, 
 
 
 
 
 415 
 
 Church, . 
 
 
 . 70 
 
 Reeve v. Att.-Gen., 
 
 '4S 
 
 ,50, 
 
 236, 
 
 269 
 
 Sladden, . 
 
 
 . 122 
 
 Regina v. Pitt, 
 
 
 
 , 
 
 209 
 
 Prendergast v. Eyre, 203, 
 
 204, 281, 290, 
 
 Reid v. Shergold, . 
 
 
 
 477, 
 
 479 
 
 
 
 291, 294, 299 
 
 Remington, Re, . 
 
 
 
 , 
 
 209 
 
 Preston v. Guyon, 
 
 
 . 446 
 
 Reresby v. Farrer, 
 
 
 
 , 
 
 464 
 
 Tubbin, 
 
 
 165,511, 514 
 
 Newland, . 
 
 
 
 , 
 
 365 
 
 Prevost v. Clarke, 
 
 
 70, 74, 76, 79 
 
 Revet v. Harvey, . 
 
 
 
 
 158 
 
 Price v. Blakemore, 
 
 
 267, 474, 522 
 
 Rex v. Coggan, 
 
 
 
 
 430 
 
 Dewhurst, 
 
 
 . 289, 302 
 
 Commissioners of Sewers, 
 
 
 570 
 
 Haihaway, 
 
 
 . 136, 458 
 
 Inhabitants of Essex, 
 
 
 
 570 
 
 North, 
 
 345, 
 
 347, 350, 358 
 
 Wilson, 
 
 
 224, 
 
 226 
 
 Shaw, 
 
 
 . 208, 296 
 
 Reynish v. Martin, 
 
 
 496, 
 
 499 
 
 Prideaux, Re, 
 
 
 . 201, 289 
 
 Reynolds, Ex parte, 
 
 159 
 
 160, 
 
 536 
 
 Pride v. Fooks. 
 
 371 
 
 377, 523, 565 
 
 v. Jones, . 
 
 
 
 172 
 
 Pring v. Pring, 
 
 
 . 59, 164 
 
 Rhodes v. Rudge, . 
 
 
 352, 
 
 355 
 
 Pritchard v. Ames, 
 
 
 . 420 
 
 Rich v. Beaumont, 
 
 
 
 421 
 
 Arbouin, . 
 
 
 . 457 
 
 Cockell, . 
 
 
 406, 
 
 420 
 
 Langher, , 
 
 
 . 503 
 
 Jackpon, 
 
 
 
 167 
 
 Juinchant, 
 
 
 70, 71 
 
 Richards v. Chambers, . 
 
 
 414, 
 
 421 
 
 Prosser, Ex parte, 
 
 
 . 202, 302 
 
 Richards, Ex parte, 
 
 
 
 209 
 
 v. Watts, 
 
 
 . 513 
 
 Richardson, Ex parte, . 
 
 
 531, 
 
 533 
 
 Provost of Edinburgh v. Aubrey, . 454, 468 
 
 v. Bank of England, . 
 
 
 549 
 
 Pryce v. Byrn, 
 
 
 . 168, 265 
 
 Hulbert, 
 
 
 227, 
 
 547 
 
 Pryor v. Hill, 
 
 
 . 408, 410 
 
 Smallwood, . 
 
 
 
 102 
 
 Prytharch v. Havard, . 
 
 293 
 
 295, 300, 301 
 
 Riddle v. Emerson, 
 
 
 57, 92, 97 
 
 Pullen v. Ready, . 
 
 
 . 149, 497 
 
 v. Maundevill, . 
 
 
 
 173 
 
 Pulvertoft v. Pulvertoft, 
 
 
 83, 90, 516 
 
 Rider v. Kidder, , 
 
 92 
 
 , 96, 
 
 292 
 
 Purcell v. M'Namara, . 
 
 
 . 169, 265 
 
 Ridout v. Lewis, . 
 
 
 
 426 
 
 Purden, Re, . 
 
 
 . 207, 296 
 
 Earl of Plymouth, . 
 
 
 . 
 
 355 
 
 Purdew v. Jackson, 411 
 
 414 
 
 ,415, 416,418 
 
 Rigby, Ex .parte, . . 275, 
 
 305, 
 
 306, 
 
 449 
 
 Purefoy v. Purefoy, 
 
 
 . 336, 339 
 
 Rigden v. Vallier, . 
 
 
 
 93 
 
 Pusey v. DSsbouverie, . 
 
 
 . 149 
 
 Rigg v. Sykes, 
 
 
 
 202 
 
 Pushman v. Philliter, . 
 
 
 . 75 
 
 Right dem. Fisher v. Cuthell, 
 
 
 237 
 
 306 
 
 Pybus v. Smith, 
 
 233 
 
 422, 425, 523 
 
 Phillips v. Smith, 
 
 
 233, 
 
 235 
 
 Fye, Ex parte, 
 
 51, 
 
 64, 84, 86, 89 
 
 Ripley v. Noysey, 
 
 
 
 568 
 
 v. George, 164, 318 
 
 322 
 
 , 323, 509, 516 
 
 Rippon v. Dowding, 
 
 
 
 , 
 
 421 
 
 Pym v. Blackburn, 
 
 • 
 
 . 166 
 
 Norton, 
 Ritchie v. Broadbent, 
 
 
 
 ■ 
 
 395 
 414 
 
 R. 
 
 
 
 Rivers v. Derby, . 
 
 
 
 
 367 
 
 
 
 
 Robarts, and , 
 
 '. 185, 
 
 190 
 
 191 
 
 195 
 
 Radburn v. Jervis, 
 
 , 
 
 . 361, 363 
 
 Roberdeau v. Rous, 
 
 
 
 
 44 
 
 Radcliffe v. Eccles, 
 
 , 
 
 . 287, 296 
 
 Roberts v. Dixwell, 
 
 
 
 
 406 
 
 Radford v. Wilsony 
 
 
 . 515 
 
 Kingsley, 
 
 
 
 
 329 
 
 Raikes, Re, . 
 
 
 . 306 
 
 Roberts, 
 
 
 109 
 
 111 
 
 163 
 
 v. Ward, . 
 
 . 
 
 . 65, 66, 70 
 
 Spicer, . 
 
 
 
 
 421 
 
 Ramsbottom v. Parker, 
 
 
 . 156 
 
 Tunstall, 
 
 
 
 
 168 
 
 Ramsden v. Hylton, 
 
 , 
 
 . 149, 150 
 
 Robinson v. Cumming, 
 
 
 
 , 
 
 524 
 
 Langley, . 
 
 
 . 567, 572 
 
 Evans, 
 
 
 
 . 
 
 544 
 
 Randall v. Bookey, 
 
 
 . 124 
 
 Gee, . 
 
 
 
 
 163 
 
 Errington, 168 
 
 265 
 
 ,527,536, 537 
 
 Gray, . 
 
 '. 232 
 
 233 
 
 239 
 
 210 
 
 Hearle, 
 
 , 
 
 66, 72 
 
 Pett, . 
 
 
 
 574 
 
 575 
 
 Morgan, 
 
 
 . 56 
 
 Ridley, 
 
 
 
 . 
 
 539 
 
 Russel, 386 
 
 390 
 
 , 437, 439, 572 
 
 Smith, 
 
 
 
 
 485 
 
 Rankin v. Bernard, 
 
 
 .' 418 
 
 Taylor, 
 
 
 
 119 
 
 217 
 
 Raphael v. Boehrn, 374 
 
 ,523 
 
 , 524, 560, 564 
 
 Tickell, 
 
 
 
 
 398 
 
 Rashley v. Masters, 
 
 , 
 
 . 556, 562 
 
 Wood, 203, 204 
 
 281 
 
 292, 
 
 294, 
 
 Rasiel v. Hutchinson, , 
 
 , 
 
 . 96 
 
 
 295 
 
 , 299 
 
 , 300 
 
 Rawe v. Chichester, 
 
 
 . 438, 439 
 
 Roche v. Hart, . . 374 
 
 376 
 
 523 
 
 559 
 
 Rawlins v. Goldfrap, 
 
 . 
 
 . 401, 403 
 
 O'Brien, . 
 
 
 
 538 
 
 Jennings, . 
 
 , 
 
 . 123 
 
 Re 
 
 179 
 
 ,205 
 
 207 
 
 Ray, Ex parte, 
 
 • 
 
 . 420 
 
 Rochfort v. Fitzmaurice 
 
 » • 
 
 328 
 
 329 
 
 331 
 
lxvi 
 
 TABLE OF ENGLISH CASES. 
 
 343 
 
 Rodney v., Chambers, 
 Roe v. Street, . ' 
 Rogers v. Earl, 
 
 Rogers, . . 
 Southen, 
 Spillicombe, 
 Vasey, . 
 Ronalds v. Feltham, 
 Rooke v. Worrall, 
 Worth, . 
 Roper v. Halifax, . 
 Rose v. Clerk, 
 
 Cunningham, 
 Rolls, 
 Rose, 
 Roseberry.v. Taylor, 
 Ross v. Ewer, 
 Rothwell v.. Rothwell, 
 Routh v. Howell, . 
 Kinder, . 
 Rowe v. Jackson, . 
 Rowley v. Adams, 
 Rudd v. Tucker, . 
 Rudge v. Birch, 
 Rudyard v, Neirin, 
 Rushloy v.. Mansfield, . 
 Russell v. Clarke's Executors, 
 Rutland (Duke of) v. Duchess of Rutland, 
 
 124. 125 
 
 . 94 
 
 . 84, 86, 87, 89. 449 
 
 168, 369, 376, 382, 526, 
 
 527, 528 
 
 . 415 
 
 . 205, 298 
 
 PAGE 
 
 . 427 
 
 . 266 
 
 . 167 
 
 121, 124 
 
 . 400 
 
 363, 504, 505 
 
 381, 447 
 
 345, 349 
 
 362, 363 
 
 396, 397 
 
 478, 504 
 
 . 64 
 
 . 361 
 
 . 413 
 
 . 368 
 
 . 368 
 
 . 421 
 
 . 549 
 
 375, 573 
 
 338, 520, 547 
 
 411, 418 
 
 . 432 
 
 . 305 
 
 . 274 
 
 . 409 
 
 . 153 
 
 173 
 
 Ryall v. Ryall, . . 
 Rycroft v. Christy, 
 Ryder v. Bickerlon, 
 
 Ryland v. Smith, 
 Ryley, Re, 
 
 S 
 
 N 
 
 Sadler v. Hobbs, . 
 Ex parte, 
 Re, . 
 v. Turner, . 
 Safford, Ex parte, . 
 Sale v. Moore, 
 Salisbury (Earl of) v. 
 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, 
 Ex parte, 
 v. Page, . 
 Vautier, 
 Walker, 
 Sawyer v. Shute, . 
 Saye v. Barwick, . 
 Saye and Sele (Lord) v. 
 Scarborough (Earl of) v 
 Scaltergood v. Harrison 
 Scawen v. Scawen 
 Scott v. Beecher, 
 
 ewton 
 
 PAH 
 
 Scott v.Davis . . 158,537 
 
 Fenhoullet, . . . .326 
 
 Langstaffe, . . . .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. Seale 330 
 
 Sear v. Ashwell 82, 83, 88 
 
 Seeling v. Crawley 426 
 
 Seers, v. Hind, . . . .524, 559 
 
 Seggears, Ex parte 198 
 
 Segrave v. Jfirwan, . . . .150 
 
 Seley v. Wood 124 
 
 Sellack v. Harris 166 
 
 Selsea (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 
 
 218, 310, 312, 313 
 . 337 
 . 275 
 123, 124, 381 
 . 47 
 72, 75 
 408, 417 
 143, 152 
 . 401 
 151, 152 
 . 409 
 557, 560 
 176, 212, 485 
 528, 531, 533, 568 
 . 350, 353 
 159, 536, 559 
 . 182 
 . 365 
 . 231, 247 
 . 515 
 . 151 
 . 252 
 91, 164, 509 
 . 532 
 . 406 
 . 405 
 . 539 
 . 412 
 . 145, 155 
 233, 239 
 . 551 
 . 574 
 102, 104, 105 
 . 212 
 
 Jones, 
 Parker. 
 
 Shakeshaft, Ex parte, 
 Shales v. Shales, 
 Shapland v. Smith, 
 Sharp v. Sharp, . 179, 226 
 Shaw v. Borrer, 342, 345, 355 
 Ex parte, . 
 v. Pickthall, 
 Weigh, - 
 Sheddon v. Goodrich, . 
 Shee v. Hale, 
 
 Sheffield v. Earl of Coventry 
 Shelburn v. Inchiquin, 
 Sheldman v. Wildman, 
 Sheldon v. Barnes, 
 Cox, . 
 Dormer, 
 Shelly v. Nash, 
 Shepherd v. Lutwidge, 
 Mauls, 
 Smith, 
 Towgood, 
 Sheriffe v. Axe, 
 Sherrard v. Lord Harborough 
 Sherratt v. Bentley, 
 Sherwood, Re,. . 574,575 
 Shewen v. Vanderhost, .. 
 Shick, Ex parte, . .* 
 Shieres v. Higgins, 
 Shipbrook v. Hinchinbrook, 
 
 Shirley, v. Earl Ferads, 
 Sbarrocka, Re, 
 Shrewsbury (Countess of) v. 
 
 Shrewsbury, . 
 Shuttleworth v. Howarth, 
 Sidney v. Miller, . 
 
 Shelley, . 114, 1 
 
 Sidney, . 
 Silk v. Prime, 
 Silvester v. Jarman, 
 Simmons v. Bolland, 
 Simms v. Naylor, . 
 Simon v. Barber, . 
 
 Horwood, 
 Simpson v. Gutteridge, . 
 
 165 
 
 378, 521, 531 
 
 . 104, 106 
 
 232, 239, 247 
 
 227, 303, 473 
 
 356, 504, 505 
 
 260, 432 
 
 . 568 
 
 . '242 
 
 356, 362 
 
 . 395 
 
 . 445 
 
 . 166 
 
 . 263 
 
 . 114 
 
 510, 514 
 
 S42, 366, 367 
 
 . 153 
 
 . 358 
 
 372, 373 
 
 557, 562 
 
 344, 523 
 
 , 574 
 
 119, 440 
 
 224, 227, 566 
 
 576, 577, 582 
 
 . 508 
 
 . 208, 296 
 
 . 156 
 
 310, 313, 333, 
 
 373 
 
 336, 341, 359 
 
 201, 207, 209 
 
 Earl of 
 
 342, 367 
 
 . 568 
 
 325 
 
 15, 116, 122, 139 
 
 . '428 
 
 . 358 
 
 . 285 
 
 432, 508 
 
 207, 288 
 
 . 451 
 
 . 420 
 
 . 172 
 
TABLE OF ENGLISH CASES. 
 
 Ixvii 
 
 PAGE 
 
 Simsori v. Jones, 396 
 
 Siason v. Shaw, ..... 402 
 Sitwell v. Bernard, . . . 388, 390 
 Skeata v. Skeats, . . 97, 98, 100, 105 
 Skinner, Ex parte, . . 198, 199, 460, 465 
 Skrymsher v. Northcote, . . 115, 136 
 
 Slater v. Willia 94 
 
 Slaughter v. Perry 553 
 
 Sleech v. Thorrington, .... 413 
 Sloath v. Cadogan, . . .88, 448 
 
 Small v. Atwood, 522 
 
 King, 572 
 
 Marwood. 
 Smallcross v. Finden, 
 Smart v. Prujean, . 
 Smee v. Martin, . 
 Smith, Ex parte, . 
 v. Attersoll, 
 
 Baker, . 
 
 Bruning, 
 
 Camelford, 
 
 Cawdery, 
 
 Duke of Chandos, 
 
 Claxton 
 
 Clay, 
 dem Dormer v. Parkhurst 
 v. Evans, 
 
 Foley, 
 
 Garland, 
 
 Gwyon, 
 
 Low, 
 
 Lyne, 
 Ex parte, Re Dry 
 v. Smith, . 
 
 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. Hollins, . . . 452, 456 
 
 South v. Alleyne 232 
 
 Southampton (Lord) v. Marquis of Hertford, 
 
 393, 394 
 
 212, 224, 226, 307, 337 
 . 345 
 355, 362 
 . 402 
 210, 308, 449, 531 
 . 64 
 . 92 
 . 163 
 . 425 
 . 497 
 277, 540 
 . 127 
 168, 265, 528 
 . 318 
 . 386 
 . 366 
 . 90 
 363, 504 
 . 512 
 82, 88 
 200,211 
 300, 488 
 519, 546 
 221, 224, 225, 226, 307 
 163 
 385 
 432 
 395 
 
 Southcott v. Watson, 
 Southouse v. Bate, 
 Southwell v. Ward, 
 Sowerby v. Clayton, 
 Sower8by v. Lacey, 
 Spalding v. Shalmer, 
 Spear v. Grant, 
 Spencer v. Smith, . 
 Spong v. Spong, 
 Spottiawoode v. Stockdale, 
 
 Spurgeon v. Collier, 
 Spurling v. Rochfort, 
 Spurway v. Glyn, . 
 Square v. Dean, 
 Squib v. Wyn, 
 Stacy v. Elph, 
 
 Stackhouse v. Barnston. 
 
 Stackpole v. Beaumont, 
 Daveron, 
 Howell, 
 
 124 
 120 
 . 176, 212 
 . 370, 379 
 476, 479, 504 
 342, 343, 505 
 . 172 
 . 151 
 . 358 
 366, 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 
 
 Stackpole v. Stackpole, 
 Stafford v Lewellyn, 
 Stamford (Earl of) v. Hobart 
 Standford v. Marshall, 
 Stangor v.Tryon, . 
 Stanifbrth v Staniforth 
 Stanley, Re, . 
 
 v. Stanley, 
 Stansfield v. Habergham 
 Stanton v. Hall, 
 Stapleton v. Colville, 
 
 Stapleton, 
 Starkey v. Brooks, 
 Starkie, Ex parte, . 
 Steinmetz v. Halthin, 
 Stephens v. Bagwell, 
 
 Bateman, 
 
 Bailey, 
 
 Dethick, 
 
 Olive, . 
 
 Lawry, 
 Stephenson v. Hayward, 
 
 Heathcote, 
 Stettle, Ex parte, . 
 Stewart v. Bruere, . 
 
 Noble, . 
 
 Stewart, 
 St. George v. Wake, 
 Stickney v. Sewell, 
 Stiff v. Everett, 
 Stileman v. Ashdown, 
 Stilwell vi Wilkins, 
 St. John v. Boughton, 
 
 v. St. John, 
 St. John's College, Cam' 
 
 dington, 
 Slock 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 
 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, 
 Russel, . 
 Winchester, 
 Strong v. Ingram, . 
 Stewart v. Lord Kirkwall, 
 Stubbs v. Sargon, . 
 Studholme v. Hodgson 
 Sturge v. Dimsdale, 
 Sturgis v. Champneys, 
 
 Corp, . 
 St. Wenn's Charity, Re 
 Styan, Re, 
 Style v. Martin, . 
 Supple v. Lawson, 
 Surman v. Barlow, 
 Sutton v. Jones, 
 
 Sharp, . 
 Swan, Ex parte, 
 Sweet v. Southcote, 
 
 bridge v 
 
 and 
 
 PAGE 
 
 374, 523, 573 
 
 . 258 
 
 . 328 
 
 424, 425 
 
 . 345 
 
 . 365 
 
 . 291 
 
 240, 365, 366 
 
 323, 324 
 
 410, 420, 421 
 
 352, 354 
 
 351, 352, 354 
 
 . 124 
 
 . 401 
 
 411,418 
 
 45,46 
 
 . 152 
 
 . 51 
 
 . 365 
 
 . 426 
 
 401, 494 
 
 336, 337 
 
 351, 353, 354 
 
 . 533 
 
 . 390 
 
 341, 359 
 
 . 370 
 
 . 163 
 
 . 368 
 
 . 411 
 
 99, 102 
 
 . 152 
 
 . 504 
 
 164, 426 
 
 Tod- 
 
 . 460 
 
 . 163 
 
 . 5*5 
 
 . 402 
 
 354, 361 
 
 . 45 
 
 435, 437, 438 
 
 323, 332, 333, 335 
 
 165, 514, 515 
 
 Ward, . 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 
 
 364, 457 
 
 . 406 
 
 . 421 
 
 . 460 
 
 . 448 
 
 . 511 
 
 . 492 
 
 . 5J3 
 
 277, 482, 540 
 
 374, 523 
 
 206, 296 
 
 . 165 
 
Ixviii 
 
 TABLE OF ENGLISH CASES. 
 
 Sweetapple v. Bindon, . 
 Swift, Ex parte, 
 
 dem. Farr v. Davis, 
 
 Nash, . 
 Sydenham v. Tregonwell, 
 Sykes v. Hastings, . 
 Sylvester v. Wilson, 
 Symance 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 
 
 Tait v. Jenkins, 
 
 
 . 212, 
 
 277, 540 
 
 Northwick, 
 
 
 341, 350, 
 
 353, 359 
 
 Talbot v. Earl of Radnor, 
 
 
 . 543 
 
 Tankerville (Earl of) v. Fawcett, . 
 
 . 357 
 
 Tanner v. Elworthy, 
 
 
 . 
 
 . 439 
 
 Tarbuck v. Greenall, 
 
 
 
 . 544 
 
 Tardiffe v. Robinson, 
 
 , 
 
 . 
 
 . 435 
 
 Tasburgh, Re, 
 
 . 
 
 
 . 413 
 
 Taster v. Marriott, 
 
 . 
 
 . 
 
 . 439 
 
 Tatlock v. Smith, . 
 
 
 
 . 336 
 
 Taylor v. Alston, . 
 
 . 
 
 
 . 99 
 
 Baker, . 
 
 , 
 
 
 . 512 
 
 
 
 
 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. Mathews, 
 
 . 
 
 . 
 
 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, 
 
 Thetfurd School Case, 
 
 Thorn v. Newman, 
 
 Thomason v. Moses, 
 
 Thomas v. Britnell, 
 
 Thomson, Re, 
 
 v. Blackstone 
 
 Grant, 
 
 Griffin, 
 
 Leach, 
 
 Simpson, 
 
 Thompson 
 Thong v. Bedford, , 
 Thorby v. Yeates, 
 Thorpe v. Owen, . 
 Thring, Ex parte, . 
 v. Edgar, . 
 Thrupp v. Harman, 
 Thynn v. Thynn, . 
 Tibbitls v. Tibbitts, 
 
 PAGE 
 
 Tidd v. Lister, 212 r 273, 279, 384, 385, 407, 
 
 429 
 Tiffin v. Tiffin, 
 Timson v. Ramsbottom, 
 Tipping v. Pigott, 
 Titley v. Durant, . 
 
 Tolland and , . 
 
 Toller v. Carteret, . 
 Tollemache v. Earl of Coventry, 
 Tomkyns v. Landbroke, 
 Tomlin v. Hatfield, 
 Tomlinson v. Dighton, 
 Tompkins v. Tompkins, 
 Tottenham, Re, 
 Touch v. Lambert, 
 Toulmin v. Stere, . 
 Tourville v. Naisn, 
 Tower v. Moor, 
 Towers v. Lord Rous, 
 Townley v. Bedwell, 
 
 Sherbourne 
 Townshend, Ex parte, 
 
 v. Cams, 
 
 456 
 
 . 128, 451 
 
 . 252, 327 
 
 . 568 
 
 . 345 
 
 . 291 
 
 . 282, 477, 506 
 
 . 286 
 
 . 401,492 
 
 212, 221,224,226 
 
 . 264, 266 
 
 . 454, 457 
 
 . 247, 248 
 
 424. 425, 555, 556, 560 
 
 51, 66, 86, 89 
 
 . 532 
 
 . 515, 532 
 
 . 425, 426 
 
 150, 151, 166 
 
 71, 75 
 
 . 325 
 307, 448 
 . 319 
 . 427 
 . 277 
 . 44 
 . 383 
 . 409 
 . 493 
 . 421 
 345, 360 
 . 201 
 . 124 
 . 514 
 
 165, 514 
 . 166 
 
 350, 351, 352, 353 
 . 453 
 308,311 
 . 541 
 79, 80, 133 
 Champernown, S53, 256, 260 
 Lawton, . . 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 
 
 Trafford v. Ashton, . . . .367 
 
 Boehm, 369, 376, 377, 378, 520 
 
 Trapp, Re 208, 296 
 
 Trevele v. Coke, 432 
 
 Tregonwell v. Sydenham, . . 135, 137 
 
 Trent v. Hanning, 235 
 
 Trent, 361 
 
 Trevanion v. Mosse, . . . 512, 514 
 
 Vivian, .... 404 
 
 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, 
 
 Hammf 
 Trimmer v. Bayne, 
 Trinity College v. Brown, 
 Trott v. Dawson, . 
 Vernon, . 
 Trower v. Knightly, 
 Tucker v. Boswell, 
 
 Phipps, . 
 
 Tucker, . 
 Tudor v. Samyne, . 
 Tuffnell v. Page, . 
 Tullet v. Armstrong, 
 
 Tullet, . 
 Tulloch v. Hartley, 
 Tunstall v. Trappes, 
 Turner v. Corney, 
 
 Edgell, . 
 
 Harvey, . 
 
 Hind, . 
 
 Ogden, . 
 Turner's (Sir Edward) ' 
 Turner v. Turner, . 
 Tutin, Ex parte, 
 Tweddell v. Tweddell, 
 Tweedale v. Coventry, 
 Twine's Case, 
 Twisden v. Wise, . 
 
 274 
 
 329 
 
 567 
 
 . 368 
 
 . 374 
 
 125, 126 
 
 270, 430 
 
 . 572 
 
 345, 360 
 
 . 475 
 
 383, 390 
 
 . 151 
 
 317, 503 
 
 . 406 
 
 . 58 
 
 419, 420, 422 
 
 . 395 
 
 59 
 
 165, 514 
 
 541,344,573 
 
 299 
 
 147, 147, 148, 149 
 
 . 544 
 
 . 452 
 
 406, 410 
 
 149, 400 
 
 209, 288, 300 
 
 157 
 
 358 
 
 335 
 
 415 
 
TABLE OF ENGLISH CASES. 
 
 Ixix 
 
 
 
 PAGE 
 
 
 PAGE 
 
 Twopenny v. Peyton, . 
 
 
 . 395 
 
 Walker v. Smallwood, 
 
 355, 356, 505, 548 
 
 Tylden v. Hyde, . 
 
 
 473, 479 
 
 Symonds, 
 
 184, 308, 310, 314, 
 
 Tyler v. Lake, 
 
 406, 
 
 420, 421 
 
 315, 
 
 373, 378, 382, 383, 
 
 Tyrrell v. Hope, 
 
 . 
 
 . 420 
 
 526 
 
 , 527, 547, 559, 581 
 
 Tyrrell's Case, 
 
 
 . 230 
 
 Walker, 59, 
 
 166, 485, 486, 487, 
 
 Tytcher v. Byles, . 
 
 
 . 494 
 
 Wetherell, . 
 Woodward, . 
 
 490, 495 
 
 . 399, 400, 574 
 
 . 374, 523 
 
 U. 
 
 
 
 Wall v. Atkinson, . 
 Bright, 
 
 . 531, 534 
 . 171, 286 
 
 UnderhiU v. Horwood, . 
 
 
 150, 152 
 
 Tomlinson, 
 
 . 415 
 
 Underwood v. Lord Courtown, . 
 
 . 511 
 
 Wallace v. Wallace, 
 
 . 157 
 
 Hatton, . 
 
 , 
 
 548, 549 
 
 Waller v Childs, . 
 
 . 452 
 
 Morris, . 
 
 
 . 496 
 
 Walmesley v. Booth, 
 
 . 153, 160, 527 
 
 Sievens, 310 
 
 313, 
 
 314, 373, 
 
 Walsh v. Gladstone, 
 
 . 178, 211 
 
 374, 381, 382 
 
 525, 527 
 
 Wallinger, 66, 69, 70, 485, 488, 492 
 
 Uniacke v. Giles, . 
 
 sr 
 
 , 85, 110 
 
 Walter v. Hodge, . 
 
 . 407 
 
 Re, 
 
 . 206 
 
 219, 225 
 
 Maunde, 
 
 287, 477, 482, 483 
 
 Uppington v. Buller, 
 
 
 . 160 
 
 Walters v., Jackson, 
 
 . 290, 294, 295 
 
 Urch v. Walker, . 
 
 215, 
 
 217, 219 
 
 Walton, Ex parte, . 
 
 . 207, 209 
 
 Utterson v. Maire, . 
 
 
 . 166 
 
 v. Hobbs, . 
 
 . 515 
 
 Uvedale v. Patrick, 
 
 
 . 191 
 
 Merry, . 
 
 Walton, . 
 
 Walwyn v. Coutts, 
 
 293 
 
 118, 120, 125, 126 
 
 . 83, 336, 337 
 
 V. 
 
 
 
 Lee, 
 Wangford v. Wangford, 
 
 . 272,512,514 
 . 223 
 
 Valliant v. Diomede, 
 
 
 . 432 
 
 Warburton v. Sandys, . 
 
 . 186 
 
 Vandebende v. Levingston, 
 
 . 520, 
 
 522, 546 
 
 Vaughan, 
 
 203, 204, 281, 299 
 
 Van Horn v. Fonda, 
 
 
 . 538 
 
 Warburton 
 
 . 70, 367, 486 
 
 Vaughan v. Back, . 
 
 
 390, 392 
 
 Ward v. Arch, 
 
 . 262 
 
 Farrer, 
 
 
 . 457 
 
 Audland, . 
 
 . 90, 449 
 
 Guy, . 
 
 
 . 359 
 
 Butler, 
 
 . 214 
 
 Thurston, . 
 
 
 558. 562 
 
 Dovon, 
 
 . 473 
 
 Vauxhall Bridge Company, 
 
 Ex parte, ' 30fi 
 
 Lant, 
 
 . 110 
 
 Venables v. Morris, 
 
 
 249, 250 
 
 Wardle v. Claxton, 
 
 . 421 
 
 Verney v. Verney, . 
 
 '. 365 
 
 , 433, 437 
 
 'Hargreaves, . 
 
 . 195 
 
 Vernon, Ex parte, . 
 
 
 . 288 
 
 Wardour v. Beresford, . 
 
 . 151 
 
 v. Keyes, . 
 
 
 . 147 
 
 Ware v. Horwood, . 
 
 . 152 
 
 Vaudry, 
 
 '. 168 
 
 265, 518 
 
 Polhill, .. . 
 
 . 396 
 
 Vernon, 
 
 
 . 71 
 
 Wareham v. Brown, 
 
 . 70, 355, 486 
 
 Vez v. Emery, 
 
 
 555, 572 
 
 Waring v. Coventry, 
 
 . 475, 532 
 
 Vezey v. Janson, . 
 
 '. 116 
 
 117, 132 
 
 Warnford v. Thomson, . 
 
 . 357, 471 
 
 Vickers v. Scott, . 
 
 
 . 388 
 
 Warren v. Davis, . 
 
 . 347, 362 
 
 Vidal v. Philadelphia (Citize 
 
 as of), 
 
 . 459 
 
 Warier v. Hutchinson, . 
 
 239, 240, 241, 367 
 
 Vigrass v. Binfield, 
 
 378, 
 
 550, 551 
 
 Warwick Charities, Re, . 
 
 . 188, 194, 554 
 
 Villiers v. Villiers, 
 
 
 . 251 
 
 v. Warwick, . 
 
 . 165, 514, 516 
 
 Vine, Ex parte, 
 
 
 . 532 
 
 Wasse v. Hesslington, . 
 
 . 347, 348 
 
 Vose v. Grant, 
 
 
 . 172 
 
 Waterhouse v. Holmes, 
 Wathen v. Grey, . 
 Watkins v. Cheek, 
 Watson, Ex parte, . 
 
 . 456 
 
 . 357 
 
 . 363, 506, 507 
 
 . 531 
 
 W. 
 
 
 
 v. Brickwood, . 
 
 . 350, 353 
 
 
 
 
 Hiudsworth Hospital, . , 465 
 
 Wade v. Paget, 
 
 
 . 252 
 
 Earl of Lincoln, . . .136 
 
 Wagstaffv. Smith, 
 
 '. 420 
 
 421, 424 
 
 Toone, . 
 
 159, 169, 265, 539 
 
 Wagstaff, . 
 
 
 58, 230 
 
 Watts v. Ball, 
 
 . 405 
 
 Wain v. Earl ot'Egmont, 
 
 
 . 340 
 
 Girdlestone, 
 
 371, 372, 378, 382, 
 
 Wainwright v. Bendlowes, 
 
 
 353, 354 
 
 
 474 
 
 Waterman, 
 
 
 . 486 
 
 Turner, . 
 
 . 278 
 
 Waise v. Whitfield, 
 
 
 . 354 
 
 Weatherby v. St. Giorgio, , . . 546 
 
 Wait v. Webb, 
 
 
 . 456 
 
 Weaver v. Maule, . 
 
 45, 50, 430, 431 
 
 Wake v. Tinkler, . 
 
 
 274, 316 
 
 Webb v. Claverden, 
 
 . 150 
 
 Wakeford, Re, 
 
 
 201, 289 
 
 Jones, 
 
 . 354 
 
 Wakeman v. Duchess of R 
 
 ltland, 
 
 281, 544 
 
 Lymington, 
 
 . 271, 272 
 
 Waldo v. Caley, 79, 80, 13 
 
 L, 133, 
 
 466, 493 
 
 Lord Shaftesbury, 195, 378, 396, 
 
 Waldo, . 
 
 
 385, 477 
 
 494, 54£ 
 
 , 570, 571, 572, 575 
 
 Walker, Re, . 
 
 '. 201 
 
 289, 297 
 
 Webb, . 
 
 . 272, 361 
 
 v. Barrows, 
 
 
 . 102 
 
 Wedderburn v. Wedderbtirn, 264, 265, 379, 
 
 Denne, 
 
 
 . , 270 
 
 525, 526, 52" 
 
 , 528, 581, 582, 583 
 
 Hardwick, . 34; 
 
 ), 350, 
 
 351, 353 
 
 Wedgewood v. Adams, 
 
 . 282, 508 
 
 Jackson, 
 
 . 352 
 
 353, 354 
 
 Weigall v. Brome, , 
 
 . 286 
 
 Meager, 
 
 , , 
 
 . 358 
 
 Weiss v. Dill, 
 
 . 573 
 
 Shore, . 
 
 . 379 
 
 390, 474 
 
 Welch, Re, . 
 
 201, 207, 208, 289 
 
lxx 
 
 TABLE OF ENGLISH CASES. 
 
 369 
 
 Wellbeloved v. Jones, 
 Weller v. Weller, . 
 Well'ord v. Beezley, 
 Wells v. Middleton, 
 West v. Ayles, 
 
 Erissey, . 
 
 Shuttleworth, 
 
 Westley v. Williamson, 
 Westmeath v. Salisbury, 
 
 Westmeath, 
 Weston v. Banister, 
 Berkeley, 
 Westover v. Chapman, 
 Wetherell v. Collins, , 
 
 Wilson, 
 Weymouth v. Boyer, 
 Whaley v. Cox, 
 Whatley v: Kemp, 
 Whatford v. Moore, 
 Wheate v. Hall, . 
 Wheatley v. Purr, 
 Wheeler v. Bingham, 
 Whelpdale v. Cockson, 
 Whetstone v. Bury, 
 Whichcote v. Lawrence, 
 
 Whithread v. Jordan, . 
 Whitchurch v. Whitchurch, 
 Whitcomb v. Minchin, . 
 Whiting, . 
 White v. Carter, . 
 
 Damon, . 
 
 Evans, 
 
 Parker, . 
 
 St. Barb, 
 
 White, 53, 212 
 
 P'OE 
 
 . 274 
 
 490, 491 
 
 . 512 
 
 . 160 
 
 288, 201 
 
 329 
 
 314, 135, 45l', 452, 
 
 455 
 
 . 551 
 
 . 426 
 
 426, 427, 492 
 
 . 580 
 
 515 
 
 , 374, 562, 565 
 
 . 552 
 
 . 65 
 
 510, 516, 524 
 
 . 362 
 
 . 329 
 
 . 366 
 
 473, 474 
 
 51, 60, 64, 83, 86, 89 
 
 . 496 
 
 159, 160, 536, 539 
 
 230 235 
 
 158, 160, 266,'536, 
 
 538, 559 
 
 . 513 
 
 . 325 
 
 . 160 
 
 . 306 
 
 331, 333, 335 
 
 . 152 
 
 . 123, 456 
 
 . 188 
 
 . 418 
 
 253, 433, 437, 
 
 451, 453 
 
 . 125 
 
 . 286 
 
 Williams, 
 Whiteacre, Ex parte, . 
 Whitfield, Ex parte, 
 v. Beunet, 
 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 
 Anne's Bounty, 
 Woodroffe, 
 Wigg v. Wigg, 
 Wigsell v. Wigsell, 
 Wilkes v. Boddington, . 
 Steward, 
 Wilkes, 
 Wilkins v. Fry, 
 Wilkinson, Ex parte, . 
 v. Adam, 
 Bradfield, 
 Malin, 
 Parry, 
 Stafford, . 
 Wilkinson, 
 Willan v. Lancaster, 
 Willan, . 
 Willats v. Kay, 
 
 . 401 
 
 . 385 
 
 . 395 
 
 209, 568 
 
 193, 206 
 
 . 481 
 
 279, 556,565 
 
 . 559 
 
 . 545 
 
 . 163 
 
 . 171 
 
 . 361 
 
 548, 550 
 
 377 
 
 . 451 
 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 
 
 Williams, Re, 
 
 v. Bird, . 
 Carter, 
 Chiity, 
 Coade, 
 Jones, . 
 Kershaw 
 Lambe, 
 
 PAGE 
 
 . 291 
 . 192, 204 
 . 472 
 . 119, 345 
 . 142 
 . 121, 123, 126 
 81, 132, 133, 364 
 . 517 
 Bishop of Landaff, . 351,354 
 Longfellow, . . . 228 
 Lonsdale, . . 269*270, 430 
 Nixon, 214, 308, 309, 310, 311, 
 312, 314, 373, 381 
 
 Sorrell, 
 Williamson, Ex parte, . 
 v. Codrington, 
 Curtis, 
 Gihon, 
 Williamson, 
 Willis v. Hiscox, 278, 327, 
 Jernegan, 
 Kibble, . 
 Willis, . 
 Wilmott v. Jenkins, 
 Willoughby v. Willoughby, 
 Wills v. Sayers, 
 Wilson, Re, . 
 
 v. Troup, . 
 Allen, . 
 Dennison, 
 Dent, 
 Goodman, 
 Halliday, 
 Hoare, . 
 Major, . 
 Moore, . 
 Wilson, . 
 Wilvescomb's Case, 
 Winch v. Keely, 
 
 511 
 
 . 532 
 
 . 107 
 
 342, 363, 504 
 
 . 163 
 
 . 90 
 
 , 555, 560, 562 
 
 152, 154 
 
 576, 578 
 
 92, 94, 95 
 
 . 364 
 
 324, 346 
 
 420, 421 
 
 . 291 
 
 . 538 
 
 254, 255, 257, 258 
 
 308, 443, 444 
 
 57, 61 
 
 . 315 
 
 . 342 
 
 . 270, 430 
 
 73, 74, 127 
 
 . 173, 520 
 
 195, 426, 561 
 
 . 466 
 
 530 
 
 Winchelsea (Earl of) v. Garrety . .161 
 
 Norcliffe, 377, 396, 
 
 397, 574 
 
 Winchester (Bishop of) v. Fournier, . 515 
 
 Paine, . 511 
 
 Winged v. Lefebury, . . . 164, 500 
 
 Winn v. Littleton, 
 
 
 
 . 285 
 
 Winnington v.Foley, . 
 
 
 
 319, 321 
 
 Winter, Ex parte, 203 
 
 205 
 
 , 207, 
 
 295, 298 
 
 •v. Lord Anson, . 
 
 
 
 . 514 
 
 Wiseman v. Beak, 
 
 
 
 . 153 
 
 Westland, . 
 
 
 , 
 
 . 511 
 
 Wish, Ex parte, . 
 
 
 
 . 207 
 
 Withers v. Kennedy, 
 
 
 , 
 
 . 345 
 
 Withers, 
 
 
 
 . 92 
 
 Witter v. Witter, . 
 
 317 
 
 , 381, 
 
 395, 396 
 
 Witts v. Boddington, 
 
 
 
 69,70 
 
 Dawkins, . 
 
 
 421 
 
 422, 575 
 
 Steere, . 
 
 
 
 . 446 
 
 Wolestoncroft v. Long, . 
 
 
 , 
 
 329, 357 
 
 Wolf v. Hill, . . . 
 
 
 , 
 
 . 477 
 
 Wood v. Abrey, 
 
 
 
 152, 156 
 
 Cox, 
 
 
 67,7 
 
 1,73,121 
 
 Downes, . 
 
 
 
 157, 160 
 
 Dudley, . 
 
 
 
 . 362 
 
 Dummer, 
 
 
 
 . 172 
 
 Harman, . 
 
 
 383 
 
 , 483, 508 
 
 Richardson, 
 
 70, 
 
 282, 
 
 477, 488 
 
 White, . 
 
 
 
 471, 475 
 
 Williams, 
 
 
 , 
 
 . 545 
 
 Woodcock v. Duke of Dorset. 
 
 
 . 366 
 
 Woodhouse v. Hoskins, 
 
 
 319 
 
 320, 322 
 
 Meredith, 
 
 
 . 
 
 . 160 
 
TABLE OF ENGLISH CASES. 
 
 lxxi 
 
 PAGE 
 
 Woodroffe v. Burton, . . . .151 
 Woods v. Huntingford, .... 357 
 Woods, . . .65, 78, 79 
 
 Woolam v. Hearn, .... 167 
 
 Woollands v. Croucher, . . . 414 
 Woolmore v. Burrows, . 81, 334 
 
 Worrall v. Haford, . . 565, 567, 570 
 
 Jacob 436 
 
 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, .... 
 
 PA OB 
 
 136, 456 
 
 
 , 418 
 
 Wakefbrd, 
 
 . 478 
 
 Wright, 
 
 . 44 
 
 Wyatt v. Sharratt, . 368, 377 
 
 , 550, 551 
 
 Willis " 
 
 369, 375 
 
 Wynch v. East India Company, . 
 
 268, 504 
 
 Packington, . 
 
 119, 324 
 
 Wykham v. Wykham, . 231, 244, 
 
 250, 251, 
 
 
 385 
 
 Wynch v. Wynch, 
 
 . 401 
 
 Wyndham v. Earl of Egremont, . 
 
 . 325 
 
 Wynne v. Hawkins, 
 
 . 75 
 
 Wymter v. Bold, .... 
 
 365, 366 
 
 Y. 
 
 
 Yates v. Compton, 
 
 . 236 
 
 Yallbp, 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 
 
 York Buildings Co. v. Mackenzie, 
 
 170, 266, 
 
 ' 
 
 539 
 
ERRATA. 
 
 Page 238, line 15 from bottom, for " Pet. C. C," read " Peters, C. C. 364." 
 
 " 241, " 16 " Henry v. Raiman is now reported, 25 Perm. St. 354. 
 
 " 481, " 10 " for " opinions" read " opinion." 
 
 " " " 3 " for " purchasers" read " purchaser." 
 
 " 586, " 25 " dele "out." 
 
A TREATISE 
 
 ON THE 
 
 LAW RELATING TO TRUSTEES, 
 
 ETC. ETC. 
 
 INTEODUCTION. 
 
 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 affecting 
 property of any description is vested for the benefit of another." 
 
 This definition, however, would include executors and administrators, 
 guardians of infants, and committees of lunatics, as well as assignees in 
 bankruptcy and insolvency, and others filling any fiduciary situation. 
 It would also extend to bailees, factors, and agents, whose duties in their 
 fiduciary characters are recognized, and enforced at common law. But 
 the term " trustee" in its more defined acceptation has acquired a mean- 
 ing distinct from any of those characters ; the persons filling which are 
 also amenable to other jurisdictions, besides that of the Court of Chan- 
 cery. 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 issu- 
 ing 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 pre- 
 served with little alteration in that of the modern trustee.(a) However, 
 the courts of equity, in the exercise of their new jurisdiction, avoided 
 in a great degree those mischiefs, which had made uses intolerable. (5) 
 This new species of estate was gradually modified and altered to meet 
 
 (as) BI. Com. 333 ; Co. Litt. 290, b ; Ball. n. I, 3 ; 2 Fonbl. Eq. B. 2, Ch. 1, s. 4 ; 
 Hopkins v. Hopkins, 1 Atk. 591. (6) 2 Bl. Com. 336. 
 
 5 
 
66 INTRODUCTION. 
 
 the continual changes in the state of society, and the progressive wants 
 of the community ; and it has been applied by analogy to personal pro- 
 perty, as well as to a great variety of cases which never could have been 
 p^-o-i in the "contemplation of those by whom it was originally intro- 
 duced.(e) In the existing state of society, it is difficult to con- 
 ceive how the requisite circulation of property could be established and 
 maintained without the interposition of some such machinery as the 
 system of trustees readily supplies. The utility of the 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 afford an em- 
 ployment 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. 1 There are few cases 
 arising from matters of trust (with the exception of bailments, and rights 
 founded on contract), of which the courts of common law are capable of 
 taking cognizance.(d) 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 kindness 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 admit- 
 ting the propriety of these remarks, adds a doubt, whether the courts of 
 equity have always proceeded upon the broad and liberal basis, which 
 
 (c) 2 Stor. Bq. Jur. \ 969. 
 
 (d) 3 Bl. Com. 431 ; Co. Litt. 290, Id ; Butl. note ; 2 Fonbl. Bq. b. 2, Ch. 1 ; 2 Stor. 
 Eq. Jur. I 962. (e) Knight v. Earl of Plymouth, 1 Die. 126 ; S. C. 3 Atk. 480. 
 
 (/) 2 Stor. Eq. 480. 
 
 1 A court of admiralty, though influenced in the determination of cases by equitable 
 considerations, and taking notice of equitable titles when arising incidentally, has no 
 direct j urisdiction over trusts as such ; and where a trust is the foundation for relief, the 
 libellant states himself out of court. Davis v. Child, Daveis's Rep. 71 ; Berkhard v. 
 Flyne, 6 Moore Priv. Coun. Cas. 56. But, where it becomes necessary to-do so, a court 
 of law will take judicial notice of the doctrines of equity, and of the relation of trustee 
 and cestui que trust. Sims v. Marryat, 17 Q. B. 281 ; "Westoby v. Day, 2 Ell. & 
 Blackb. 624. 
 
INTRODUCTION. 67 
 
 the observations of Lord Hardwicke tend to establish ; and he remarks 
 upon what he terms "the artificial rules" established by the courts, in 
 the exercise of their control over the conduct of the trustees.(l) How- 
 ever this may *be, it is obviously of the greatest importance in pMo-i 
 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 ordina- 
 rily do in regard to his own property, he ought not to be held responsible for any losses ac- 
 cruing ia 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 artificial 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 pro- 
 perty." 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 personal 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 manage- 
 ment of the trust, but investment of the fund, without the aid of the court, do not esta- 
 blish the position of the late Mr. Justice Story. Indeed, all the opinions which he cites 
 and all the doctrines he reasons out, show conclusively that the rules of equity, in the 
 matter of investment, are not artificial, 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 animadverted 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 commissions 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 eminent 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 neces- 
 sarily 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 appellation of "cestui 
 que trust." 
 
 I.— WHAT MAY BE THE SUBJECT-MATTER OF A TRUST. 
 
 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 recognize as available property, or at any rate 
 do not permit to be dealt with by assignment ; such as choses in action, 
 and possibilities of every description, 1 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 concerning 
 
 (a) 1 Cruis. Dig. Tit. 12, Ch. 1; Hobson v. Trevor, 2 P. Wms. 191; "Wright v. 
 Wright, 1 Ves. Sen. 411 ; [Wetherhed v. Wetherhed, 2 Sim. 183; Douglass v. Russell, 
 4 Sim. 524; Langton v. Horton, 1 Hare, 549.] 
 
 1 As to how far possibilities and expectancies are assignable in equity, see Mitchell 
 v. Winslow, 2 Story, 630 ; 6 Bost. Law Rep. 347 ; Letcher v. Schroeder, 5 J. J. Marsh. 
 513; Varick v. Edwards, 1 Hoff. Ch. 382; Meriweather v. Herran, 8 B. Monr. 162; 
 Hinkle v. Wanzer. 17 How. U. S. 353; Field v. Mayor of N. Y. 2 Selden, 179; Stewart 
 v. Kirkland, 19 Alab. 162 ; Voyle v. Hughes, 2 Sm. & Giff. 18 ; Story's Equity, § 1040 
 (b.), 1055; 12 Jur. part ii, 213; Notes to Row v. Dawson, 2 Lead. Cases Equity, 
 *573. Equitable reversionary and contingent interests in personalty, are now treated 
 in equity as estates, and are transferable as such. Voyle v. Hughes, 2 Sm. & Giff. 
 18; Kekewitch v. Manning, 1 De G. Macn. & G. 176. See post, 88, &c. A grow- 
 ing crop of cotton may be the subject of a trust; Robinson v. Mauldin, 11 Alab. 
 980 ; as may the receipt for a medicine ; Green v. Polgham, 1 S. & St. 398 ; or the 
 copyright of a book. Sims v. Marryat, 17 Q. B. 281. But where one, who had from 
 peculiar circumstances, an expectancy of purchasing certain land on more favorable 
 terms than others, but no legal or equitable right thereto, employed an agent for the 
 purpose, who fraudulently made use of these means to obtain a purchasje for a third per- 
 son, it was held that no trust attached to the land in favor of the party defrauded. 
 Garrow v. Davis, 15 How. U. S. 277. 
 
WHAT MAY BE THE SUBJECT-MATTER OF A TRUST. 69 
 
 lands situated out of the limits of their jurisdiction make any decree 
 directly affecting the realty,(5) yet they will support a trust of such 
 lands against a trustee resident within the jurisdiction by a decree ope- 
 rating in personam.(c) Thus, questions i«volving trusts of real pro- 
 perty 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.(^) 1 
 
 (6) B. of Kildare v. Eustace, 1 Vera. 421 ; Roberdeau v. Rous, 1 Atk. 543; Carteret 
 v. Petty, 2 Sw. 323, n. [See Bunbury v. Butibury, 3 Jur. 644, 1 Beav. 318 ; Bent v. 
 Young, 9 Sim. 190; Houlditch v. Donegal, 8 Bligh, N. S. 344; Portarlington v. Soulby,„ 
 3 My. & K. 108 ; Henderson v. Henderson, 3 Hare, 115 ; Preston v. Melville, 15 Sim. 
 85.] 
 
 (c) Penn v. Ld. Baltimore, 1 Ves. sen. 454; Com. Dig. (Chancery), 3.X. 4 E. 4 W. 
 27. 
 
 (d) E. of Kildare v. Eustace, 1 Vern. 421 ; Cartwright v. Pettus, 2 Ch. Ca. 214 ; E. 
 of Arglasse v. Muschamp, 1 Vern. 75. 
 
 («) Toller v. Carteret, 2 Vern. 495. (/) Ld. Cranstoun v. Johnston, 3 Ves. 182. 
 {g) Angus v. Angus, 1 "West. 23. 
 
 1 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 pro- 
 perty to be brought within the j urisdiction, order the 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, 135; Massie v. Watts, 6 Cranch, 148; Ward v. 
 Arredondo, 1 Hopk. 213 ; Mead v. Merritt, 2 Paige, 402 ; Hawley v. James, 7 Paige, 
 213; Shattuck v. Cassidy, 3 Edw. Ch. 154; De Klyn v. Watkins, 3 Sandf. Ch. 185; 
 Barclay v. Talman, 4 Edw. Ch. 126 ; Spnrr v. Scoville, 3 Cush. 581 ; Vaughan v. Bar- 
 clay, 6 Whart. 392 ; Guerrant v. Fowler, 1 H. & Munf. 5 ; Episcopal Church v. Wiley, 
 2 Hill, Ch. (S. C.) 586 ; see Booth v. Clark, 17 How. U. S. 322. 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. Mitchell v. Bunch, 2 Paige, 606. The general doc- 
 trine applies to 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 exe- 
 cute a contract made by them in New York, with respect thereto. A very decided 
 opinion was expressed by the Vice-Chancellor in Barclay v. Talman, 4 Edw. Ch. 126, 
 where an Insurance Company, incorporated in Maryland, but doing business in New 
 York, made an assignment for the benefit of creditors, that a bill would lie against the 
 trustees 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 Wil- 
 liams v. Maus, 6 Watts, 278. 
 
 But in order to induce the court to interfere in such cases, it must be competent 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 ; Morris 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 ; Walker v. Ogden, 
 
70 WHAT MAY 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 that the foreign personal 
 
 r*4Vl P r0 P ert y °f * a British subject may properly become the object 
 
 J of a trust, which will be recognized 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.(«) Thus in the case of an officer's half-pay ;{k) or a gaoler's 
 fees ;(l) 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 ;(nY the court will not recognize 
 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. 2 
 
 (h) Smith Merc. Law, 567 ; Hill v. Reardon, 2 Russ. 608, 629. 
 
 (i) Exp. Dyster, 1 Mer. 172 ; Curtis v. Perry, 6 Yes. 739 ; Exp. Houghton, 17 Ves. 
 251 ; Campbell v. Thompson, 2 Hare, 140. 
 
 (k) Stone v. Lidderdale, 2 Anst. 533. [See Price v. Lovett, 20 Law. J. Chanc. 270.] 
 
 (1) Mithwold v. Walbank, 2 Ves. Sen. 238. 
 
 (m) Stevens v. Bagwell, 15 Ves. 156. [See 4 Kent's Comm. 448 ; and note to 3 
 Ves. 494, Sumner's ed.] (n) Stone v. Lidderdale, ubi supra. 
 
 1 Dana, 252. In Williams v. Maus, 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 conveyed, vested no title in the former. So, though in a 
 creditor's suit the debtor'may be compelled to transfer, for the purposes of the suit, 
 assets in another state, yet the appointment of a receiver, who is a mere officer of the 
 court, does not transfer to him the title of such assets, and he cannot sue for these in 
 the forum rei sitce. Booth v. Clark, 17 How. U. S. 322. See further on this subject 
 Story's Equity, ji 743, 899; Chalmers v. Hack, 19 Maine, 124; Dieken v. King, 3 J. 
 J. Marsh. 591 ; 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 ad- 
 ministration 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. Allsup, 10 Yerg. 284; Patton v. Overton, 8 Humph. 194. 
 
 1 As, for instance, a bare right to file a bill in equity for a fraud or the like, the assign- 
 ment of which would "savor of champerty." Marshall v. Means, 12 Geo. 66 ; Story's 
 Equity, § 1040, g. 
 
 2 See notes to Row v. Dawson, 2 Lead. Cas. in Eq. (1st) Am. Ed. part ii, 217, 223 ; 
 Hunter v. Marlboro, 2 W. & M. 168 ; Murphy v. Hubert, 16 Penn. St. R. 50. 
 
 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. 489; 
 Dupre v. Thompson,4 Barb. S. C. 279 ; Lorillard v. Coster, 5 Paige, C. R. 172; Hawley 
 v. James, 5 Paige, C. R. 318 ; 16 Wend. 61 ; Grout v. Van Schoonhoven, 1 Sandf. 336 ; 
 Crafton v. Frith, 20 Law J. Chanc. 198; Vail v. Vail, 7 Barb. S. C. 226. But where 
 the trusts are indivisible, or the main object or general scheme of the conveyance or de- 
 vise would be defeated by a separation, the whole will be declared void. Arnold v. Gil- 
 bert, 3 Sandf. Ch. 532 ; Andrew v. Bible and Prayer Book Soc. 4 Sandf. S. C. 156 ; Harris 
 v. Clark, 3 Selden, 242. In Tritt v. Crotzer, 13 Penna. St. R. 451, it was held that a 
 
WHO MAT CREATE A TRUSTEE. 71 
 
 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-rolls.(p) 
 Previously, however, to the passing of the statute 4 & 5 Will. IV, c. 23, 
 its 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 expressed on the rolls to be, 
 absolute.^) 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 inte- 
 rested. 
 
 II.— WHO MAT 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 sub- 
 ject of future consideration), it may be hroadly stated, that every person 
 who is capable of making a valid disposition of property of any de- 
 scription, 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) 
 
 S6, where an infant makes over property to a person upon trusts, by 
 any act of assurance, which is voidable only, and hot void, the estate of 
 *the trustee will remain good until the assurance be avoided.(r) 1 
 Although it might be a question, whether a resulting trust would •- -■ 
 
 (0) Gilb. Ten. 170 ; Co. Litt. 271, b, u. 1, VIII. 
 
 (p) Burgess v. Wheate, 1 Ed. 232 ; Weaver v. Maule, 2 R. & M. 97. 
 
 (q) Att.-Gen. v. D. of Leeds, 2 M. & K. 343. 
 
 (V) Co. Litt. 248, a ; Hearle v. Greenbank, 1 Ves. 304. 
 
 (1) But a, feme covert, with respect to property settled to her separate use, is regarded 
 in equity as a feme sole. She may therefore convey her equitable interest in such 
 property, whether real (Major v. Lansley, 2 R. & M. 355) or personal (Pettiplace 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.] 
 
 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. 
 
 Where the original intention of the creator of a trust was not illegal, the subsequent 
 acts of the trustee thereunder cannot render the trust illegal. Thompson v. Newlin, 8 
 Ired. Eq. 32. 
 
 ■ 1 Kent, 234; Eagle Fire Co. v. Lent, 1 Edw. Ch. 301 ; 6 Paige, 635 ; Ins. Co. v. 
 Grant, 2 Edw. Ch. 544; Temple v. Hawley, 1 Sand. Ch. 153; Dominick v. Michael, 4 
 Sand. S. C. 374; McGan v. Marshall, 7 Humph. 121. The deed of an infant feme 
 covert, however, is absolutely void. Sanford v. McLean, 3 Paige, C. R. 117 ; Kenney 
 v. Udall, 5 J. C. R. 464; Mackey v. Proctor, 12 B. Monr. 433; Schrader v. lecker, 9 
 
72 WHO MAY CREATE A TRUSTEE. 
 
 not arise in such a case in favor of the infant.(g) Previously to the 
 statute 1 Vict. c. 26, an infant of the age of fourteen years might have 
 appointed a trustee of personal estate by will ;{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 disposing 
 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.(w) 
 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 feoffor. 
 
 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 reversed, (x) But 
 in cases of that nature a court of equity would unquestionably 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. (y) This, however, applies to the question of 
 the creation of trustees by implication, which will be considered in a 
 future place. 1 
 
 (s) 4 Cruis. Dip;. 130. (if) Hearle v. Greenbank, 1 Ves. Sen. - 303 ; Lew. Trust. 24. 
 (u) Co. Litt. 247, b. [See Gibson, C. J., in Snowden v. Dunlevy, 1 Jones (Penna.) 
 525.] (a:) 2 Rep. 58, a; 4 Rep. 124 ; Bac. Uses, 355 ; Sand. Us. 214. 
 
 (y) 4 Cruis. Dig. 130 ; 5 lb. 253. 
 
 Barr, 14. See, however, Scott v. Buchanan, 11 Humph. 468, contra "in Tennessee, as to 
 deeds acknowledged according to the statute. How far a female infant is bound by 
 her marriage settlement, see 2 Kent's Cora. 243, the better opinion being that such a 
 settlement is voidable, as to land ; Ibid. ; Temple v. Hawley, 1 Sand. Ch. 153 ; Levering 
 v. Levering, 3 Maryl. Ch. 365 ; see Wilson v. McCullough, 19 Penn. St. 86 (where the 
 question was left open) ; though made with the approbation or by the direction of the 
 court ; Levering v. Heighe, 2 Maryl. Ch. 81 ; Field v. Moore, 20 Jurist, 145, Court of 
 App. ; but the husband, if of age, is bound ; Wilson v. McCullough, ut supra. A settle- 
 ment of personalty, however, where the husband is an adult, is binding ; Levering v. 
 Levering, ut supra; Field v. Moore, 20 Jurist, 151 ; except of such as would not other- 
 wise vest in him by the act of marriage, as in the case of reversionary interests, or per- 
 sonal estate settled to the separate use of the infant. Field v. Moore. By the recent Eng- 
 lish statute of 18 & 19 Vict. (1855) ch. 43, male infants over 20, and female infants over 
 17 years of age, are empowered with the sanction of the Court of Chancery to make 
 binding marriage settlements of their real and personal estate. 
 
 ' The principle that a man cannot stultify himself is not in general recognized in the 
 United States. Ballew v. Clark, 2 Iredell Rep. 23; Owing's Case, 1 Bland, 370; 
 Harbison v. Lemon, 3" Black. 51 ; Rice v. Peet, 15 J. R. 503 ; Grant v. Thompson, 4 
 Conn. 203 ; Bensell v. Chancellor, 5 Whart. 371 ; Alston v. Boyd, 6 Humph. 504; 2 
 Kent's Com. 451. The acknowledgment of a deed by a lunatic in open court, is not 
 equivalent in its effects 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 
 
WHO MAY CREATE A TRUSTEE. 73 
 
 Before the Statute of Uses the sovereign might have declared uses 
 upon his letters patent.(z) By common law, and also by statute 39 & 
 40 Geo. Ill, c. 88, he has the power of disposing of his personal estate 
 by will;(a) and there can be little doubt, but that any declaration 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 warrant 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. (I) 1 
 
 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 ap- 
 pointing *trustees, on any disposition made by them, is coexten- 
 sive with this right, (d) 2 L -* 
 
 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 con- 
 fer 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 incapable of holding or 
 disposing of any personal property. But an alien friend may acquire 
 property in goods, money, arid other personal estate, except chattels 
 real, with the same powers of disposition as a British subject. He may 
 therefore convey such property upon trusts, either by act inter vivos, or 
 bywill-G?) 3 
 
 (z) Bac. Us. 66 ; Sand. Us. 215. (a) 1 Wins. Bxors. 11. 
 
 (6) Alexander v. D. of Wellington, IE. & M. 35 ; vide et Stevens v. Bagwell, 15 
 Ves. 152. (c) Mayor of Colchester v. Lowten, 1 V. & B. 226. 
 
 (d) Att,-Gen. v. Aspinwall, 2 M. & Cr. 613 ; Att.-Gen. v. Wilson, 1 Cr. & Ph. 1. 
 
 (e) Com. Dig. (Alien), C. 4 ; 1 Bl. Com. 371. (/) Co. Litt. 42, b. 
 (g) Com. Dig. (Alien), C. 5, 7 ; 1 Bl. Com. 372. 
 
 (1) By the statute 39 & 40 George III, c. 88, the sovereign is authorized to grant trust 
 property, which has escheated to the crown, to trustees, for the purpose of executing 
 the trusts. 
 
 or notice. Breckenridge v. Ormsby, 1 J. J. Marsh. 240 ; Allis v. Billings, 6 Mete. 415 ; 
 Price v. Berrington, 15 Jur. 599, 3 Mac. & G. 486 (semble); see Molton v. Camroux, 2 
 Exch. 487 ; 4 Bxch. 17. Contra, Desilver's estate, 5 Rawle, 111 ; and see Bensell v. 
 Chancellor, 5 Wh. 376 ; though this case can hardly be reconciled with Beals v. See, 
 10 Barr, 60. 
 
 J A State may appoint trustees, 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 Hamm. 82 (pt. 2) ; Dartmouth College v. Woodward, 4 Wheat. 578. 
 
 2 Catlin v. Eagle Bank, 6 Conn. 233 ; State of Maryland v. Bank of Maryland, 6 Gill & 
 Johns. 206 ; Dana v. Bank of U.S., 5 W. & S. 224; Arthur v. Coram. Bank, 9 S. & M. 
 394 ; Barry v. Merchants' Exch. Co., 1 Sandf. C. R. 280 ; Hopkins v. Turnpike Co., 4 
 Hump. 403 ; Reynolds v. Stark County, 5 Hamm. 207 ; Angell on Corporations, 153. 
 
 3 See 2 Kent's Comm. 53. In Leggett v. Dubois, 5 Paige, 114, it was held that where 
 an alien purchased land in the name of another, there was no resulting trust. 
 
74 WHO MAY CREATE A TRUSTEE. 
 
 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 ;(h) and it would therefore invalidate any convey- 
 ance upon trusts, made by the attainted party subsequently to the com- 
 mission of the crime. However, by the statute 54 - Geo. Ill, 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 offender himself during 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 consideration, convey 
 his personal property to trustees for other persons at any time before 
 his conviction. But if the transaction be collusive, the law, and parti- 
 cularly 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 ;(&) for their goods and chattels are forfeited during that 
 time. 
 
 By the operation of the Bankruptcy Acts,(Z) the whole present pro- 
 perty of a bankrupt, as well as what he may acquire before obtaining 
 his certificate, 1 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 remains vested in him 
 with all the incidents of property (m) It follows, that a bankrupt may 
 make a valid disposition of such an interest, either upon trusts or other- 
 wise. 
 
 *By a recent act" for abolishing arrest on mesne process (1 & 
 L 4b J 2 Vict. c. 110, s. 27), the order of the Insolvent Court made 
 upon the petition of a prisoner, has the effect of vesting in the provi- 
 sional assignee the whole real and personal estate of the insolvent, 
 either present, or what he may acquire before he becomes entitled to 
 
 (h) 4 Bl. Com. 380. (*) 4 Bl. Com, 387; Perkins v. Bradley, 1 Hare, 219. 
 
 (k) 2 Bl. Com. 499 ; and see Attorney-General v. Richards, 8 Jurist, 230 ; 8 Beav. 
 380. (I) 6 Geo. IV, c. 16, ss. 63 to 68 ; 1 & 2 Will. IV, c. 56, ss. 25 and 26. 
 
 (m) Ex parte Safford, 2 Gl. .& J. 128. 
 
 •Under the 3d section of the Bankrupt Act of 1841, it was held that property ac- 
 quired by a bankrupt between the time of bis discharge and his certificate, did not 
 pass to the assignees. In the matter of Grant, 5 Bost. Law Rep. 11 ; 2 Story, 312 ; 
 Mosby v. Steele, 1 Alab. 300 ; see Ex parte Newhall, 2 Story, 360. 
 
WHO MAT BE A TRUSTEE. 75 
 
 final discharge. An insolvent, therefore, subsequently to such an order, 
 is equally incapacitated with an uncertificated bankrupt from conveying 
 property to a trustee. 1 
 
 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, (n) 
 
 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 property sub- 
 ject to the performance of the trust. . And it may be stated generally, 
 that all persons, who are capable of taking a beneficial interest in pro- 
 perty, 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 ; -wherever that incapa- 
 city has not been relieved by the remedies devised by the legislature for 
 that purpose. 2 
 
 And there is no question, but that a husband may hold property as a 
 trustee for the separate use of his wife.(p) 
 
 When trusts were first introduced, it was held, that none but those 
 who were capable of being seised to a use, could be trustees : this doc- 
 trine however has been long since exploded.^) 
 
 Thus it has long been settled, that a corporation may be a trustee in 
 
 (n) Att.-Gen. v. Downing, Amb. 550 ; Bennet v. Davis, 2 P. Wms, 316 ; Souley v. 
 Clockmakers' Company, 1 Br. C. C. 81 ; Sand. Us. 349 ; 2 Fonbl. Eq. 142, n. ; 1 Madd. 
 Ch. Pr. 580 ; Co. Litt. 113, a,, u. 2, and lb. 290, b, n. 1, VI. [Story Eq. Jur. g 976 - r 
 Sheppard v. McEvers, 4 J. C. R. 136 ; Dawson v. Dawson, Rice Ch. 243 ; De Barantes 
 v. Gott, 6 Barb. S. C. 492; Crochteron v. Jaques, 3 Edw. Ch. 207 ; and see post, 171.]} 
 
 (o) 2 Fonb. Eq. 139 n. 
 
 (p) Bennet v. Davis, 2 P. Wms. 316. [Shirley v. Shirley, 9 Paige Ch. 363 ; Jame- 
 son v. Brady, 6 S. & R. 467 ; Boykins v. Ciples, 2 Hill Ch. 200 ; Picquet v. Swaan> 4 
 Mason, 455 ; Griffith v. Griffith, 5 B. Monr. 113 ; 2 Kent, 163.] 
 
 {q) 1 Sand. Us. 348. 
 
 1 See Williams v. Chambers, 10 Q. B. 337 ; Rochfort v. Battersby, 2 House ©f Lords' - 
 Cases, 388. 
 
 2 Clarke v. Saxon, 1 Hill Ch. 69 ; Bradish v. Gibbs, 3 J. C. R. 523 ; Livingston v. 
 Livingston, 2 J. C. R. 541 ; Dundas v. Biddle, 2 Barr, 160 ; Eyrick v. Hetrick,l Harris 
 (Penna.), 494; or one found a habitual drunkard. Webb v. Deitrich, 7 W. & S. 401. 
 So a nun may be a trustee in Maryland, Smith v. Young, 5 Gill. 197. 
 
76 WHO MAY BE A TRUSTEE. 
 
 the same manner as an individual. (r) 1 And corporations may to this 
 day be constituted trustees of personal property to the same extent as 
 private persons ;(s) but 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 to the heir at law ; but 
 r=M.cn ^e trust ) if *sufficiently 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. 2 There are not wanting dicta in favor of the 
 affirmative of this proposition. Thus in Penn v. Baltimore, Lord Hard- 
 wicke, after observing that the Duke of York, while a subject, was to be 
 
 (r) Green v. Rutherford^ 1 Ves. Sen. 468 ; Att.-Gen. v. Foundling Hospital, 2 Ves. 
 Jun. 46 ; Att-Gen. v. Landerfield, 9 Mod. 287. 
 
 (s) Att.-Gen. v. Ironmongers' Co. 2 Beav. 313. - 
 
 (i) Powley v. Clockmakers' Co. 1 Bro. C. C. 81. 
 
 1 So in the United States generally, where the trusts are within the scope of the pur- 
 poses of its institution. Trustees of Phillips Academy v. King, 12 Mass. 546 ; Vidal 
 v. Girard, 2 How. U. S. 187; Miller v. Lerch, 1 Wall. Jr. 210; Columbia Bridge Co. v. 
 Kline, Bright. N. P. 320 ; Ex parte Greenville Acad. 7 Rich. Bq. 476 ; Angell on 
 Corp. 124. If the trusts be repugnant to or inconsistent with the proper purposes for 
 which the corporation 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 
 therefore be held void ; a new trustee will be appointed. Vidal v. Girard, ubi sup. Iu 
 New York, however, a different rule has been adopted, at least with regard to chari- 
 table uses. It has been there held that where a legacy is given to a corporation 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 the heir at law. Andrew v. Bible Soc. 4 Sandf. S. C. 156 ; Ayres 
 v. 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 Massachusetts 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 as- 
 sumed to be so in several Acts of Assembly, particularly that of April 6th, 1833 ; though 
 .this has been denied. Vidal v. Girard, 2 How. 187 ; Magill v . 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 lessee, 14 Pet. 122; Miller v. 
 Lerch, 1 Wall. Jr. 321 ; Leazure v. Hillegas, 7 S. & R. 321. 
 
 s See MeDonogh's Ex'rs v. Murdoch, 15 How. U. S. 367, where a limitation over ou 
 a charitable devise, in case of a forfeiture, to the States of Maryland and Virginia, for 
 the purpose of educating the poor of those States, was held valid. In Mitford v. Rey- 
 nolds, 1 Phill. 185, it was held that the Governor-General of India, and in Nightingale 
 v. Goulbourn, 2 Phill. 594, 5 Hare, 484, that the Chancellor of the Exchequer of Eng- 
 land for the time being, might be respectively trustees for public charitable uses. 
 
WHO MAT BE A TRUSTEE. 77 
 
 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 trustee."(w) 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.(») In the great case of Burgess v. 
 Wheate,(?/) the Master of the Rolls (Sir Thomas Clarke) draws a dis- 
 tinction between 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 incumbrances 
 of the person forfeiting. The crown holds in this case as a royal trus- 
 tee. 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.(6) 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 
 person. (c) Yet it is observable, that there is in that case (Pawlett v. 
 Attorney- General) a recognition of the equity without any declaration 
 of the remedy. Whether this remedy has since been settled in the Ex- 
 chequer, zvhere 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 opinion of Hale 
 and Atkyns. I hope that there is no equity, that the subject is not en- 
 titled 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."^) 
 
 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 enforce it(e) in a suit 
 against the sovereign. In two instances, where it became necessary to 
 decide the point, the relief was refused. (/)* 
 
 (u) Penn v. Ld. Baltimore, 1 Ves. Sen. 453 ; vid. et B. of Kildare v. Eustace, 1 Vera. 
 439; re Roberts, 3 Atk. 309. (a;) 1 Saund. Us. 349; 1 Cruis. Dig. 403. 
 
 (y) 1 Ed. 177. (z) Burgess v. Wheate, 1 Ed. 203. (a) Id. 229. 
 
 (6) Id. 246. (c) Pawlett v. Att.-Gen. Hard. 467. 
 
 (d) Burgess v. Wheate, 1 Ed. 255-6. 
 
 (e) Pawlett v. Att.-Gen. Hard. 469; Burgess v. Wheate, 1 Ed. 255; Penn v. Ld. 
 Baltimore, 1 Ves. Sen. 453. 
 
 (/) Pawlett v. Att.-Gen. Hard. 467; Reeve v. Att.-Gen. 2 Atk. 223. [See Hodge 
 v. Att.-Gen. 3 Young & Coll. 342; Giles v. Grovey, 6 Bligh, N. S. 392; but see Pres- 
 cott v. Tyler, 1 Jur. 470 ; Casbord v. Ward, 6 Price, 44.] 
 
 1 By the Revised Statutes of New York (part I, ch. 1, art. 1, \ 2, 3d ed.), it is pro- 
 
78 "WHO MAY BE" A TRUSTEE. 
 
 *However, in consequence of the alteration of the law by 
 ■- J statute, the question with regard to trust property, vested in the 
 crown by escheat, cannot now arise. By the statute 39 & 40 Geo. Ill, 
 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 amendment of the law relating 
 to the escheat and forfeiture of real and personal property held in 
 trust,(<7) a still more effectual remedy is provided; for by the 2d and 
 3d sections of that act, no trust property will in future be the subject of 
 escheat in any case, in consequence 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. 1 
 
 With regard to trust property becoming vested in the person of the 
 sovereign by descent, or representation to the original trustee, or which 
 he may have held as trustee previously to his acquiring the crown; and 
 also in the improbable case of his being personally appointed a trustee; 
 it would appear that the question, whether he would or would not hold 
 subject to the trust, still remains open. (h) 
 
 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 
 
 (g) 4 & 5 Will. IV, c. 23. (A) See Perm v. Lord Baltimore, 1 Ves. 453. 
 
 vided that all escheated lauds, when held by the State or its grantees, shall be sub- 
 ject 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 Movers 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 forfeited, merely by reason of his being an alien or dying 
 without heirs. In Pennsylvania, the Act 29th Sept. 1787, § 11, Dunlop, 3d ed. 163, 
 provides that in case of escheat, the State is to take no other or greater title than the 
 person dying intestate 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 
 trust. 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'Hanlon v. Den, 1 New Jersey, 
 582, 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. 
 
 1 Now by the "Trustee Act of 1850" (13 & 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 MAY be a trustee. 79 
 
 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 en- 
 forcing it. This, if any, would appear to be by a petition of right in 
 the Court of Exchequer ;(l) or in future in the Court of Chancery, since 
 the transfer of the equitable jurisdiction of the Exchequer to that court 
 by the recent statute. (m) 
 
 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 circumstances. (n) 
 It is clear, that if the lord had in any way recognized the existence of 
 the trust, as, for instance, by admitting the trustee to a copyhold tene- 
 ment upon trusts expressed in the admission, he would hold as trustee 
 *for the parties beneficially entitled.(o) But the weight of autho- ,-%„■-> 
 rity seems to have been in favor of the lord's taking in these L J 
 cases discharged frdm any trust, which he had not recognized, ( p) as in 
 the case of a mortgagee admitted absolutely to a copyhold, and dying 
 without heirs, (q) However, the equity of the cestui que trust is now 
 clearly established against the lord, by the recent statute; and the 
 question therefore cannot be the occasion of any future difficulty. 1 
 
 It seems that an alien may take lands, or hereditaments, by purchase 
 or otherwise, but that on office found they go to the king.(r) 2 It might, 
 therefore, before the statute 4 & 5 Will. IV, c. 23, have been a question 
 
 (i) 1 Ves. Sen. 453; vid. et Hoveuden v. Ld. Annesley, 2 Sch. & Lef. 617. 
 
 (k)l Wms. Exors. 113. 
 
 (1) Com. Dig. (Prerogative), D. 79; Pawlett v. Attorney-General, ubi sup.; Reeve 
 v. Attorney-General, ubi sup.; Burgess v. Wheate, 1 Ed. 255. 
 
 (m) 5 Vict. c. 5, s. 1. 
 
 (re) Geary v. Bearcroft, Cart. 67; Eales v. England, Prec. Chan. 200; Burgess v. 
 Wheate, 1 Ed. 230. (o) Weaver v. Made, 1 R. & M. 97. 
 
 (p) Stephens v. Bailey, Nels. 107; Harg. Jur. Ex. vol. i. 390; 2 Fonbl. Eq. 170, n.; 
 3 Crnis. Dig. 418. (q) Attorney-General v. D. Leeds, 2 M. & K. 343. 
 
 (r) Co. Litt. 2, b; Com. Dig. (Alien), C. 
 
 ' See Evans v. Brown, 5 Beav. 114; Viscount Downe v. Morris, 3 Hare, 394. 
 
 2 See Fairfax v. Hunter, 7 Cranch, 621 ; Smith v. Zaner, 4 Alab. 99; Vaux v. Nes- 
 bit, 1 McCord Ch. 352; Montgomery v. Dorion, 7 N. H. 475; Craig v. Radford, 3 
 Wheat. 594; Clifton v. Haig, 4 Desaus. 330. In New York it has been held that an 
 alien might be a corporator and trustee in a religious society. Commeyer v. United 
 German Churches, 2 Sand. Ch. 186. 
 
 An alien trustee may convey, and such sale will not be set aside. Ferguson v. 
 Franklins, 6 Munf. 305; see Escheater v. Smith, 4 McCord, 452. 
 
80 WHO MAY BE CESTUI QUE TRUST. 
 
 ■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 incapa^ 
 city 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 construction 
 put upon the Bankruptcy Acts, does not pass to the assignee ;(s) and by 
 an analogous construction, an assignment by an insolvent under 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, (t) 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 ;(u) and a fortiori, such persons 
 have incurred no legal incapacity to prevent 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 trustee 
 of property vested in him, without divesting himself of the possession 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 in the trust estate, (.y) 
 
 IV.— WHO MAT BE CESTUI QUE TRUST. 
 
 All persons who are capable of taking an interest in property at law, 
 r*521 * ma y> t0 tlie extent of their legal capacity, and no further, be- 
 come entitled to the trust of such property in equity.(z) The 
 
 (s) Scott v. Surman, Willes, 402; Carpenter v. Marnell, 3 B. & P. 40; Gladstone v. 
 Hadwen, 1 M. & S. 526; Exp. Gennys, 1 M. & M. 258. [See post, 269, 304, 530; 
 Kip v. Bank of N. Y. 10 Johns. 63; Blin v. Pierce, 20 Verm. 25;. Ontario Bank v. 
 Mumford, 2 Barb. Ch. 596; Hynson v. Burton, 5 Pike, 492.] 
 
 (t) Lewin, Trust. 258. [So in the United States, Kip v. Bank of N. Y. 10 John. 63; 
 Kennedy v. Strong, Id. 289; Clarke v. Minot, 4 Mete. 346; Butler v. Merchants' Ins. 
 Co. 14 Alab. 798.] (u) Exp. Painter, 2 Deac. & Ch. 584. 
 
 (x) Exp. Pye, 18 Ves. 139 ; Wheatley v. Purr, 1 Keen, 551 ; Meek v. Kettlewell, 1 
 Hare, 469 ; 1 Phil]. 342; Atcherly v. Vernon, 10 Mod. 518; 1 Sugd. V. & P. 171, and 
 cases cited; Thorpe v. Owen, 5 Beav. 224; see post, 82. 
 
 (y) Owen v. Owen, 1 Atk. 496. ( z ) i Sand. Us. 339. 
 
WHO MAY BE CESTUI QUE TRUST. 81 
 
 beneficial interest in property may also become, and frequently is, vested 
 in objects as cestui que trusts, whose existence is not recognized at law. 1 
 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 execu- 
 tion 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 considered, that objection to 
 the title of the crown was not attempted to be urged. But, however 
 this may be, it appears that a trust of personal property may be con- 
 stituted in favor of the crown, in the same manner as in the case of a 
 private person. (b) Even by the old law it seems that the king might 
 take real estate by devise, though not of record ;(e) and it is therefore 
 conceived from analogy, that the court would be bound to recognize a 
 trust even of land, where it is created by devise in favor ofthe king. 2 
 
 (a) Gilb. Us. 44; Bac. Abr. (Uses and Trusts), E. 2. 
 
 (6) Middleton v. Spioer, 1 Bro. C. C. 201 ; Bruramell v. M'Pherson, 5 Russ. 264; 
 1 Saund. Us. 339, «. (c) Cora. Dig. (Prerogative), D. 66. 
 
 1 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 on trust for subscribers thereto, it was held that the title of 
 the grantor was not divested until there were subscribers. 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 ; Graves v. Allen, 13 B. Monr. 192 ; see Ross v. Dun- 
 can, Preem. Ch. 603 ; Frazier v. Frazier, 2 Hill, Ch. 305. So a trust for a slave cannot be 
 enforced either for his own or his master's benefit. Skrine v. Walker, 3 Rich. Eq. 263. In 
 Leiper v. Hoffman, 26 Mississippi, 615, however, it was held that a purchase of land by 
 a slave, with money entirely furnished by herself, and with the acquiescence of her 
 master, in the name of a freeman, was effectual to create the latter a trustee, and that 
 the trust could be enforced against third persons, after emancipation. See Pool v. 
 Harrison, 18 Alab. 515. 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. Thorn- 
 ton, 28 Maine, 355; Shepherd v. McEvers, 4 J. C. R. 136 ; Pleasants v. Glasscocke, 1 
 S. & M. Ch. 17 ; Bryant v. Russell, 23 Pick, 520. His assent will be presumed in the 
 absence of proof to the contrary, if beneficial to him. Field v. Arrowsmith, 3 Humph. 
 442. In order, indeed, to constitute a waiver of a trust, there must be a clear, un- 
 equivocal, 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. 
 
 2 A conveyance to one and his heirs in trust for the State vests the legal title in the 
 State. Lamar v. Simpson, 1 Richard. Ch. 71. In Nightingale v. Goulburn, 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 Mitford v. Rey- 
 nolds, 1 Phill. Ch. 185. A declaration of trust by the grantee of land for a burying 
 ground for "the Jewish Nation," was supported in Gomez v. The Tradesman's Bank, 
 
 6 
 
82 WHO MAY BE CESTUI QUE TRUST. 
 
 The law does not permit the Statutes of Mortmain to be evaded by 
 the mere substitution of an equitable for a legal estate. Therefore cor- 
 porations cannot acquire an interest in real estate, as cestui que trust, 
 without a license from the crown to hold in mortmain. (d) The statute 
 43 Geo. Ill, 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 propef ty, corporations in general are on the same footing as 
 private persons. 1 
 
 *The operation of the Bankruptcy and Insolvency Acts ex- 
 L -• 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 
 2(H., 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, though an alien friend may take an equita- 
 ble as well as a legal property in chattels personal, yet he cannot pro- 
 
 (d) Co. Litt. 99, a. ; 1 Sand. Us. 330, n. (e) Supra. 
 
 4 Sandf. S. C. 106 ; but no objection 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 consis- 
 tent with Leggett v. Dubois, &c, post, 53, note 1. 
 
 Though the Act of Congress of May 1st, 1820, prohibits purchases of land on account 
 of the United States, except where authorised by special Act, this does not apply N 
 where land is conveyed in trust to sell and pay a debt due the United States; and the 
 latter may be a cestui que trust of the proceeds. Neilson v. Lagow, 1 2 How. U. S. 107. 
 
 1 Where a corporation has powef under its charter to take real and personal 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 in- 
 consistent with, the proper purpose for which the corporation was created, it may not 
 be compellable to execute it, but the trust (if otherwise exceptionable), will not he 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 institu- 
 tion, 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 col- 
 lege, 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 corporation incom- 
 petent to execute them, the heirs of the devisor could not take advantage of such in- 
 ability ; 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, page 48, note 1.] 
 
WHO MAY BE CESTUI QUE TRUST. 83 
 
 tect himself from forfeiture by taking a conveyance of real estate in the 
 name of a trustee^/) 1 And the same may be predicated of traitors, 
 felons, and outlaws, during the continuance of their legal incapacity. 2 
 
 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 sepa- 
 rate existence as the recipients of property is not recognized or admitted 
 by the common law. Such are those numerous institutions and associa- 
 tions 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 gradually permitted by the courts of 
 equity to acquire the beneficial enjoyment of a large portion of the pro- 
 perty of the country. 
 
 The statute 9 Geo. II, c. 36 (usually called the Statute of Mortmain), 
 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 judi- 
 cial construction. However, the capacity of such objects to take the 
 beneficial interest in personal property is not affected by the Mortmain. 
 
 (/) Sugd. V. & P. 2d vol. 9th ed. 35, 106; 1 Sand. Us. 339, n. ; 3 Ch. Rep. 35. 
 
 1 Atkins v. Kron, 5 Ired. Eq. 207 ; Hubbard v. Goodwin, 3 Leigh, 492 ; Rittson v. 
 Stord}', 19 Jur. 771. Equity will not raise a resulting trust in favor of an alien. Leg- 
 gett y. Dubois, 5 Paige, 114; Hubbard v. Goodwin, ut supra; Phillips v. Cramond, 2 
 Wash. C. C. R. 441 ; Taylor v. Benham, 5 How. U. S. 270 ; though see Farley v. Ship- 
 pen, Wythe, 135. But he may be cestui que trust of personalty : Brad well 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; 
 Meakings v. Cromwell, 1 Selden, 136 ; 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. 
 Trezevant v. Howard, 3 Desaus.' 87. In McGaw v. Calbraith, 7 Richard. Law, 74, 
 however, a devise in trust for an alien, the trustee to hold the legal title and to accu- 
 mulate the rents and profits until, and to conve^ to the cestui que trust when, the latter 
 became duly naturalized, was held valid ; and it was further held that in case of the 
 death of the cestui que trust, without naturalization, there was no escheat, but a resulting 
 trust for the heir. As to part of the land, however, the rents and profits were directed 
 to go to the alien from the death of the testator, and it was decided that these were 
 forfeitable to the State, until the death or naturalization of the cestui que trust. Ibid. 
 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. Hamersley v. Lambert, 2 J. C. R. 508. 
 
 2 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 ex- 
 ecutors, and was not divested by the conviction, though they became thereupon trustees 
 for the crown. See Stokes v. Holden, 1 Keen, 153. 
 
84 WHO MAY BE CESTUI QUE TRUST. 
 
 Act, and the court is always disposed to put a liberal construction upon 
 such dispositions in favor of charitable uses.(^) 
 
 In these cases there are usually no persons capable of enforcing their 
 _ r ._ *rights as cestui que trusts, but their interests will be repre- 
 *- -• sented by the Attorney-General as the officer 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 ob- 
 jects capable in equity of taking a beneficial interest in property both 
 real and personal as cestui que trusts to the extent limited by the legis- 
 lature. The extent and nature of those limitations, and their effect 
 upon the validity of trusts of this description, will be reserved for future 
 consideration. 
 
 An illegitimate child, when born, or in ventre sa mere, may beyond 
 all doubt be the object of a trust ; but a trust in favor of illegitimate 
 children, not in existence, but to be born thereafter, will not be en- 
 forced. (A) 
 
 {g) Moggridge v. Thackwell, 2 Ves. ?8 ; White v. White, Id. 423 ; Ponbl. Eq. 211. 
 
 (7i) Wilkinson v. Wilkinson, 1 N. C. C. 657. [In re Connor, 2 Jones & Lat. 456; 
 see Pratt v. Plaraer, 5 H. & J. 10 ; Gardner v. Heyer, 2 Paige, 11 ; Collins v. Hoxie, 
 9 Paige, 81 ; Evans v. Davies, 1 Hare, 498 ; Owen v. Bryant, 21 Law J. Chane. 860.] 
 
PART I.* [*55] 
 
 THE CONSTITUTION OP TRUSTEES. 
 
 The legal owner of property is prima facie entitled to its beneficial 
 enjoyment ; and in order to convert him into a trustee, there must be a 
 sufficient 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 declaration ; 
 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 accept the trust. 
 
 DIVISION I. 
 
 THE CONSTITUTION OF TEUSTEES 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 OF TRUSTEES BY PAROL. 
 
 SECT. I.— WHAT MAY BE THE SUBJECT OF A PAROL TRUST. 
 
 Uses in the beginning were of a secret nature, and depended merely 
 on a parol agreement or declaration between the feoffee to uses and the 
 
86 CREATION OF TRUSTEES BY PAROL. 
 
 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.(6)' 
 
 Lord Chief Baron Gilbert has extracted a principle from the cases 
 *which seems to reconcile their apparent contrariety. That emi- 
 L J nent writer, in his " Treatise on Uses," observes, " At common 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 deedVas 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 parol 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. (d) 
 
 In considering this question, it is material not to lose sight of the 
 distinction between the raising of a use originally by verbal declara- 
 tions, 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 exclusion 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 land, tenements, or hereditaments, shall be mani- 
 fested 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 operation of the act trusts 
 arising or resulting by the implication or construction of law. 2 
 
 (a) Sand. Uses, 210. (6) Stor. Eq. Jur. <S 971. 
 
 (c) Gilb. Us. 270, 1. , (d) 3 Bro. C. C. 587. 
 
 (e) Fordyce v. Willis, 3 Bro. C. C. 237 ; Cowman's case, 9 Rep. 10. 
 
 1 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. Donahoo, 5 Ohio, 250. 
 
 2 These sections have been re-enacted in words or in substance in nearly all of the 
 United States. Rev. Stat. Vermont (1839), ch. 66, j! 22 ; Rev. Stat. Massachusetts 
 (1836), ch. 59, I 30 ; Dean v. Dean, 6 Conn. 285 ; Rev. Stat. New Jersey, tit. 17, ch. 1, 
 <S 11; Pennsylvania, Act of 1856, Bright. Purd. Supp. 1174; Dorsey v. Clark, 4 H. & J. 
 557 ; Maccubbin v. Cromwell, 7 G. & J. 157 ; 1 Dorsey's'Laws, 37 ; 2 Cooper's Stat. South 
 
CREATION OF TRUSTEES BY PAROL. 87 
 
 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.(Z) 1 This distinction, although at first sight it may appear of 
 little moment, has been attended by consequences of considerable im- 
 portance. 
 
 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 execution of that declara- 
 tion ; 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 consequently gives effect to all intermediate 
 *acts of disposition made by the cestui que trust, between the de- 
 claration of trust and its actual creation ; while it defeats the ^ -I 
 
 (/) Forster v. Hale, 3 Ves. 707 ; S. C. 5 Ves. 308 ; Randall v. Morgan, 12 Ves. 74. 
 
 Car. 401, 525; 2 Cobb's Georgia Digest, 1128; Elliott v. Armstrong, 2 Blackf. 198; Hovey 
 v. Holcomb, 11 Illinois R. 660; Rev. Stat. Arkansas, ch. 65, g 10; Rev. Stat. Missouri, eh. 
 68, \ 3; Rev. Stat. Michigan, p. I, tit. 1, oh. 1, J 27 ; Wisconsin Rev. Stat, page 164; 
 Thompson's Florida Digest, 178. In Maine, the statute runs, " all trusts, except, &c, shall 
 be created and manifested by some writing,'' &c. Rev. Stat. 1847, ch. 92, \ 31. Ace. Rev. 
 St. of N.H. (1842), ck 130, \ 13; Rev. Stat. New York, 3d ed. part ii, ch. 7, tit. 1, \ 6. 
 The 7th section of the Statute of Frauds has been, however, omitted in North Carolina; 
 there, consequently, trusts may be proved by parol. Foy v. Foy, 2 Hayw. 296. So too, 
 perhaps, in Tennessee. See Caruthers & Nichols' Digest, 350; Meigs' Digest, 541; 
 Thompson v. Thompson, 1 Yerg. 100 ; McLanahan v. McLanahan, 6 Hump. 99 ; Hay- 
 wood v. Ensley, 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, $ 1, see Bank v. Carrington, 7 
 Leigh, 576. In Ohio it was ruled that before the act of 1810, a trust in land might be 
 proved by parol. Fleming v. Donahoe, 5 Ohio, 255 ; and th.it 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 maybe proved by parol. 
 Murphy v. Hubert, 7 Barr, 420; Tritt v. Crotzer, 13 Penh. St. R. 451 ; Wetherell v. 
 Hamilton, 15 Penn. St. R. 195 ; Morey v. Herrick, 18 Penn. St. R. 128 ; Blyholder v. 
 Gilson, Id. 134. By a recent statute of this State, however, the law has been very wisely 
 changed, and the provisions of the English Statute adopted. Bright, Purd. Sup. 1174. 
 1 Movan v. Hays, 1 J. C. R. 339 ; Johnson v. Ronald, 4 Munf. 77 ; Jackson v. Moore, 
 6 Cowen, 706; Flagg v. Mann, 2 Sumner, 406 ; Church v. Sterling, 16 Conn. 388; 
 Lloyd v. Inglis, 1 Desaus. 333; Rutledge v. Smith, 1 M'Cord Ch. 119; Maccubbin v. 
 Cromwell, 7 G. & J. 157, 2 Story Eq. \ 972; Pinney v. Fellows, 15 Verm. 525 ; Uni- 
 tarian Soc. y. Woodbury, 14Maine, 281. See, however, now, Rev. St. Maine, New York, 
 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 payment of purchase-money by 
 J,he cestui que trust, and an entry and occupation with improvements. It has recently 
 been held in Maine, that notwithstanding the statute of that State, cited above, a parol 
 trust might exist, and be proved by parol as against third persons, as creditors. The 
 statute, as was said, was not intended to prevent the voluntary execution of such a trust 
 but only its enforcement against the trustee. Brown v. Lunt, 37 Maine, 434. 
 
88 CREATION OF TRUSTEES BY PAROL. 
 
 fights which parties claiming 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 bona 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.(^r) 
 
 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 purpose of his -will ; 
 the devisees under the copyholder's will, and not his customary heir, 
 were held to be entitled. (h) 
 
 On the same principle in a case where a lease was granted absolutely 
 to a person, and the grantee afterwards became bankrupt, and subse- 
 quently 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 affirmed on appeal by Lord Lyndhurst, 
 that the assignees of the bankrupt were not entitled to the lease. (i)(l) 
 
 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 property may not 
 
 (g) Ambrose v. Ambrose, 1 P. Wms. 322. (7i) Wilson v. Dent, 3 Sim. 385.' 
 
 (i) Gardner v. Rowe, 2 S. & St. 346 ; S. C. 5 Ross, 258. 
 
 (1) On a similar principle it has been held, that a settlement made after marriage, 
 which recites a parol agreement, entered into previously to the marriage, will be good 
 against creditors, notwithstanding the statute of Elizabeth. Montacute v. Maxwell, 1 
 Str. 237; Hodgson v. Hutchenson, 5 Vin. Abr. 542, pi. 34; Dundas v. Dutens, 1 
 Ves. Jan. 196, and S. C. 2 Cox, 235 ; and see Dubeil v. 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 present day. See Morgan v. Randall, 12 Ves. 74; 
 Spurgeon v. Collier, 1 Ed. 55 ; Battersbee v. Parington, 1 Sw. 106, and Sugd. Pow. 
 247 (6th ed.) 
 
 [This later opinion is the one generally followed in the United States. Satterthwaite 
 v. Emley, 3 Green Ch. 489 ; Andrews v. Jones, 10 Alab. 421, semble ; Davidson v. 
 Graves, Riley Eq. 219; Simpson v. Graves, Id. 232; Izard v. Middleton,l Bailey Eq. 228 ; 
 Reade v. Livingston, 3 Johns. Ch. 481 ; Borst v. Corey, 16 Barb. 140 ; see Babcock v. 
 Smith, 22 Pick. 61 ; contra Woods v. Savage, Walker Ch. 471. It has also been held 
 that parol proof of an antenuptial agreement, will not support a subsequent voluntary 
 settlement. Reade v. Livingston ; Borst v. Corey, ut supr. ; Andrews v. Jones, 10 
 Alab. 421 ; Izard v. Middleton, ut supr. ; contra Satterthwaite v. Emley, 3 Green Ch. 491, . 
 semble; Brooks v. Dent, 1 Mary. Ch. Dec. 526 {sernb.) ; though in both these last cases the 
 declarations of the husband after marriage were held insufficient evidence. But a cove- 
 nant before marriage to settle property on wife is valid unless there be fraud in which 
 she joins. Rivers v. Thayer, 7 Rich. Eq. 136. See also Smith v. Kane, 2 Paige, 303 ; 
 Maguiac v. Thompson, Baldw. C. C. 344.] 
 
CREATION OF TRUSTEES BY PAROL. 89 
 
 only still be created, but, if necessary, established and proved by mere 
 parol declarations. (k) 
 
 With regard to the question of what property is within the scope of 
 the 7th Section, — it has been repeatedly decided that leasehold interests 
 are within the statute. (I) But it seems that money, secured by mort- 
 gage, whether in fee or for a term of years, is not. And a parol trust 
 of a mortgage debt will still be supported. (wt)(l) Nor does the statute 
 apply to a *share in a mining copartnership, or to any other 
 shares which are personal estate, (n) *- -■ 
 
 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 ex- 
 pressly stated, that wills of copyholds are not within the 7th Section 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 notwithstanding the 
 statute. (q) 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, 
 
 (7c) Fordyce v. Willis, 3 Bro. C. C. 587 ; Benbow v. Townsend, 1 M. & K. 510 ; Bay- 
 ley v. Boulcott, 4 Russ. 347 ; M'Fadden v. Jenkyns, 1 Hare, 461 ; S. C. 1 Phill. 153, 
 7 ; [Kimball v. Morton, 1 Halst. Ch. 31 ; Robson v. Harwell, 6 Geo. 590 ; Gordon v. 
 Green, 10 Id. 534 ; Higgenbottom v. Peyton, 3 Rich. Eq. 398 ; Kirkpatrick v. David- 
 son, 2 Kelley, 297 ; Porter v. Bank of Rutland, 19 Venn. 410. But where declared in 
 writing, a trust of chattels cannot, of course, be varied by parol. Sinims v. Smith, 11 
 Geo. 195.] 
 
 {V) Riddle v. Emerson, 1 Vern. 108 ; Hutchins v. Lee, 1 Atk. 447 ; Porster v. Hale, 
 3 Ves. 696 ; S. C. 5 Ves. 308 ; Gardner v. Rowe, 5 Russ. 258 ; [Otis v. Sill, 8 Barb. S. 
 C. 102.] 
 
 (m) Bellasis v. Compton, 2 Vern. 294; Benbow v. Townshend, 1 M. & K. 510. 
 
 (») Forster v. Hale, 3 Ves. 696 ; S. C. 5 Ves. 308 ; [See Porter v. Bank of Rutland, 
 19 Verm. 410 ; Hilton v. Giraud, 1 De Gex & Sra. 183 ; 11 Jur. 838 ; Ashton v. Lord 
 Langdale, 15 Jur. 868; Walker v. Milne, 11 Beav. 507 ; Myers v. Perrigal, 16 Sim. 
 533.] 
 . (o) Tuffnell v. Page, 2 Atk. 37 ; Carey v. Askew, 2 Bro. C. C. 59. 
 
 (p) Doe dem. Cook v. Danvers, 7 East, 299, 322. 
 
 (q) 1 Jarm. Pow. Dev. 61 ; 1 Watk. Cop. 130. (r) Prec. Chan. 4. 
 
 (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. 
 
CO CREATION OF TRUSTEES BY PAROL. 
 
 notwithstanding the statute. This seems to be the only case that at all 
 favors the position, that parol creations of trust of copyholds by act 
 inter vivos are not within the operation of the 7th Section of the statute. 
 It -will be seen on examination, that the case was decided on another 
 point, and the opinion was therefore clearly 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, notwithstanding 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 operation ; 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. Townshend,(£) 
 in which the question arose of the validity of the parol declaration of 
 trusts 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 be- 
 tween 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.(w) 
 Those colonies which have been established subsequently, are not bound 
 by that or any other English act of Parliament in which they are not 
 *named; unless, indeed, its adoption may have been sanctioned 
 L -'by their own legislature ;(x)(l) and the court in dealing with 
 real estate in a foreign country, will be guided by the law of evidence 
 as prevailing in that country.(?/) It follows, therefore, 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 principle to trusts for 
 charitable purposes, and parol evidence was offered to prove such a trust, 
 the court rejected the evidence, and decided, that trusts for charities were 
 
 (s) Wagstaff v. Wagstaff, 2 P. Wms. 258; Doe v. Danvers, 7 East, 322. 
 
 (t) 1 M. & K. 506. (u) Mem. 2 P. Wms. 15. 
 
 (x) Goodrich v. Sheddon, 8 Ves. 481 ; Becket v. Marsden, 4 M. & S. 1 ; Att.-Gen. r. 
 Stewart, 2 Mer. 145, n. (y) Tulloch v. Hartley, 1 Y. & Coll. N. C. 114. 
 
 (z) Attorney-General v. Jones, 3 Atk. 146 ; Attorney-General v. Lawson, lb.; King v. 
 Portington, lb. 
 
 (I) However, it has been decided, 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. Pell, 1 J. & W. 22. 
 
CREATION OF TRUSTEES BY PAROL. 91 
 
 •within the 7th Sect.(a) It may also be remarked here, that Lord Hard- 
 wicke's observations, as reported in the case of Adlington v. Cann, ap- 
 pear 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 statute. 
 
 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 before the act, they must still be con- 
 sidered as on the same footing. (J) 
 
 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.(e) But this is a subject which will 
 be reserved more conveniently for discussion in a future chapter.(d) 
 
 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 bene- 
 ficial interest. Loose and indefinite expressions, and such as indicate 
 only an incomplete and executory intention, are insufficient for this pur- 
 pose. 1 
 
 * Therefore where a mother had assented to a recommendation, r*^n-] 
 made to her by a third person, to make a settlement upon her 
 daughter, and had requested her adviser to give instructions to her soli- 
 citors to prepare a proper deed for the purpose, but afterwards refused 
 to execute the deed ; it was held, that the expression of the mother's 
 
 (a) Adlington v. Cann, 3 Atk. 150 ; Mucckleston v. Brown, 6 Ves. 62 ; Strickland v. 
 Aldridge, 9 Ves. 510 ; [Walgrave v. Tebbs, 20 Jurist, 85 ; Lomax v. Ripley, 24 L. J. 
 Ch.256.] 
 
 (6) Bellasis v. Compton, 2 Vern. 294; Benbow v. Townshend, 1 M. & K. 510. See 
 post, 91. 
 
 (c) Devenish v. Baines, Prec. Chan. 3 ; "Walker v. Walker, 2 Atk. 98 ; Podmore v. 
 Gunning, 7 Sim. 649 ; Hutchins v. Lee, 1 Atk. 447 ; Chamberlain v. Agar, 2 V. &. B. 
 262 ; Pring v. Pring, 2 Vern. 99 ; Kingsman v. Kingsman, lb. 559. 
 
 (d) Vide post. Div. II, Ch. II, Sect. 1. [Post, 150, 167, and notes.] 
 
 1 Harrison v. 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 ; Chiles v. 
 Woodson, 2 Bibb, 71 ; 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. 
 
92 CREATION OF TRUSTEES BY PAROL. 
 
 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 a security was to be made in the name of his brother Job, as he 
 intended the mortgage to be for his benefit, and that it would then be his," 
 has been considered sufficient^/) And in like manner a trust was de- 
 creed 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 con- 
 temporaneously with, or in contemplation of, the act of disposition.(A) 
 And it must be remembered, that even in that case they will be inadmis- 
 sible for the purpose of contradicting any written instrument.(i) 
 
 Since the statute 1 Vict. c. 26, no parol declaration can be made to 
 take effect as a nuncupative will ; but it has been decided that a donatio 
 mortis causa may be made to a trustee for a particular purpose.(&)°" And 
 such a gift does not seem to be affected by the late Will Act. 
 
 It is to be observed, that a trust, once effectually created by parol, 
 
 (c) Bayley v. Bouleott, 4 Russ. 345. (/) Benbow v. Townsbend, 1 M. & K. 506. 
 (g) Kilpin v. Kilpin, 1 M. & K. 520 ; and see Wheatley v. Purr, 1 Keen, 551. 
 (h) See Kilpin v. Kilpin, 1 M. & K. 537 ; [Souverbye v. Arden, 1 John. Ch. R. 240; 
 Tritt v. Crotzer, 1 Harris (Penn.), 457 ; see Drum v. Simpson, 6 Biim. 478.] 
 (i) Leman v. Whitley, 4 Russ. 423. (k) 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 check 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 MePadden v. 
 Jenkyns, Id. 438. There seems to have been no doubt, however, in that case, but that 
 A. was a trustee for the testatrix 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 volun- 
 tary trusts is more fully considered. [Post, 82.] 
 
 1 In Lloyd v. Inglis Bxrs. 1 Desau. 333, it was held that the testimony of a convey- 
 ancer, 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. Barnett, 3 Gratt. 339. 
 
 2 Moore v. Darton, 4 De G. & Sm. 511 ; Wells v. Tucker, 3 Binn. 370 ; Borneman v. 
 Sidlinger, 3 Shepley, 429; 8 Shepl. 185; Coutant v. Schuyler, 1 Paige Ch. 316; see 
 Tate v. Leithead, 1 Kay, 658 ; but in Dole v. Lincoln, 31 Maine, 422, it was ruled that 
 a donatio mortis causa cannot be of a fund in trust to be disposed of for benevolent 
 uses, at the entire and unlimited discretion of the donee. 
 
CEEATION OF TRUSTEES BY PAROL. 93 
 
 cannot subsequently be extinguished, revoked, or altered, by the party 
 creating it, any more than a more formal assurance. (I) 
 
 The evidence of a person claiming the beneficial interest in property 
 under a parol declaration, is inadmisible 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(n), 1 (ex- 
 cepting *in case of fraud or mistake) ;(o) however, it has been 
 frequently decided, that a plaintiff is entitled to an answer to L J 
 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. (qf But no relief will be given where the defendant 
 denies by oath, in his answer, the trust alleged by the bill ;(r) except in- 
 deed in cases of fraud, which, if otherwise established, would warrant 
 the interference of the court under any circumstances. (s) 
 
 {I) Kilpin v. Kilpin, 1 M. & K. 531, 539 ; Adlington v. Cann, 3 Atk. 151. [Freeman 
 v. Freeman, 2 Pars. Eq. 81 ; see Greenfield's Estate, 14 Penn. St. R. 489 ; Kirkpatrick 
 v. McDonald, 11 Penn. 387.] 
 
 (m) Fordyce v. Willis, 3 Bro. C. C. 581, 2, 3; Strode v. Winchester, 1 Dick. 397. 
 
 (n) Irnham v. Child, 1 Bro. C. C. 92 ; Bartlett v. Pickersgill, 1 Ed. 515 ; Leman v. 
 Whitley, 4 Russ. 423. 
 
 (o) Irnham v. Child, 1 Bro. C. C. 92 ; Cripps v. Jee, 4 Bro. C. C. 472 ; Podmore v. 
 Gunning, 7 Sim. 644, 665. 
 
 (p) Muckleston v. Brown, 6 Ves. 52 ; Strickland v. Aldridge, 9 Ves. 516 ; Chainber- 
 lain v. Agar, 2 B. & B. 259 ; Newton v. Pelham, 1 Ed. 514, cited post, p. 167. [See 
 Lomax v. Ripley, 24 L. J. Ch. 267.] 
 
 (q) Muckleston v. Brown, 6 Ves. 52 ; [but where no allegation of fraud, &c, see Wood 
 v. Midgley, 23 L. J. Ch. 553.] 
 
 (r) Fordyce v. Willis, 3 Bro. C. C. 576; Bartlett v. Pickersgill, 1 Ed. 515, post, 167. 
 
 (s) Strickland v. Aldridge, 6 Ves. 520 ; Podmore v. Gunning, 7 Sim. 665. 
 
 1 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. Tindall, 2 Green Ch. R. 357 ; 
 Starr v. Starr, 1 Hamm. 321 ; Lloyd v. Inglis Exrs. 1 Desau. 333 ; Movan v. Hays, 1 
 J. C. R. 343 ; Philbrooke v. Delano, 29 Maine, 410 ; see notes to Woollam v. Hearn, 
 2 White & Tud. Eq. p. i, 540. 
 
 2 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 ; Woods v. Dille, 11 Ohio, 455 ; Newton v. Swasey, 
 8 N. H. 9 ; Rowton v. Rowton, 1 Hen. & Munf. 91 ; Lingan v. Henderson, 1 Bland. 
 236 ; Tarleton v. Vietes, 1 Gilm. 470 ; Stearns v. Hubbard, 8 Greenl. 320 ; Thornton v. 
 Henry, 2 Scam. 219; Trustees v. Wright, 12 Illin. 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 v. Locke, 5 Cushing, 91 ; see Wood v. 
 Midgley, 23 L. J. Ch. 553. This must, however, appear distinctly to be the case, or a 
 demurrer will be overruled. Cozine v. Graham, 2 Paige, 178 ; Switzer v. Skiles, 3 
 Gilm. 534. 
 
94 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 Frauds, 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 description ; 
 and, accordingly, a bond to assign as cestui que trust shall direct,(w) or 
 a covenant to purchase and convey lands to specified uses,(a;) or a recital 
 contained in a deed,(«/) as well as written statements, of a much looser 
 and more informal description, such as those contained in a bill or 
 answer(s) in Chancery, or even in notes or letters in the handwriting of 
 the party,(a) have been considered sufficient to take a parol trust out of 
 the statute. 1 But it must be borne in mind, that the same principles of 
 construction will be applied to trusts proved by evidence of this descrip- 
 tion, as in other cases ; and the objects and nature of the trust must 
 always appear from such documents with sufficient certainty, as well as 
 their connection with the property in question. (J) 
 
 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 crea- 
 tion of the trust, to take it out of the statute, (c) 
 
 [t) Cottington v. Fletcher, 2 Atk. 156. 
 
 (u) Moorcroft v. Dowding, 2 P. Wms. 314. [Orleans v. Chatham, 2 Pick. 29; Hardin 1 
 v. Bond, 6 Litt. 346 ; Graham v. Lambert, 5 Hump. 595 ; Gomez v. Tradesman's Bank, 
 4 Sand. S. C. 106.] 
 
 (x) Earl of Plymouth v. Hickman, 2 Vern. 167 ; Blake v. Blake, 2 Bro. P. C. 250. 
 
 (?/) Degg v. Degg, 2 P. Wms. 412. [Wright v. Douglass, 3 Selden, 564. Or a memo- 
 randum in an agreement. Dale v. Hamilton, 2 Phillips, 266 ; 11 Jur. 574.] 
 
 (z) Butler v. Portarlington, 1 Conn. & Law. IS ; S. C. 1 Dr. & W. 20 ; Hampton v. 
 Spencer, 2 Vern. 288; Wilson v. Dent, 3 Sim. 385; [Maccubbin v. Cromwell, 7 G. & 
 J. 157 ; Unitarian Society v. Woodbury, 2 Shepl. 281 ; Podmore v. Gunning, 7 Sim. 
 655 ; Fisher v. Field, 10 J. R. 505 ; Barron v. Barron, 24 Verm. 375.] 
 
 (a) O'Hara v. O'Neil, 7 Bro. P. C. 227 ; Forster v. Hale, 3 Ves. 707 ; Crook v. Brook- 
 ing, 2 Vern. 106 ; Morton v. Tewart, 2 N. C. C. 67 ; [Steere v. Steere, 5 J. C. B, 12; 
 Raybold v. Raybold, 20 Penn. St. 308; Paterson v. Murphy, 17 Jur. 298.] 
 
 (b) Forster v. Hale, 3 Ves. 708 ; [Steere v. Steere, 5 J. C. R. 1 ; Abeel v. Radcliffe, 
 13 John. R. 297 ; Rutledge v. Smith, 1 McCord Ch. 119 ; Freeport v. Bartol, 3 Greenl. 
 340 ; Arms v. Ashley, 4 Pick. 71.] 
 
 (c) Nab v. Nab, 10 Mod. 404; 1 Eq. Ca. Abr. 404, PI. 3 ; [see, however, Johnson v. 
 Ball, 5 De G. & S. 85 ; Briggs v. Penny, 13 Jur. 905.] 
 
 1 A promissory note given by a husband to his wife, who had lent him money out of 
 her separate estate, was held in Murray v. Glasse, 23 L. J. Ch. 126, to be a declaration 
 of trust. 
 
CREATION OF TRUSTEES BY WRITING. 95 
 
 The writing which is to furnish the evidence of the trust, must be 
 signed by the party legally entitled to declare it. If it be not previous 
 to or contemporaneous with the act of disposition, the party legally 
 entitled to declare the trust will be the trustee himself; for when a 
 person has once *divested himself of all interest in property, r*fl9-| 
 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. (d) 1 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 en- 
 titled is not really so, that will open the door to the admission of parol 
 evidence to prove the trust notwithstanding the statute. 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.(/) 
 
 ^CHAPTER II. [*68] 
 
 OF THE CREATION OF TRUSTEES BY INSTRUMENT IN WRITING. 
 
 I. Of the Instrument by which IV. Where Words op Reoommend- 
 
 a Person may be created ation, etc., will raise a 
 
 Trustee, [63]. Trust, [71]. 
 
 II. What direct Fiduciary Ex- V. Of the Effect of a Volun- 
 
 pression will create a tary disposition in trust, 
 
 Trust, [65]. [82]. 
 III. Where a Power will be a 
 
 Trust, [67]. 
 
 I. OF THE INSTRUMENT BY WHICH A PERSON MAY BE CREATED TRUSTEE. 
 At common law if an instrument, operating as a legal disposition of 
 
 (d) Adlington v. Cann, 3 Atk. 145 ; [Tritt v. Crotzer, 13 Penn. St. R. 451 ; In re 
 Dunbar, 2 Jones & Lat. 120.] 
 
 (e) Bellasis v. Corapton, 2 Vera. 294; [See Lee v. Huntoon, 1 Hoff. Ch. 447 ; Harris 
 v. Barnett, 3 Gratt. 339.] 
 
 (/) Cripps v. Jee, 4 Bro. C. C. 472 ; [Hollinshead v. Allen, 17 Penn. St. 275 ; 
 Prevost v. Gratz, 1 Peters, C. C. 366.] 
 
 On the same principle, where a testator makes a simple devise to A., papers found 
 after the former's death showing that he intended the devisee to hold on an illegal trust, 
 but no proof that the devisee agreed with the testator to undertake the trust, and such 
 agreement being expressly denied, cannot create a resulting trust for the heir. Wal- 
 grave v. Tebbs, 20 Jur. 83 ; Russell v. Jackson, 10 Hare, 204; Lomax v. Ripley, 24 
 L. J. Ch. 256. 
 
96 CREATION OF TRUSTEES BY WRITING. 
 
 property, contained a direction or declaration, that the party taking 
 under it should hold for the benefit of another, the conscience 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 pre- 
 venting the trustee from taking any interest at all under such a dis- 
 position of real property, and of vesting the legal as well as the equi- 
 table 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, not- 
 withstanding 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 B. 
 and his heirs; 2d, Where copyhold or leasehold estates are limited by 
 deed or will to a person upon any use or trust ; 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 ques- 
 tion 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 con- 
 veniently for future discussion. (6) ' 
 
 The Statute of Uses, it is scarcely necessary to add, does not affect 
 the power of disposing of chattels personal. 2 
 
 A trustee of real or personal property may be created by any formal 
 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 may convert him- 
 self into a trustee of it by a proper declaration of the trust. 
 
 Nor is it necessary, that the declaration of the trust should be con- 
 P tained *in the same instrument which vests the legal estate in the 
 
 L -• trustee: although such is the more convenient as well as the 
 most usual course. In Inchiquin v. French,(e) Lord Thomond by his 
 will gave 20,000Z. 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. Cox,(d) a testatrix bequeathed 
 
 {a) Bac. Us. 355 ; 2 Bl. Com. 336 ; 1 Cruis. Dig. Tit. 12, ch. I, s. 4 to 36. 
 (b) Post, part II, ch. I, page 229. (c) 1 Cox, 1. 
 
 (d) 2 M. & Cr. 684; and see Stubbs v. Sargon, 2 Keen, 255 ; S. C. 3 M. & Cr. 507; 
 Smith v. Attersoll, 1 Russ. 266. See Johnson v. Clarke, 3 Rich. Eq. 305. 
 
 1 See notes, post, 229, &c. 
 
 2 Rice v. Burnett, Spears Ch. 579 ; Lord v. Lowry, Bailey Chan. 510 ; Schley v. Lyon, 
 
 6 Geo. 530. 
 
CREATION OF TRUSTEES BY WRITING. 97 
 
 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 ano- 
 ther 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 con- 
 templation 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 in- 
 terest.^) 
 
 And even if the gift be by will, no trust will be raised on any instru- 
 ment, subsequently executed, unless it operate as a revocation of the 
 will.(/)* 
 
 (e) Adlington v. Cann, 3 Atk. 145, 151 ; Crabb v. Crabb, 1 M. & K. 511 ; Kilpin v. 
 Kilpin, Id. 520, 532. [See Walgrave v. Tebbs, 20 Jurist, 85 ; Lomax v. Ripley, 24 L. ,T. 
 Ch. 256.] (/) 3 Atk. 152. 
 
 1 In Briggs v. Penny, 13 Jurist, 905, affirmed 3 Macn. & Gord. 504, a testatrix after 
 bequeathing various charitable and other legacies, 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 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 man- 
 ner in accordance with my views and wishes." Four papers were found in the tes- 
 tatrix's handwriting, undated, unsigned, and unattested, in which she named various 
 persons and 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 admitted to probate, 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. 
 In a subsequent case, 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 will 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, but that the policy formed part of 
 the residuary estate. Johnson v. Ball, 5 De Gr. & S. 85. 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 corpus of the estate, went to the persons named 
 in the will. In Johnson v. Clarkson. 3 Rich. Eq. 305, a testator, after all his debts paid, 
 willed and bequeathed to his brother W. all of his property, on certain conditions. Should 
 he decline taking it, I will and bequeath it to Rev. W. B., on the same conditions. I 
 appoint my said brother W. my executor." W. qualified as executor. Shortly after 
 the testator's death, were found certain unattested papers, signed by the testator, and 
 bearing date subsequent to the execution of the will, in which he expressed his desire, 
 
 1 
 
98 CREATION OF TRUSTEES BY WRITING. 
 
 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 crea- 
 tion of the trustee. And it is by no means necessary, that this declara- 
 tion should be made by a formal deed or will. A simple letter, or memo- 
 randum, or any writing of a similar untechnical and informal character, 
 will be sufficient, if it clearly express the gift to be in trust, and suffi- 
 ciently connect the trustee with the subject-matter of the trust.(#) 
 
 And a person without parting with the legal possession of property- 
 may, by a similar declaration of trust in favor of another, convert him- 
 self into a trustee for the third party.(A) 
 
 In addition to the ordinary mode of treating trustees in the transac- 
 tions between private individuals, it may be observed, that trustees are 
 frequently appointed by special acts of Parliament, for the particular or 
 general purposes directed by the statute. However, trustees thus spe- 
 cially created, do not materially differ in their ordinary duties and func- 
 tions from other trustees ; and they are equally amenable to the jurisdic- 
 tion and supervision of the Court of Chancery, (i) 
 
 By the statute 48 Geo. Ill, c. 149, a declaration of trust in writing 
 must be stamped, in order to be admissible as evidence ; and therefore 
 if there be reason to suppose that the original instrument was un- 
 stamped, the court will not receive a draft copy as secondary evidence of 
 its existence. (&) 
 
 (g) Smith v. Attersoll, 1 Rusa. 266 ; Kilpin v. Kilpin, 1 M. & K. 520; Stubbs v. Sar- 
 gon, 3 M. & Cr. 503 ; Morton v. Tewart, 2 N. C. C. 67. [Steere v. Steere, 5 J. C. K. 
 1 ; Fisher v. Fields, 10 John. R. 505 ; Menude v. Delair, 2 Desau. 564.] 
 
 (h) Exp. Pye, 18 Ves. 149 ; Meek v. Kettlewell, 1 Hare, 469 [1 Phill. 157] ; Hughes 
 v. Stubbs, Id. 478 ; Wheatley v. Purr, 1 Keen, 553 ; [Stapleton v. Stapleton, 14 Simons, 
 197 ; 2 Spence Eq. Jur. 53, and note; Suarez v. Pumpelly, 2 Sandf. Ch. 336.] 
 
 (i) See Cottrell v. Hampton, 2 Vern. 5 ; Buchanan v. Hamilton, 5 Ves. 722. 
 
 (k) Rose v. Clerke, 1 N. C. C. 534. 
 
 and declared it to be one of the conditions mentioned in his will, that his slaves should 
 be emancipated, if it could be done without evasion of the law ; and in which he directed 
 certain legacies to be paid, and on a certain contingency, a distribution of his whole 
 estate. To a bill filed by the next of kin of the testator, claiming that a trust re- 
 sulted to them, W. answered, that he had never before the testator's death seen* the 
 will or the papers accompanying it. " Although the testator had, at different times, con- 
 versed with him on the first and principal subject mentioned in the papers, and relied 
 implicitly on his integrity on carrying out his intentions, 1 as far as he could without 
 practising an evasion of the law." It was held by the Court of Appeals, that W. did not 
 take beneficially ; that the papers accompanying the will having been executed after 
 the will, and not being properly attested, created no trust ; but that the conditions on 
 which W. held the estate, as stated in his answer, were void under the South Carolina 
 Act of 1811 ; and that there was a resulting trust to the next of kin. But papers found 
 after a testator's death, of uncertain date, indicating that a devisee was intended to 
 hold for an illegal purpose, but any knowledge of or agreement to such purpose being 
 denied by the devisee, will not raise a trust in him. Walgrave v. Tebbs, 20 Jurist, 
 83 ; Russell v. Jackson, 10 Hare, 204; Lomax v. Ripley, 24 L. J. Ch. 256. 
 
WHAT FIDUCIARY EXPRESSIONS CREATE A TRUST. 99 
 
 *A written declaration of trust by the trustee constitutes a r*oc-| 
 perfect equitable title in the cestui que trusts, and will prevail 
 over the claim of the assignees of the trustee, if he subsequently 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 in- 
 strument, 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 construction of gifts by 
 will ; although in deciding upon the effect of an executory and informal 
 instrument, not of a testamentary nature, the court will adopt the same 
 principles of construction as have been established respecting wills, (m) 
 
 Any expression manifesting an intention that the donee of property 
 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 effec- 
 tually exclude any claim by him to the beneficial interest. (n) 
 
 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 construction, 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 circumstance 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 "for the benefit" of 
 others :(p) or to be at the disposal of the donee "for" herself (1) and 
 
 (Z) Pinkett v. Wright, 2 Hare, 120. [See Clack v. Holland, 24 L. J. Ch. 19; 19Beav. 
 262.] 
 
 (m) Countess of Lincoln v. D. of Newcastle, 12 Ves. 227; Blackburn v. Stables, 2 
 V. & B. 369 ; Jervoise v. D. of Northumberland, 1 J. & W. 574 ; see Stubbs v. Sargon, 
 2 Keen, 255, 273 ; S. C. 3 M. & Cr. 503 ; Croft v. Adam, 12 Sim. 639. 
 
 (n) See Morice v. Bishop of Durham, 10. Ves. 537. 
 
 (0) King v. Denison, 1 V. & B. 273 ; [Porter v. Bank of Rutland, 19 Verm. 410 ; 
 Youmans v. Buckner, Riley, 204; Fisher v. Fields, 10 J. R. 495; Gordon v. Green, 10 
 Geo. 534; Norman v. Burnett, 25 Mississippi, 183; Story, Eq. § 974, 1068.] 
 
 (p) Jubber v. Jubber, 9 Sim. 503 ; Raikes v. Ward, 1 Hare, 445 ; Inderwick v. Inder- 
 wick, 8 Jur. 53; 13 Sim. 652. 
 
 (1) It is immaterial that the donee in trust is himself entitled to a partial beneficial 
 interest, as one of the objects of the testator's bounty. Woods v. Woods, 1 M. & Cr. 
 401 ; Crockett v. Crockett, 1 Hare, 451, S. C. 2 Phil. 553. [Hennershotz's Estate, 16 
 Penn. St. 435 ; Mason v. Mason, 2 Sandf. Ch. 432, 477.] 
 
100 WHAT FIDUCIARY EXPRESSIONS CREATE A TRUST. 
 
 children,^) 1 or "towards her support and her family ;"{r) or "to enable 
 the donee to provide for or maintain" his children ;(s) 2 or "for the ex- 
 press purpose of enabling him to present" to certain persons ;(i) or where 
 the testator " orders and directs" the donee to take care of and provide 
 *for an individual ;(u) or where the gift is expressed to be made 
 >- J "to the end" or "Jo the intent" that the donee should apply it to 
 certain purposes.^) 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 abundantly exemplified the doctrine 6f the court on this point ; 
 showing that in every case the general purpose and intention of the donor, 
 
 (3) Crockett v. Crockett, 1 Hare, 451. 
 
 (r) Woods v. Woods, 1 M. & Cr. 401 ; [see the remarks on this case in 2 Phil]. 553.] 
 
 (s) Brown v. Cassamajor, 4 Ves. 498 ; Hamley v. Gilbert, Jac. 354 ; Wetherell v. 
 Wilson, 1 Keen, 80 ; [see Browne v. Paull, 1 Sim. N. S. 92 ; Costabadie v. Costabadie, 
 6 Hare, 416 ; Crockett v. Crockett, 2 Pbill. 553; White v. Donnell, 3 Maryl. Ch. 526.] 
 
 (t) Stubbs v. Sargon, 2 Keen, 255 ; and 3 M. & Cr. 50?. 
 
 (w) Broad v. Bevan, 1 Russ. 511, n. 
 
 (x) Burrell v. Burrell, Ambl. 660 ; Raikes v. Ward, 1 Hare, 445. 
 
 1 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," came 
 up again in 5 Hare, 326, 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, absolutely, 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 application of it, or she had a power in favor of 
 the children, with a life estate in herself. So in Hart v. Tribe, 18 Beav. 215, 23 L. J. 
 Ch. 462, where there was a gift to a wife " to be used for her own and the children's 
 benefit, as she shall think best ;" and recommending her not to diminish the principal, 
 it was held by the Master of the Rolls, following Crockett v. Crockett, that the fund 
 must be invested, that the wife was entitled to the income for life, that the children 
 had an interest in the capital, but that she had a discretion to exercise in disposing of 
 it, which the court would not interfere with if exercised in good faith, though liberty 
 was given to apply with respect thereto. A gift under the same will, of a small sum, 
 " for the present expenses of a wife and children," was held to vest absolutely in the 
 wife, though one of the children was an adopted child, afterwards taken away from her. 
 So under a will in these words : " I give and bequeath all my property of whatever de- 
 scription to my wife for the maintenance of herself and our children" (naming seven in 
 number), " and I constitute my said wife to be sole executrix," &c, it was held that a 
 trust was thereby constituted for the benefit of the children. In re Harris, 1 Exch. 344. 
 And see on this subject, remarks in Webb v! Woolls,,2 Sim. N. S. 267. 
 
 2 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, pro- 
 vided he discharges the duty of maintaining and educating. Browne v. Paull, 1 Sim. 
 N. S. 92 ; Hadow v. Hadow, 9 Sim. 438. The parent, however, must render an account 
 to the legacy duty office, for the purposes of the duty. In re Harris, 1 Exch. 344. 
 
WHAT FIDUCIARY EXPRESSIONS CREATE A TRUlS 
 
 and not the use of one particular term or another, will decide tr 
 tion, whether a party does or does not take in a fiduciary character.^ 
 
 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 en- 
 tirely 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 termi- 
 norum, 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 objects of that power.(a) 
 
 Where a gift is conclusively and absolutely impressed with the cha- 
 racter 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 property is given, is to take it. 
 in trust; there, though the trust is not declared, or is ineffectually de- 
 clared, or becomes incapable of taking effect, the party taking will be a 
 trustee, — if not for those who were to take by the instrument, for those 
 who take under the disposition of the law."(b) 
 
 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 exceptions, will be reserved 
 more conveniently for discussion in a future chapter, (c) 
 
 According to the general principles of construction, the court will 
 always strive to give effect to every part of an instrument. Therefore, 
 where a bequest to a person is couched in such terms, as would, if un- 
 controlled, undoubtedly convert him into a trustee, but expressions are 
 added, indicating an intention to give him the beneficial enjoyment, — as, 
 *for instance, where it is given him " for his own use and benefit ;" 
 the court will endeavor, if possible, to give effect to those addi- *- -I 
 
 (y) See Gilbert v. Beunett, 10 Sim. 371 ; Thorp v. Owen, 2 Hare, 607 ; Kilvington 
 v. Gray, 10 Sim. 293. [Porter v. Bank of Rutland, 19 Verm. 410 ; Erickson v. Willard, 
 1 N. Hamp. 217.] 
 
 (2) Moriee v. Bishop of Durham, 10 Ves. 536'; Ommaney v. Butcher, T. & R. 270 ; 
 Gibbs v. Rumsey, 2 V. & B. 297 ; Ball v. Vardy, 1 Ves. Jun. 270 ; Thorp v. Owen, 2 
 Hare, 607 ; [see the remarks on this case In re Harris, 7 Bxch. 348 :] Randall v. Hearl, 
 1 Anstr. 124. See post, Sect. 3, as to where a power will be a trust. 
 
 (a) Burrell v. Burrell, Ambl. 660 ; Hockley v. Mawby, 1 Ves. Jun. 150 ; Walsh v. 
 Wallinger, 2 R. & M. 78; vide post, Sect. 3. 
 
 (6) Moriee v. Bishop of Durham, 10 Ves. 537. [Briggs v. Penny, 13 Jur. 905.] 
 
 (c) Post, Div.. II, eh. I, sect. 3. 
 
 (1) 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. 
 
102 A POWER IN THE NATURE OF A TRUST. 
 
 tional words, and will decree the donee to take absolutely and not as a 
 trustee.(d) 
 
 HI.—WHERE A POWER WILL CREATE A TRUST. 
 
 In the abstract, the distinction between a power and a trust is suffi- 
 ciently marked and obvious. "Powers," as Lord C. J. Wihnot 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 imperative, 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 inti- 
 mately blended, either by the express terms or by necessary construc- 
 tion, that it becomes a question of great nicety to determine whether the 
 direction is or is not imperative on the conscience 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 intrusted 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 requi- 
 sition of the will, put upon him as such by the testator, who has given 
 him an interest extensive enough to enable him to discharge it, he is a 
 trustee for the exercise of the power, and not as having, a discretion 
 whether he will exercise it or not; and the court adopts the principle as 
 to trusts, and will not permit his negligence, accident, or other circum- 
 stances, 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 difficulty 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 re- 
 mains as to what will create such a duty, independently of any impera- 
 tive directions in the will. On this point it may be observed, 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, admitting of very grave argument, 
 
 (d) Lawless v. Shaw, 1 LI. & Goul. 558 ; [5 CI. & P. 129.] Wood v. Cox, 1 Keen, 
 317 ; and 2 M. & Cr. 684 ; Bardswell v. Bardswell, 9 Sim. 319 ; and see Meredith v. 
 Heneage, 1 Sim. 555. 
 
 (e) Wilm. 23 ; Brown v. Higgs, 8 Ves. 570 ; 2 Sugd. Pow. 173, 6th ed. ; see Godol- 
 phin v. Godolphin, 1 Ves. 21. , 
 
 (/) Brown v. Higgs, 8 Ves. 570, 4. [See Miller v. Meeteh, 8 Barr, 417; Gibbs v. 
 Marsh, 2 Metcalf, 243 ; Withers v. Yeadon, 1 Rich. Ch. 324.] ' ' 
 
A POWER IN THE NATURE OP A TRUST. 103 
 
 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 material 
 distinction between those cases where the absolute interest is given to 
 the *donee of the power, and where consequently the exercise of r*«c"i 
 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 intention 
 or wish of the testator to qualify the gift to him would thus be disap- 
 pointed. Consequently, in such cases, the court has always 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 the tenant for life to be exercised after the determination of his 
 life estate; or a fortiori where the party to whom it was given takes no 
 beneficial interest, the same arguments on behalf 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 uniform. Indeed where they have been 
 held entitled, in default of appointment, 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.(&) 1 
 
 (g) Jones v. Clough, 2 Ves. 367 ; see Bull v. Vardy, 1 Ves. Jun. 270 ; 2 Sugd. Pow. 
 175, 6th ed. (h) See Crossling v. Crossling, 2 Cox, 396. 
 
 (i) Hardying v. Glynn, 1 Atk. 468 ; Brown v. Higgs, 4 Ves. Jun. 708 ; S. C. 8 Ves. 
 561 ; Forbes v. Ball, 3 Mer. 437 ; Birch v. "Wade, 3 V. & B. 198. [Ware v. Mallard, 
 21 Law J. Chanc. 355.] 
 
 (k) Bull v. Vardy, 1 Ves. Jun. 271 ; 2 Sugd. Pow. 177 ; and* see Cox v. Basset, 3 
 Ves. 155, 164. 
 
 1 A testator devised his real estate and negroes to his son, Gr. 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." Gr. W. died, leaving a will whereby he devised the whole of his estate 
 to his wife, with directions 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 Gr. W., coupled with a power in trust to ap- 
 point at his discretion among his children, (2) but the power could not be delegated, 
 and (3) that as Gr. W. had neglected to exercise the power, his children 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 estate, after 
 the payment of his debts, " wholly to his wife, to be disposed of by her, and divided 
 
104 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 1000?., 100?. 
 of it to A., and 100Z. to B.; the rest to be disposed of by her will. The 
 wife died without having made any disposition of the 1000?. or any part 
 of it. On a suit by A. against the wife's, executor, claiming the 1001, 
 the Court of Exchequer held, that this was no absolute legacy, but a 
 naked power in the wife, and dismissed the bill. 
 
 In the Duke of Marlborough v. Godolphin,(m) a gift by a testator of 
 30,000?. to his wife for life, and after her decease, to be divided and dis- 
 tributed 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 distinction between a gift " amongst 
 (Z) 1 Ves. Jun. 270. (m) 2 Ves. 61 ; 5 Ves. Jun. 506. 
 
 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 appropriate it to their use, at her dis- 
 cretion ; 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 estate in 
 these words : " All the rest and residue of my estates, both real and personal, I give and 
 bequeath to my two brothers A. and B., whom I appoint my executors, with full con- 
 fidence 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 ac- 
 cording 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 excluded 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 
 thereafter, 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. But see 
 the remarks on this case in Gilbert v. Chapin, 19 Conn. 351, and see that case, and 
 Harper v. Phelps, stated post, 72, note. The court also in this case, the executors having 
 died without an appointment, directed a reference to determine who were the most 
 needy. In McNeilledge v. Galbraith, 8 S. & R. 43, however, there was a bequest of a 
 residue to be divided, at the death of the testator's widow, " among her and my poor 
 relations equally," and it was held that the next of kin at the testator's death took per 
 capita, the court saying that it was impossible to distinguish between degrees of poverty. 
 See also Harrison v. Harrison, 2 Gratt. 1, and post, p. 71, 72, and notes. 
 
 In Robinsons v. Allen, 11 Gratt. 785, a testatrix gave certain property, real and 
 personal, to her husband for his life, with authority to use the same as he pleased in 
 every respect. She then said, " At the death of my husband, or before, if he chooses 
 to relinquish his rights, I give all the land and other property to one or more of the 
 children of R. (a step-daughter) as he may designate, or authorize, should it be neces- 
 sary, him to make such other disposition of the same as he may deem proper, having 
 full confidence in him that he will do what is right ;" but no other disposition was made 
 of the remainder in fee. The husband died in the lifetime of the testatrix. It was 
 held, under the circumstances, that no effect could be given to the provision for the 
 children of R. ( by reason of its uncertainty, aud that they took no interest by way of 
 trust or otherwise. 
 
A POWER IN THE NATURE OE A TRUST. 105 
 
 my children as A. should appoint," which he considers a trust, and a 
 gift " amongst such of my children," &c, which he held to be a mere 
 power, (n) 
 
 In Crossling y. 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 Ex- 
 chequer 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. 
 
 *In the case of "Brown v. Higgs,(^>) already mentioned, an r*oq-i 
 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 Alvanley seemed to think this a 
 mere power : an opinion which is supported by the concurrence of Sir 
 E. Sugden.(g') 
 
 However, at the presont day, the courts will endeavor, if possible, 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. Crossling, 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 ;"(t) or where there is a gift, 
 after the death of testator's wife, to such of his grandchildren as she. 
 should appoint(w) (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 exer- 
 cise of that power they will be all equally entitled, (a;) 
 
 The case of Brown v. Pocock,(2/) before Sir L. Shadwell, V. C, is a 
 remarkable instance of the disposition of the courts to adopt this con- 
 struction 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 
 
 («) See 2 Sugd. Pow. 178. However, it seems that this distinction can no longer be 
 supported, vide post, 69. (o) 2 Cox, 396. 
 
 (p) 4 Ves. Jun. 708. (q) 2 Sugd. Pow. 180, 6th ed. 
 
 (r) See Lord Eldon's observations in Brown v. Higgs, 8 Ves. 576 ; vide et 2 Sugd. 
 Pow. 179, 180. (*) Mason v. Limbury, 2 Sugd. Pow. 181. 
 
 (t) Kemp v. Kemp, 5 Ves. 849. («) Witts v. Boddington, 3 Bro. C. C. 95. 
 
 (x) Davy v. Hooper, 2 Vern. 665 ; Madison v. Andrews, 1 Ves. 57 ; Hockley v. 
 Marsby, 1 Ves. Jun. 143 ; Longmoore v. Brown, 2 Ves. 124; Fowler v. Hunter, 2 Y. 
 & J. 506 ; Walsh v. Wallinger,"2 B. & M. 78 ; Kennedy v. Kingston, 2 J. & W. 431. 
 [Whitehurst v. Harker, 2 Ired. Ch. 292.] (y) 6 Sim. 257. 
 
106 A POWER IN THE NATURE OF A TRUST. 
 
 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 exe- 
 cuted give and bequeath the same. A. died, having made an invalid 
 appointment of the fund; and the Vice-Chancellor 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,(z) 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 be advised, be settled in trust for the benefit of A. her daughter 
 by her first marriage, and her daughter's intended husband and her 
 children, in such manner and for such rights and interests as should be 
 agreed upon either previous to or after the marriage of A. with her Gon- 
 sent : 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 
 immediate benefit of her daughter and children ; but if the daughter 
 should not be married in her mother's lifetime, then that the fund should 
 P^ be in trust for the daughter's benefit and a vested *interest in 
 ■- -■ her at 21, with a trust over on the death of the daughter without 
 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.iz) 
 
 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 charac- 
 ter.^) 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, (<#) 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 apportion- 
 
 (z) Croft v. Adam, 12 Sim. 639. 
 
 (a) Pritchard v. Juinchant, Ambl. 126 ; S. C. 5 Ves. 596, n.; 2 Sugd. Pow. 183. 
 
 (6) Ante, Sect. 2. 
 
 (c) Burrell v. Burrell, Ambl. 660 ; Raikes v. Ward, 1 Hare, 445 ; Hockley v. Maw- 
 bey, 1 Ves. Jun. 143; Harding v. Glyn, 1 Atk. 469; Brown v. Higgs, 4 Ves. 708; 
 Forbes v. Ball, 3 Mer. 437. [Withers v. Yeadon, 1 Rich. Ch. 324; Collins v. Carlile's 
 Heirs, 7 B. Monr. 14.] 
 
 (d) Reade v. Reade, 5 Ves. 744. 
 
 (e) Kennedy v. Kingston, 2 J. & W. 431 ; Morgan v. Surmnn, 1 Taunt. 289; "Walsh 
 v. Wallinger, 2 R. & M. 78 ; Gasterton v. Sutherland, 9 Ves. 445 ; Kemp v. Kemp, 5 
 Ves. 849. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 107 
 
 ment of their interests, -will not affect the stringency of the trust ; for it 
 seems that the distinction taken by Lord Hardwicke, in the Duke of 
 Marlborough v. Grodolphin,(/) cannot now be supported. (</) 
 
 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) 1 
 
 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.(«) 2 
 
 In some of the earlier cases the court has assumed the right of 
 exercising a discretionary power of selection or application given to 
 trustees. (k) This jurisdiction, however, is now disclaimed ; 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 conduct 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 exercised.(m) 
 
 *IV.— WHERE WORDS OF RECOMMENDATION, ETC., WILL 
 CREATE A TRUST. 
 
 [*71] 
 
 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 
 
 (/) 2 Ves. 61. 
 
 {g) Harding v. Grlyn, 1 Atk. 469 ; Witts v. Boddington, 3 Bro. C. C. 95 ; 2 Sugd. 
 Pow. 480 ; Brown v. Higgs, 4 Ves. 708 ; and 8 Ves. 561 ; Cruwys v. Colman, 9 Ves. 
 319 ; Birch v. Wade, 3 V. & B. 198. 
 
 (h) Brown v. Higgs, 4 Ves. 708 ; 5 Ves. 495 ; and 8 Ves. 561 ; Longmore v. Broom, 
 1 Ves. 124; Jones V. Torin, 6 Sim. 255 ; see Prevost v. Clarke, 2 Mad. 458. 
 
 (i) Kennedy v. Kingston, 2 J. & W. 431 ; Walsh v. Wallinger,'2 R. & M. 78; Kemp 
 v. Kemp, 5 Ves. 849. [Withers v. Yeadon, 1 Rich. Ch. 324.] 
 
 (k) Warburtou v. Warburton, 2 Vern. 420 ; Longmore v. Broom, 7 Ves. 124; 2 Sugd. 
 Pow. 190 : Wareham v. Brown, 2 Vern. 153 ; Lewis v. Lewis, 1 Cox, 162. 
 
 (1) Alexander v. Alexander, 2 Ves. 640 ; Kemp v. Kemp, 5 Ves. 849. See Wood v. 
 Richardson, 4 Beav. 174 ; Pratt v. Church, lb. 177, n. [Penny v. Turner, 2 Phill. 493 ; 
 Prendergast v. Prendergast, 3 H. L. Ca. 195.] (m) 5 Ves. 849. 
 
 1 Penny v. Turner, 2 Phillips, 493, 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, but because it was re- 
 ferable 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. 
 
 2 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 exercise the discretion. But see 
 contra McNeilledge v. Galbraith, 8 S. & R. 43. 
 
108 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 to the intentions of testators has given rise to a species of trusts founded 
 on expressions of this nature, and differing in some respects from abso- 
 lute trusts. These recommendatory trusts will be enforced in favor of 
 the particular objects or purposes thus designated, although they will be 
 insuffieient to impress the gift with the character of a trust generally ; 
 and if the particular object or purpose designated, cannot take or fail, 
 the first taker will be entitled to the benefit of the failure, and will hold 
 absolutely discharged from any trust. 
 
 It has been established from a series of cases that where a bequest is 
 accompanied by words expressing a command, recommendation, 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 sufliciently imperative ; 2d, If the subject be 
 sufficiently certain ; and 3d, If the object be also sufficiently certain. (nf 
 I. With regard to the nature of the recommendatory expressions, — 
 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. (0) 
 
 Thus the words, "desire,"(j>) "will and desire,"^) " request, "(r) 
 "wish and request,"(s) " entreat,"(£) " recommend,"(w) "hope,"(a;) "in 
 the fullest confidence, "(«/) "not doubting, "(z) "trusting and wholly con- 
 tra) Malim v. Kneightley, 2 Ves. Jun. 335 ; Paul v. Compton, 8 Ves. 380 ; Wright v. 
 Atkins, T. & R. 157 ; Knight v. Knight, 3 Beav. 172. [Harrison v. Harrison, 2 Grattan, 
 1 ; Lucas v. Lockhart, 10 Sm. & M. 466.] 
 
 (o) Carry v. Carry, 2 Sch. & Lef. 189. [But see Knight v. Boughton, 8 Jur. 923 ; 11 
 CI. & P. 513 ; and Williams v. Williams, 1 Sim. N. S. 35.] 
 
 (p) Mogridge v. Thackwell, 7 Ves. 36 ; Mason v. Limbury, cited in Vernon v. Ver- 
 non, Ambl. 4 ; Harding v. Glin, 1 Atk. 468 ; Cruwys v. Colman, 9 Ves. 319 ; Legge v. 
 Asgill, T. & R. 265, n. 
 
 {q) Bdes v. England, 2 Vern. 466 ; Birch v. Wade, 3 V. & B. 198 ; Forbes v. Ball, 
 3 Mer. 437. 
 
 (r) Nowlan v. Nelligan, 1 Bro. C. C. 489 ; Pierson v. Garnet, 2 Bro. C. C. 38 ; Eade 
 v. Eade, 5 Mad. 118. (s) Foley v. Parry, 2 Sim. 138 ; S. C. 2 M. & K. 138. 
 
 (t) Prevost v. Clark, 2 Mad. 458 ; Taylor v. George, 2 V. & B. 378. 
 
 (u) Malim v. Kneightley, 2 Ves. Jun. 333 ; Tibbitts v. Tibbitts, 19 Ves. 656; Har- 
 wood v. West, 1 Sim. & St. 387 ; Ford v. Fowler, 3 Beav. 146 ; overruling Cunliffe v. 
 Cunliffe, Amb. 686. [But see post, page 72, note.] 
 
 (x) Harland v. Trigg, 1 Bro. C. C. 144. 
 
 (y) Wright v. Atkins, 1 V. & B. 313 ; S. C. T. & R. 143 ; Podmore v. Gunning, 7 
 Sim. 644 ; [Ware v. Mallard, 21 Law J. Chanc. 355. But see Webb v. Woolls, 2 Sim. 
 N. S. 267, and post, 72, note.] 
 
 (2) Massey v. Sherman, Ambl. 520 ; Parsons v. Baker, 18 Ves. 476 ; Taylor v. George, 
 2 V. &B. 378. 
 
 1 To these requisites, a fourth has been added by recent English authorities, — cer- 
 tainty in the manner in which the trust is to be performed. Knight v. Boughton, 11 
 CI. & Fin. 513; Reeves v. Baker, 18 Jurist. 588; 18 Beav. 372; 23 L. J. Ch. 599. 
 And this, it was said in the latter case, might be referred partly to the subject-matter, 
 and partly to the object of the trust, and reduced either to one or the other. 
 
CREATION OF TRUSTS BY PRECATORY W-ORDS. 109 
 
 fiding,"(a) have teen considered sufficient to raise -a trust, where the two 
 other requisites, viz., certainty of the object, and the subject, are also 
 complied with. 1 
 
 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 discretion, no trust r*no~i 
 will be created. Thus where a testator " empowered" his wife to 
 give away at her death certain sums to parties named in his will, and the 
 wife died without making any appointment : it was decided by Lord 
 Chief Baron Byre, that no trust was created in favor of those parties, it 
 being a mere naked authority in the testator's wife.(5) 
 
 And if the testator himself declare, that the words of recommenda- 
 tion 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, "Z most earnestly wish, that my said 
 sons may give or settle their respective shares on their respective daugh- 
 ters 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. (d) 2 
 
 (a) Wood v. Cox, 1 Keen, 317; S. C. 2 M. & Cr. 684; Griffiths v. Evans, 5 Beav. 
 241. [Baker v. Mosley, 12 Jur. 740.] 
 
 (6) Bull v. Vardy, 1 Ves. Jun. 270 ; and see Randall v. Hearle, 1 Anst. 124; and 
 ante, See. 3 ; Coxe v. Basset, 3 Ves. 157. 
 
 (c) Young v. Martin, 2 Young & Coll. Ch. 582, 590, 7 Jur. 1197. [See Huskisson v. 
 Bridge, 20 Law J. Chanc. 209.] (a!) 2 Young & Coll. Ch. 592. 
 
 1 In Briggs v. Penny, 3 Mac. & G. 546, 16 Jur. 93, affirming S. C. 13 Jur. 905, the 
 rule on this subject was thus laid down by Lord Chancellor Truro as the result of the 
 authorities. " Words accompanying a gift or bequest, expression of confidence, or be- 
 lief, or desire, or hope, that a particular 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; secondly, the subject must be certain; and thirdly, the object expressed 
 not too vague or indefinite to be enforced." (See Corporation of Gloucester v. Osborn, 1 
 House Lords Cas. 272.) In the former 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 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 accordance to my views and wishes.'" It was 
 held that S. P. did not take the residue beneficially. See the remarks on this case in 
 Cowman v. Harrison, 17 Jurist, 313. 
 
 2 Although the words " it is my wish" in a will generally operate as a direct bequest, 
 
110 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 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 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 distinction between them. The current of 
 decisions of late years has been against converting the legatee into a 
 trustee."^) 1 
 
 (e) Sale v. Moore, 1 Sim. 540 ; vid. et Meredith v. Heneage, 1 Sim. 551 ; Wright v. 
 Atkins, 1 V. & B. 315'; Ex parte Payne, 2 Y. & Coll. 636. [Knight v. Boughton, 11 
 CI. & F. 513; Williams v. Williams, 1 Sim. N. S. 35; White v. Briggs, 2 Phil. 583; 
 Webb v. Woolls, 2 Sim. N. S. 267 ; Lomax v. Ripley, 24 L. J. Ch. 257 ; Johnston v. 
 Rowlands, 2 De G. & S. 356, 12 Jur. 769; Pennock's Estate, 1 Am. Law Register, 
 360 ; 20 Penn St. 268 ; Ellis v. Ellis, 15 Alab. 301 ; Gilbert v. Chapin, 19 Conn. 342.] 
 
 yet they will be construed to mean rather an inclination of mind, than an act of the 
 will, where a different construction would produce repugnancy or inconsistency: Bran- 
 son v. Hunter's Admin. 2 Hill Ch. 490 ; and so of words of recommendation or desire 
 generally. Knott v. Cottee, 2 Phill. 192. 
 
 1 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 proper, it was held that no 
 trust was created. Johnston v. Rowlands, 12 Jur. 769 ; 2 De G. & Sm. 356. 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, however, he recommended her to divide among certain 
 persons. White v. Briggs, 15 L. J. Ch. 182, overruling S. C. 15 Sim. 33. In Williams 
 v. Williams, 1 Sim. N. S. 358 (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 mypower to give, using 
 your judgment as to where to dispose of it amongst your children, when you no longer 
 can enjoy it yourself. But I should be unhappy if I thought it possible that 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 effect, 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 're- 
 commendation,' are or are not to be considered as obligatory.'' See the remarks 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 provisions of a more definite 
 and positive import in the same instrument. In a very recent case, Webb v. Woolls, 2 
 Sim. N. S. 267, the Vice Chancellor (Kindersley) 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 effect to the absolute gift. Therefore, where in that 
 case, the testator had devised in these words, " All my property, of whatever descrip- 
 
CREATION OF TRUSTS BY PRECATORY WORDS. Ill 
 
 In the case of Sale v. Moore,(/) a testator gave his residue to his 
 wife, " recommending to her and not doubting that she would consider 
 (/) Sale v. Moore, 1 Sim. 534. 
 
 tion, 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 dispose 
 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., And in Reeves v. 
 Baker, 18 Beav. 372 ; 23 L. J. Ch. 599 : 18 Jur. 588, a devise of a residue of real 
 and personal estate to a wife absolutely, " being fully satisfied that she will dispose of 
 the same by will or otherwise, in a fair and equitable manner to our united relatives, 
 bearing in mind that my relatives are generally in better worldly circumstances than 
 hers," was held, by the Master of the Bolls, not to create a trust, but that the wife took 
 an absolute estate both in the real and personal estate. In Ware v. Mallard, 21 L. J. 
 Ch. 355, 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 appro- 
 priate the same for the benefit of his children, was held to be a gift of an estate for her 
 life, with a power of appointment in favor of her children, and a gift to them, in default 
 of appointment, as joint tenants. The opinion of V. Ch. Turner, in this case, which is 
 obviously in conflict with the foregoing, is very brief and unsatisfactory. See further 
 Winch v. Brutton, 14 Sim. 379. A direction in a will that a certain person should be 
 employed as agent and manager of the testator's estates, whenever his trustees should 
 have occasion for the service of a person in that capacity, does not create a trust which 
 equity could enforce. Pinden v. Stephens, 2 Phill. 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 dis- 
 cretion appropriate a part of the income of my estate aforesaid, not exceeding $50 a 
 year, to the support of» my widow M. E." It was held that this clause with other ex- 
 pressions 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 my 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. See, however, 
 the remarks on this case in Gilbert v. Chapin, 19 Conn. 351, where the language of 
 the court in Bull v. Bull, is disapproved. In Gilbert v. Chapin, there was a devise of- 
 all the testator's real and personal estate to his wife and her heirs, "recommending her 
 to give the same to my children, at such time and in such manner, as she shall think 
 best." It was held that these words ci-eated no trust, and that the widow had and estate 
 in fee simple. J. 3. Waite and Ellsworth dissented. In the opinion of the majority of 
 the court, the earlier English doctrine on the subject of recommendatory trusts was 
 treated with disapprobation. " No trust, it was said by Ch. J. Church, will be raised by 
 expressions in a will importing recommendation, hope, confidence, desire, &c, unless 
 there is certainty as to the parties who are to take ; nor if a discretion whether to act or 
 not, be left with a devisee or so-called trustee." In the subsequent case of Harper v. 
 Phelps, 21 Conn. 257, this view of the law was approved and followed. There a testator 
 devised a dwelling-house to a niece (living in the house at the making of the will), to be 
 furnished from his estate in a manner suitable for her family's use ; and an annuity of 
 $2000, from a trust fund created by the will, during her life, for the support of herself 
 
112 CREATION OS TRUSTS BY PRECATORY WORDS. 
 
 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 trust 
 
 and her nephews and nieces, whom she then had under her care, and of such other 
 persons as she from time to time might wish and request to be members of the family. 
 It was held, that no trust was created which would be enforced in equity, as it was im- 
 possible to say who were to be the beneficiaries or in what proportion they were to take. 
 In Lucas v. Lockhart, 10 Sm. & M. 466, a husband by his will gave to his wife the en- 
 tire profit of all his estate during her life, " intrusting to her the education and main- 
 tenance of his children," and provided also,, for the education and maintenance 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. So in Hunter v. 
 Stembredge, 12 Geo. 192, where a testator devised his plantation to his son H. and 
 then said, after bequeathing a negro to his wife, " and I also allow my son H. to give 
 her a support off my plantation during her lifetime," it was held upon the whole of 
 the will, that the testator, who was an illiterate man, used the word " allow'' as expres- 
 sive of his intention that the son should support his widow, and that an absolute charge 
 was created. 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 personal, are left in fee simple to her, 
 only requesting her to make an equal distribution amongst our heirs, and desiring her 
 to do for some of my faithful servants, whatever she may think will most conduce to 
 their welfare, without regard 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 remainder in fee in 
 the estate, to commence in possession at the widow's death, or earlier, at her election; 
 3. That the widow might make advancements to the 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 con- 
 venient enjoyment, advancement, or division. In a recent case in the same State, a 
 testator devised as follows : " Having implicit confidence in my beloved wife F. and 
 knowing that she will distribute to each of my children in as full and fair a manner aa 
 I would, I hereby invest my said beloved wife F., with the right and title of all my pro- 
 perty, both real and personal, to dispose of to each of my children, in any way that she 
 may think proper and right ;" and by a subsequent clause, it was provided that if F. 
 died without making a will, the children should have an equal distribution of the testa- 
 tor's estate. It seemed to be considered clear by the court, though the point was not 
 necessary to the case, that a trust for the children was created, but it was held that F. 
 had an unlimited power as to the time and manner of- distributing the property among 
 the testator's children, whether in her lifetime or at her death ; and that a power of sale 
 for such purpose was therefore implied. Steele v. Levisay, 11 Gratt. 454. In Thomp- 
 son v. McKisick, 3 Humph. 631, a different conclusion was arrived at. There the he- 
 quest was of certain negroes to the testator's daughter, " to be hers forever, to be dis- 
 posed of as she may think proper 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 children, &e. So in Ellis v. Ellis, 15 Alab. 296, it was held that a devise 
 of the whole of the testator's real and personal estate, after payment of debts, to his 
 wife, " recommending her at the same time to make some small allowance at her con- 
 venience to each of my brothers and sisters ; say to each $1000," did not create a trust. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 113 
 
 for the testator's next of kin, and decided that the wife took the residue 
 absolutely^/) And in another case, where a testator 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 encourage- 
 ment," Sir L. Shadwell, V. C, determined, that no trust was created 
 in favor of the children of Francis. (Jjf) In Lechmere v. Lavie,((/) a tes- 
 tatrix, 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 obligation *upon the two eldest daughters. (#) And in r ^~„-. 
 Pope v. Pope,(A) it was determined by Sir L. Shadwell, V. C, L J 
 
 (/) Sale v. Moore, 1 Sim. 534. (ff) Benson v. Whittam, 5 Sim. 22. 
 
 Iff) Lechmere v. Lavie, 2 M. & K. 197. (h) Pope v. Pope, 10 Sim. 5. 
 
 It was stated by Judge Chilton, to be the " true rule of interpretation to give such recom- 
 mendatory expressions their natural, and ordinary, and familiar sense, and having arrived 
 at the true intention of the testator, to let that intention, if lawful, be the rule of decision 
 in the particular case." Id. p. 301. This, doubtless, is the result of the modern English 
 and American decisions. See also Skrine v. Walker, 3 Rich. Eq. 262. The subject 
 of trusts created by precatory words, has recently 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 children, and at her de- 
 cease or marriage, should either take place before they come of age, then among them 
 equally." By a subsequent will, revoking all others, he devised, after payment of his 
 debts, the use, benefit, 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 children." It was held 
 there that the widow was entitled to the income for life, merely of the personalty, and 
 was a trustee for the children. The word " surplus" was construed to apply only to 
 what should remain after payment of debts. The same will came again before the 
 Supreme Court, in McKonkey's Appeal, 1 Harris, 253, when a somewhat different view 
 was taken of its construction. 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, however, were merely interlocutory in the cause. In 
 Pennock's Estate, 20 Penn. St. 268, 1 Am. Law Reg. 342, the case came up for final 
 determination, and after full argument, the former cases were overruled, 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 provi- 
 sions of the Roman law in regard to legacies, 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 convert a devise or bequest into a trust ; but that such words might amount to a de- 
 claration of trust when it appeared from other parts of the will, that the testator intended 
 not to commit the estate to the devisee or legatee, or the ultimate disposal of it to his 
 kindness, justice, or discretion. 
 
 8 
 
114 CEEATION OF TRUSTS BY PRECATORY WORDS. 
 
 that a gift by a testator of the capital of his business to his wife, " trusting 
 that she -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.(i) 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 continuing 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 impera- 
 tive, to create a trust in favor of the male line.(i) 
 
 The effect of expressions of this nature, in creating a trust, depends 
 entirely on the supposed intention of the donor, to be gathered from the 
 whole tenor of the instrument ;(&) therefore, words which when taken by 
 themselves would clearly create a trust, have frequently been controlled 
 in their operation when they are annexed to expressions, purporting to 
 give the absolute enjoyment and disposal of the property in question to 
 the donee. (Z) 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,(m) 
 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 ;"{p) — those expressions 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 testator "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, (q) which has been already stated, is 
 also one of this description. 
 
 The second requisite for creating a trust by means of expressions of 
 
 (h) Pope v. Pope, 10 Sim. 5. 
 
 (i) Knight v. Knight, 3 Bear. 148, 178; [affirmed on appeal, 11 CI. & F. 513.] 
 
 (k) Meggison v. Moore, 2 Ves. Jun. 633. 
 
 (I) Meredith v. Heneage, 1 Sim. 556 ; Knight v. Knight, 3 Beav. 174 ; Wood v. Cox, 
 2 M. & Cr. 684; vid. et. Bland v. Bland, 9 Mod. 478 ; S. C. 2 Cox, 349. 
 
 (to) Meredith v. Heneage, 1 Sim. 542, 555 ; Knight v. Knight, 3 Beav. 174. 
 
 (n) Hoy v. Master, 6 Sim. 568. (o) Bardswell v. Bardswell, 9 Sim. 319. 
 
 (p) Knight v. Knight, 3 Beav. 177 ; vid. et Curtis v. Rippon, 5 Mad. 434; Hoy v. 
 Master, 6 Sim. 568 ; Wilson v. Major, 11 Ves. 205. [Huskisson v. Bridge, 20 Law J. 
 Chanc. 209.] (g) 2 Y. & Coll. Ch. 582, 7 Jur. 1147. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 115 
 
 this nature is, that the subject of the recommendation or wish be certain. 1 
 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 personal, made an ab- 
 solute *gift of his real and personal estates ; and, after referring r*7zn 
 to the estates, which he took under his grandfather's will, con- 
 cluded by " trusting to the justice of his successors in continuing ' the 
 estate' in the male succession according to the will of his grandfather;" 
 Lord Langdale, M. R., considered, that the property which was the sub- 
 ject of the recommendation, was not described with sufficient accuracy, 
 it being uncertain whether it was the testator's intention to include the 
 personal estate, or anything besides the estates of his grandfather, to 
 which he had himself succeeded.(r) 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 sub- 
 ject intended by the expression, " whatever she can transfer," and there- 
 fore, that the gift to the daughters was void for uncertainty.(s) 
 
 However, any description, no matter how unteehnical or inartificial, 
 will be sufficient, as long as it points out clearly what is the property to 
 which the trust is intended to apply. Therefore the subject has been 
 considered to be defined with sufficient accuracy by the description of 
 " what fortune he (the first taker) should receive under the testator's 
 will ;""(*) or, " what (the first taker) has in her own power to dispose of 
 that was mine,"(M) 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 mother and her heirs for- 
 ever, in the fullest confidence that she would devise "the 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 certainly ascertainable, that it will amount 
 to a sufficient designation.^) 
 
 (r) Knight v. Knight, 3 Beav. 179. Affirmed Dom. Proc. 8 Jurist, 923 ; 11 CI. & 
 F. 513. (s) Flint v. Hughes, 6 Beav. 342. 
 
 (t) Pierson v. Garnet, 2 Bro. C. C. 138. (u) Cruwys v. Colman, 9 Ves. 39. 
 
 (w) Prevost v. Clarke, 2 Mad. 458. 
 (x) Wright v. Atkins, G. Coop. 115 ; S. C. T. & R. 157. 
 (y) Knight v. Knight, 3 Beav. 173. 
 
 1 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 nothing, might 
 provide for her a chaise or other suitable conveyance, and attend her whenever and 
 wherever she might wish to go, for a suitable compensation, if she should desire it. It 
 was held that this was too vague and indefinite a provision to be sustained as a legacy 
 to the wife. Whipple v. Adams, 1 Metcalf, 444, ' 
 
116 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 But any words, by which, it is expressed, or from which it may be im- 
 plied, 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.^) 1 
 
 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 be 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 the death of the son without 
 heirs of his body.(a) So in Bland v. Bland,(J) 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 
 r^nr-i *concluded thus, "it is my earnest request to my son, Sir J. 
 Bland, that on failure of issue of his body, he will some time in 
 his lifetime settle the said premises, or so much thereof as he shall stand 
 seised of at the time of his 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.(J) 
 
 (z) Knight v. Knight, 3 Beav. 174. 
 
 (a) Att.-Gen. v. Hall [Fitzgibbon, 314], cited 2 Cox, 355. 
 
 (6) Bland v. Bland, 2 Cox, 349 ; vide et La Maitre v. Bannister, Prec. Chanc. 201, 
 n. ; Strange v. Barnard, 2 Bro. C. C. 586. 
 
 1 Where A. devises all Ms estate to B. his wife, her executors, &c, but in case of B.'s 
 death, without disposing of it by will, or otherwise assigning or disposing of it, then to 
 his daughter ; B. takes an absolute estate in fee. Jackson v. Robins, 15 Johnson, 171 ; 
 16 Johns. 586. So on a devise to one, and in case he dies without issue, then "the 
 said property he dies possessed of," to T., Jackson v. Bull, 10 John. 19 ; or "what estate 
 Tie shall leave, to be divided," &c, Ide v. Ide, 5 Mass. 500 ; the subsequent limitation is 
 void. A bequest to B. of all the personal estate " to and for her ovm 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 interest to the wife. Smith v. Bell, Mart. & 
 Yerg. 302. See also Davis v. Richardson, 10 Yerg. 290; Thompson v. McKisick, 3 
 Hump. 631 ; Zimmerman v. Anders, 6 W. &" S. 220 ; Holmes v. Godson, 20 Jurist, 
 383, that a limitation over upon the intestacy of one to whom a previous absolute 
 estate had been given, is void. In Pennock's Estate, 1 Am. Law. Reg. 342, 20 Penn. 
 St. 268, ante, 72, note, the words "leave the surplus to be divided" were considered 
 as overturning any implication of a trust. So in Cowman v. Harrison, 17 Jurist, 313, 
 there was a gift by will to trustees to sell and invest, and pay the annual income to the 
 testator's widow, during widowhood, " for the maintenance, education, and support of 
 herself and her children ;" with the following words : " and I do particularly recommeDd, 
 desire, and direct my said wife, at her decease, by will or otherwise, to divide and dis- 
 pose of what money or property she may have saved from the said yearly income, among 
 all my children, in equal shares." And it was held by the Lord Justices of Appeal, 
 that from the uncertainty of the subject-matter, there was no trust created as to the 
 savings, and that the previous provision as to maintenance did not alter the case. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 117 
 
 Upon the same principle where the desire or recommendation expressed 
 by the testator, is that the first taker should " give what should be left at 
 her death" to his children or grandchildren :(c) or that she would " leave 
 the remainder of her property" (after paying 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 chil- 
 dren, her affection for their daughter would induce her to make their 
 daughter her principal heir ;"(/) or that "should she marry again, she 
 might convey { what property she might then possess' to trustees, for the 
 benefit of her children ;"(<?) in none of these cases would the court de- 
 cree the execution of the trust. 
 
 On the same ground, where a testator gave all his real and personal 
 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, according to circumstances, the 
 church of Grod and the poor ;" the Vice-Chancellor held the wife abso- 
 lutely entitled to the property, there being no ascertained part of it pro- 
 vided 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 
 by a testator, that the first taker should "remember," "consider," or 
 "act justly and properly by," any particular objects, and other expres- 
 sions of that nature, would seem to be also in part attributable to the 
 rule now under consideration ; inasmuch as such expressions rarely desig- 
 nate with any accuracy the part of the property which is to be subject 
 to the trust. (J) 
 
 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 indis- 
 pensable 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. 1 
 
 (c) Wyne v. Hawkins, 1 Bro. C. C. 179 ; Pushman v. Philliter, 8 Ves. 7 ; Wilson v. 
 Major, 11 Ves. 205 ; Bull v. Kingston, 1 Mer. 314 ; Tibbitts v. Tibbitts, 19 Ves. 664. 
 
 (d) Bade v. Eade, 5 Mad. 118. 
 
 (e) Lechmere v. Lavie, 2 M. & K. 197. (/) Hoy v. Master, 6 Sim. 568. 
 \g) Pope v. Pope, 10 Sim. 1 ; vide etHorwood y. West, 1 S. & S. 387. 
 
 (A) Curtis v. Rippon, 5 Mad. 434. 
 
 (i) Curtis v. RippoD, 5 Mad. 434 ; Sale v. Moore, 1 Sim. 534 ; Pope v. Pope, 10 Sim. 
 1 ; Le Maitre v. Bannister, Prec. Chan. 201, n. ; Bardswell v. Bardswell, 9 Sim. 319. 
 
 1 See Harrison v. Harrison, and Harper v. Phelps, stated ante, 72, note. Though a 
 vagueness in the objects will furnish reason for holding that no trust was intended, yet 
 this may be countervailed by other considerations, which show that a trust was pur- 
 posed ; while at the same time, such trust is not sufficiently certain or definite to be 
 carried out. Thus where a testatrix by her will, after giving, among other legacies, a 
 
118 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 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 -will :{h) 
 L J and where the designation has been the " relations/' (I) or the 
 " descendants,"(wi) or "female descendants,"(w) of an individual; that 
 has been considered sufficiently certain, whether the subject were real or 
 personal estate. 1 
 
 With regard to the term " family," the decisions appear to be some- 
 what at variance with each other. 3 In Harland v. Trigg,(o) the testator's 
 brother was entitled to a freehold estate under his 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 trustees 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 forever, hoping he would con- 
 tinue them in the family ;" Lord Thurlow decided, that those words 
 
 (&) Mason v. Liinbury, cited Ambl. 4 ; Massey v. Shearman, Ambl. 520 ; Malim v. 
 Kneightley, 2 Ves. Jun. 333 ; Prevost v. Clarke, 2 Mad. 458 ; Ford v. Fowler, 3 Beay. 
 146. 
 
 (I) Harding v. Glyn, 1 Atk. 469 ; Birch v. Wade, 3 V. & B. 198 ; Forbes v. Ball, 3 
 Mer. 437 ; Wright v. Atkins, 2 T. & B. 161. [See Bishop v. Cappel, 11 Jur. 939 ; S. 
 C. 1 De a. & Sm. 411 ; Davidson v. Proctor, 14 Jur. 31 ; Ham's Will, 15 Jur. 1121.] 
 
 (m) Pierson v. Garnet, 2 Bro. C. C. 38, 226. (n) Parsons v. Baker, 18 Ves. 476. 
 
 (o) Harland v. Trigg, 1 Bro. C. C. 142. 
 
 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 accordance with my views and 
 wishes," and appointed S. P. executrix, and four codicils were found, but imperfectly 
 attested : it was held by Lord Chancellor Cottenham, affirming, S. C. 13 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. 546. 
 
 1 A gift in trust for " all the testator's cousins who should be living at his death," 
 was held valid in Stanger v. Nelson, 20 Jurist, 27, overruling S. C. 19 Jur. 789, but to 
 comprehend only first cousins. 
 
 2 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. and B. took per stirpes and not per 
 capita. Walker v. Griffin, 11 Wheat. 375. A devise "for the support of the family" 
 of the testator, is a devise for the support of the widow, and the maintenance and edu- 
 cation of the children. Addison v. Bowie, 2 Bland, 606. Where, however, a testator 
 devised his estate to his seven sons, 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 certain, but that the devise to J. T. was good, 
 and constituted, when the amount was ascertained, a charge on the land. Tolsou v. 
 Tolson, 10 G. & J. 159. See S. C. 8 Gill, 376. In Johnston v. Rowlands, 2 De G. & 
 Sm. 356 ; 12 Jur. 769, there was a gift of a legacy to the testator's wife, " to be dis- 
 posed 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 not to create a trust. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 119 
 
 created no trust of the leasehold property at Sutton, as they did not 
 clearly demonstrate an object.(o) 
 
 In Barnes v. Patch,(^?) 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 chil- 
 dren of the brother and the sister were entitled equally per capita, to 
 the exclusion of their parents, both to the real and personal estate.(p) 
 
 In Cruwys v. Colman,^) 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 own 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. R., held, that there was a trust for the next of 
 kin of the testatrix. (^) 
 
 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 wheresoever, as well 
 leasehold as freehold and copyhold, to his mother Charlotte Atkins and 
 her heirs forever, " in the fullest confidence, 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 incumbrances discharged : and 
 in that suit, the question arose whether Charlotte Atkins was bound to 
 keep down the interest of the incumbrances ; it therefore became inci- 
 dentally *necessary to determine, whether she was tenant for life, 
 or in fee of the estates devised to her. At the original hearing, L J 
 Sir William Grant, M. R., was of opinion that the words in question 
 were sufficient to create a trust, and decreed that Charlotte Atkins was 
 only tenant for life of the devised estates.(s) In consequence of Sir 
 William Grant's decision, an injunctibn was afterwards granted by the 
 Lord Chancellor (Lord Eldon) to restrain Charlotte Atkins from cutting 
 timber on the estates :(t) and his lordship subsequently affirmed the 
 decree made by Sir William Grant at the original hearing, when the 
 case was brought before him on appeal. (u) An appeal was then presented 
 to the House of Lords, by whom the previous decisions were reversed, 
 go far as they declared, that Charlotte Atkins was only tenant for life. (a;) 
 
 (o) Harland v. Trigg, 1 Bro. C. C 142. (p) Barnes v. Patch, 8 Ves. 604. 
 
 (q) Cruwys v. Colman, 9 Ves. 319. 
 
 (r) Wright v. Atkins, 17 Ves. 255 ; S. C. 19 Ves. 299 ; and Coop. 111. 
 
 (*) 17 Ves. 255. (<) 1 V. & B. 313. {u) 19 Ves. 299. (x) T. & R. 145. 
 
120 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 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 reconsideration he was perfectly satis- 
 fied 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 husbandlike manner, 
 as tenant in fee, upon giving security for the value, or bringing the 
 value into eourt.(?/) In Grant v. Lynam,(2) there was a bequest of per- 
 sonal 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 
 relations or family, th6ugh 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 ;"(s) 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) 
 
 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, (6) 
 
 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 6000?. to the 
 family of S. W., was held by Sir J. Wigram, V. C, to entitle his six 
 children as joint tenants. (d) 
 
 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 "fami- 
 lies," is a sufficient description of the objects ; and according to the circum- 
 stances of the property the next of kin, or the children, will be held to 
 take.(e) 1 
 
 And it is also equally clear, that if there be a gift to a person ex- 
 pressly *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 description, whether the 
 
 (y) T. & R. 143. (a) Grant v. Lynam, 4 Russ. 292. 
 
 (a) Griffiths v. Evan, 5 Beav. 241. (6) Liley v. Hey, 1 Hare, 580. 
 
 (c) Woods v. Woods, 1 M. & Cr. 408. (d) Wood v. Wood, 3 Hare, 65. 
 (e) Barnes v. Patch, 8 Ves. 604 ; Woods v. Woods, 1 M. & Cr. 408 ; Liley v. Hey, 1 
 Hare, 580. [See White v. Briggs, 2 Phillips, 583.] 
 
 1 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 grandchil- 
 dren. Gregory v. Smith, 9 Hare, 708. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 121 
 
 devised property consisted of real or personal estate, or of both united.(/) 
 But where property is devised to an individual in the first place abso- 
 lutely, 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 testator's " family;" the court will not, in a suit insti- 
 tuted by the 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 interest, given by will, to an estate for life ; but will leave 
 that question 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.(/i) And it was ex- 
 pressly decided in Grant v. Lynam, that where the first taker, to whom 
 a power of selection was given, died without exercising that power, the 
 term "family" was a sufliciently certain description of the objects to 
 take, and that the trust would be supported accordingly. (?) 
 
 Harland v. Trigg, owing to its peculiar circumstances, cannot be con- 
 sidered 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 bequeathed by the testator 
 as answering to the designation of his "family;" and it has been ob- 
 served by Lord .Eldon, that "it was impossible that the words 'my 
 family' in that case could mean an heir at law."(&) 
 
 The case of Cruwys v. Colman is a direct authority for considering 
 the term " family" a sufficient description of the objects, where the sub- 
 ject 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 premature, yet those deci- 
 sions 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,(m) the tendency of his opinion appears to be 
 strongly against holding the expressions, which were the subject of dis- 
 pute 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 connection with which 
 it is used.(o) These will of course vary with every case, rendering it 
 
 (/) Wright v. Atkins, Coop. 117, 122 ; and T. & R. 156 ; Cruwys v. Colman, 9 Ves. 
 319. (A) Wright v. Atkins, T. & R. 143, sect. 154. 
 
 (i) Grant v. Lynam, 4 Russ. 292 ; and see Griffiths v. Evan, 5 Beav. 241. 
 (k) Coop. 121. (Z) 17 Ves. 255 ; and 19 Ves. 299. (m) T. & R. 143. 
 
 (») In Cruwys v. Colman, 9 Ves. 323. See Woods v. Woods, 1 M. & Cr. 408. 
 (o) Wright v. Atkins, T. & R. 158 ; Woods v. Woods, 1 M. & Cr. 408. 
 
122 CREATION* OF TRUSTS BY PRECATORY WORDS. 
 
 impossible to lay down any more definite rules' of construction 
 L -I on this point. 
 
 Where the designated objects of a trust of this nature are a specified 
 class of persons, the certainty of the description will not be affected by 
 the fact of a power of selection being given to the devisee. The whole 
 class will take a vested interest, subject to be devested by the exercise 
 of the power, and if it be not exercised, the whole class will be equally 
 entitled.(^) Where the objects are designated as "relations," the power 
 would be well exercised in favor of any relation, although not one of the 
 next of kin.(g) But in default of exercise of the power, the next of kin, 
 according to the Statute of Distributions, only would be entitled.(r) 1 
 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 ordinary acceptation of that term ; although the heir at law only 
 would take in default of its exercise, if the property were real estate :(«) 
 and the next of kin, if it were personal estate, (t) 
 
 So the objects will be sufficiently certain, though the trust be in favor 
 
 (p) Harding v. Glyn, 1 Atk. 469 ; Brown v. Higgs, 4 Ves. 708 ; 5 Ves. 495 ; and 8 
 Yes. 570; Cruwys v. Colman, 9 Ves. 319 ; Birch v. "Wade, 3 V. & B. 198. 
 
 (g) Harding v. Glyn, 1 Atk. 469 ; Forbes v. Ball, 3 Mer. 437 ; see T. & R. 162. 
 
 (r) Harding v. Glyn, ubi sup. ; Birch v. Wade, 3 V. & B. 198. [See M'Neilledge v. 
 Galbraith, 8 Serg. & R. 43 ; Storer v. Wheatley, 1 Penn. St. 506.] 
 
 (s) Wright v. Atkins, T. & R. 156, 159 ; Griffiths v. Evans, 5 Beav. 241. 
 
 (_t) Grant v. Lynam, 4 Buss. 492 ; Cruwys v. Colman, ubi sup. ; Woods v. Woods, 1 
 M. & Cr. 408. 
 
 1 That is, the next of kin of the testator in existence at the death of the tenant 
 for life. Harding v. Glyn, ubi sup. ; Cruwys v. Coleman, 9 Ves. 325. A distinction has 
 been supposed to exist, founded on Pope v. Whitcombe, 3 Merivale, 689, between this 
 case and that where the power in trust is merely to apportion the shares, as of a power 
 to dispose of a fund among relations, as the donee " should think proper," or " should 
 direct," or in "such shares as he should appoint," when, it has been said, the next of 
 kin at the death of the testator, are the parties to take. Williams on Executors, 958; 
 Roper on Legacies, 106, 143, 150. But it has been recently shown that Pope v. Whit- 
 combe is incorrectly reported, and that the real decision was the other way. In either 
 case, the death of the donee of the power or of the trustee, is the period when the next 
 of kin are to be ascertained. Finch v. Hollingsworth, 19 Jurist, 718; see 2 Sugd. 
 Pow. App. 29. Where there is a direct bequest to " relations'' after a life estate, the rule 
 is different, and the next of kin at the death of the testator take. McNeilledge v. Gal- 
 braith, 8 S. & R. 45. In Storer v. Wheatley's Ex'rs, 1 Penn. St. 506, the bequest of a 
 residue to a daughter, and at her death within age, to the testator's "nearest relations 
 or connections, according to the laws of the commonwealth," was held not to include 
 the testator's -widow. So neither a husband or wife comes within the description of 
 " next of kin according to the Statute of Distributions." Milne v. Gilbert, 23 L. J. Ch, 
 828 ; 18 Jur. 611. In McNeilledge v. Galbraith, ut snpr., there was a gift of a residue 
 of real and personal estate to the testator's widow, " and at her decease to be divided 
 between her and my poor relations equally," and it was held that the personal property 
 was to be divided share and share alike per capita, among the testator's next of kin 
 according to the statute, living at his death, and that they took at (hat time vested 
 interests. The qualifying word "poor" was rejected. In the subsequent case of Mc- 
 Neilledge v. Barclay, 11 S. & R. 104, on the same will, the real estate was held to go 
 in the same way. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 123 
 
 of several persons, or classes of persons ;(m) or even alternatively 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. (z) 1 And it seems, that where 
 such a trust applies to a residue 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 pur- 
 pose. (a) But where the subject-matter is an annual, or temporary in- 
 come 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 dis- 
 tribution of the fund, the court will not in the lifetime of the trustee in- 
 terfere with that discretion, by directing a scheme, but will leave any 
 claimant liberty to apply to the court as there may be occasion. (b) 
 
 In Moggridge v. Thackwell,(e) a testator gave the residue of his per- 
 sonal 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 families and good r# o m 
 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 recommendation in the will, and he re- 
 ferred it to the master to settle a scheme for the purpose. (c) In conse- 
 quence of an intimation by Lord Rosslyn, when this cause came before 
 him on further directions, it was subsequently reheard before Lord Eldon, 
 who aflirmed Lord Thurlow's decree, after a most elaborate argument.(cZ) 
 In Waldo v. Caley,(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 persuaded from the 
 
 (u) Mason v. Limbury, cited Ambl. 4. 
 
 (a;) LoDgmore v. Broom, 7 Ves. 124; Prevost v. Clarke, 2 Mad. 458; Jones v. Torin, 
 6 Sim. 255. (y) Brown v. Higgs, 4 Ves. 708. [Penny v. Turner, 2 Phill. 493.] 
 
 (z) Moggridge v. Thackwell, 7 Ves. 36; Waldo v. Caley, 16 Ves. 206; Legge v. 
 Asgill, T. & R. 265, n. ; Horde v. Earl of Suffolk, 2 M. & K. 59 ; Baker v. Sutton, 1 
 Keen, 224 ; Townsend v. Cams, 13 Law Journ. N. S. Chanc. 169. [Atty.-Gen. v. 
 Lawes, 8 Hare, 32 ; 14 Jur. 77 ; see Wheeler v. Smith, 9 How. U. S. 55.] 
 
 (a) Moggridge v. Thackwell, 7 Ves. 36. 
 
 (6) Waldo v. Caley, 16 Ves. 206 ; Horde v. Earl of Suffolk, 2 M. & K. 59. 
 
 (c) Moggridge v. Thackwell, 3 Bro. C. C. 517 ; S. C. 1 Ves. Jun. 464. 
 
 (d) Moggridge v. Thackwell, 7 Ves. 36. (e) Waldo v. Caley, 16 Ves. 206. 
 
 1 On the subject of gifts to charitable uses, and how far trusts for those purposes will 
 be enforced in the United States, see post, 450 et seq. and notes. 
 
124 CREATION OF TRUSTS BY PRECATORY WORDS. 
 
 invariable fidelity and attachment my dear wife has always shown me, 
 that she will after my decease, with the utmost readiness and cheerful- 
 ness, co-operate with my said trustees in 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 sur- 
 vivor of them, yearly and every year during her life lay out and ex-^ 
 pend one moiety of the net income of mj 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 clergymen, 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 William Grant, M. R., and his decision 
 was affirmed 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) 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 
 j.^ the glory of God and the *spiritual welfare of his creatures), as 
 L J 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 discretionary 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 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 
 
 (e) Waldo v. Caley, 16 Ves. 206. 
 
 (/) Horde v. Earl of Suffolk, 2 M. & K. 59. {h) Baker v. Sutton, 1 Keen, 224. 
 
 (i) Townsead v. Carus, 13 Law. Journ. N. S. Chanc. 169. 
 
CREATION OF TRUSTS BY PRECATORY WORDS. 125 
 
 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.(&) 
 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, although 
 expressed to be in favor of 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. (I) And this decision has since been recog- 
 nized and acted upon in more recent cases.(m) " In what respect," 
 says Sir Thos. Plumer, in his judgment in Ommaney v. Butcher, " does 
 private charity differ from benevolence ? Assisting individuals in dis- 
 tress 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 j 1 — 
 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 notwith- 
 standing fail, on the ground that the interest which the objects are to 
 take, is not clearly defined ; as where the general expressions and con- 
 text 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 conceites will best meet the wishes of the 
 person creating the trust ;{n) but ffhere does not appear to be any 
 decided case in which this jurisdiction 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 she should 
 *appoint, and in case of no appointment to her children and their r^oo-i 
 heirs as tenants in common. The sister had two daughters ; and 
 
 (k) Coxe v. Bassett, 3 Ves. 155, 164; Morice v. Bishop of Durham, 9 Ves. 399 ; 10 
 Ves. 522 ; Williams v. Kershaw, 5 Law Journ. N. S. 84 ; Ellis v. Selby, 1 M. & Cr. 
 286 ; Ommaney v. Butcher, T. & R. 270 ; Kendall v. Granger, 5 Beav. 300 ; [Flint v. 
 Warren, 15 Sim. 626 ;] vide post, Div. II, Ch. I, Sect. 3. 
 
 {1) Ommaney v. Butcher, T. & R. 273. 
 
 (m) Ellis v. Selby, 1 M. & Cr. 293 ; Nash v. Morley, 5 Beav. 177. 
 
 [n) Jervoise v. Duke of Northumberland, 1 J. & W. 570 ; Woolmore v. Burrows, 1 
 Sim. 512 ; Ld. Dorchester v. Effingham, 3 Beav. 180, n. 
 
126 CREATION OF TRUSTEES 
 
 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 effectu- 
 ally 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, ac- 
 cording to the will of the founder of the family (his above-named grand- 
 father), Lord Langdale, M. R., was of opinion that the objects and the 
 order in which the testator wished them to take, were indicated with 
 sufficient certainty ; but his lordship considered, that there was not suffi- 
 cient clearness to make it certain, what were the interests to be enjoyed 
 by the objects, and on that ground amongst others refused to decree the 
 execution of any trust, (q) 
 
 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 instrument is 
 complete and irrevocable, and will prevail against the person creating 
 the trust, and all subsequent volunteers claiming under him by devise or 
 
 (o) Meggison v. Moore, 2 Ves. Jun. 630. (p) Ex parte Payne, 2 Y. & C. 636. 
 
 (q) Knight v. Knight, 3 Beav. 179. Affirmed Dom. Proc. 8 Jurist, 923, 11 CI. & F- 
 513. 
 
BY VOLUNTARY DISPOSITION. 127 
 
 other'wise.(r)(l) 1 *And if the settlement be of personal estate, r ^ s „-, 
 the title of the parties undertaking it 'will be good even against ■- J 
 
 (r) Bolton v. Bolton, 3 Sw. 414, n. ; Sear v. Ashwell„Id. 411, n. ; Jefferys v. Jefferys, 
 1 Cr. & Ph. 138 ; Smith v. Lyne, 2 N. C. C. 345 ; Portesque v. Barnett, 3 M. & K. 36. 
 [Simmonds v. Palles, 2 J. & Lat, 489 ; Smith v. Hurst, 17 Jur. 30.] 
 
 (1) An important exception to this general rule has been established by the autho- 
 rities with regard to trust deeds for creditors. For if a debtor voluntarily convey pro- 
 perty to trustees upon trusts for the benefit of his creditors, and the transaction 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. Coutts, 3 Mer. 707 ; S. C. 3 Sim. 14 ; Page v. Broom, 
 4 Russ. 6 ; Garrard v. Ld. Lauderdale, 3 Sim. 1 ; Acton v. Woodgate, 2 M. & K. 492. 
 [See Cornthwaite v. Frith, 4 De G. & Sm. 552.] It seems, however, to have been con- 
 sidered by Sir John Leach, in Acton v. Woodgate, in opposition to the opinion of Sir 
 L. Shadwell, V. C, in Garrard v. Ld. Lauderdale, that if the trust 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 trustees had acted upon the deed by making pay- 
 ments 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 v. 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 Griffits v. Bieketts, 7 Hare, 307, 14 Jur. 166, it was held that such a trust was not 
 revocable as against any creditors with whom such communications 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 
 
 1 Hardin v. Baird, 6 Litt. 340 ; Bunn v. Winthrop, 1 J. C. R. 329 ; Hayes v. Ker- 
 show, I Sandf. Ch. 261; Story Eq. § 433, 987; Fogg v. Middleton, Riley Ch. 193; 
 Greenfield's Estate, 2 Harris (Penna.), 489; Kirkpatrick v. McDonald, 1 Jones, 387; 
 Graham v. Lambert, 5 Humph. 595 ; Heifson v. Kinard, 3 Strob. Eq. 371 ; Dupre v. 
 Thompson, 4 Barb. Rep. 280 ; 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 consequent 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 constituted 
 himself sole trustee, the court, on bill filed by the plaintiff, alleging that the deed of 
 settlement had been prepared without his authority, consent, or knowledge, and there 
 not being any evidence to the contrary, declared the deed void in equity, and directed 
 a reconveyance of the trust property by the trustee. Moore v. Prance, 15 Jur. 1188 ; 
 20 L. J. Ch. 468. If perfectly voluntary, however, such a deed would be supported. 
 Slifer v. Beates, 9 S. & R. 166, 179. 
 
128 CREATION OF TRUSTEES 
 
 subsequent purchasers ; for the statute 27 Eliz. does not apply to per- 
 sonal estates, (s) 
 
 (a) Bill v. Cureton, 2 M. & K. 503, 512. [See post, 90.] 
 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 satis- 
 fied 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. Where creditors 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 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 subsequent and important case of Siggers v. Evans,- 19 Jurist, 851, these 
 questions were carefully considered by the Court of Queen's Bench. There Hubbard 
 had executed, on the 19th of August, a deed of assignment of goods to Siggers and 
 Beeching, creditors of his, in trust for themselves and the rest of the creditors, and left 
 it in the hands of his attorney, stating that he would communicate it to his creditors 
 himself. On the 22d of August he wrote to Siggers, informing him that he had exe- 
 cuted the deed. On the next day, at one o'clock, Siggers received the letter, and an- 
 swered it by the mail of the 24th. In the meantime, at four o'clock on the 23d, a fi, fa. 
 against the debtor was delivered to the sheriff. It was held that the deed was irrevo- 
 cable after it had been communicated to Siggers, and that the title vested in him there- 
 under before any actual assent expressed by him, so that the execution creditor was 
 cut out. The court greatly doubted the doctrine of Garrard v. Ld. Lauderdale, that 
 communication to creditors, before assent by them, is insufficient to make an assign- 
 ment irrevocable (see also Erie, J., in Harland v. Binks, 15 Q. B. 721) ; but did not 
 decide the question, for they considered that doctrine inapplicable where the trustee 
 took a beneficial interest under the deed, as creditor. On the other point, — the necessity 
 of an express assent by the assignee, qua trustee, — the court held the general rule to 
 be that " a grant of goods, like any other common law conveyance operating by grant, 
 passes the property without assent." So that the grantee " may come in at any time 
 and say, ' I claim by the deed,' if he has done nothing to show a dissent ; but that he 
 has the full power, if he has done no act to assent, to say that he declines,'' and they 
 repudiated any distinction in this respect between the case of a beneficial grant and an 
 " onerous trust." Lord Campbell, in the course of his opinion, said, however, that the 
 case was " clearly distinguished from the cases in equity as to the acceptance of trusts 
 by trustees, who have a right to say that they have done no act to accept the trust." It 
 must be presumed that he intended in this to refer only to the question of the liability 
 of a trustee to his cestui que trust, and not to that of the passing of the legal estate, 
 for it would not be easy to discover any difference between the doctrines of equity and 
 law, in the latter respect. From this case of Siggers v. Evans, it will be seen that the 
 English Courts, by a gradual approximation, have very nearly arrived at the doctrines 
 which generally obtain in this country with regard to assignments for creditors. 
 
 In the United States, though the trustees in such an assignment are also before the 
 assent of creditors considered rather as the agents of the assignor than of the creditors 
 (Brooks v. Marburry, 11 Wheaton, 79 ; see Watson v. Bagaley, 2 Jones, 164; Nelson 
 v. Dunn, 15 Alab. 519), 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 v. McEvers, 4 J. C. R. 136 ; Pingree v. Corn- 
 stock, 18 Pick. 46 ; Weir v. Tannehill, 2 Yerg. 57 ; Montelius v. Wright, Wright, 61; 
 
BY VOLUNTARY DISPOSITION. 129 
 
 The fact that the deed remains in the possession of the party by 
 ■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.^) 
 
 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. (1) Therefore, if the transaction on which the 
 
 {t) Sear v. Ashwell, 3 Swanst. 411, n.; Barlow v. Heneage, Prec. Chan. 211 ; Claver- 
 ing v. Clavering, 2 Vera. 474 ; see Cecil v. Butcher, 2 J. & W. 573; [Bunn v. Win- 
 throp, 1 J. C. R. 329 ;] and see post; but see Uniacke v. Giles, 2 Moll. 267. 
 
 Pearson v. Rockhill, 4 B. Monr 296 ; Robertson v. Sublett, 6 Humph. 313 ; Ingram v. 
 Kirkpatrick, 6 Ired. Eq. 463; Smith v. Turrentine, 8 Id. 186; Pratt v. Thornton, 28 
 Maine, 355; McDougald v. Dougharty, 11 Geo. 570 ; see Read v. Robinson, 6 W. & 
 S. 329; though in Massachusetts, before the Act of 1836 of that State, by reason of 
 the want of a Court of Chancery, the opposite doctrine was held. Widgery v. Haskell, 
 
 5 Mass. 144; Edwards v. Mitchell, 1 Gray, 241. Where any of the trusts have been 
 executed (Ingram v. Kirkpatrick, 6 Ired. Eq. 463), or notice has been given to the cre- 
 ditors (Gait v. Dibreil, 10 Yerg. 147 ; Petriken v. Davis, 1 Morris, 296), the assignment 
 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 further 
 the note, post, 332 ; and Burrill on Assignments, 280, 306, where the subject is fully 
 discussed. 
 
 ( 1 ) With regard to the question of who are or are not to be regarded as volunteers, 
 it is settled that a valuable consideration is requisite to put the court in motion. 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 sufficient to induce the 
 court to interfere for the purpose of enforcing the performance 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 Holloway v. Headington, 8 
 Sim. 324, and Jefferys v. Jefferys, 1 Cr. & Ph. 138, where it was held by Sir L. Shad- 
 well, V. C, in the one case, and Lord Cottenham, C, in the other, that a valuable con- 
 sideration only would suffice for this purpose. See Jefferys v. 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 
 
 6 Lat. 442, Sir Edward Sugden found himself obliged to yield to the current of autho- 
 rity, 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) ; 1 White & 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; Caldwell v. Williams, 1 Bailey Ch. 175; 
 see Garner v. Garner, 1 Busbee Eq. 1. In Dennison v. Goehring, 7 Barr, 175, Gibson, 
 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. But see the same Judge in Campbell's Estate, Id. 101. So in Hayes v. 
 Kershow, 1 Sandf. Ch. 261, the assistant Vice-Chancellor remarked, " covenants and 
 agreements founded upon a good consideration, or as it is oftentimes expressed, a 
 meritorious consideration, are upheld and enforced in this court." But in Kennedy's 
 
 9 
 
130 CREATION OF TRUSTEES 
 
 voluntary trust is attempted to be established, be still executory and in- 
 complete, the court will decline to interpose, (w) 1 
 
 But although there may not be any actual conveyance or assignment 
 vesting the legal interest in the property in trustees for the objects 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 forcibly by Lord 
 Eldon in the case of Ex parte Pye. " It has been decided," said that 
 learned Judge, " that upon an agreement to transfer stock this court will 
 r*84T not *i nteri " ere > but if the party has declared 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 re- 
 fined considerations ;(z) and the cases on the subject appear to be some- 
 what 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 exemplified in a 
 recent case before Lord Cottenham; where a father by a voluntary 
 settlement conveyed certain freehold estates, and by the same deed cove- 
 nanted 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. After the father's death a bill was filed by the 
 daughters against the wife and the trustees to establish the trust of the 
 
 («) Colman v. Sarell, 3 Bro. C. C. 12 ; Ellison v. Ellison, 6 Ves. 656 ; Antrobus v. 
 Smith, 12 Ves. 39 ; Edwards v. Jones, 1 M. & Cr. 226 ; Jeffreys y. Jeffi-eys, 1 Cr. & 
 Ph. 138 ; Dillon v. Coppin, 4 M. & Cr. 647 ; [Scales v. Maude, 19 Jurist, 114V.] 
 
 (a) Pulvertoft v. Pulvertoft, 18 Ves. 99 ; "Wheatley v. Purr, 1 Keen, 551 ; Collinson 
 v. Patrick, 2 Keen, 1 23 ; Lechmere v. Earl of Carlisle, 3 P. Wms. 222 ; [Crompton v. 
 Vasser, 19 Alab. 259.] 
 
 (y) Ex parte Pye, 18 Ves. 149. (z) See McPadden v. Jenkyns, 1 Phill. 15V. 
 
 (a) Ellison t. Ellison, 6 Ves. 656 ; Cotteen v. Missing, 1 Mad. 1V6; [1 Leigh, 36; 
 12 Alab. 12V; 1 J. CR. 3; see, however, Mclntire v.Hughes, 4Bibb, 186; Caldwell v. 
 Williams, 1 Bail. Eq. 1V5.] 
 
 Executor v. Ware, 1 Barr, 445, followed in Campbell's Estate, V Id. 100, it was held that 
 natural love and affection was not a sufficient consideration for an equitable assignment. 
 Collateral consanguinity is clearly insufficient. Hayes v. Kershow, 1 Sandf. 258; 
 Buford's Heirs v. McKee, 1 Dana, 107.] 
 
 1 Bunn v. Winthrop, 1 J. C. R. 329 ; Hayes v. Kershow, 1 Sandf. Ch. 258 ; Minturn 
 v. Seymour, 4 J. C. R. 497 ; Acker v. Phoenix, 4 Paige, 308 ; Banks v. May, 3 A. K. 
 Marsh. 436 ; Dennison v. Goehring, 7 Barr, 175 ; Clarke v. Lott, 11 IHin. 105 ; Cald- 
 well 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 ; Read v. Robinson, 6 
 W. & S. 331 ; Crompton v. Vasser, 19 Alab. 259 ; Yarborough v. West, 10 Geo. 471. 
 
BY VOLUNTARY DISPOSITION. 131 
 
 settlement, and the Lord Chancellor granted the relief prayed, as far as 
 it related to the freeholds, but dismissed the bill with costs as to the 
 copyholds.(6) 
 
 So any voluntary instrument, -which has not the effect of conveying or 
 transferring the legal interest in the property with which it attempts to 
 deal appears to be on the same footing as a mere agreement to assign ; 
 and it is 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 5(e) 1 although it may have that effect if it 
 be accompanied by some additional and conclusive act or declaration 
 constituting a perfect trust, (d) 
 
 Thus where a voluntary assignment of stock was made, by deed to 
 trustees, for the benefit of a person named in the deed ;{ef 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 ;(g) or where a memorandum was endorsed on a 
 receipt for a subscription to a navigation,(A) or on a bond,(i) 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 
 
 (6) Jefferys v. Jefferys, 1 Cr. & Ph. 138. 
 
 (c) Colman v. Sarell, 3 Bro. C. C. 12; Antrobus v. Smith, 12 Ves. 39; Edwards v. 
 Jones, 1 M. & Cr. 226 ; Meek v. Kettlewell, 1 Hare, 464; affirmed on appeal by Lord 
 Lyndhurst, 1 Phill. 342 ; Dillon v. Coppin, 4 Jurist, 427 ; S. C. 4 M. & Cr. 647 ; Beatson 
 v. Beatson, 12 Sim. 281; [See Scales v. Maude, 19 Jurist, 1147.] 
 
 (d) Collinson v. Patrick, 2 Kean, 123; Rycroft v. Christie, 3 Beav. 238; Hinde v. 
 Blake, Id. 234. (e) Colman v. Sarell, 3 Bro. C. C. 12. 
 
 (/) Dillon v. Coppin, 4 Jurist, 427 ; S. C. 4 M. & Cr. 647. 
 [g) Meek v. Kettlewell, 1 Hare, 464; affirmed 1 Phill. 342. 
 (h) Antrobus v. Smith, 12 Ves. 39. (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, Kekewich v. Manning, 1 De G. Mac. & G. 176, stated post, page 88. 
 The necessity that the legal title must pass at the time of the gift, was directly denied 
 by the Lords Justices, and an assignment of a reversionary equitable interest to trustees 
 for volunteers, supported. 
 
 3 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 ex- 
 pressed, 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 re- 
 ceived 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 stock; which formed part of his assets. 
 Smith v. Warde, 15 Sim. 56. 
 
132 CREATION OF TRUSTEES 
 
 the gift to be incomplete, and has refused to enforce it as a trust agains 
 the parties, by whom it was made. 
 
 * Although some of these cases appear to have been much 
 L -■ stronger in favor of the trust than others, 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 pur- 
 pose of raising a trust against the assignor, whether it be or be not 
 under seal, and executed in a legal form.(&) 
 
 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.(Z) 
 
 In some of these 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 deciding against 
 the trust ; and unquestionably that is a very strong circumstance against 
 it.(m) But in Edwards v. Jones, the memorandum, 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 volun- 
 teer : and yet the court refused to recognize this transaction as a trust.(») 
 In a recent case Sir J. Wigram, V. C, observed, " that the case of 
 Edwards v. Jones shows, that the most clear intention to confer an in- 
 terest 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){l) 
 
 It would seem to follow from the foregoing decisions, that the court 
 will in no case interfere, to enforce the performance of a voluntary trust 
 
 (Jo) Colman v. Sarell, 3 Bro. C. C. 12 ; Meek v. Kettlewell, 1 Hare, 474 ; Edwards t, 
 Jones, 1 M. & Cr. 226 ; Holloway v. Headington, 8 Sim. 324. But from the report of 
 this last case it does not appear what was the nature of the property included in the 
 settlement. [But see ante, 84, note.] 
 
 (I) In Antrobus v. Smith, 12 Ves. 39 ; Edwards v. Jones, 1 M. & Cr. 226 ; and Meek 
 v. Kettlewell, 1 Hare, 464, the gift was direct. In Colman v. Sarell, 3 Bro. C. C. 12 ; 
 and Dillon v. Coppin, 4 Jurist, 427, and 4 M. & Cr. 647, it was to trustees. 
 
 (m) Antrobus v. Smith, 12 Ves. 39 ; Dillon v. Coppin, 4 Jur. 427 ; S. C. 4 M. & Cr. 
 647 ; Uniacke v. Giles, 2 Moll. 267. 
 
 (n) Edwards v. Jones, 1 M. & Cr. 264. 
 
 (0) Meek v. Kettlewell, 1 Hare, 472; affirmed, L. C. Lyndhurst, 1 Phill. 342. See 
 also Coningham v. Plunkett, 2 N. C. C. 245. 
 
 (1) It is material for the party who seeks to enforce the trust in these cases, to show, 
 that the person 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 in- 
 terest in which might have been transferred by the owner by a different mode of assw- 
 ance, which he neglected to adopt, the transaction was regarded as imperfect and in- 
 complete. Colman v. Sarell, 3 Bro. C. C. 12 ; Dillon v. Coppin, 4 Jurist, 427 ; S.C. i 
 M. & Cr. 647, and see Coningham v. Plunkett, 2 N. C. C. 245. 
 
BY VOLUNTARY DISPOSITION. 133 
 
 against its author, if the legal interest in the property be not transferred 
 or acquired, as part of the transaction creating the trust. 1 
 
 The doctrine of the court, however, does not appear in fact to be so 
 confined. If a formal declaration of trust be 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 volun- 
 teer, the court will consider such a declaration as a trust actually created, 
 and will *act upon it as such.(p) And a similar declaration or pggn 
 direction even by the equitable owner, has also been supported as 
 a valid trust, (q) 
 
 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 annuity into the name 
 of the lady. Before the transfer was made the testator died, but the 
 agent, while ignorant of the death of his principal, had actually made 
 the transfer, which under those circumstances was valid by the law of 
 France. It was held by Lord Eldon, that the testator had committed 
 to writing a suflicient 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 2000?. 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 pro- 
 missory 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 testatrix in her lifetime. Under these cir- 
 cumstances Lord Langdale, M. R., held, that the transaction amounted 
 to a complete declaration 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 500?., to hold the debt in trust for a third person, who 
 was a volunteer, B. assented to the direction, and paid 10?. to the volun- 
 teer 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. (t) And in the still later case 
 
 (p) Ex parte Pye, 18 Ves. 149 ; Wheatley v. Purr, 1 Keen, 551 ; Meek v. Kettlewell, 
 1 Hare, 470; 1 Phill. 342; M'Fadden v. Jenkins, 1 Hare, 458; and 1 Phill. 153, ,1 ; 
 James v. Bydder, 4 Beav. 600 ; Thorpe v. Owen, 5 Beav. 224. 
 
 {q) Collinson v. Patrick, 2 Keen, 123 ; Rycroft v. Christy, 3 Beav. 238. 
 
 (r) Ex parte Pye and Dubost, 18 Ves. 140. (s) Wheatley v. Purr, 1 Keen, 551. 
 
 (t) M'Fadden v. Jenkins, 1 Hare, 458 ; 1 Phill. 153. 
 
 1 This is overruled now, see post, 88, note. 
 
134 CREATION OF TRUSTEES 
 
 of Thorpe v. Owen,(it) where B. in his lifetime had added a sum of 
 1000Z. belonging to himself to a trust fund held by him for the benefit 
 of his daughters, and had invested the whole aggregate sum together in 
 his own name, and he subsequently treated and admitted the whole sum 
 including the 1000Z. 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, (u) However, in Gaskell 
 v. Gaskell,(:c) a person wrote to his bankers, desiring them to transfer 
 certain sums into the names of himself and three other persons as trus- 
 tees for his wife for life, and after her death for his son. The transfer 
 was made ly the bankers, but there was some proof, that no communi- 
 cation of the transaction was made to the other trustees, and that the 
 r*S7l arran g emen t was made with *the view of avoiding legacy duty. 
 Under these circumstances, it was held by the Court of Exche- 
 quer, 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 recon- 
 cile 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 Collinson 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. E,., considered that 
 this was a complete declaration of trust, which the court would execute.(#) 
 And in a subsequent case, where a person, 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.(s) 
 
 The declaration of trust, however, must be complete and unequivocal ; 
 therefore a letter by a residuary legatee to executors, stating that she 
 would consent to a gift of 5001. to a volunteer, was considered to indi- 
 cate merely an intention to give, and not to create a trust.(a) 
 
 Moreover, although the declaration of the trust be distinct and per- 
 fect, yet if its limitations are of an executory character, the court will 
 
 («) Thorpe v. Owen, 5 Beav. 224 ; and see James v. Bydder, 4 Beav. 600. 
 
 (a;) Gaskell v. Gaskell, 2 Young & Jer. 502. [See Smith v. Warde, ante, 84, note.] 
 
 (y) Collinson v. Patrick, 2 Keen, 123. 
 
 (z) Rycroft v. Christy, 3 Boav. 238 ; and see Hinde v. Blake, lb. 234. 
 
 (a) Cotteen v. Missing, 1 Mad. 176. [See Scales v. Maude, 19 Jurist, 1147.] 
 
BY VOLUNTARY DISPOSITION. 135 
 
 not, as against the author of the trust, interfere on behalf of a volunteer 
 to give them effect.^) 1 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)(l) 
 
 However, decisions are to be found in the books, which it is very- 
 difficult to reconcile with some of the propositions stated above. In 
 Sloane v. Cadogan, Mr. Cadogan, being entitled to an equitable rever- 
 sionary 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 pay- 
 ment of the fund from the trustees, and the bill was filed by Mr. Cado- 
 gan's widow, who was also his executrix and residuary legatee, against 
 the executors of Lord Cadogan, to recover the fund, as part of Mr. 
 Cadogan's estate. But Sir *Wm. Grant, M. E,., held that the r . QQ -. 
 transaction had created a valid trust, and dismissed the bill.(d) *- ■* 
 
 In Fortescue v. Barnett the defendant made a voluntary assignment 
 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 posses- 
 sion, 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 of the sum secured by the policy and the bonus ; 
 
 (b) Colman v. Sarell, 3 Bro. C. C. 12 ; Holloway v. Healington, 8 Sim. 324. 
 
 (c) Beatson v. Beatson, 12 Sim. 281 ; Meek v. Kettlewell, 1 Hare, 476 ; 1 Phill. 342 ; 
 Rycroft v. Christy, 3 Beav. 238 ; see Godsall v. Webb, 2 Keen, 99 ; M'Fadden v. Jen- 
 kins, 1 Phill. 153, 7. [Contra, Donaldson v. Donaldson, 1 Kay, Til ; and see note to 
 next page, and post.] See on this, Kekewich v. Manning, [1 De. Gr. Mae. & G-. 176.] 
 
 (d) Sloane v. Cadogan, 2 Sugd. V. & P. Appendix, No. 26, 9th ed. [affirmed, Keke- 
 wich v. Manning, 1 De G. Mac. & G. 176.] 
 
 (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. Kettlewell, 1 Hare, 476. 
 [See 13 Jar. p. 2, page 213.] 
 
 * It is not essential to the validity of a voluntary disposition in trust that it should 
 take effect inprcesenti. As where one entitled to stock and real estate standing in 
 the name of a trustee, by a direction in writing signed by himself, requested the trustee 
 to hold the estate after his death, for the benefit of his wife and child, it was held a 
 good declaration of trust, and not a testamentary paper. Tierney v. Wood, 23 L. J. 
 Ch. 895, M. R. In Scales v. Maude, 19 Jurist, 1147, however, letters from a mortgagee 
 to parties interested in the mortgage estate, containing present words of gift, but to 
 take effect through her executors, at her death, were held by the Chancellor not to 
 take effect as a declaration of trust. The donor it was said had not done all in her 
 power to perfect the gift. 
 
136 ■ CREATION OF TRUSTEES 
 
 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 distinc- 
 tion which reconciles it in some measure with the other authorities. 
 "There," said his lordship, "the practice of the office was stated to be, 
 that upon an assignment, the office recognized the assignee, and the 
 policy was therefore an assignable instrument. The policy was not as- 
 signable at law, but 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. Kettlewell,(A) tend considerably 
 to weaken its authority. However, it has been remarked by Lord Cot- 
 tenham, 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 payment 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 accuracy the law, 
 affecting this very intricate subject. However, the writer conceives that 
 he is warranted in stating the following propositions to be the result of 
 the several decisions. 1 
 
 (e) Fortescue v. Barnett, 3 M. & K. 36. (/) In Edwards v. Jones, 1 M. & Cr. 239. 
 \g) 2 Sugd. V. & P. 168, 9th ed. 
 
 [h) 1 Hare, 475, and see Fenner v. Taylor, 2 R. & M. 195. 
 
 (i) Edwards v. Jones, 1 M. & Cr. 238 ; and see the examination of this case by Sir 
 L. Shadwell, V. C. E., in Beatson v. Beatson, 12 Sim. 291. 
 
 1 These questions were very thoroughly discussed, in Kekewich v. Manning, 1 De 
 Gex, M. & G. 176, 16 Jur. 625 ; before the Lords Justices of Appeal. In that case, 
 residuary estate, consisting of money in the funds, was bequeathed to a mother and 
 daughter, in trust for the 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 mother 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. Whether notice to the trustees 
 in such a case is necessary to perfect the assignment was not decided. The cases of 
 Sloane v. Cadogan, Fortescue v. Barnett, above cited, and Blakely v. Brady, 2 Dr. & 
 W. 311, were deliberately affirmed, and Edwards v. Jones, Meek v. Kettlewell, &c, 
 so far as inconsistent therewith overruled. So in Voyle v. Hughes, 23 L. J. 
 Ch. 238 ; 18 Jur. 341 ; 2 Sm. & Giff. 18 (V. Ch. Stuart), A. being entitled to a re- 
 versionary interest in a sum of stock, standing in the name of trustees, expectant on 
 the death of B., -made a voluntary assignment of his interest by deed to ft, and gave 
 notice to the trustees, and the assignment was held good as an actual transfer of an 
 equitable right. In Beech v. Keep, 23 L. J. Ch. 539 (M. R.), however, it was held 
 that under such circumstances, the assignor could not be compelled to do any act to 
 
BY VOLUNTARY DISPOSITION. 1ST 
 
 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 executed 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 unaccompanied by a 
 *deed or other act, divesting himself of the legal estate, is an» r*gcn 
 executed trust, and will be enforced against the party himself or 
 against his representatives, or next of kin after his death. (I) 
 
 An instrument, purporting to be a conveyance or assignment of pro- 
 perty, either directly to the objects of the party's bounty,(»i) or to trus- 
 
 (/c) Barlow v. Heneage, Prec. Ch. 211 ; Clavering v. Clavering, 2 Vera. 474; Sear 
 v. Ashwell, 3 Sw. 411, n. ; Bolton v. Bolton, lb. 413, n. ; Jefferys v. Jefferys, 1 Cr. & 
 Ph. 138; Smith v. Lynde, 2 N. C. C. 345; [Donaldson v. Donaldson, 19 Jur. 10; 1 
 Kay, 711.] 
 
 (Z) Ex parte Pye and Dubost, 18 Ves. 140 ; Wheatly v. Purr, 1 Keen, 551 ; M'Fadden 
 v. Jenkins, 1 Hare, 458 ; S. C. 1 Phil. 153, 7 ; James v. Bydder, 4 Beav. 600 ; Thorpe 
 v. Owen, 5 Beav. 224. 
 
 (ro) Antrobus v. Smith, 12 Ves. 39 ; Edwards v. Jones, 1 M. & Cr. 228 ; Dillon v. 
 Coppin, 4 Jur. 427 ; S. C. 4 M. and Cr. 647. 
 
 make the assignment available, as to transfer the stock, he having the legal title. See 
 also Bridge v. Bridge, 16 Beav. 315. In Donaldson v. Donaldson, 19 Jurist, 10, 1 
 Kay, 711, this subject was carefully considered by V. Ch. Wood, and the result of the 
 authorities with regard to the voluntary assignment of stock or choses in action, was 
 stated to be, that where the assignor had done all in his power to make the transfer 
 complete, and his assistance or that of his representatives is not required to perfect the 
 title of the assignee, there the assignment will be upheld. And it was there held that 
 it is not necessary that the assignee should also do all in his power to perfect the assign- 
 ment, and, therefore, that a deed of assignment of stock standing in the name of a 
 trustee, might be enforced against him after the death of the assignor, though no 
 notice had been given to the former, unless, indeed, he had in ignorance of the assign- 
 ment, transferred the stock to the assignor. In this case, one had by a voluntary 
 settlement of personalty assigned to trustees certain property described in a schedule 
 attached to the deed, upon the trusts therein mentioned. He then covenanted to per- 
 fect all assignments, and transfers, and to do all necessary acts, where they had not 
 been done, and afterwards declared that until such full and complete transfer and vest- 
 ing could be effected, he should stand possessed thereof upon the trusts of the settle- 
 ment. The property specified in the schedule, was (1), stock in the settlor's name, 
 not transferred ; (2), stock in the name of trustees of an old settlement, to the beneficial 
 interest of which the settlor was entitled ; (3), certain securities which passed by delivery; 
 (4), railway shares, &c, which required a particular transfer by deed ; (5), mortgage 
 securities and a beneficial lease. The settlor died without doing more than delivering 
 the bonds, shares, &c, in the particulars (3), (4), (5), to one of the trustees, and no notice 
 was given to the trustees under (2). It was held that the settlement was a binding one, 
 as against the crown claiming for legacy duty. See on this subject 1 Am. Law Reg. 
 385. 
 
 In Huntly v. Huntly, 8 Ired. Eq. 250, approved in Garner v. Garner, 1 Busbee Eq. 
 1, it was held that a transfer of personalty by a husband to his wife, by bill of sale, 
 though it did not convey the legal title, might operate as an irrevocable declaration of 
 trust. 
 
138 CREATION OF TRUSTEES 
 
 tees 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 memorandum ;(o) or a deed 
 under seal and formally executed.^) 
 
 If, however, the title of the parties, taking under such an assignment 
 (though not good at law), is recognized by an express custom or conven- 
 tion (as in the case of a policy of insurance), an absolute voluntary 
 assignment upon trusts may have the same effect as a perfect legal con- 
 veyance.^) 
 
 2d. Where the author of the trust is possessed only of an equitable 
 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 accepted and acted, 
 upon by 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 will 
 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 them.(s) 
 
 The decision of Sir Win. 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 bind- 
 ing trust, as a conveyance of a legal estate. But the authority of that 
 case, which was considerably weakened by the disapprobation it has 
 received both from Sir E. Sugden and Lord Cottenham, must now be 
 considered as completely overturned by V. C. Wigram's decision in the 
 recent case of Meek v. Kettle well, (t) which has since been affrmed on 
 appeal by Lord Lyndhurst, Chancellor.(M)(l) 
 
 (n) Colman v. Sarell, 3 Bro. C. C. 12 ; Holloway v. Headington, 8 Sim. 324 
 
 (0) Antrobus v, Smith, 12 Ves. 39 ; Edwards v. Jones, 1 M. & Cr. 226. 
 
 (p) Colman v. Sarell, 3 Bro. C. C. 12 ; Holloway v. Headington, 8 Sim. 324; Meek 
 v. Kettlewell, 1 Hare, 474, 5; 1 Phill. 343 ; Dillon v. Coppin, 4 Jur. 427 ; 4 M. & Cr. 
 647; [Bridge v. Bridge, 16 Jur. 1031 ; 16 Beav. 315 ; Donaldson v. Donaldson, 19 Jur. 
 10, 1 Kay, 711 ; Beech v. Keep, 23 L. J. Ch. 539; 13 Jur. 971.] 
 
 (g) Fortescue v. Barnet, 3 M. & K. 36 ; see Edwards v. Jones, 1 M. & Cr. 239. 
 
 (r) Rycroft v. Christy, 3 Beav. 238 ; Collinson v. Patrick, 2 Keen, 123 ; Meek v. 
 Kettlewell, 1 Hare, 471 ; but see Beatson v. Beatson, 12 Sim. 281. 
 
 (s) Meek v. Kettlewell, 1 Hare, 464-76 ; and see Beatson v. Beatson, 12 Sim. 281. 
 
 (*) 1 Hare, 475. 
 
 («) 13 Law Journ. N. S. Chanc. 28 ; 1 Phill. 343. [But see ante, note to page 88.] 
 
 (1) In a recent case at the Rolls, A. made a voluntary assignment of personal pro- 
 perty, including a mortgage debt and a policy of insurance, to a trustee, in trust 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 
 
BT VOLUNTARY DISPOSITION. 139 
 
 *By the statute, 13 Eliz. c. 5, a voluntary conveyance of pro- t^qq-i 
 perty 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 making the settle- 
 ment.^) 1 
 
 And a similar conveyance of real estate (including chattels real), is 
 also inoperative against the claim of a subsequent purchaser for valuable 
 consideration under the statute 27 Eliz: c. 4.(y) 2 And neither the 
 trustees or cestui que trusts under the voluntary settlement have any 
 remedy against the settlor or the purchaser in such a case, (z) 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 contract for the sale of the estate, entered into 
 by him after the settlement. (b) 
 
 Chattels personal are not within the statute 27 Eliz. c. 4, and a 
 
 (k) Fletcher v. Sidley, 2 Vera. 490 ; Taylor v. Jones, 2 Atk. 600. 
 
 (y) Sanders v. Dehew, 2 Vera. 272. [Not, however, where the voluntary settlement 
 was in favor of a charity. Newcastle v. Atty.-Gen. 12 CI. & P. 402.] 
 
 (z) Evelyn v. Templar, 2 Bro. C. C. 148 ; Williamson v. Williamson, 1 Ves. 516 ; 
 Pulvertoft v. Pulvertoft, 18 Ves. 84. 
 
 (a) Pulvertoft v. Pulvertoft, 18 Ves. 91-93. [But see the American authorities cited 
 in notes to 1 Am. Lead. Cases, 62.] 
 
 (o) Johnson v. Legard, T. & R. 294; Smith v. Garland, 2 Mer. 123. 
 
 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 tiiists, 
 against the executors 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 Cottenham. S. C. 8 Sim. 571. 
 
 1 In Skarff v. Soulby, 13 Jur. 1109 ; 1 Mac. & G. 364; 1 Hall & T. 426, it was held 
 that the mere fact of a settlor's being indebted was not sufficient to invalidate a volun- 
 tary settlement ; and that it was not necessary on the other hand to show insolvency. 
 The American cases on this subject, which are numerous 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 Peun. 109, where it was held that a voluntary convey- 
 ance by a person indebted 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. 
 
 2 In a recent case in England, Doe d. Newman v. Rusham, 17 Q. B. 723, it was held 
 that the ground on which voluntary conveyances have been held to be void as against 
 subsequent purchasers is, that by selling the property for a valuable consideration, the 
 vendor so entirely repudiates the former voluntary conveyance, as that it shall be taken 
 conclusively against him and the person to whom he conveyed, that such intention ex- 
 isted when he made the conveyance, and that it was made in order to defeat the pur- 
 chaser (see Cathcart 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, 11 C. B. 1035. 
 
140 CONSTITUTION OP TRUSTEES. 
 
 voluntary settlement of such property will therefore be valid against a 
 subsequent purchaser, (c) 
 
 [*9i] *DIVISION II. 
 
 THE CONSTITUTION OF TRUSTEES BY IMPLICATION, 
 OR CONSTRUCTION OF LAW. 
 
 The relation of trustee may be constituted not only by the express 
 declaration of the parties, but also by virtue of a trust, raised and 
 created by implication, or construction of law. 1 
 
 (c) Jones v. Croucher, 1 S. & St. 315. [Adams v. Broughton, 13 Alab. 731 ; Bohn v. 
 Headley, 7 H. & J. 257; Sewall v. Glidden, 1 Alab. 53; Contra, Hudnal v. Wilder, 4 
 McCord, 295 ; Wade v. Green, et al. 3 Hump. 547 ; Caston v. Cunningham, 3 Strob. 
 59 ; Fleming v. Townsend, 6 Geo. 103.*] 
 
 1 The Revised Statutes of New York (3d ed. Part II, Ch. 1, Art. 6, I 51, &c.) have 
 abolished resulting trusts arising from the payment of the purchase-money, except as 
 regards the creditors of the party paying ; and, \ 53, except when the nominal grantee 
 has taken the deed as an absolute conveyance, without the consent or knowledge of the 
 real purchaser ; or where the purchase is made with another's money in violation of 
 some trust: see Watson v. Le Bow, 6 Barb. S. C. 481 ; Jencks v. Alexander, 11 Paige, 
 619 ; Lounsboury v. Purdy, 16 Barb. 380 ; Seaman v. Cook, 14 Illin. 501. Though in 
 Louisiana express trusts have been prohibited, this does not affect those arising by 
 implication or operation of law. Gaines v. Chew, 2 How. U. S. 619. From the sub- 
 sequent decision of McDonogh's Executors v. Murdoch, 15 How. U. S. 367, indeed, it 
 would appear that the prohibition of the Louisiana Code against fidei commissa, does not 
 apply, as has been supposed, to the trusts of the English law, but only to substitutionary 
 limitations of property in the nature of estates tail. 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 to be immaterial, 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 v. Dubois, 5 
 Paige, 114 ; Alexander v. Warrance, 17 Mo. 230 ; Anstice v. Brown, 6 Paige, 448 ; 
 Clark v. Burnham, 2 Story, 1 ; Mercer v. Stark, 1 Sm. & M. Ch. 479. 
 
 A resulting or constructive trust is, of course, not executed by the Statute of Uses. 
 Strimpfler v. Roberts, 18 Penn. St. R. 301 ; White v. Kavanagh, 8 Rich. Law, 393. Nor 
 within the Statute of Charles II; and therefore cannot be sold on a fi. fa. : White v. Kava- 
 nagh, ut sup. ; Crozier v. Young, 3 Monr. 158 ; Gowing v. Rich, 1 Ired. Law, 553 ; Barron 
 v. Barron, 24 Vermt. 375 ; Contra, Smitheal v. Gray, 1 Humph. 491 ; but in Pennsylva- 
 nia, as an execution will reach all species of interest, equitable as well as legal, it is 
 otherwise. Kimmel v. McRight, 2 Penn. St. 38. So in Indiana. Tevis v. Doe, 3 Porter 
 Ind. 129. The levy of a fi. fa., however, will enable the creditor to come into equity 
 to reach the cestui que trusts estate. Barron v. Barron, ut supr. A resulting trust ia 
 not the subject of partition at law: Williams v. Van Tuyl, 22 Ohio, 336; nor of dower, 
 in Maryland, at least. Purdy v. Purdy, 8 Maryl. Ch. 547. Nor can it be set up against 
 an action of trover on a legal title. Guphitt v. Isbell, 8 Rich. Law, 463. But it will 
 
TRUSTEES BY RESULTING OR PRESUMPTIVE TRUST. 141 
 
 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 operation of law ; and 
 such may be distinguished as " constructive trusts. "(a) 
 
 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 implication or construction of 
 law, or be transferred or extinguished by an act or operation of law, 
 then and in every such case, such trust or confidence shall be of the like 
 force and effect as the same would have been, if that statute had not 
 been made." 
 
 CHAPTER I. 
 
 TRUSTEES BY VIRTUE OF A RESULTING OR PRIMITIVE 
 
 TRUST. 
 
 I. Where, a Purchase is made III. Where there is a Voluntary 
 
 by one Person in the name Disposition of Property 
 
 of Another, [91]. upon Trusts which are not 
 
 II. Where there is a Volun- Declared, or are only par- 
 
 tary Conveyance without tially Declared, or Fail, 
 
 any Declaration of Trust, [H3]. 
 [106]. 
 
 I.— WHERE A PURCHASE IS MADE BY ONE PERSON IN THE NAME OF 
 
 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 trans- 
 
 (a) 1 Cruis. Dig. 391 ; Story, Equity Jur. f 1195 ; 1 Spenc. Eq. Jur. 510 ; 2 Id. 198 ; 
 and see Cook v. Fountain, 3 Swanst. 585. [See Starr v. Starr, 1 Hamm. 321 ; Dean v. 
 Dean, 6 Conn. 285 ; Eoss v. Hegeman, 2 Edw. Ch. 373 ; Thomas v. Walker, 6 Hump. 
 93.] 
 
 pass to an assignee in bankruptcy, though created in fraud of creditors, and therefore 
 not enforceable by the bankrupt himself: Carr v. Hilton, 1 Curtis C. C. 230. And such 
 a trust in real estate is capable of giving a settlement within the poor-laws. Pembroke 
 v. Allenstown, 1 Foster, 107. 
 
 A resulting trust arising from the payment of purchase-money will be barred by the 
 Statute of Limitations. Strimpfler y. Kobert, 18 Penn. St. 301 ; Marr v. Chester, 1 
 Swan, 416 ; see post, 264, note. 
 
142 TRUSTEES BY RESULTING 
 
 r Q ' action, and *the person named in the conveyance will be a 
 *- J trustee for the party from whom the consideration proceeds ;(6)' 
 
 (6) Willis v. Willis, 2 Atk. 71 ; Lloyd v. Spillet, lb. 150; Rider v. Kidder, 10 Ves. 
 360. 
 
 1 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. Aldrieh, 5 Cush. 435 ; Boyd v. McLean, 1 J. C. R. (N. Y.) 582 ; Botsford 
 v. Burr, 2 J. C. R. 409 ; Poote v. Colvin, 3 J. R. 21 6 ; Jackson v. Morse, 16 J. R. 197 ; 
 Partridge v. Havens, 10 Paige, 618; Depeyster v. Gould, 2 Green Ch. (N. J.) 480; 
 Stewart v. Brown, 2 S. & R. (Pa.) 461 ; Jackman v. Ringland, 4 W. & S. 149; Newells 
 v. Morgan, 2 Harr. (Del.) 225 ; Hollis v. Hollis, 1 Mary. Ch. 479 ; Dorsey v. Clark, 4 
 Har. & J. (Mary.) 551; Bank U. S. v. Carrington, 7 Leigh, (Va.) 566; Glenn v. 
 Randall, 2 John. Mary. Ch. 221 ; Henderson v. Hoke, 1 Dev. & Bat. Eq. (N. C.) 119; 
 McGuire v. McGowen, 4 Dess. (S. C.) 491 ; Dillard v. Crocker, Spears Ch. 20 ; Williams 
 v. Hollingsworth, 1 Strob. Eq. 103; Kirkpatriek v. Davidson, 2 Kelley (Geo.), 297; 
 Foster v. Trustees, 3 Alab. 302; Taliaferro v. Taliaferro, 6 Alab. 404; Mahorner v. 
 Harrison, 13 Sm. & M. (Miss.) 65 ; Walker v. Brungard, 13 Sm. & M. 764; Powell v. 
 Powell, 1 Freem. Ch. 134; Ensley v. Balentine, 4 Humph. (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 v. Sleeper, 1 Dana, 536 ; Creed v. Lancaster Bank, 1 Ohio, 
 St. N. S. 1 ; Elliott v. Armstrong, 2 Blackf. (Ind.j 198; Jenison v. Graves, I<L444; 
 Smith v. Sackett, 5 Gilm. (111.) 534 ; Prevo v. Walters, 4 Scamm. 35 ; Paull v. Chouteau, 
 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 
 funds, tke'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 commonwealth, 
 as if a warrant is taken in the name of one, but the money is paid by another. Strimp- 
 fler v. Roberts, 18 Penn. St. R. 283. 
 
 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 ; Kirkpatriek v. McDonald, 1 Jones (Penn.), 393; Baldwin v. Johnson, 
 Saxton, 441 ; Smith v. Ramsey, 1 Gilm. 373 ; Pugh v. Currie, 5 Alab. 446 ; Edgar v. 
 Donnelly, 2 Munf. 387 ; Martin v. Greer, 1 Geo. Dec. 109 ; Freeman v. Kelley, 1 Hoff. 
 Ch. 90; Moflitv. McDonald, 11 Humph. 457 ; Smithv.Barnham, 3 Sumn. 435; Turner 
 v. Petigrew, 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 v. Hutchin- 
 son, 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 ; Seaman v. Cook, 14 
 Illin. 501 ; see Beck v. Uhrich, 16 Penn. St. 499 ; or a committee invests funds of a 
 lunatic in land: Reid v. Filch, 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, indeed, they elect to take the money instead 
 thereof. On the same principle, where a husband buys land with his wife's separate 
 
OR PRESUMPTIVE TRUST. 143 
 
 and unless such a resulting trust would break in on the policy of an act 
 of Parliament, this will be the case, 'whatever may be the nature of the 
 property j 1 and whether the conveyance be taken in the names of the 
 purchaser and his nominee jointly, or in the name of the nominee with- 
 out 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 conside- 
 ration, the use results to the feoffor.(c)(l) 
 
 (c) Dyer v. Dyer, 2 Cox, 92 ; 2 Sugd. V. & P. 134, 9th ed. ; 2 Stor. Eq. Jur. 120 ; 
 2 Mad. Ch. Pr. 140. 
 
 (1) A distinction is taken by Sir B. Sugden, in Bis work on vendors and purchasers, 
 
 property, or with the sayings 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 v. Codwise, 1 Sandf. Ch. 214; Pinney v. Fellows, 15 Verm. 525 ; 
 Barron v. Barron, 24 Vermt. 375 ; Darkin v. Darkin, 23 L. J. Ch. 890 (though see 
 "Wallace v. McCullough, 1 Rich. Ch. 426) ; but as to savings out of moneys supplied 
 by the husband or her own 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, 1 Am. Law Reg. 439 ; 20 Penn. 
 St. 308 ; S. P. Merrill v. Smith, 31 Maine, 394 ; Henderson v. "Warmack, 27 Miss. 830. 
 
 The identity of trust moneys, under such circumstances, consists not in the actual 
 pieces of coin, but of the fund itself, which may be fojlowed so long as its identity can 
 be traced. U. S. v. Inhabitants of Waterborough, Davies, 154. See Goepp's Appeal, 
 15 Penn. St. 428. The right of pursuit will fail, however, where the means of ascer- 
 tainment fail, as when trust property is converted into money, and passed away, or into 
 a mass of property of the same description. Thompson's App. 22 Penn. St. 16. But 
 the mingling of trust funds with his own private funds, in the purchase of land, will 
 not avail a trustee to prevent a resulting trust ; for, according to the usual rule on the 
 subject of confusion, it will then become his duty to establish how much of his own 
 money went to the purchase, or the cestui que trust will take the whole. Seaman v. 
 Cook, 14 Illinois, 505; see Russell v. Jackson, 10 Hare, 209. 
 
 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 purchase, and a right 
 to a decree for a sale, if necessary to reimburse them. Wallace 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 II, p. 591 ; Wallace v. McCullough, 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 proceeds in lands : Ensley 
 v. Ballantine, 4 Humph. 233 ; or a clerk in a store pilfers money from his employer 
 and buys real estate: Campbell v. Drake, 4 Ired. Eq. 94 (though see Bank of 
 America v. Pollock. 4 Edw. Ch. 215), there is no resulting trust. 
 
 1 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 choses in action, as stock or annui- 
 ties, as well as to realty: Sidmouth v. Sidmouth, 2 Beav.454; Ex parte Houghton, 17 
 Ves. 253 ; Rider v. Kidder, 10 Ves. 365 ; Creed v. Lancaster Bank, 1 Ohio St. N. S. 
 10. Notwithstanding the rule of law that a slave cannot acquire property, a purchase 
 of land maybe made by one in the name of a free person, with the assent of the master, 
 in which case^ though the right of present enjoyment \might be prevented by the state 
 of slavery, yet no one could interfere but the master, and if the slave subsequently be- 
 comes free, the resulting trust may be enforced. Leiper v. Hoffman, 26 Mississ. 615. 
 
144 TRUSTEES BY RESULTING 
 
 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 v have contri- 
 buted. 1 This appears to have been doubted by Lord Hardwicke in the 
 case of Crop v. Norton ;{d) but in the subsequent case 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 cestuis que vie will in general be 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.(g) 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 prevailed, and 
 
 (d) Crop v. Norton, 2 Atk. 74; and 9 Mod. 233. 
 
 (e) Wray v. Steel, 2 V. & B. 388 ; 2 Sugd. V. & P. 140, 9th ed. ; and see Riddle v. 
 Emerson, 1 Vern. 108, and Palmer v. Young, lb. 276. 
 
 (/) Withers v. Withers, Ambl. 151. 
 
 (g) Howe v. Howe, 1 Vern. 415 ; Withers v. Withers, Ambl. 151 ; Swift v. Davis, 8 
 East, 354, n. ; Prankerd v. Prankerd, 1 S. & St. 1 ; Benger v. Drew. 1 P. Wms. 781. 
 (h) Smith v. Baker, 1 Atk. 385 ; Withers v. Withers, Ambl. 151. 
 
 where two or more persons contract for the purchase of an estate, which is conveyed 
 to them both, but the 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. 
 
 1 Botsford v. Burr, 2 J. C. R. 405 ; Pierce v. Pierce, 7 B. Monr. 433 ; Quackenbush 
 v. Leonard, 9 Paige Ch. 334 ; Stewart v. Brown, 2 S. & R. 461 ; Bernard v. Bougard, 
 ' Harr. Ch. 130 ; Shoemaker v. Smith, 11 Humph. 81 ; Powell v. Manufactory, 3 Mason, 
 347 ; Letcher v. Letcher, 4 J. J. Marsh. 590 ; Jackson v. Moore, 6 Cowan, 706 ; Buck 
 v. Swazey, 35 Maine, 41 ; Pnrdy v. Purdy, 3 Maryl. Ch. 547 ; Seaman v. Cook, 14 Ulin. 
 505 ; Morey v. Herrick, 18 Penn. St. 129. But a resulting trust cannot he claimed by 
 one who pays only part, unless it be some definite part. Sayre v. Townsend, 15 Wend. 
 647; White v. Carpenter, 2 Paige, 238; Baker v. Vining, 30 Maine, 121. In Shoe- 
 maker v. Smith, 11 Humph. 81, however, it was held that the presumption was, in the 
 first instance, where two contributed the funds, and the conveyance 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. Fowle, 14 N. H. 248 ; and see Cook v. 
 Bronaugh, 8 Engl. Ark. 183. 
 
OR PRESUMPTIVE TRUST. 145 
 
 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 be the purchaser, although 
 the fine was actually paid by a third person, it was held, that the fine 
 *must be taken to have been paid as expressed in the copy, and r*qq-i 
 consequently that no trust could be enforced.(ft) 
 
 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 result- 
 ing 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 survivor- 
 ship ; and in the absence of any controlling circumstances, the survivor 
 will take the whole estate in equity, as well as at law.(m) 1 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 survivorship 
 in equity.(w) So if two or more persons take a joint mortgage security 
 for a sum of money advanced between them,(o) 2 or if the transaction be 
 in the nature of a joint undertaking or partnership, as in the case of a 
 joint purchase of lands for the purpose of improvement and cultiva- 
 tion ;{p) s or of a building or farming lease taken by several persons as 
 
 (i) Edwards v. Fidell, 3 Mad. 23?. (k) Chalk v. Danvers, 1 Ch. Ca. 310. 
 
 (1) Vide post, Sect. 2, and Jefferys v. Jefferys, Cr. & Ph. 138 ; Currant v. Jago, 1 
 Coll. N. C. C. 261. (m) Mosse v. Gyles, 2 Vern. 385 ; 2 Sugd. V. & P. 127, 9th ed. 
 
 (n) Rigden v. Vallier, 2 Ves. Sen. 258. [Brothers v. Porter, 6 B. Monroe, 106 ; see 
 Tompkins v. Mitchell, 2 Rand. 429.] 
 
 (o) Petty v. Styward, 1 Ch. Ca. 31 ; and 9 Ves. 597, n. 
 
 (p) Lake v. Craddock, 3 P. Wms. 158. 
 
 1 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 Com. 361. These statutory provisions do not apply to the estates of 
 express trustees. Parsons v. Boyd, 20 Alab. 112. 
 
 2 Randall v. Phillips, 3 Mason, 378 ; see Appleton v. Boyd, 7 Mass. 131. In Randall 
 v. Phillips, it was held under the Rhode Island statute, that there was no survivorship 
 at law. It has been held, however, differently in Massachusetts and Maine. Appleton 
 v. Boyd, ub. sup.; Kinsley v. Abbott, 19 Maine, 430 ; see Gaines v. Grant's lessee, 5 
 Binn. 119. 
 
 3 Caines v. Grant's lessee, 5 Binn. 119 ; Duncan v. Porrer, 6 Binn. 193 ; Deloney v. 
 Hutcheson, 2 Rand. 183 ; McAllister v. Montgomery, 3 Heyw. Tenn. 94 ; Parley v. 
 
 JO 
 
146 TRUSTEES BY RESULTING 
 
 joint tenants ;(q) in all these cases, although the 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 survivor in favor of the repre- 
 sentatives of the deceased partner.(r) 
 
 However, an exception to this rule was introduced by the Ship 
 Registry Acts. 1 If A. purchased a ship in the name of B., and the sale 
 was registered in the name of B., B.'a title could not be dislodged.(s) 
 So, where a ship was purchased with partnership property, but was 
 registered *in the name of some only of the partners, omitting 
 L J the names of others, it was held, even against a claiifl 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 recent Registry Act of the 6th Geo. IV, c. 
 110.(£) 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, legatees, creditors, or others, exceeding that number, duly repre- 
 sented by, or holding from, any of the persons in the said number." 
 
 The wording of this section is singularly loose and ambiguous, < and it 
 
 (q) Jefferys v. Small, 1 Vera. 217 ; Hayes v. Kingdome, lb. 33 ; Lyster v. Dolland, 
 1 Ves. Jun. 431. 
 
 (r) 2 Sugd. V. & P. 128, 9th ed.; 2 Stor. Eq. Jur. 120, 2 Mad. Ch. Pr. 142. 
 
 (s) Ex parte Houghton, 17 Ves. 251 ; 2 Mad. Ch. Pr. 142. 
 
 (t) Curtis v. Perry, 6 Ves. 739 ; Ex parte Yallop, 15 Ves. 60]; Slater v. Willis, 1 
 Beav. 354. 
 
 Shippen, "Wythe, 135 (2d ed. 254) ; Cuyler v. Bradt, 2 Ca. C. E. 326; Sigourney v. 
 Munn, 7 Conn. 11 ; Pugh v. Currie, 5 Alab. 446 ; see Overton v. Lacy, 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 
 suitable provisions of the state, or would assist the parties in evading those provisions. 
 Thus, if an alien, for the purpose of evading any law prohibiting foreigners from hold- 
 ing 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 result- 
 ing 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. [Phillips v. Cramond, 2 W. C. C. R. 441.] Quasre, what would be the 
 title of the third person (to whom the conveyance had been made) if offered to a pur- 
 chaser with notice of his breach of faith with the alien ? What would be the remedy of 
 the alien at 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 consent? (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 mem- 
 ber of Parliament. Groves v. Groves, 3 Y. & J. 163 ; see Phillpotts v. Phillpotts, 10 C. 
 B. 85.] 
 
OR PRESUMPTIVE TRUST. 147 
 
 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. 1 
 
 However this may be, it is clear from the words made use of, that the 
 legislature at any rate recognized the possibility of the existence of an 
 equitable interest in a ship in contradistinction to the legal ownership as 
 defined by tlfe register. 
 
 With the exception above noticed, the doctrine (as between strangers 
 in blood) has been incontrovertibly established, that upon a conveyance 
 of property, the legal estate shall be held in trust for the party by 
 whom the purchase-money is paid. For this purpose, the payment of 
 the money must be clearly proved ;{uf and this may be done by any 
 evidence going directly to the fact of payment ; as by the admissions of 
 the nominal purchaser ;[xf or by a statement in the purchase deed ; or 
 
 (u) Newton v. Preston, Prec. Ch. 103 ; Gascoigne v. Thwing, 1 Vera. 366 ; Willis v. 
 Willis, 2 Atk. 71 ; Groves v. Groves, 3 You. & Jerv. 169. [Enos v. Hunter, 4 Gilm. 
 211; Carey v. Callan, 6 B. Monroe, 44; Bottsford v. Burr, 2 J. C. R. 405 ; Hiekey v. 
 Young, 1 J. J. Marsh. 3 ; Wright v. King, Har. Ch. 12 ; see as to the evidence neces- 
 sary, Hunter v. Marlboro, 2 Wood & M. 168.] 
 
 (x) O'Hara v. O'Niel, 2 Eq. Ca. Abr. 475; Cottington v. Fletcher, 2 Atk. 155 ; 2 
 Mad. Ch. Pr. 141, 3d ed.; Ambrose v. Ambrose, 1 P. Wms. 321. 
 
 1 Notwithstanding the doubts thus expressed by the author, no change has been made 
 in this respect by the 3 & 4 Wm. 4. The Court of Chancery can, under that statute, 
 recognize no equitable interest, distinct from the registered title. Specific performance 
 of an unregistered contract for the sale of a vessel, cannot be enforced-; nor will a pur- 
 chaser with notice be affected thereby, even, it would seem, in a case of fraud ; and the 
 same doctrines apply as to the proceeds of a ship, so far as they affect the ship itself. 
 Hughes v. Morris, 2 De G. Macn. & G. 349 ; McCalmont v. Bankin, Id. 403 ; Coombs 
 v. Mansfield, 24 L. J. Ch. 513 ; Parr v. Applebee, Id. 767 ; Armstrong v. Armstrong, 24 
 L. J. Ch. 659. In the last case, however, it was held that where there is an agreement 
 for the sale of a ship, or of a share thereof, and to hold the proceeds in trust, it could 
 be enforced. But see the remarks on this case in Coombs v. Mansfield, and Parr v. 
 Applebee, ut supr. 
 
 2 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 v. Tradesman'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 ; Bunnells v. Jackson, 1 How. Miss. 358. So 
 where part is paid in cash, and a note given for the residue. Lounsbury v. Purdy, 16 
 Ba'rb. S. C. 380. Or where one of two joint purchasers procures 'a surety to indorse 
 the note of the other for the purchase-money. Morey v. Herrick, 18 Penn, St. 129. 
 And so where the consideration is the payment of an old debt which the land is held 
 to secure. Dwinel v. Veazie, 36 Maine, 509. Where the money is payable by instal- 
 ments, payment of part is not sufficient. Conner v. Lewis, 16 Maine, 274. 
 
 3 Malin v. Malin, 1 Wend. 626 ; Pierce v. McKeehan, 3 Barr, 136 ; Harder v. Harder, 
 2 Sandf. Ch. 17 ; Lloyd v. Carter, 17 Penn. St. 216 ; Peabody v. Tarbell, 2 Cush. 232 ; 
 see Smith v. Burnham, 3 Sumn. 438; Barron v. Barron, 24 Verm. 375. And a fortiori 
 by his deposition or answer. Pinney v. Fellows, 15 Verm. 525 ; Seaman v. Cook, 14 
 
148 TRUSTEES BY RESULTING 
 
 in the admission on the court rolls, where the property is copyhold.(y) 
 But the statement in the purchase deed, or admission, as to the pay- 
 ment of the money, is not conclusive against the nominee, although it 
 will require strong evidence to rebut it.(s) In every case the evidence 
 adduced must be such as goes distinctly to the fact of payment. Loose 
 and equivocal facts, such as possession of the property by the party who 
 is alleged to have advanced the money, will not be sufficient.(a) How- 
 ever, 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 impossible for him to have been the purchaser.(S) But it is 
 doubtful whether mere parol evidence would be admissible under any 
 *circumstances against the answer of the nominal purchaser, 
 L J denying the facts on which the trust is attempted to be esta- 
 blished,^) although such evidence was admitted in an early case.(d) 1 
 
 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 pre- 
 sumption that the money in fact belonged to another, it has been a sub- 
 ject of controversy, whether parol evidence is admissible after the death 
 of the 'nominal purchaser to prove a resulting trust. There is no ques- 
 tion but that such evidence is admissible in the lifetime of the nominal 
 purchaser. 2 
 
 Mr. Sanders has maintained the negative of this proposition, on the 
 ground, that the admission of parol evidence in such cases would be 
 
 (y) Benger v. Drew, 1 P. Wms. 780. (z) lb. 
 
 (a) Groves v. Groves, 3 Y. & J. 179. [See Hunter v. Marlboro, 2 "Wood & M. 168.] 
 
 (6) Per Lord Hardwicke in Willis v. Willis, 2 Atk. 81 ; and see Ryall v. Ryall, cited 
 Ambl. 413. [See 18 Penn. St. R. 283.] 
 
 (c) Newton v. Preston, Pree. Ch. 103 ; Fordyce v. Willis, 3 Bro. C. C. 577; Bartlett 
 v. Pickersgill, 1 Ed. 515 ; 2 Sugd. V. & P. 135 ; but see Gascoigne v. Thwing, 1 Vera. 
 366. (d) 1 Vern. 366. 
 
 Illin. 503. But a subsequent declaration that be purchased for another, without proof 
 of any previous engagement or advance of money, is not sufficient. Sidle v. Walters, 5 
 Watts, 389; Haines v. O'Conner, 10 Id. 313; Morey v. Herrick, 18 Penn. St. 128; 
 Blybolder v. Gilson, Id. 134. 
 
 1 In the United States it has been held very generally that parol proof is admissible 
 in such a 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 v. McLean, 1 J. 0. 
 R. 582 ; Botsford v. Burr, 2 J. C. R. 405 ; Buck v. Pike, 2 Fairf. 24 ; Baker v. Vining, 
 30 Maine, 121; Page v. Page, 8 N. H. 187; Snelling v. Utterback, 1 Bibb. 609; 
 Letcher v. Letcher, 4 J. J. Marsh. 590 ; Elliott v. Armstrong, 2 Blackf. 198 ; Jenisoh 
 v. Graves, Id. 440 ; Blair v. Bass, 4 Blackf. 540 ; Larkins v. Rhodes, 5 Porter, 196; 
 Parringer v. Ramsey, 2 Maryl. R. 365. As in other cases, to overthrow the denial of 
 the answer, there must be two witnesses 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. 
 
 2 Livermore v. Aldrich, 5 Cushing, 435 ; and cases there cited. 
 
OR PRESUMPTIVE TRUST. 149 
 
 contrary to the Statute of Frauds ;(e) and he refers to several of the 
 older cases as authorities for this proposition :(/) and this opinion has 
 been adopted and even extended by another writer of considerable 
 authority.^) ' 
 
 However, on the other hand, Mr. Maddox, in his Treatise on Chancery 
 Practice, expresses the inclination of his opinion to be, that parol evi- 
 dence may be admitted under such circumstances ;(h) and Sir E. Sugden, 
 in his work on Vendors and Purchasers, ably maintains 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 lifetime, (i) 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 be 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. Clarke, M. R., that if A. sold an estate to C, and the 
 consideration 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 be supported by parol 'evidence." (m) 
 
 *Upon the whole the preponderance of authority seems to be r^q^-i 
 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 ex- 
 pressly 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 
 
 (e) See Mr. Sanders' note to Lloyd v. Spillett, 2 Atk. 150, and Sand. Uses, 259, 260. 
 3ded. 
 
 (/) Kirk v. Webb, Pree. Ch. 84; Newton v. Preston, lb. 133; Gascoigne v. Thwing, 
 1 Vern. 366 ; Hooper v. Byles, 2 Vern. 480 ; Crop v. Norton, 2 Atk. 75; and see Chalk 
 v. Danvers, 1 Ch. Ca. 310. (g) Roberts on Stat, of Frauds, 99. 
 
 (h) 2 Mad. Ch. Pr. 141, 3d ed. \_Acc. Harrisburg Bank v. Tyler, 3 W. & S. 373 ; 
 Freeman v. Kelly, 1 Hoff. Ch. 90 ; Unitarian Soc. v. Woodbury, 14 Maine, 281 ; 
 Harder v. Harder, 2 Sand. Ch. 17; Depeyster v. Gould, 2 Green Ch. 474; Neill v. 
 Keese, 5 Texas, 23.] 
 
 (i) 2 Sugd. V. & P. 136, 9th ed. (7c) Chalk v. Danvers, 1 Ch. Ca. 310. 
 
 (I) Stated in Sugd. V. & P. 137. (m) Leach v. Leach, 10 Ves. 517. 
 
150 TRUSTEES BY RESULTING 
 
 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 aupther 
 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 by the principal; 
 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.^) 1 
 
 So where the owner of an estate conveys it to another absolutely 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.^) 
 
 As the resulting trust in these cases is a mere matter of equitable 
 presumption, it may be rebutted by other circumstances, which negative 
 that presumption. And for this purpose parol proof is admissible,(r) a 
 for resulting trusts are left unaffected by the Statute of Frauds, and 
 before that statute a bare declaration by parol would prevent any re- 
 sulting trust, (s) Moreover, the evidence in such a case would be in 
 support of the legal title. 
 
 (n) 2 Sugd. V. & P. 138, 9tli ed. ; and see Sir William Grant's observations in Leach 
 v. Leach, 10 Ves. 517-8. [Carey v. Callan, 6 B. Monroe, 44.] 
 
 (o) Delane v. Delane, 7 Bro/P. C. 279 ; 2 Sugd. V. & P. 186 ; Bonney v. Ridgard, 
 cited 4 Bro. C. C. 138; Beckford v. Wade, 17 Ves. 97. [Robertson v. Maclin, 3 Heyw. 
 70 ; Peebles v. Reading, 8 S. & R. 484.] 
 
 (p) Rastal v. Hutchinson, 1 Dick. 44; O'Hara v. O'Niel, 2 Br. P. C. 39; Barfclettv. 
 Pickersgill, 4 Burr, 22, 5 ; 1 Cox, 15 ; S. C. 4 East, 577, n. ; 2 Sugd. V. & P. 139 ; 2 
 Story Eq. Jur. § 1201. 
 
 (q) Leman v. Whitley, 4 Russ. 423. [Story Eq. fi 902 ; Pinnock v. Clough, 16 Verm. 
 508; Rathbun v.'Rathbun, 6 Barb. S. C. 107; Bogert v. Perry, 17 John. 351.] 
 
 (r) Rider v. Kidder, 10 Ves. 364; 2 Sugd. 138 ; Benbow v. Townsend, 1 M. & K. 
 508 ; Taylor v. Taylor, 1 Atk. 386. (s) Bellasis v. Compton, 2 V ern. 294. 
 
 i See Jackman v. Rigland, 4 W. & S. 149 ; Walker v. Brungard, 13 Sm. & M. 765 ; 
 Pinnock v. Clough, 16 Verm. 507 ; Blair v. Bass, 4 Blackf. 540 ; Peebles v. Reading, 
 8 S. & R. 492 ; Moore v. Green, 3 B. Monr. 407 ; Fowke v. Slaughter, 3 A. K. Marsh. 
 57 ; Taliaferro v. Taliaferro, 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. 
 
 2 Botsford v. Burr, 2 J. C. R. 405 ; Page v. Page, 8 N. H. 189 ; Baker v. Vining, 30 
 Maine, 126 ; Creed v. Lancaster Bank, 1 Ohio St. N. S. 1 ; Hays v. Hollis, 8 Gill, 369; 
 Steere v. Steere, 5 J. C. R. 18 ; Jackson v. Feller, 2 Wend. 465 ; White v. Carpenter, 
 2 Paige, 217 ; McGuire v. McGowen, 4 Desaus. 487 ; Elliott v. Armstrong, 2 Blackf. 
 199 ; Sewell v. Baxter, 2 Johns. Maryl. Ch. 448. So where the party advancing the money 
 expressly stipulates for himself at the time, a benefit from the transaction inconsistent 
 with the creation of a trust. Dow v. Jewell, 1 Foster, 470. 
 
OR PRESUMPTIVE TRUST. 151 
 
 Therefore in case it can be satisfactorily shown, either by parol or 
 other evidence, that it was the intention of the party jfrom whom the 
 consideration proceeded, that the person to whom the conveyance is 
 made, should take beneficially, he will be entitled to the estate. (t) 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, (it) 
 
 However, in these cases the burden of proof rests upon the volunteer 
 to *show, that the party from whom the consideration moved did r^on-i 
 not mean the purchase to be a trust for himself, but a gift to the 
 stranger, (x) 
 
 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. {iff 
 In a case where a lease of a colliery had been granted to the defendant, in 
 trust, as was asserted by the plaintiff, for the plaintiff and defendant jointly 
 by virtue of a parol agreement between them ; and no fine or other con- 
 sideration was paid at the time for the grant of the lease, but a moiety 
 of the rent had subsequently 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 universal 
 application. If the person in whose name 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 equitable presumption of 
 
 (t) Maddison v. Andrew, 1 Ves. 58 ; Benbow v. Townsend, 1 M. & K. 506. 
 (u) Lane v. Dighton, Ambl. 409 ; Benbow v. Townsend, 1 M. & K. 510. [Pinney v. 
 Fellows, 15 Verm. 525.] 
 
 (x) 2 Sugd. V. & P. 139, 9th ed. ; [Dudley v. Bosworth, 10 Hump. 12.] 
 
 (y) 2 Sugd. V. & P. 131. (z) Riddle v. Emerson, 1 Vern.' 108. 
 
 1 In order to establish a resulting trust the money must have been paid before or at 
 the time of the purchase by the alleged cestui que trust, either with his own or borrowed 
 funds. Freeman v. Kelly, 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, Harring. Ch. 12 ; Bernard v. Bougard, 
 Harr. Ch. 130; Rogers v. Murray, 3 Paige, C. R. 390 ; Mahorner v. Harrison, 13 Sm. 
 & M. 53; Graves v. Dugan, 6 Dana, 331; Page v. Page, 8 N. H. 187; Conner v. 
 Lewis, 16 Maine, 268 ; Buck v. Swazey, 35 Maine, 41 ; Purdy v. Purdy, 3 Maryl. Ch. 547 ; 
 Lynch v. Cox, 23 Penn. St. 269 ; Pinnock v. Clough, 16 Verm. 501 ; Haines v. O'Conner, 
 10 Watts, 313. On a contract for conveyance 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 pur- 
 chase-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. 
 
152 TRUSTEES BY RESULTING 
 
 trust arises from the fact of the payment of the money ; but on the con- 
 trary 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.(a) 
 
 In this respect the law of trusts agrees with the law of uses, as it ex- 
 isted 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 a 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 a parent(l) in the name of a "child,"(c) or 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. 1 
 
 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 children being 
 "illegitimate" makes no difference in this respect, "if there have 
 *- J *been a recognition and filial treatment" on the part of the pur- 
 chaser towards the child. (/) 
 
 A distinction seems to have been taken by Lord Chief Baron Gilbert 
 
 (as) Murless v. Franklin, 1 Swanst. 17. (6) Grey v. Grey, 2 Swanst. 598. 
 
 (c) Mumma v. Mumma, 2 Vern. 19 ; Dyer v. Dyer, 2 Cox, 92 ; Grey v. Grey, 2 
 Swanst. 594 ; Sidmouth v. Sidmouth, 2 Beav. 447 ; Skeats v. Skeats, 2 N. C. C. 9. 
 
 (d) Finch v. Finch, 15 Ves. 43 ; Murless v. Franklin, 1 Sw. 13. 
 
 (e) Ebrand v. Dancer, 2 Ch. Ca. 26 ; Currant v. Jago, 1 Coll. N. C. C. 261. 
 
 (/) Beckford v. Beckford, Loft. 490 ; Kilpin v. Kilpin, 1 M. & K. 536, 542. [See 
 Anon. 1 Wallace, Jr. 107, and note, Kimmel v. McRight, 2 Barr, 38.] 
 
 (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 similar purchase 
 by a "mother." In Lloyd v. Read, 1 P. Wms. 607, the purchaser was a grandmotlier, 
 but no attention seems to have been paid to that fact. 
 
 1 A purchase in the name of a child is prima facie an advancement. Page v. Page, 
 8 N. H. 187 ; Partridge v. Havens, 10 Paige, 618 ; Knouff v. Thompson, 16 Penn. St. 
 357 ; Dennison v. Goehring, 7 Barr, 182, note ; Taylor v. James, 4 Desaus. 6; Bodine 
 v. 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, 18 Ohio, 418; 
 Stanley v. Brannon, 6 Blackf. 193 ; Thompson v. Thompson, 1 Yerg. 97 ; Dudley v. Bos- 
 worth, 10 Hump. 12 ; Jackson v. Matsdorf, 11 John.B. 91 ; Douglass v. Brice, 4 Rich. 
 Eq. 322 ; Alexander v. Warrance, 2 Bennett, Mo. 230 ; even though the child be an 
 idiot: Cartwright v. Wise, 14 Illin. 417. A purchase in the name of a son-in-law 
 also comes within the rule. Baker v. Leathers, 3 Porter, Ind. 558. In" Bakerv.Vining, 
 30 Maine, 121, a deed was taken in the name of a son, he and his father advancing the 
 money, but the proportion which each paid was uncertain, and the court refused to 
 establish a resulting trust. 
 
OR PRESUMPTIVE TRUST. 153 
 
 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 pre- 
 sumption is not so strong.(^) This distinction, however, does not ap- 
 pear 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 appli- 
 cation of the doctrine in question.(A) 
 
 If the father be dead, the same rule prevails in the case of a purchase 
 by a grandfather in the name of his "grandchild ;" for on the death of 
 the father, the grandfather stands in loco parentis to the grandchild. («') 
 In a subsequent case the distinction depending on the death of the father, 
 does not seem to have been attended to.(/c) And in the recent case of 
 Kilpin v. Kilpin,(Z) which came before Sir John Leach, M. R., and sub- 
 sequently on appeal before Lord Brougham, C, there was a transfer of 
 stock by an individual into the joint name of his natural daughter and 
 her husband, and their children ; and though the point did not call for 
 decision, the case of the grandchildren 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 purchase 
 by a husband in the name of his "wife,"(w) and the rule is the same, 
 where the names of children are joined in the conveyance with that of 
 the wife.(w) 
 
 However, the relationship between brothers is not of such a character, 
 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 resulting trust for the 
 testator, had not the brother produced evidence to show, that it was the 
 testator's intention, that he should take beneficially. (0) And this case 
 has been recently followed by a similar decision, where a mortgage secu- 
 rity had been taken by one brother in the name of another.(jj) 
 
 (g) Gilb. Lex. Prat. 
 
 (h) 2 Mad. Ch. Pr. 145 ; 2 Sugd. V. & P. 148 ; see Lady George's case, cited 3 Cro. 
 550 ; and Bedwell y. Frome, cited 2 Cox, 97 ; Back v. Andrew, 2 Vern. 120. 
 
 (i) Ebrand v. Dancer, 2 Ch. Ca. 26; S. C. 1 Coll. N. C. C. 265, a. 
 
 (&) Lloyd v. Bead, 1 P. Wins. 608. 
 
 (Z) Kilpin v. Kilpin, 1 M. & K. 520 ; see Currant v. Jago, 1 Coll. N. C. C. 261, 265. 
 
 (m) Glaister v. Hewer, 8 Ves. 199, and 9 Ves. 12 ; Benger v. Drew, 1 P. Wms. 780. 
 [Astreen v. Flanagan, 3 Edw. Ch. 279 ; Guthrie v. Gardner, 19 Wend. 414; Jencks v. 
 Alexander, 11 Paige, 619; Alexander v. Warrance, 2 Bennett, Mo. 230.] 
 
 (n) Kingdon v. Bridges, 2 Vern. 67 ; Back v. Andrew, lb. 120 ; Dummer v. Pitcher, 
 5 Sim. 35 ; and S. C. 2 M. & K. 262, 272. 
 
 (o) Maddison v. Andrew, 1 Ves. Sen. 58. [So of sisters, Keaton v. Cobb, 1 Dev. Ch. 
 439 ; see Field v. Lonsdale, 14 Jur. 995 ; 13 Beav. 78.] 
 
 (p) Benbow v. Townshend, M. & K. 506 ; and see Skeats v. Skeats, 2 N. C. C. 9. 
 
154 TRUSTEES BT RESULTING 
 
 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 
 r*QQT * nommee ;(?) Dut tne general rule will prevail, and they will 
 J prima facie hold as trustees for the purchaser. (r) 
 
 It appears to be still an unsettled question, whether the rule in favor 
 of the advancement of the child shall prevail, where the conveyance is 
 taken by the father in his own name and that of the child jointly. 1 
 
 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, where 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 estate 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 ease 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 himself and his son, was 
 even treated as a stronger case in favor of an advancement, than a pur- 
 chase 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,(z) Lord Hardwicke ob- 
 served, " 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 survivorship, 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 for.(i) 
 
 (j) See Currant v. Jago, 1 Coll. N. C. C. 263. [See Jackson v. Feller, 2 Wend. 465, 
 case of a nephew.] 
 
 (r) Lamplugh v. Lamplugh, 1 P. Wins. Ill ; Taylor v. Alston, 2 Cox, 9T; cited 
 Edwards v. Fidel, 3 Mad. 237. (s) Scroope v. Scroope, 1 Ch. Ca. 27. 
 
 (g) Back v. Andrew, 2 Vern. 120 ; Pree. Ch. 1. 
 
 (7i) Grey v. Grey, 2 Swanst. 599. (i) Pole v. Pole, 1 Ves. Sen. 76. 
 
 1 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 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 PRESUMPTIVE TRUST. 155 
 
 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 judg- 
 ment creditor could resort, the creditor was relieved in equity against 
 the survivorship at law ; the settlement being considered as voluntary 
 and fraudulent against creditors. In his judgment in that case, 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 absolutely even after a division, besides the 
 father's taking a chance to himself of being a survivor of the other 
 moiety : nay, if the 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 intro- ^ ^-. 
 duced, 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 entirety of others. 
 The (Jhance of survivorship, which the father takes, is an incident to the 
 tenancy, and extends equally to the son, who, after he attains his majo- 
 rity, 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 pur- 
 chase-money, and perhaps took the conveyance to himself and son as 
 joint-tenants, with the express view of advancing 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 Hardwicke, 
 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 circum- 
 stances 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 com- 
 mon :" although this latter case does not appear to have anywhere arisen 
 in practice. 
 
 {k) Stileman v. Ashdown, 2 Atk. 477, 480. 
 {I) 2 Sugd. V. & P. 145, 9th ed. 
 
156 TRUSTEES BY RESULTING 
 
 Where by the custom of a manor, copyholds are granted for lives suc- 
 cessive, 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.(m) And Sir E. Sug- 
 den observes, " that there seems some ground to support this distinc- 
 tion ; because the father could not have taken the whole estate in his 
 own name."(n) 
 
 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 suc- 
 cessive after the father's death in the order mentioned in the grant.(o) 
 
 For this purpose it is immaterial, that the estate given to the children 
 is reversionary to take effect in succession upon the death of a stranger, 
 and not of the father himself ;(p) and a fortiori this rule will prevail in 
 r*1011 *f avor °f the children, where the grant is to them immediately 
 without the interposition of the life of the father, or any other 
 life.(y) 
 
 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 hus- 
 band 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 sur- 
 vive her husband, will take the whole estate by survivorship, (r) How-' 
 ever, 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 Elizabeth 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.^) 
 
 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 
 
 (m) Dickinson v. Shaw, cited in Dyer v. Dyer, 2 Cox, 95, 6, and stated in 1 Walk. 
 Cop. 222. ( n ) 2 Sugd. V. & P. 141. 
 
 (o) Dyer v. Dyer, 2 Cox. 92 ; Murless v. Franklin, 1 Swanst. 13, 18 ; Skeats v. Skeats, 
 2 N. C. C. 9. 
 
 (p) Pinch v. Finch, 15 Ves. 51 ; Murless v. Franklin, 1 Sw. 13 ; Skeats v. Skeats, 2 
 N. C. C. 9. (q) Murless v. Franklin, 1 Sw. 13 ; 2 Sugd. V. & P. 141. 
 
 (r) Kingdom v. Bridges, 2 Vern. 6? ; Back v. Andrew, lb. 120, and Pre. Ch. 1; 
 Christ's Hospital v. Budgin, 2 Vern. 683 ; Dummer v. Pitcher, 5 Sim. 35, and 2 M. & 
 K. 262 ; Benger v. Drew, 1 P. Wins. 780. 
 
 (*) Back v. Andrew, 2 Vern. 120 ; S. C. 1 Pre. Ch. 1. 
 
OR PRESUMPTIVE TRUST. 157 
 
 whose advancement the purchase was made.(f) But if the child, in 
 whose name a purchase is made jointly with that of 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, (u) And where a purchase 
 was made by a husband, and the conveyance taken to himself and his 
 wife and a stranger for their lives, and the life of the longest liver of 
 them ; it was held after the death of the husband, 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 husband.(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 advance- 
 ment for the child ; for the presumption, which arises from the act of 
 the father alone, will not naturally arise from a joint p.ayment.(«/) 
 
 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 advancement in 
 favor of the nominee, in opposition to any claim of the purchaser him- 
 self or his representatives, or of any volunteer deriving under him. 
 However, it is not quite so accurately ascertained, to what extent the 
 title of the wife or child will be suffered to prevail against the creditors 
 of the husband or father. 1 
 
 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 creditors. (z) 
 *And on one occasion, where the only property available for 
 judgment creditors had been purchased by the debtor in the joint "- -■ 
 names of himself and his son, Lord Hardwicke considered the trans- 
 
 (t) Benger v. Drew, 1 P. Wms. 780 ; Lamplugh v. Lamplugh, 1 P. Wms. Ill ; Crabb 
 v. Crabb, 1 M. & K. 511, 518 ; Kilpin v. Kilpin, lb. 542. 
 
 (u) Lamplugh v. Lamplugh, 1 P. Wms. 112. [x) Kingdom v. Bridges, 2 Vera. 67. 
 (y) Per Lord Eldon, in Pinch v. Finch, 15 Ves. 51. 
 (z) Christ's Hospital v. Budgin, 2 Vern. 684. 
 
 1 A purchase by one indebted, in the name of a child or wife, for the purpose of de- 
 frauding 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; Doyle v. Sleeper, 1 
 Dana, 531 ; Newell v. Morgan, 2 Harr. Del. 225 ; Demaree v. Driskill, 3 Black. 115 ; 
 Bell v. Hallenbaek, Wright, 751 ; Bdgington v. Williams, Id. 439 ; Parish v. Rhodes, 
 Id. 339 ; Cutter v. Griswold, Walker Ch. 437 ; Croft v. Arthur, 3 Desaus. 223 ; Jencks 
 v. Alexander, 11 Paige, 619 ; Watson v. Le Row, 6 Barb. S. C. 487 ; Elliott v. Horn, 10 
 Alab. 348 ; Abney v. Kingsland, Id. 355 ; Rucker v. Abell, 8 B. Monroe, 566 ; Kimmel 
 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, his subsequent insolvency will not affect the grantee's 
 title. Dillard v. Dillard, 3 Humph. 41 ; Knouff v. Thompson, 4 Harris (Penna.) 357 ; 
 Creed v. Lancaster Bank, 1 Ohio St. N. S. 1. 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. 
 
158 TRUSTEES BY RESULTING 
 
 action to be fraudulent as against the creditors, and relieve'd against 
 the son's claim to the estate by survivorship. (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 impeached, 
 unless it be proved, that the purchaser, at the time of the purchase and 
 conveyance, was indebted, if not to the extent of insolvency, at any rate 
 to so large an amount as to show that the object of the transaction was 
 to defeat or to delay his creditors. (b) 
 
 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 purchase the estate for 
 himself, he may by the same reason direct a conveyance to be made to 
 him.(c) 
 
 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 property ;{e) conse- 
 quently a subsequent purchaser, although bona fide, from the father, will 
 not be relieved against an advancement of this description. (d) 
 
 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 be- 
 came 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 bankruptcy.^) 
 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 pur- 
 chase, where the bankrupt is insolvent at the time of making it.(A) 
 
 Sums voluntarily expended by a husband for the benefit of his wife's 
 estate, for instance in the redemption of the land tax, the enfranchise- 
 ment of copyholds, or in building on her estate, will not create a trust 
 for the benefit of his creditors within the principle now under considera- 
 
 (a) Stileman v. Ashdown, 2 Atk. 477, 81 ; and see Reddington v. Reddington, 3 
 Ridg. P. C. 176. 
 
 (6) Lush v. Wilkinson, 5 Ves. 384 ; Richardson v. Smallwood, Jac. 552 ; Townshend 
 v. Westacott, 2 Beav. 340. 
 
 (c) 2'Sugd. V. & P. 147 ; Fletcher v. Sidley, 2 Vern. 490 ; 2 Fonbl. Eq. Ch. 5, s. 2, n.(d). 
 
 (d) 2 Sugd. V. & P. 146, citing Lady George's case, stated 3 Cro. 550. [Stanley v. 
 Brannon, 6 Blackf. 193.] 
 
 (e) Jones v. Croucher, 5 Mad. 315 ; Bill v. Cureton, 2 M. & K. 512. 
 (/) Lilly v. Osborn, 3 P. Wms. 298. 
 
 (g) Fryer v. Flood, 1 Bro. C. C. 160 ; Glaister v. Hewer, 8 Ves. 195 ; and see Walker 
 v. Burrows, 1 Atk. 93. (h) 2 Sugd. V. & P. 146. 
 
OR PRESUMPTIVE TRUST. 159 
 
 tion, although he was insolvent at the time. Such sums cannot there- 
 fore be recovered by them from her estate. (i) 
 
 *As the presumption in favor of the advancement of the child r*i qq-i 
 or wife in these cases proceeds only upon the supposed intention 
 of the purchaser, it may be rebutted by evidence manifesting an inten- 
 tion on his part, that the nominee should take as trustee. (A;) 1 It now 
 remains for us to consider, what will be sufficient evidence for this pur- 
 pose. 
 
 It is clear, that the fact of the nominee being the child, &c, operates 
 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 Eyre, 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, " considering 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 im- 
 
 (i) Campion v. Cotton, 17 Ves. 263. 
 
 (k) Sidmouth v. Sidmouth, 2 Beav. 454. [Dudley v. Bos worth, 10 Humph. 13 ; 
 Jackson v. Matsdorff, 11 John. 91 ; Butler v. Merch. Ins. Co. 14 Alab. 171.] 
 
 (J) Dyer v. Dyer, 2 Cox, 93, 4 ; 1 P. Wms. 112, S. C. 
 
 (m) Grey v. Grey, 2 Sw. 600. 
 
 (re) Grey v. Grey, 2 Swanst. 594-6 ; Kilpin v. Kilpin, 1 M. & K. 5 JO ; Sidmouth v. 
 Sidmouth, 2 Beav. 455 ; Seawin v. Scawin, 1 N. C. C. 65. 
 
 1 In Dudley v. 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 improvidence of 
 the father, who, moreover, was utterly unable to make any provision for his other chil- 
 dren, and had always remained in possession of the land, it was held, the presumption 
 of an advancement was rebutted. So in Butler v. M. Ins. Co. 14 Alab. 177, there was 
 a subscription to stock by one in the name of several persons, one of whom was his 
 infant daughter. The father gave his own note and mortgage for the purchase-money, 
 but subsequently and before the instalments became due, the note and mortgage were 
 cancelled, and a firm of which he was a member, became responsible for and afterwards 
 paid the instalments, and it was held that the presumption was rebutted. And in Hoyes 
 v. Kindersley, 2 Sm. & Giff, 194, dividends of stock purchased during coverture in the 
 name of the wife, placed at her disposal for family purposes by her husband, then an 
 aged person, were paid into a bank to her account, and by her applied for domestic 
 purposes. It was held, after the death of the wife first and then the husband, that the 
 presumption of gift of the stock to the wife was rebutted by the mode of dealing with 
 the dividends. See also Taylor v. Taylor, 4 Gilm. 303 ; Tremper v. Barton, 18 Ohio, 
 418. Subsequent declarations of the father are not, however, sufficient. Tremper v. 
 Barton, ubi supra. On the other hand, a purchase in the name of a child may be 
 shown to have been intended as a gift, not an advancement, as against the other chil- 
 dren. Slack v. Slack, 26 Mississippi, 290. 
 
160 TRUSTEES BY RESULTING 
 
 proper against the legal operation of a deed:(o) and where such de- 
 clarations 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 title, (q) 
 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 corrobo- 
 rative fa\3t, but under the circumstances he did not consider that evidence 
 sufficient 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 sup- 
 ported by direct proof, and not rest upon constructions ;"(s) and Lord 
 Eldon has observed, that " this principle of law and presumption (viz., 
 in favor of the advancement of a child), ought not to be frittered away 
 by nice refinements. "(t) However, it is not essential 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 
 l"*l 041 *P urcnase hi his name has been considered not to be an advance- 
 ment ;(w) more especially if there are other children unprovided 
 for.(z;) But if the child be provided for and emancipated only in part, 
 that will not J>e sufficient to rebut the presumption of advancement.^) 
 And a younger son, on whom a reversion had been settled by his father 
 expectant on his mother's death, has been considered unadvanced: "The 
 father is the only judge as to the question 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 authorities on the point, there seems to be much force 
 in the observation of the Lord Chief Baron, in Dyer v. Dyer, " that the 
 
 (o) Taylor v. Taylor, 1 Atk. 386 ; Lamplugh v. Lamplugh, 1 P. Wms. Ill ; Red- 
 dington v. Reddington, 3 Ridg. P. C. 182. (p) Grey v. Grey, 2 Sw. 597. 
 
 (g) Taylor v. Taylor, 1 Atk. 386 ; Lamplugh v. Lamplugh, 1 P. "Wms. Ill ; Bed- 
 dington v. Reddington, 3 Ridg. P. C. 176. [See Steere v. Steere, 5 J. Ch. 10.] 
 
 (r) Scawin v. Scawin, 1 N. C. C. 65. (s) Grey v. Grey, 2 Sw. 600. 
 
 {t) In Pinch v. Pinch, 15 Ves. 50. [See Butler v. M. Ins. Co. 14 Alab. 777.] 
 
 (u) Elliott v. Elliott, 2 Ch. Ca. 231 ; Shales v. Shales, 2 Freem. 252 ; Reddington v. 
 Reddington, 3 Ridg. P. C. 176 ; Grey v. Grey, 2 Swanst. 600. [See Dudley v. Bos- 
 worth, 10 Humph. 12 ; Butler v. M. Ins. Co. 14 Alab. 777.] 
 
 (x) Pole v. Pole, 1 Ves. Sen. 76. 
 
 {y) Reddington v. Reddington, ubi supra ; Grey v. Grey, 2 Swanst. 600. 
 
OK PRESUMPTIVE TRUST. 161 
 
 distinction, of the son being provided for or not, is not very solidly- 
 taken, or uniformly adhered to."(z)(Vj 
 
 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 :(6) although it was observed by Lord Chief Baron Eyre, 
 " that it would be pretty difficult for a son to succeed in a bill against 
 the father for those rents."(e) 
 
 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.(t^) 
 
 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 happens 
 that the father gives the son possession during his life. Yet in Grey v. 
 Grey, the court clearly did not recognize any difference 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 re- 
 ceived *the dividends of stock purchased in his son's name, Lord r^-inr-i 
 Langdale, M. R., observed that the circumstance of the son's 
 being adult did not appear to him to be material. (g) 
 
 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 
 
 (z) Reddington v. Reddington, ubi supra ; Dyer v. Dyer, 2 Cox, 94. 
 
 (a) Murless v. Franklin, 1 Sw. 17 ; Scawin v. Scawin, 1 N. C. C. 67. [See Cart- 
 wright v. Wise, 14 Illin. 417 ; Knouff v. Thompson, 16 Penn. St. 357.] 
 
 (6) Mumma v. Mumma, 2 Vern. 19 ; Lamplugh v.Lamplugh, 1 P. Wms. Ill ; Taylor 
 v. Taylor, 1 Atk. 386. (c) Dyer v. Dyer, 2 Cox, 95. 
 
 (d) Lamplugh v. Lamplugh, 1 P. Wms. 112. («) Lloyd v. Reap, 1 P. Wms. 608. 
 
 (/) Grey v. Grey, 2 Swanst. 600; 2 Sugd. V. & P. 143. 
 
 (ff) Sidmouth v. Sidmouth, 2 Beav. 456. 
 
 (1) In the case of Kilpin v.Kilpin, it was said by the Lord Chancellor (Lord Brough- 
 am), that it was a material circumstance, if « provision had been previously made for 
 the child or not, but that was far from being decisive. Kilpin v. Kilpin, 1 M. & K. 542. 
 
 11 
 
162 TRUSTEES BY RESULTING 
 
 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 afford no 
 evidence until the determination of the previous estate.(i) And 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.(ft) 
 
 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. (J) 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 purchase was a trust for the father's 
 benefit.(m) 
 
 In like manner any contemporaneous act which is wholly inconsistent 
 with the notion that the child was intended to take beneficially, 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 ;(m) 
 or where it appears that the object of the transaction was to effect 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 the 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 purchase. 
 Subsequent acts or declarations of the purchaser, or any other matter 
 arising ex post facto, cannot be admitted for this purpose : although they 
 be of the most unequivocal and conclusive description.^) 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, 
 
 (h) Taylor v. Taylor, 1 Atk. 386 ; Sidmouth v. Sidmouth, 2 Beav. 447. [See Butler 
 v. M. Ins. Co. 14 Alab. 117.] (i) Murless v. Franklin, 1 Sw. 18. 
 
 (7c) Grey v. Grey, 2 Sw. 599. (I) Momma v. Mumma, 2 Vern. 19. 
 
 (to) Scawin v. Scawin, 1 N. C. C. 67. (n) Prankerd v. Prankerd, 1 S. & S. 1. 
 
 (o) Baylis v. Newton, 2 Vern. 28 ; Birch v. Blagrave, Ambl. 264; 2 Sugd. V. &P. 
 144. ( p ) Swift d. Farr v. Davis, 8 East, 354, n. 
 
 (g) Finch v. Finch, 1 5 Ves. 5 1 ; Murless v. Franklin, 1 Sw. 1 3 ; Prankerd v. Prankerd, 
 1 S. & S. 1 ; Crabb v. Crabb, 1 M. & K. 519 ; Sidmouth v. Sidmouth, 2 Beav. 455. 
 [See ante, p. 94, note.] 
 
 ()-) Back v. Andrew, 2 Vern. 120 ; Dyer v. Dyer, 2 Cox, 92 ; IP. Wms. 112; Finch 
 v. Finch, 15 Ves. 51 ; Murless v. Franklin, 1 Sw. 13 ; Skeats v. Skeats, 2 N. C. C. 9; 
 [Cartwright v. Wise, 14 Illin. 417 ; Knouff v. Thompson, 16 Penn. St. 357.] 
 
OR PRESUMPTIVE TRUST. 163 
 
 and make other provisions for the child by his will, the child would be 
 put to his election. (s) Nevertheless, in the early case of Shales v. Shales, 
 a *child under such circumstances was not put to his electipn.(tf) 
 And in order to raise a case of election against the child the dis- •- J 
 position 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 connected 
 with similar purchases of other estates by the same parties, (x) 
 
 II.— WHERE THERE IS A VOLUNTARY CONVEYANCE WITHOUT ANY 
 DECLARATION 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 consi- 
 deration, there arises a resulting trust to the original owner ; in con- 
 formity 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,(g) 
 in which case the duke had executed a grant of the next avoidance of a 
 church to a clergyman ; but the grantee hnew nothing of it, and de- 
 posed 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. (s) 
 
 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 recognized, 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 subsequent volunteers claiming under him. (b) 
 However, it is scarcely necessary to add, that such a disposition of pro- 
 perty will not affect the rights of creditors, or subsequent purchasers for 
 valuable consideration, (e) With regard to the case of Norfolk v. Browne, 
 which appears to be relied upon by Mr. Cruise as an authority for his 
 
 (s) Dummer v. Pitcher, 5 Sim. 35; S. C. 2 M. & K. 262; 2 Sugd. V. & P. 144. 
 
 (t) Shales v. Shales, 2 Freeman, 252. («) Dummer v. Pitcher, 2 M. & K. 262. 
 
 (x) Murless v. Franklin, 1 Sw. 19. (y) 1 Cruis. Dig. tit. 12, Ch. 1, s. 52. 
 
 (z) D. of Norfolk v. Browne, Prec. Ch. 80. [But see 2 Spence Eq. 198.] 
 
 (a) Young v. Peachy, 2 Atk. 256 ; and see Fordyce v. Willis, 3 Bro. C. C. 585. 
 
 (6) Clavering v. Clavering, 2 Vern. 473 ; Boughton v. Boughton, 1 Atk. 625 ; Cook 
 v. Fountain, 3 Sw. 590 ; see Cecil v. Butcher, 2 J. & W. 573 ; JefFerys v. Jefferys, 1 Cr. 
 & Ph. 138 ; Dummer v. Pitcher, 2 M. & K. 262. 
 
 (c) See stat. 13 Eliz. c. 5, and 27 Eliz. c. 4. 
 
164 TRUSTEES BY RESULTING 
 
 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.(l) 
 
 It may therefore be stated as the clear result of the authorities, that 
 where a person, being a stranger in blood to the donor,(c?) and d fortiori 
 *if connected with him by blood,(e) is in possession of an estate(2) 
 L 'J under a voluntary conveyance, duly executed, 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 en- 
 joyment of the beneficial interest, unless that title is displaced by suffi- 
 cient 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. 
 Fountain, (/) he need not bring proofs to keep his estate, hut the 
 plaintiff must bring proofs to take it from him.(/) 
 
 It is to be observed, that a deed may be founded on some consideration, 
 and yet still come within the technical definition of a voluntary instru- 
 ment. In equity the statement of a mere nominal pecuniary considera- 
 tion certainly would not be allowed to affect the construction or operation 
 of a ieed.(g) 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, or a voluntary 
 conveyance. 
 
 However, the title of a volunteer is never favored in a court of 
 equity ;(A) and proper evidence will always be admitted in these 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) 
 
 (d) Cook v. Fountain, 3 Sw. 585. 
 
 (e) Williamson v. Codrington; 1 Ves. 511 ; Lord Townshend v. Wyndham, 2 Ves. 10; 
 Dummer v. Pitcher, 5 Sim. 35 ; and 2 M. & K. 262, 273. [See Bank TJ. S. v. House- 
 man, 6 Paige C. E. 526 ; Miller v. Wilson, 15 Ohio, 108.]' 
 
 (/) Cook v. Fountain, 3 Sw. 590. [g) See Young v. Peachy, 2 Atk. 256. 
 
 (A) Cook v. Fountain, 3 Sw. 591. 
 
 (i) Hutchins v. Lee, 1 Atk. 449 ; Cook v. Fountain, 3 Sw. 585 ; Young y. Peachy, 1 
 Atk. 256. 
 
 (1) It may be observed that where a gift is made by will, that of itself supposes 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 other use, than to the use 
 of the donee. See 1 Pow. Jarm. D.ev. 208. 
 
 (2) It is scarcely necessary to repeat here, that, as a general rule, equity will not 
 recognize the title of a volunteer unless it be completely executed; and therefore if the 
 grant be not formally and legally executed, or if, owing to its loss or destruction, or any 
 other reason, it becomes necessary to have recourse to 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. 
 
 1 Philbrook v. Delano, 29 Maine, 410. Here the grantee was father-in-law to the 
 grantor ; but no stress was laid on the connection. 
 
OR PRESUMPTIVE TRUST. 165 
 
 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 contemporaneously 
 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 Frauds.(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 by the p^Q-, 
 defendant, with a view of disproving the plaintiff's case ; then, J 
 
 according to the general rules of evidence the plaintiff in his turn may 
 have recourse to similar proofs for the purpose of rebutting that evi- 
 dence.^) 
 
 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 ingre- 
 dients of evidence, from which the court will infer it to have been the 
 intention of the party, not to divest himself of the beneficial ownership 
 by the execution of a voluntary conveyance. 
 
 Thus a 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 Norfolk v. Browne, and that decision may there- 
 fore thus be well accounted for. But in truth the very meagre and im- 
 perfect report of the case renders it impossible to examine, or ascertain 
 the principles, on which the Lord Keeper rested his decision ; and it 
 therefore cannot be looked upon as a very sufficient authority on the 
 general principle of law involved init.(p) 
 
 So where the grantor continues in possession of the property, and to 
 
 (k) Clavering v. Clavering, 2 Vera. 473 ; Lady Hudson's case, cited lb. 476 ; Birch 
 v. Belgrave, Ambl. 266. 
 
 (Z) Taylor v. Taylor, 1 Atk. 386 ; and see Fordyce v. Willis, 3 Bro. C. C. 576 ; see 
 Dyer v. Dyer, 2 Cox, 93, 4 ; Leman v. Whitley, 4 Russ. 423. [Philbrook y. Delano, 29 
 Maine, 410 ; Rathbun v. Rathbun, 6 Barb. S. C. 105.] 
 
 (m) See next chapter, Young v. Peachy, 2 Atk. 256 ; Pitcairne v. Ogbourne, 2 Ves. 
 375. 
 
 (n) Dyer v. Dyer, 2 Cox, 93, 4. [Steere v. Steere, 5 J. C. R. 1.] 
 
 (o) Cecil v. Butcher, 2 J. & W. 573. (p) Prec. Ch. 80. 
 
166 TRUSTEES BY RESULTING 
 
 exercise acts of ownership over it ;(q) and more especially if the grantee 
 recognize 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 presumption, that a trust was in- 
 tended. 
 
 Evidence of this nature will be admitted for the purpose of establish- 
 ing a trust against the volunteer, though connected by relationship 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.(tf) 
 
 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 intention, that 
 the child should take only as a trustee.(w) 
 
 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 excludes the presumption, that an advancement 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 affection to himself for life, with remainder to his wife for life, and ■ 
 then to his own son the defendant in fee ; it was proved that the object 
 i 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 subsequently to the conveyance. 
 And the Lord Chancellor declared that if the entire fee had been con- 
 veyed to the son he would have taken it to he 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.(?/) This decision evidently pro- 
 ceeded upon the conclusion, that those limitations showed, that the con- 
 veyance was not executed solely for the purpose of severing the joint 
 tenancy. 
 
 (q) Barlow v. Heneage, Prec. Ch. 211 ; Birch v. Blagrave, Ambl. 264; Cook v. Foun- 
 tain, 3 Sw. 593. (r) Cook v. Fountain, 3 Sw. 593. 
 
 (s) Platamore v. Staple, Coop. 253. 
 
 (t) See George v. Howard, Y Price, 646 ; Dummer v. Pitcher, 2 M. & K. 21Z j and 
 Dyer v. Dyer, 2 Cox, 93. (u) Birch v. Blagrave, Ambl. 265. 
 
 (x) Cecil v. Butcher, 2 J. & W. 565, and cases cited. 
 
 (y) Baylis v. Newton, 2 Vern. 28. 
 
 1 On a conveyance to bar an estate tail, under the Pennsylvania Act, the grantor 
 will have an equitable fee simple or fee tail, according as the bar of the entail is effec- 
 tual or not. Pierce v. Hakes, 23 Penn. St. 243. 
 
 [*io9] ; 
 
OR PRESUMPTIVE TRUST. 167 
 
 In like manner, where a bond for a sum of money was executed by a 
 fatber in favor of one of bis daughters, for the purpose of avoiding the 
 tax on his -property, and that purpose seems to have been recognized by 
 the daughter, who was provided for equally with the other children with- 
 out the bond ; and the bond had always remained in the father's posses- 
 sion : the Lord Keeper held it to be a trust for the father, and decreed 
 the bond to be set aside.(a) 
 
 So in another case, a father made a secret conveyance of real estate 
 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 by the father in order to disqualify him- 
 self 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 con- 
 veyance, 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. 1 
 
 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 serving as 
 sheriff, the court would have refused to establish the trust, for " that 
 would have been against conscience, and in fraud of the law. "(J) 
 
 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;(c£) 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 behalf of the 
 son.(e) 
 
 The case of Ward v. Lant, may perhaps appear at first sight not to 
 
 (z) Ward v. Lant, Prec. Ch. 182. 
 
 (a) Birch v. Blagrave, Ambl. 264; and see Gaskell v. Gaskell, 2 Y. & Jerv. 502. 
 
 (&) Birch v. Blagrave, Ambl. 266. [See ante, 93, note.] 
 
 (c) Col. Pitt's case, cited Ambl. 266 ; Curtis v. Perry, 6 Ves. 747. 
 
 (d) Roberts v. Roberts, Daniel, 143 ; Brackenburj v. Brackenbury, 2 J. & W. 391 ; 
 Cecil v. Butcher, lb. 565. 
 
 (e) See Brackenbury v. Brackenbury, ubi supra ; Cecil v. Butcher, ubi supra. [See 
 Fields v. Lonsdale, 13 Beav. 787.] 
 
 1 In Carr v. Hilton, 1 Curtis C. C. 230, a bankrupt had conveyed property with a 
 secret trust for himself in fraud of creditors, and it was held, that the assignee in bank- 
 ruptcy could come into equity to enforce the trust. 
 
168 TRUSTEES BY RESULTING 
 
 be in accordance with this doctrine ; but it will be seen on examination 
 that the daughter there had recognized the purpose for which the bond 
 r*i 1 m k a< ^ *' 3een executed, and it would therefore have been fraudulent 
 and inequitable for her to have enforced payment of it to her- 
 self.(/) 
 
 Where, however, the purpose contemplated by the deed, though illegal, 
 or such as the court would not sanction, is abandoned, or not acted upon, 
 by the parties, it seems that the court will not recognize 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 lagainst 
 suing on the deed at law until the hearing of the cause. (g) 
 
 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. Bla- 
 grave, 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. 1 
 
 In the case of Naldred v. Grilham,(A) where a woman made a voluntary 
 settlement in favor of a nephew without power of revocation, but she kept 
 it in her own possession, and subsequently burned it, and made another 
 settlement of the same property on a different 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 plaintiff, and 
 the fraudulent nature of that proceeding had evidently considerable in- 
 fluence 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 custody, 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 
 
 (/) Ward v. Laut, Prec. Ch. 182. 
 
 (g) Birch v. Blagrave, Ambl. 262 ; Platamore v. Staple, Coop. 250. 
 
 (h) Naldrea v. Gilham, 1 P. Wms. 577. 
 
 (i) Cotton v. King, 2 P. Wms. 358 ; King v. Cotton, lb. 674. 
 
 1 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. 
 
OR PRESUMPTIVE TRUST. 169 
 
 another point :(«') and it will be observed in this case also, that fraud in 
 obtaining possession of the deed formed a material item in the Lord 
 Chancellor's proposition. 
 
 In Uniacke v. Giles,(&) 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 person. The bill 
 was filed by the nephew against the representative of the trustee to esta- 
 blish the first deed. But the Lord Chancellor of Ireland held that 
 whether the deed contained a power of revocation or not, and however 
 formally it was executed, its retention in the custody of the donor made 
 it revocable, and he therefore dismissed the bill.(A) 
 
 •In all these cases it will be observed that the party claiming tinder 
 the *first voluntary deed was a plaintiff seeking the aid of equity r*-i i -i -i 
 to enforce his claim ; without entering, therefore, 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. (I) 
 
 On the other hand, authorities are to be found of a contrary tendency ; 
 and which shows 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 subse- 
 quent will, although the deed had remained in his possession, and the 
 profits of the estate had been received by him up to his death.(wi) 
 
 And in Clavering v. Clavering, (w) 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 among his papers : and he had frequently recognized the second 
 deed as the settlement of the property.(w) 
 
 So in Boughton v. Boughton,(o) Lord Hardwicke decided that a volun- 
 tary settlement without a power of revocation, which had been kept by 
 the settlor in his possession, was not revoked by a subsequent will.(o) 
 In the case of Roberts v. Roberts,(^>) in the Exchequer, the observations 
 of the Lord Chief Baron tend strongly to the same effect.(jp) And in 
 Brackenbury v. Brackenbury,^) Lord Eldon refused to relieve a devisee 
 against the effects of a voluntary settlement, which had remained in the 
 possession of the grantor without being made use of up to the time of his 
 
 (i) Cotton v. King, 2 P. Wms. 358; King v. Cotton, lb. 674. 
 
 (ft) Uniacke v. Giles, 2 Moll. 267. 
 
 (I) See Cook v. Fountain, 3€w. 591 ; Cecil v. Butcher 2 J. & W. 565, 573. 
 
 (m) Barlow v. Heneage, Prec. Ch. 211. (») Clavering v. Clavering, 2 Vern. 473. 
 
 (o) Boughton v. Boughton, 1 Atk. 625. (p) Roberta v. Roberts, Daniel, 143. 
 
 (g) Brackenbury v. Brackenbury, 2 J. & W. 391. 
 
170 TRUSTEES BY RESULTING ' 
 
 death, although the party claiming under the deed had fraudulently ob- 
 tained possession of it from the devisee.(g') 
 
 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 inter- 
 posing 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,(r) or by his heirs or devisees, or his personal representa- 
 tives after his death.(s) The whole of the authorities on this subject 
 have been collected, and the principles on which they proceed considered, 
 by Sif Thomas Plumer, M. R., in his judgment in the case of Cecil v. 
 Butcher. (t) 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 posses- 
 sion ; not merely upon whether it is made for a particular purpose ; but 
 when all *these circumstances are connected together ; when it is 
 L -• 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 instru- 
 ment. 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 pur- 
 pose requires it ; the question is whether there is not a locus penitentw; 
 if, under such circumstances, the grantee furtively 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 meant him to have it ; and will not 
 a court of equity at least refuse him its assistance ? This principle will 
 be found to pervade all the cases. It may, perhaps, when the transaction 
 is known to both parties, rest upon the supposition of a collateral agree- 
 ment 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 pur- 
 pose 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 re- 
 mained 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 
 
 (q) Brackenbury v. Brackenbury, 2 J. & W. 39X. 
 (r) Cook v. Fountain, 3 Sw. 565. * 
 
 (s) D. of Norfolk v. Browne, Preo. Ch. 80 ; Young v. Peachy, Atk. 254 ; Birch v. 
 Blagrave, Ambl. 264. (t) Cecil v. Butcher, 2 J. & W. 565, V3. 
 
OR PRESUMPTIVE TRUST. 171 
 
 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 subsequent 
 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.(w) How- 
 ever, 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 especially be- 
 tween father and son the slightest consideration (such as a person joining 
 in a conveyance), will be sufficient to support a conveyance even against 
 creditors, and a fortiori will suffice to prevent a resulting trust.(«/) 
 
 Where the conveyance is expressed in the deed to be for a valuable 
 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.(g) 1 
 
 According to the circumstances of the case as established in evidence, 
 a resulting trust for the donor may be supported as to part of the pro- 
 perty, which is the subject of a voluntary grant, and not supported as 
 to the remainder.(a) 
 
 *And where the grantor has made out in evidence a case for ?■%-< -. q-i 
 a trust against the grantee, it is of course open to the latter 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 circumstances, such as the nature 
 of the property, and the conduct and situation of the parties, and also 
 the provisions of the deed. 
 
 Thus in Cook v. Fountain,(e) a voluntary grant of a rent-charge de ■ 
 novo to a stranger was considered to be inconsistent with an intention 
 that it should be held in trust ; and the deliberation with which the grant 
 
 (t) Cecil v. Butcher, 2 J. & W. 565, 73. 
 
 (u) Lady Hudson's case, cited 2 Vern. 476 ; Birch v. Blagrave, Ambl. 266. 
 (a;) Cecil v. Butcher, 2 J. & W. 578 ; Dummer v. Pitcher, 2 M. & K. 262. 
 (y) Middleton v. Ld. Kenyon, 2 Ves. Jun. 410 ; 2 Sugd. V. & P. 262. 
 (z) Leman v. Whitley, 4 Russ. 423. [See the remarks of Judge Story on this case. 
 Eq. Jur. I 1999, note 2.] 
 
 (a) Cook v. Fountain, 3 Sw. 585. (6) Lake v. Lake, Ambl. 127. 
 
 ' (c) Cook v. Fountain, 3 Sw. 596, 7. 
 
 1 Wilkinson v. Wilkinson, 2 Dev. Eq. 376; Philbrook v. Delano, 29 Maine, 410; 
 Eathbun v. Rathbun, 6 Barb. S. C. 98. In the last case it was also held, that a cove- 
 nant 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 ; and see Benning v. Benning's Ex'r, 14 B. Monr. 585. 
 
172 TRUSTEES BY RESULTING 
 
 was executed in that case seems also to have influenced the court in 
 deciding against the existence of any trust, although a trust was esta- 
 blished in the same case with respect to a grant of leases.(e) And in 
 Baylis v. Newton,(d) a father being seised in fee of an undivided third 
 of an estate, made a voluntary conveyance to himself for life, with re- 
 mainder 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 pre- 
 sumption 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 incon- 
 sistent with an intention on his part to take the whole by a resulting 
 trust, and the son was consequently held to be beneficially entitled.(d) 
 
 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 displace a 
 trust which has been otherwise previously established in evidence 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 contravention 
 of public policy.(/) 
 
 III.— WHERE THERE IS A VOLUNTARY DISPOSITION OF PROPERTY UPON 
 TRUSTS, WHICH ARE NOT DECLARED, OR ARE ONLY PARTIALLY DE- 
 CLARED, OR PAIL. 
 
 There is no equitable principle more firmly established than that, 
 where a voluntary disposition(l) of property by deed 1 or will is made to 
 a person as trustee, and the trust is not declared at all ; 3 or is ineffec- 
 tually declared ; 3 or does not extend to the whole interest given to the 
 trustee; 4 *or it fails either wholly or in part by lapse or other- 
 L -■ wise : 5 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. 
 
 (c) Cook v. Fountain, 3 Sw. 596-7. {d) Baylis v. Newton, 2 Vera. 28. 
 
 (e) Cook v. Fountain, 3 Sw. 590-1. (/) Curtis v. Perry, 6 Ves. 746. 
 
 (1) Where there is a conveyance or settlement for valuable consideration, this 
 principle will not be applied so as to defeat the operation of the deed. Therefore, where 
 in a marriage settlement a term 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. 
 
 ' See Stevens v. Ely, 1 Dev. Eq. 493. 2 Post, 114. 3 Post, 116. 
 
 '■ Post, 118. s Postj 134 . 
 
OK PRESUMPTIVE TRUST. 173 
 
 And to this head by far the most usual cases of resulting trusts are to 
 he referred.^) 
 
 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 in- 
 strument, that the person to whom the property is given is to take it in 
 trust. Where the gift is expressly " in trust," or the donees are men- 
 tioned in the instrument as " trustees," the point is clear against them ; 
 so clear, indeed, that parol evidence would be inadmissible 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 particular purpose of satisfying which the estate 
 is devised, the law is the same, though the word 'trust' is not used."(i)(l) 
 
 And first with respect to those cases where the trust is not declared 
 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 con- 
 struction 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 :(m) 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 property was given 
 should take it.(n)(2) 
 
 (ff) Moriee v. Bishop of Durham, 10 Ves. 537 ; Paice v. Archbp. of Canterbury, 14 
 Ves. 370. 
 
 [h) Gladding v. Yapp, 5 Mad. 59 ; 2 Wms. Exors. 904; 1 Jarm. Pow. Dev. 506. 
 
 (i) Moriee v. Bishop of Durham, ubi supra ; King v. Denison, 1 V. & B. 273 ; vide 
 supra, Division I, Ch. ii, s. 2. 
 
 (A) 10 Ves. 527 ; Goodere v. Lloyd, 3 Sim. 538 ; 2 Phill. 793. 
 
 (1) Brown v. Jones, 1 Atk. 101; Sidney v. Shelley, 19 Ves. 359; see Emblyn v. Free- 
 man, Prec. Ch. 542. 
 
 (to) Emblyn v. Freeman, Prec. Ch. 542; Sheldon v. Barnes, 2 Ves. Jun. 447; Collins 
 v. Wakeman, lb. 683. [Taylor v. Haygarth, 14 Sim. 8 ; Onslow v. Wallis, 13 Jur. 1085 ; 
 Fitch v. Weber, 6 Hare, 148 ; Flint v. "Warren, 12 Jur. 810 ; 16 Sim. 124.] 
 
 (n) Moriee v. Bishop of Durham, 10 Ves. 537. 
 
 (1) 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 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 himself personally, 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, 123, n. 1.] 
 
 (2) In the early case of Martin v. Douch and Overton, a testator ordered 40Z. 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 
 
174 TRUSTEES BY RESULTING 
 
 In these cases it is immaterial that the subject of such a gift is a par- 
 ticular or partial interest, reserved or created out of a larger estate, as, 
 for instance, a term of years, or a specified sum of money.(o) 
 
 *And it is to be observed, that, as between the heir at law 
 L -■ and the next of kin of the donor, there will be no equitable con- 
 version 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 estate to trustees, in 
 trust to sell after his death for several purposes, and amongst others, 
 that £200 should be disposed of as he should by a note appoint ; and he 
 died having made no appointment. It was held that there was a result- 
 ing 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 bequeath 
 the remainder of my estate, real and personal, and whatever shall he 
 due to me for half-pay," &c, without saying more : it was considered 
 that the intention thus manifested by the testator to dispose of the resi- 
 due, though left inchoate, converted the executor into a trustee for the 
 next of Jcin.(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 £1000 to his executor, 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 
 £1000. (s) 
 
 In like manner, in the very recent case of Corporation of Gloucester 
 v. Wood,(i) the testator, James Wood, made a codicil to his will in these 
 
 (0) Emblyn v. Freeman, ubi supra; Collins v. Wakeman, ubi supra. 
 
 (p) Emblyn v. Freeman, ubi supra ; Collins v. Wakeman, lb. ; 2 Pow. Dev. 32, &c, 
 by Jarman ; Sidney v. Shelley, 19 Ves. 358, vide post. 
 
 (j) Emblyn v. Freeman, Prec. Ch. 542. 
 
 (»■) Bishop of Cloyne v. Young, 2 Ves. Sen. 91 ; see Langham v. Sanford, 17 Ves. 
 435. [See Mappv. Elcock, 2 Phill. 793.] 
 
 (s) Collins v. "Wakeman, 2 Ves. Jun. 683. 
 
 (0 Corporation of Gloucester v. Wood, 3 Hare, 131, [aff'd; 1 H. L. Cas. 272; sub 
 nom. Corp. Gloucester v. Osborne.] 
 
 by Sir Harbottle Grimstone, M. R., that P. M. should have the 40/!., as the testator did 
 not intend 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. 
 
 (1) Upon the same principle, where a residuary bequest was cancelled by drawings 
 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 ; Skrynr 
 sher v. Northcote, 1 Swanst. 566. 
 
OB, PRESUMPTIVE TRUST. 175 
 
 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 corpo- 
 ration was precluded from taking either the legacy of £60,Q#0 or that 
 of £140,000, which therefore sunk for the benefit of the residuary lega- 
 tees : and his Honor considered, that the fact of the donee's being a 
 corporation made no difference for the purpose of this construction. (t) 
 
 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 accordingly 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 col- r-%-, -. ^-i 
 lected from the general scope of the will. 
 
 Therefore, where there was a devise to trustees for ninety-nine years 
 upon the trusts thereinafter expressed, and from and after the expira- 
 tion or sooner determination of the term in strict settlement, and no 
 trusts of the term were declared ; Lord Eldon considered, that the in- 
 tention 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 limitations of the will.(w) 
 
 2d. Where 4he 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 decreed, 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.^) 1 
 
 In what cases the court will establish a resulting trust upon an imper- 
 fect declaration of this description in opposition to the claim of the 
 donee, " is a question which must be decided upon the construction of 
 the language of the instrument in each particular case."(?/) 
 
 (t) Corporation of Gloucester v. Wood, 3 Hare, 131, [aff'd, 1 H. L. Cas. 272, sub nom. 
 Corp. Gloucester v. Osborne.] 
 
 (u) Sidney v. Shelley, 19 Ves. 352. 
 
 (x) Moriee v. Bisbop of Durham, 10 Ves. 527, 537. 
 
 \y) Per Lord Cottenham in Ellis v. Selby, 1 M. & K. 298., 
 
 1 But in Cawood v. Thompson, 22 L. J. Ch; 835, 17 Jur. 798, where, after giving 
 charitable legacies by a codicil, a testatrix, by another codicil, declared that if any of them 
 should fail, by reason of any of her estate being of such a nature as could not legally be 
 devoted to charitable purposes, she gave such part to A. and B. for their absolute use 
 and benefit; having full confidence that they would desire to carry out her intentions ; 
 but she declared that that should not have the effect of imposing a trust on them, or in 
 any manner qualifying their interest in the bequest. It was held, that A. and B. took 
 beneficially, and not as trustees, for the next of kin. See to same effect Lomax v. Rip- 
 ley, 24 L. J. Ch. 254 ; 19 Jur. 273. 
 
176 TRUSTEES BY RESULTING 
 
 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. E., and 
 subsequently on appeal before Lord Eldon. In that case, the testatrix 
 bequeathed all her personal estate to the Bishop of Durham, his exe- 
 cutors, &c, upon trust to pay her debts and legacies, &c. ; and to dis- 
 pose of the ultimate residue " to such objects of benevolence and libe- 
 rality as the bishop in his own discretion, should most approve of;" and 
 she appointed the bishop her sole executor. The Master of the Kolls 
 held, that it was clear from the words of the will, that this was a gift 
 upon some trust, and not for the personal benefit of the bishop ; but that 
 the trust was too indefinite for the court to execute even as a gift to 
 charity, and that there was therefore a trust of the residue for the next 
 of kin. And this decision was afterwards affirmed by the Lord Chan- 
 cellor (Lord Eldon).(s) 
 
 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 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,(J) the testator gave the residue of his estate to 
 his executor upon trust, in default of appointment by him, " to pay and 
 apply the same in or towards such charitable or public purposes as the 
 laws of the land would admit of, or to any person or persons, and in such' 
 shares, &c, as his executors should, in their discretion, will, and pleasure, 
 think fit." The case came before Sir John Leach, V. C, who decided 
 f - !j . 1 1 „-. *that the trust was too general and undefined to be executed by 
 *- J the court ; that the executors could not take, because the gift 
 was expressly made to them in trust ; and the next of kin were there- 
 fore entitled. 
 
 So in Fowler v. Garlike,(e) 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 dis- 
 tribution 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 to execute, and his Honor declared the next of kin entitled.(c) 
 
 To these succeeded the cases of Ellis v. Selby,(d) and Stubbs v. 
 Sargon.(e) In the former case a testator gave a fund to his executors 
 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 
 
 (z) Morice v. Bishop of Durham, 9 Ves. 399 ; S. C. on Appeal, 10 Ves. 522. 
 
 (a) James v. Allen, 3 Mer. 17. 
 
 (6) Vezey v. Janson, 1 S. & S. 69. (c) Fowler v. Garlike, 1 R. & M. 232. 
 
 (d) Ellis v. Selby, 7 Sim. 352 ; S. C. on Appeal, 1 M. & Cr. 286. 
 
 (c) Stubbs v. Sargon, 2 Keen, 255 ; S. C. on Appeal, 3 M. & Cr. 507. 
 
OR PRESUMPTIVE TRUST. 177 
 
 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. Shad- 
 well, V. C, and afterwards on, appeal by \oxi Cottenham, C, that a 
 trust was created, but so indefinite a one that it could not be executed. 
 However, there was no resulting trust, as the interest undisposed of fell 
 into the residue.(d) 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 following terms : " The enclosed note of £2000 I have 
 given to Sarah Sargon for her sole use and benefit, independent of her 
 husband, for tbe express purpose of enabling her to present to either 
 branch of my family any interest or principal thereon as the said Sarah 
 Sargon 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 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 endorsed the same in 
 her favor." The case came before Lord Langdale, M. R., and after-' 
 wards, 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 exe- 
 cuted, and that the sum secured by the note constituted part of the testa- 
 trix's estate.(e) 
 
 In all the cases that have been mentioned the declaration of the parti- 
 cular trust was considered to be insufficient from the uncertainty of its 
 nature and objects ; but the intention that the donees should in no case 
 be entitled to the beneficial interest, was, notwithstanding, thought to 
 be sufficiently apparent, and they were consequently decreed to take the 
 property as trustees by resulting trust. However, no resulting trust 
 will be raised and established against the donee, unless the testator has 
 sufficiently expressed his intention that they should take only in trust 
 for others. 1 
 
 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 resi- 
 due of my personal estate, after payment of my debts, -legacies, &c, 
 
 (d) Ellis v. Selby, 7 Sim. 352 ; S. C. on Appeal, 1 M. & Cr. 286. 
 
 («) Stubbs v. Sargou, 2 Keen, 255 ; S. C. on Appeal, 3 M. & Cr. 507. 
 
 (/) Gibbs v. Bumsey, 2 V. & B. 294 ; but see Ellis v. Selby, 1 M. & Cr. 297, 8. 
 
 1 In Hughes v. Evans, 13 Sim. 496, a testator devised all his freehold estates to hia 
 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 wlas imposed on E., there was no resulting trust in 
 favor of his heir. When a testator gave the residue of his estate, after payment of 
 debts and legacies, to his executors, " to be disposed of as they think proper," it was 
 held that the executors took beneficially, and that parol evidence was not admissible to 
 show that they took in trust. Ealston v. Telfair, 2 Dev. Eq. 255. 
 
 12 
 
178 TRUSTEES BY RESULTING 
 
 *unto my said trustees and executors, to be disposed of unto 
 L J such person and persons, and in such manner and form, and in 
 such sum and sums of money, as they, in their discretion, shall think 
 proper and expedient." Apd Sir Wm. Grant, M. R., decided that there 
 was no sufficient indication of an intention on the part of the testatrix to 
 create a trust, and that the residuary 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 declarations 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 ; a fortiori such evidence is admissible, where the property 
 consists of personal estate. (g) But if the donee be plainly and unequivo- 
 cally declared a trustee in the instrument itself, then parol evidence will 
 not be received for the purpose of contradicting that declaration. (h) 
 
 3d. Where a gift of property is expressed to be made for particular 
 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 cha- 
 racter.^') 1 
 
 (g) Gainsborough v. Gainsborough, 2 Vera. 253; Walton v. Walton, 14 Ves. 322; 
 Langham v. Sanford, 17 Ves. 435 ; and S. C. 2 Mer. 17. 
 
 (h) Walton v. Walton, 14 Ves. 322 ; Gladding v. Yapp, 5 Mad. 59; Langham v. 
 Sanford, 2 Mer. 17 ;- vide post, p. 94. (i) 2 Jarm. Pow. Dev. 32. 
 
 1 Huston v. Hamilton, 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. PL, 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 Sheaffer's Appeal, 8 Barr, 38, there was a devise to A. "for the sum of $6000 
 — $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. 
 
 But in a recent case in Kentucky, a deed of personal property by the granting clause 
 conveyed "all the right, title, and interest" of the grantor to a trustee, "for the use 
 and benefit" of the grantor's wife. After a recital of a suit for divorce and alimoDY, 
 that a compromise had been agreed upon therein, and that the deed had been made in 
 pursuance of the compromise, the habendum was in trust to the use and benefit of the 
 cestui que trust " so long as she lives," and the trustee was to appropriate the property 
 as thereby to maintain the cestui que trust out of the annual profits so long as she lived. 
 The grantor bound himself, his heirs, &c, never to claim the property or any part 
 thereof, or its profits, at any time whatever, and the wife was not to claim any other part 
 of her husband's estate. It was held that an absolute estate in the property passed ; 
 that there was no resulting trust to the grantor after the death of the cestui que trust; 
 and that the husband's belief at the time of making the deed that he had only an estate 
 for the life of his wife in the property, of which extrinsic evidence appears to have been 
 admitted without objection, did not alter the case. Benning v. Benning's Exr. 14 B. 
 
OR PRESUMPTIVE TRUST. 179 
 
 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.(l) 
 
 The question whether the donee will or will not be entitled to the un- 
 exhausted 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 pay debts, that is a gift for the particular purpose, and 
 nothing more. The former is a gift of an estate of inheritance, for the 
 purpose of giving the donee the beneficial interest, subject to the parti- 
 cular purpose ; the latter is a gift for a particular purpose, with no in- 
 tention of giving any beneficial interest. Where, therefore, the whole 
 legal estate *is given for the purpose of satisfying trusts ex- 
 pressed, which do not exhaust the whole, so much of the bene- •- J 
 ficial interest as is not exhausted belongs to the heir. But where the 
 whole legal interest is given for a particular 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, (I) a testator devised his lands to 
 
 (A) In King v. Denison, 1 V. & B. 272. [See King v. Mitchell, 8 Peters, 349.] 
 (Z) Hobart v. Conntess of Suffolk, 2 Vern. 644. 
 
 (1) Before the statute of 1 Will. IV, c. 40, the mere appointment of an executor 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 expressly 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 other- 
 wise to a person, who is also appointed executor : and whether the gift in such case will 
 or will not confer any beneficial 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 William Grant at the original hearing of the 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. 
 S; P. Cradock v. Owen, 2 Sm. & Giff. 247.] 
 
 Monr. 585. The principal stress of the argument turned on the general release or quit. 
 claim of the husband, in connection with the fact that the property was personalty, , 
 which did not require words of inheritance. 
 
180 TRUSTEES BY RESULTING 
 
 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 disposition of the 
 remainder in fee. It was contended for the devisees, that the devise, 
 being to them and their heirs upon the trusts after-mentioned, imported, 
 that they should be trustees only for those purposes, 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 1000Z. 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 undisposed of, and resulted to 
 the heir.(m) 
 
 The rule will be the same, though the interest thus partially disposed 
 of consists of a particular portion, severed from the bulk of the property: 
 as where a term of years is created for certain purposes 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 or 
 other purposes, and no more is said, it is clear that there will be a re- 
 sulting 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 fol- 
 lowed by a devise of the real estate to the same persons in 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. were appointed executors, 
 L J but there was no further disposition of the personal estate. It 
 was held by V. C. K. Bruce that A. B. and C. were not entitled benefi- 
 cially to the personalty not required for payment of the testator's 
 debts, (p) 
 
 (I) Hobart v. Countess of Suffolk, 2 Vern. 644. 
 
 (m) Sherrard v. Ld. Harborough, Ambl. 165. 
 
 {n) Wych v. Packington, 3 B. P. C. 44 ; Levet v. Needhara, 2 Vern. 138. 
 
 (0) Countess of Bristol v. Hungerford, 2 Vera. 645 ; Holliday v. Hudson, 3 Ves. 210; 
 Hill v. Cock, 1 V. & B. 173 ; 2 Jarm. Pow. Dev. 34, 77, and cases there cited; Robin- 
 son v. Taylor, 2 Bro. C. C. 589. 
 
 (p) Mullen v. Bowman, 12 Law Journ. N. S. Chanc. 342 ; S. C. 1 Coll. N. C. C. 197. 
 [See Mapp v. Elcock, 2 Phill. 793; Elcock v. Mapp, 3 H. L. Cas. 492; Cradock v. 
 Owen, 2 Sm. & Giff. 246.] 
 
 (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 contingency happens, 
 and, if it do not happen at all, the entire fee, will result to the heir at law. Williams 
 v. Chitty, 3 Ves. 546 ; Attorney-General v. Bowyer, 3 Ves. 725 ; Nash v. Smith, 17 
 Ves. 29 ; Chalmers v. Brailsford, 18 Ves. 368. 
 
OR PRESUMPTIVE TRUST. 181 
 
 However, according to the observation of Lord Hardwicke, the gene- 
 ral rule that where land is given for a particular purpose, what remains 
 after that particular purpose is satisfied, results, admits of several ex- 
 ceptions, (q) 
 
 Thus where it appears from the words of the instrument that the pro- 
 perty is given subject to the particular purpose expressed, and not for 
 the discharge of that purpose only (according to the distinction of Lord 
 Eldon previously adverted to), the donee will take beneficially what re- 
 mains after the satisfaction of that purpose. 
 
 In Hill v. Bishop of London,^) a testator devised a perpetual advow- 
 son 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 offer was to be made to another in a prescribed order. Lord 
 Hardwicke observed that "the devise amounted to no more than this: — 
 the testator gives the advowson to Grace Smith, but if such or such a 
 college will buy it, then he lays an injunction on her to sell ; and there- 
 fore there are two objects of the testator's bounty — G race Smith and 
 the Colleges ;" and his lordship held that there was no resulting trust for 
 the heir.(r) 
 
 In King v. Denison,(s) the general doctrine was much discussed. 
 There 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 seve- 
 ral 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 rule will also be applied to bequests of personal property, 
 or to a general devise and bequest of both real and personal property. (t) 
 
 In the case of Walton v. Walton,(w) and Dawson v. Clarke,(w) Sir 
 Wm. Grant decided in favor of the claims of executors to a residue un- 
 disposed of; but tbose decisions proceeded on the ground of their legal 
 title ;{u) 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 re- 
 garded as an authority on the general question. (x) 
 
 (q) In Hill v. Bishop of London, 1 Atk. 619 ; and see Walton v. Walton, 14 Ves. 322. 
 (r) Hill v. Bishop of London, 1 Atk. 618. («) King v. Denison, 1 V. & B. 260. 
 
 \t) Southouse v. Bate, 2 V. & B. 396 ; Mullen v. Bowman, 1 Coll. N. C. C. 197. 
 (u) Walton v. Walton, 14 Ves. 313 ; Dawson v. Clarke, 15 Ves. 247. 
 (x) See Mullen v. Bowman, 1 Coll. N. C. C. 197. [Mapp v. Elcock, 2 Phill. 793.] 
 
182 TRUSTEES BY RESULTING 
 
 *In Dawson v. Clarke, there was a general bequest to two 
 L 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. Deni- 
 son, 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.(y) 
 
 In the recent case of Wood v. Cox,(g) a testatrix bequeathed all her 
 personal estate to C, whom she appointed one of her executors, for his 
 own use and benefit forever, trusting and wholly confiding in his honor, 
 that he would act in strict conformity to her wishes. Afterwards, on 
 the same day, she executed another testamentary paper, 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 Cottenham, who decreed C. to take the 
 personal estate for his own use absolutely, subject to the payment of the 
 legacies.(s) 
 
 Where the gift contains expressions, importing an intention to confer 
 a benefit on the donee, it seems that that circumstance will have con- 
 siderable weight for the purpose of rebutting the resulting trust. Thus 
 where a testator made and constituted his dearly beloved wife his sole 
 heiress and executrix of his real and personal estate, to sell and dispose 
 thereof at her pleasure, and to pay his debts and legacies, Lord Chan- 
 cellor 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 "free and unfettered" attached to the strongest expres- 
 sions of trust have been considered to prevent a trust from attaching to 
 the gift.(J) And in Wood v. Cox,(c) the fact of the gift being expressed 
 to be made to the donee "for his own use and benefit forever," appears 
 to have had very considerable influence upon Lord Cottenham in arriving 
 at the decision, that there was no resulting trust in that case. 
 
 Upon the same principle expressions of kindness and affection — as 
 where the gift is, to "my dearly beloved wife," have been considered to 
 support the inference, that a beneficial gift was intended.(^) And even 
 where the donee is merely described by the relationship, as " my cousin," 
 
 (?/) Dawson v. Clarke, 18 Ves. 247 ; and see Southouse v. Bate, 2 V. & B. 396. 
 (z) Wood v. Cox, 1 Keen, 317; S. C. on Appeal, 2 M. & Cr. 684. 
 (a) Rodgers v. Rodgers, 3 P. Wms. 193. (6) Meredith v. Heneage, 1 Sim. 555. 
 (c) Wood v. Cox, 2 M. & Cr. 692. (d) Rogers v. Rogers, 3 P. Wms. 193. 
 
OR PRESUMPTIVE TRUST. 183 
 
 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 parties, 
 *and the qualifications of the donee to discharge the office of r*-|oon 
 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 un- 
 fitted to discharge the duties of a trustee, will have some weight with 
 the court in a doubtful case.(A) But where, from the whole context of 
 the instrument, a trust is created, those circumstances alone will not have 
 the effect of repelling it.(i) 
 
 In Williams v. Jones,(A)the fact of a child being appointed executrix, 
 was considered by Sir Wm. Grant, M. R., to be a very strong circum- 
 stance 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 con- 
 clusion."^) And so in the recent case of Cook v. Hutchinson,(Z) a 
 father, an old man eighty years of age, made an indenture between him- 
 self 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 pro- 
 ceeded 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 be- 
 tween 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 con- 
 struction.^) The decision in Cook v. Hutchinson, must therefore be 
 
 (e) Cunningham v. Mellish, Prec. Ch. 31 ; King v. Denison, 1 V. & B. 274. 
 
 (/) See 2 Jarm. Pow. Dev. 38. [King v. Mitchell, 8 Pet. 326.] 
 
 (g) Hobart v. Countess of Suffolk, 2 Vera. 644. 
 
 \h) Blinkhom v. Feast, 2 Ves. Sen. 27 ; Williams v. Jones, 10 Ves. 77. 
 
 (i) King v. Denison, 1 V. & B. 275. (k) Williams v. Jones, 10 Ves. 83. 
 
 (Z)'Cook v. Hutchinson, 1 Keen, 42. (»») Sidney v. Shelly, 19 Ves. 358. 
 
184 TRUSTEES BY RESULTING 
 
 looked upon as a strong authority "against the existence of a resulting 
 trust, in case of a partial 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 trus- 
 tees, 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.(w) 
 
 And so where distinct gifts of real and of personal estate are contained 
 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, al- 
 though the same expressions may be attached to the gift in both cases.(o) 
 *But where there is a gift jointly to several persons, and one 
 •- J of them is clearly a trustee, the others will also take in that cha- 
 racter. For, as Lord Alvanley has observed, there is no instance of 
 making one trustee, and the other not.(p) 
 
 Before the recent statute of 1 William IV, 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') 1 
 
 This last doctrine and the principle upon which it was introduced, was 
 ' considered to be very unsatisfactory, and the courts have consequently 
 endeavored as much as possible to pare down its application.(r) There- 
 fore, 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 appoint- 
 
 (n) Pratt v. Slacdeu, 14 Ves. 193. (o) King v. Denison, 1 V. & B. 277. 
 
 \p) White v. Evans, 4 Ves. 21 ; Milnes v. Slater, 8 Ves. 295 ; Sadler v. Turner, lb. 
 617 ; Williams v. Jones, 10 Ves. 77. 
 
 (q) Faringdon v. Knightly, 1 P. Wms. 545 ; Abbott v. Abbott, 6 Ves. 343 ; Langham 
 v. Sanford, 17 Ves. 435, and 2 Mer. 6; Bull v. Kingston, 1 Mer. 314; [Cradock v. 
 Owen, 2 Sm. & Giff. 247.] 
 
 (r) See Lord Eldon's observations, in King v. Denison, 1 V. & B. 277. [Ante, 118, 
 note (1).] 
 
 1 In several of the United States the common law doctrine, which gives to the exe- 
 cutor 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 v. Hill, 2 
 Hayw. R. 298 ; Denn v. Allen, 1 Penning. 44, 2 Lomax Exr. 184, &c. ; Paup v. Mingo, 
 4 Leigh, 163. In Pennsylvania (Act of 1807, Dunlop, 241), New York (Rev. Stat. 
 Part II, tit. Ill, art. 3. § 79), and Delaware (Rev. Code (1852), No. 1843), there are 
 express statute provisions which exclude the executor. And it may be doubted whether 
 in general in any of the States, under their statutes of distribution, he would be per- 
 mitted to take beneficially without express words. Story, Eq. Jur. \ 452. In Darrah 
 v. McNair, 1 Ashm. 240, it was held under the Pennsylvania act, that where there were 
 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. Merrett, 22 L. J- 
 
OR PRESUMPTIVE TRUST. 185 
 
 Jent as executor, it has, notwithstanding, been expressly decided that a 
 lAgacy to persons, who are appointed executors, though given to them 
 jxpressly " for their care and trouble," will not exclude the claim of those 
 persons to take the residue beneficially ; if they claim not in the cha- 
 racter of executors, but under a direct disposition to them personally as 
 residuary legatees. 1 
 
 Thus in Gibbs v. Rumsey,(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 : tmd she gave and be- 
 queathed 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, lega- 
 cies, &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 proper. 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. B,., in deciding against that claim, said, " this testatrix, having 
 created a trust to sell, gives many particular legacies, and among them 
 £100 to each of her two trustees for their care and trouble in the exe- 
 cution of the trusts of the will. That is undoubtedly sufficient to exclude 
 any claim as executors ; but they claim not in that character, 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 distinc- 
 tions 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 :(t) *or where the legacy is contingent and reversionary,(w) r*io4.l 
 or specific,(:c) there would be room to contend that the gift of the 
 
 (s) Gibbs v. Rumsey, 2 V. & B. 294. (t) Langham v. Sanford, 2 Mer. 21. 
 
 (u) Lynn v. Beaver, T. & E. 63 ; but see Seley v. Wood, 10 Ves. 71 ; and Oldman v. 
 Slater, 3 Sim. 84. 
 
 (x) Blinkhorn v. Feast, 2 Ves. Sen. 27 ; Nisbett v. Murray, 5 Ves. 149, 158 ; but see 
 Southcott v. "Watson, 3 Atk. 226 ; and Martin v. Rebow, 1 Bro. C. C. 154. 
 
 1 But in Cradock v. Owen, 2 Sm. & Giff. 241, a testatrix by her will, made since the 
 statute 1 William IV, c. 40, gave to two devisees, who were also her executors, all her 
 real and personal estate upon trust for sale, and directed that the trustees should each 
 retain out of the produce, £50 for his care and trouble in the execution of her will and 
 the trusts thereof; and then she gave the residue of the produce upon certain legacies, 
 "which, as it proved, did not exhaust the fund, and made no further disposition of her 
 estate. The testatrix had neither heir nor next of kin. The legacies and costs of suit 
 were apportioned between the produce of the real and personal estate ; and the crown, 
 though admitted not to he entitled to the real estate or its proceeds, was declared enti- 
 tled to the surplus of the personalty, the executors being held to be excluded by the 
 terms of the will independently of the statute. 
 
186 TRUSTEES BY RESULTING 
 
 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 interest 
 given to another person :{y) or an aliquot part, the other parts being 
 given to other persons :{z) or a bequest for life with remainder over.fa) 
 But if there be no such ulterior limitation, a bequest for life will have the 
 same effect in raising the presumption of a trust as any other legacy.(S) 
 
 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.(ctf) 
 
 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. Accordingly, 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. (17) However, in Rogers 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.(A) 
 
 Unless the gift, whether of real or personal property, be such as to 
 create a presumption against the title of the donee to its beneficial en- 
 joyment, parol evidence will not be admitted for the purpose of esta- 
 blishing a resulting trust in favor of the heir at law or next of kin in 
 
 {y) Griffith v. Rogers, Pree. Ch. 231. 
 
 (z) Jones v. "Westcomb, 1 Bq. Ca. Abr. 245, pi. 10. 
 
 (a) Granville v. Beaufort, 1 P. Wms. 114; see Nourse v. Finch, 1 Ves. Jun. 344. 
 
 (6) Touch v. Lambert, 4 Bro. C. C. 326. 
 
 (c) Blinkhorn v. Feast, 2 Ves. Sen. 27 ; Sadler v. Turner, 8 Ves. 617 ; Bawlius v. 
 Jennings, 13 Ves. 39. [Russell v. Clowes, 2 Coll. C. C. 648.] 
 
 (d) Petit v. Smith, 1 P. Wms. 7 ; Gibbs v. Rumsey, 2 V. & B. 294. 
 
 (e) 2 Jarm. Pow. Dev. 40. [See Hennershotz's Estate, 4 Harr. (Penn.) 435.] 
 (/) Farington v. Knight, 1 P. "Wms. 545 ; Rutland v. Rutland, 2 P. Wms. 213 ; 
 
 Andrews v. Clark, 2 Ves. Sen. 162 ; North v. Pardon, lb. 495. 
 
 (g) Starkey v. Brooks, 1 P. Wms. 390 ; Randal v. Bookey, 2 Vern. 425 ; and Prec. 
 Ch. 162 ; Kellett v. Kellett, 1 Ball & B. 543 ; S. C. on Appeal, 3 Dow. P. C. 248. 
 
 (7j) Rogers v. Rogers, 3 P. Wms. 194. 
 
OR PRESUMPTIVE TRUST. 187 
 
 opposition to the claim of the donee. 1 This was decided in the case of 
 the survivor of several executors, to whom unequal legacies had been 
 given. The surviving executor in virtue of his appointment claimed 
 the whole of the residue *undisposed of. The representative r*-ioc-| 
 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 Win. 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 a for- 
 tiori 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 pre- 
 sumption. 
 
 On the other hand, where the presumption of a resulting trust in 
 these cases is once created, parol evidence will be admitted in support of 
 the legal title of the donee, to rebut the trust.(l) The admissibility of 
 parol evidence for this purpose has been so long and firmly established, 
 that in the train of cases on the subject, the question has not been raised 
 on the principle itself, but on the application of it; the doubt being 
 whether on the whole, and sometimes the conflicting evidence, the in- 
 tention 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 remains doubtful, the equity in favor of the heir 
 at law or next of kin will prevail, the presumption not being rebutted.(fc) 
 
 It is to be observed, however, that the rule which admits this evidence 
 has been viewed with great disapprobation; and in modern times it has 
 scarcely ever been received without eliciting some expressions of ani- 
 madversion.^) 
 
 (i) White v. "Williams, 3 V. & B. 72 ; and see Langham v. Sanford, 2 Mer. 17. 
 
 (k) Docksey v. Doeksey, 3 Bro. P. C. 39 ; Mallabar v. Mallabar, Cas. Temp. Talb. 
 79; Petit v. Smith, 1 P. Wms. 7; Nourse v: Finch, 1 Ves. Jun. 344; Walton v. Walton, 
 14 Ves. 318; Langham v. Sanford, 2 Mer. 6; Gladding v. Yapp, 5 Mad. 56; see 1 
 Jarm. Pow. Dev. 499, and note 2. 
 
 (I) See the observations of Mr. Justice Buller, in Nourse v. Pinch, 1 Ves. Jun. 357 ; 
 of Lord Alvanley in Clennell v. Letwhwaite, 2 Ves. Jun. 475 ; of Lord Eldon, in Trimmer 
 v. Bayne, 7 Ves. 518 ; and in Langham v. Sanford, 2 Mer. 16 ; and see 1 Jarm. Pow. 
 Dev. 505, n. 
 
 (1) The statute 1 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 dehors 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 disposition of the residue to an executor per- 
 sonally. [And so it was held in Love v. Gaze, 8 Beav. 472 ; 9 Jur. 910.] 
 
 1 Ralston v. Telfair, 2 Dev. Eq. 255, stated ante, page 107, note. 
 
188 TKUSTBES BY RESULTING 
 
 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.(w) 
 
 But it is now settled that parol declarations subsequent or even ante- 
 rior to the will are admissible.(o) Such declarations, however, are not 
 all entitled to equal weight. Lord Eldon, in Trimmer v. Bayne,Q?) 
 r*12fiT Addressing himself to this subject, said, "I fear 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 effica- 
 cious. A declaration at the time of making the will is of more conse- 
 quence than one afterwards ; and a declaration 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 ; fpr that 
 will may very well be altered ; but he knows what he has done7 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 en- 
 titled to very different credit and weight according to the time and cir- 
 cumstances, "(p) 
 
 So in Langham v. Sandford,^) Lord Eldon reiterated his opinion, 
 "that in such cases the best evidence is the contemporaneous evidence, 
 and that all the rest weighs very little in the scales."^) 
 
 In like manner, where the gift is to two or more persons jointly, and 
 the presumption of their all being trustees arising from the circumstances 
 of the trust being established against one of them ; parol evidence will 
 be admitted on behalf of the others to rebut the trust.(r) 
 
 Previously to the statute of 1 Will. IV, it seems that if an executor 
 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 executor claiming under an 
 express gift to himself; and it would seem from analogy to be applicable 
 to a similar question between a devisee and the heir at law. 
 
 (m) In Duke of Rutland v. Duchess of Rutland, 2 P. Wms. 215. 
 
 (n) In Clennell v. Lewthwaite, 2 Ves. Jun. 474. 
 
 (o) Lake v. Lake, 1 Wils. 313 ; and Ambler, 126 ; Walton v. Walton, 14 Ves. 318, 
 323 ; Gladding v. Yapp, 5 Mad. 56. (p) Trimmer v. Bane, 7 Ves. 520. 
 
 (q) Langham v. Sandford, 2 Mer. 23. (r) Williams v. Jones, 10 Ves. 77. 
 
 (s) Batcheller v. Searl, 2 Vern. 737 ; Brassbridge v. Woodroffe, 2 Atk. 68 ; in Lang- 
 ham v. Sandford, 2 Mer. 10, this point was raised, but not decided. 
 
OR PRESUMPTIVE TRUST. 189 
 
 But those cases which raise against the donee a presumptive trust, 
 ■which may be rebutted by parol evidence, are carefully to be distin- 
 guished from those in which the instrument contains clear demonstrative 
 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 residue 
 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, (t) 
 
 In questions respecting the claims of executors as such to the residue 
 undisposed of, before the statute of 1 Will. IV, it seems to have been a 
 point of considerable nicety to determine what would or would 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 considered conclusive against 
 the executor for this purpose ;(u) but an inchoate residuary >- -I 
 clause ;(x) or a direction to keep an account ;{y) 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,(s) Sir William Grant, M. R., 
 decided that where the residue is expressly given to the executors, a 
 legacy to them, though for 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 direction 
 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 direc- 
 tion to convert, but by the disposition of the converted property, and so 
 far only as that disposition extends.(a) 1 And the right of the heir in 
 
 (t) Walton v. Walton, 14 Ves. 322 ; Langham v. Sandford, 17 Ves. 442, and 2 Mer. 
 17 ; Gladding v. Yapp, 5 Mad. 59. 
 
 (u) Langham v. Sandford, 17 Ves. 443 ; see 1 Jarm. Pow. Dev. 507, n. 
 
 (x) Nourse v. Finch, 1 Ves. Jun. 344. (y) Gladding v. Yapp, 5 Mad. 56. 
 
 (z) Gibbs y. Rumsey, 2 V. & B. 294. 
 
 (a) Hill v. Cock, 1 V. & B. 173 ; 2 Jarm. Pow. Dev. 77, and cases cited ; Wilson v. 
 Major, 11 Ves. 205 ; Berry v. Usher, 11 Ves. 87 ; Smith v. Claxton, 4 Mad. 484. [See 
 Cradock v. Owen, 2 Sm. & Giff. 241 ; stated ante, 123, note.] 
 
 1 See Burley v. Evelyn, 16 Sim. 290, 12 Jur. 712 ; Craig v. Leslie, 3 Wheat. 564; 
 Burr v. Sim, 1 Whart. 252 ; Lindsay [v. Pleasants, 4 Ired. Eq. 320 ; Morrow v. Breni- 
 zer, 2 Eawle, 185 ; Pratt v. Taliaferro, 3 Leigh, 419 ; North v. Valk, Dudley's Eq. 212 ; 
 
190 TRUSTEES BY RESULTING 
 
 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 sub- 
 ject of the attempted or partial disposition.(J) 
 
 However, a material distinction has been established between the con- 
 version 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 un- 
 disposed of, to the heir at law.(c) 
 
 Thus, where a testator directed £1000 to be laid out in the purchase 
 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 re- 
 version after the nephew's death resulted to the testator's heir at law.(d) 
 
 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.(d) It is blowing hot and cold in favor of the 
 heir ; for the principle, which would entitle him to the ulterior interest 
 in the one case, would exclude him in the other.(e) 
 
 The principle of Chapman v. Fletcher(i) will not, as we shall see pre- 
 sently, be applied to cases, where the particular disposition of the money, 
 directed to be invested in land, wholly fails ; for in such cases it has 
 r*1 281 ^ een ^ e ^' ^ at ^ e i n t ;erest tnus lapsing belongs to the next of kin, 
 ^ *and not to the heir at law.(ee)' It seems very difficult upon 
 
 (6) Hill v. Cock, ubi supra; Robinson v. Taylor, 2 Bro. C. C. 589; Dixon v. Dawson, 
 2 S. & S. 327. [Lindsay v. Pleasants, 4 Ired. Eq. 321 ; Wood v. Cone, 7 Paige Ch. 
 472.] 
 
 (c) 2 Jarm. Pow. Dev. 74. [Thorn v. Coles, 3 Bdw. Ch. 330 ; see Hawley v. James, 
 5 Paige, 323.] 
 
 (d) Fletcher v. Chapman, 3 Bro. P. C. 1. (e) 2 Jarm. Pow. Dev. 75. 
 (ee) Hereford v. Ravenhill, 1 Beav. 487, n. ; S. C. 5 Beav. 51 ; Cogan v. Stephens, lb. 
 
 486. 
 
 Smith v. McCrary, 3 Ired. Ch. 204; Wood v. Cone, 7 Paige Ch. 472; Tilghman's 
 Estate, 5 Whart. 44; Owens v. Cowan, 7 B. Monroe, 152 ; Snowhill v. Snowhill, Ex'r, 
 1 Green. Ch. 30 ; Bogert v. Hertell, 4 Hill, 501. An express provision in a will that 
 on the sale of real estate which is directed, the trustees shall 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 affect the right of the heir to an undisposed of surplus. Taylor v. Tay- 
 lor, 3 De G. Macn. & G. 190 ; Robinson v. The Governors, &c. 10 Hare, 29; Fitch v. 
 Weber, 6 Hare, 145 ; Gordon v. Atkinson, 1 De Gex & S. 478. See Blackman v. Gor- 
 don, 2 Richardson Eq. 43. But see in the United States, Craig v. Leslie, 3 Wheat. 
 563 ; Burr v. Sim, 1 Whart. 263. 
 
 1 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 in this case, how- 
 
OR PRESUMPTIVE TRUST. 191 
 
 principle to dra:v any distinction between an interest originally undis- 
 posed of, and one becoming undisposed of by subsequent failure or lapse ; 
 and it is therefore submitted, that if the question decided in Chapman 
 v. Fletcher should occur at the present day, it is not improbable that 
 the recent decisions in Hereford v. E-avenhill, 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 imperfect 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 purpose, 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 
 sueh cases the donees will take the interest undisposed of as trustees for 
 charitable purposes to be ascertained and determined by the Court of 
 Chancery.(Z) 1 
 
 (/) Cook v. Dunkenfeld, 2 Atk. 567; Thetford School case, 8 Co. 130; Att.-Gen. v. 
 Arnold, Show. P. C. 22 ; Moggridge v. Thackwell, 7 Ves. 73 ; Att.-Gen. v. Mayor of 
 Bristol, 2 J. & W. 308 ; Mills v. Farmer, 1 Mer. 55 ; Att.-Gen. v. Haberdasher's Comp. 
 4 Bro. C. C. 103. 
 
 (1) The case of Hereford v. Ravenhill came subsequently before the court on further 
 directions, and on that occasion Lord Langdale, M. B., decided that a bequest of per- 
 sonal estate to be invested in the purchase of land, and held on trusts that became ex- 
 hausted, 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, how- 
 ever, that in that case the fund had not been actually invested in land. Hereford v. 
 Ravenhill, 5 Beav. 51. 
 
 ever, would appear from the opinion of the court to have been the proceeds of real 
 estate. In De Beauvoir v. De Beauvoir, 3 House Lords' Cas. 524, where there was a 
 power to lay out money on land, and a blended disposition of realty and personalty, so 
 as to produce a conversion of the latter, and show an intention to impress it with the 
 character of realty, and the whole was devised to persons designated in tail male with 
 a limitation over to the testator's right heirs : it was held, that the intention did not cease 
 on a failure of issue made under the limitations, so as to make the realty go one way, 
 and uninvested personalty another. 
 
 1 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 Chancery at com- 
 mon law, independently of that statute ; and that charities within its definition would 
 be enforced, though the beneficiaries were too vaguely designated to claim for them- 
 selves 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 v. Emery, 16 Pick. 107 ; Brown v. Kelsey, 2 Cush. 243 ; Burr v. 
 Smith, 7 Verm. 241 ; Wright v. Trustees, 1 Hoff. Ch. 202 ; King v. Woodhull, 3 Edw. 
 Ch. 79 ; Kniskem v. Lutheran Church, 1 Sandf. Ch. 439 ; Banks v. Phelan, 4 Barb. S. 
 
192 TRUSTEES BY RESULTING 
 
 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 codicil, to 
 be annexed to his will, or by a note in writing, and afterwards 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.'Y^) 
 
 (g) 2 Freem. 261, stated in 7 Ves. 73 ; and 1 Mer. 59. 
 
 C. 80 ; Shotwell v. Mott, 2 Sandf. Cli. 46 ; Newcomb v. St. Peter's Church, Id. 636; 
 Williams v. Williams, 4 Selden, 525 (overruling Ayres v. Trustees, 9 Barb. S. C. 324 ;, 
 Andrew v. N. Y. Bible Soc. 4 Sandf. S. C. 156) ; Witman v. Lex, 17 S. & B. 88 ; Zane's 
 Will, Brightly, 350 ; Pickering v. Shotwell, 10 Barr, 23 ; Griffitts v. Cope, 17 Penn. St. 
 96 ; McCord v. Ochiltree, 8 Blackf. 15 ; State v. McGowen, 2 Ired. Ch. 9 ; Griffin v. 
 Graham, 1 Hawks, 96 ; Atty.-Gen. v. Jolly, 1 Rich. Eq. 99 ; Beall v. Pox, 4 Geo. 404; 
 Wade v. American Col. Soc. 7 S. & M. 663 ; Dickson v. Montgomery, 1 Swan (Tenn.), 
 348 ; Carter v. Balfour, 19 Alab. 814 ; Urmey's Ex'rs v. Wooden, 1 Ohio, St, N. S. 160 ; 
 White v. Pisk, 22 Conn. 31. In other States, the statute has been said to be still in 
 force. Griffin v. Graham, 1 Hawks, 96 (though see State v. McGowen, 2 Ired. Eq. 9); 
 Att.-Gen. v. Wallace, 7 B. Monr. 611. In Virginia and Maryland, however, it has been 
 decided that neither the statute nor the principles which it embodies, are in force. 
 Baptist Ass. v. Hart, 4 Wheat. 1 ; Wheeler v. Smith, 9 How. U. S. 55 ; Gallego v. Att.- 
 Gen. 3 Leigh, 451 ; Dashiell v. Att.-Gen. 5 Harr. & J. 392; 6 Id. 1. In Fontain v. 
 Ravenel, 17 How. U. S. 369, it was held by a majority of the court, that the courts of the 
 United States had no power, from their constitution as courts of equity, to administer 
 the law of charitable uses, whether existing under or before the Statute of Elizabeth, 
 or under the prerogative or general powers of the English Chancery, except so far 
 as the same had been actually adopted by the lex loci rei sitae. Chief Justice Taney 
 dissented from the reasoning of the court, on the ground that the whole doctrine of 
 charitable as distinguished from ordinary trusts, was prerogative, and therefore in- 
 capable of enforcement through a Federal court. Judge Daniel, on the other hand, 
 dissented, on the ground that the jurisdiction over charities, as it existed before the 43 
 Elizabeth, under the general powers of Chancery, was inherent in the Federal courts, 
 and to be enforced by them in a proper case. In the particular case, which was that 
 of a gift in remainder to executors, to be distributed in charity in a particular manner, 
 and the executors died during the life estate ; it was unanimously agreed, that under 
 the law of Pennsylvania and South Carolina, where the property to be affected was 
 situated, the discretion of the executors could not be exercised by the court, and that 
 as a direct gift to charity it was too vague to be enforced. 
 
 The Cypres doctrine, however, has been generally held inapplicable to the circum- 
 stances of this country, and therefore rejected, and more particularly has the jurisdiction 
 of the Chancellor, as the representative of the prerogative power of the king, as parens 
 patrice, to carry out indefinite charities by sign manual, been repudiated. McAuley v. 
 Wilson, 1 Dev. Eq. 276 ; Witman v. Lex, 17 Serg. & R. 88 ; Atty.-Gen. v. Jolly, 2 
 Strob. Eq. 379; Carter v. Balfour, 19 Alab. 814; Dickson v. Montgomery, 1 Swan, 
 348; Fontain v. Ravenel, 17 How. U. S. 369; White v. Fish, 22 Conn. 32. Contra 
 Atty.-Gen. v. Wallace, 7 B. Monroe, 611 ; Baker v. Smith, 13 Mete. 41; Urmey's Bxrs. 
 v. Wooden, 1 Ohio St. N. S. 160. By a recent Aet of Assembly, the Cypres doctrines 
 of the English Chancery have been, in substance, incorporated . into the law of Penn- 
 sylvania ; the effect of which enactment is to prevent any resulting trust to the heir at 
 law or next of kin, upon any disposition of property thereafter made, for any religious, 
 charitable, literary, or scientific use, on any ground whatever. Act 26 April, 1855, § 
 10, Bright. Purd. Supp. 1118. A very exhaustive discussion of this subject will be 
 found in the case of Magill v. Brown (Zane's Will), Brightly N. P. 350, decided in the 
 C. C. U. S. for Penna. by the late Judge Baldwin. See, further, notes to p. 450, et seq. 
 
OE PRESUMPTIVE TRUST. 193 
 
 And in Att.-General v. Syderfen,(/») which was a case of similar de- 
 scription, the court held the property to be applicable in charity to be 
 declared by the king's sign manual. (h) 
 
 So where a testator having given all his estate for charitable purposes 
 generally, proceeded to declare a particular scheme, which did not ex- 
 haust the whole income of the estate, it was held that there was no re- 
 sulting trust of the surplus, but that the whole was applicable in charity.(i) 
 
 And though there may not be any such general declaration devoting 
 the whole estate in charity, yet if there be a disposition either by deed 
 or *will, by which every portion of the property is applied and 
 exhausted at the time in favor of some charitable purpose, a *- J 
 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, (k) And it is immaterial that the property is given 
 to trustees with directions to apply a certain specified sum yearly to 
 charitable purposes, if that particular sum at the time of such direction 
 exhaust the whole income of the 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 necessarily follow on that account, that they will be en- 
 titled 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 Eldon,(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 en- 
 
 (7i) Att.-Gen. v. Syderfen, 1 Vern. 224; S. C. 7 Vos. 43 n.; Mills v. Parmer, 1 Mer. 
 94; Commissioners of Chancery Donations v. Sullivan, 1 D. & W. 501. 
 
 (i) Att.-Gen. v. Arnold, Show. P. C. 22 ; and see Att.-Gen. v. Coopers' Comp. 3 
 Beav. 34; Mills v. Parmer, 1 Mer. 55; Piesehell v. Paris, 2 S. & St. 384. 
 
 (k) Att.-Gen. v. Caius Coll. 2 Keen, 150; Att.-Gen. v. Johnson, Ambl. 190; Att.-Gen. 
 v. Sparks, lb. 201: Att.-Gen. v. Haberdashers' Comp. 4 Bro. C. C. 103; Att.-Gen. v. 
 Coopers' Comp. 3 Beav. 34; Att.-Gen. v. Catherine Hall, Jac. 381; Att.-Gen. v. Drapers' 
 Comp. 4 Beav. 67 ; Att.-Gen. v. Christ's Hospital, Id. 73. 
 
 (1) Att.-Gen. v. Christ's Hospital, 4 Beav. 73 ; Att.-Gen. v. Mayor of Coventry, 2 
 Vern. 397 ; S. C. 2 J, & W. 305, n. ; Att.-Gen. v. Johnson, Ambl. 190 ; Att.-Gen. v. 
 Tonner, 2 Ves. 1 ; Att.-Gen. v. Minshull, 4 Ves. 11 ; Att.-Gen. v. Caius Coll. 2 Keen, 
 150. 
 
 (m) Att.-Gen. v. Merchant Vent. Society, 5 Beav. 338. 
 
 (n) In Att.-Gen. v. Johnson, Ambl. 190. 
 
 (o) In Att.-Gen. v. Mayor of Bristol, 2 J. & W. 307. 
 
 13 
 
194 TRUSTEES BY RESULTING 
 
 titled to the surplus. There would either be a resulting trust, or it would 
 belong to the person to whom the estate is given.(p) 
 
 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 donpr's 
 charity, it seems that they will themselves be entitled to a surplus, aris- 
 ing from the increased value of the estate. (q) 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 applicable for the benefit of the 
 original objects according to the ordinary rule.(r) 
 
 And if a specified portion of the income of the estate be given bene- 
 ficially 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 
 ratably with the other objects of the testator's bounty.(s) 
 
 But if there be a gift to a company or to individuals, in trust to apply 
 r*1 301 * certa i n 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 particular payments 
 will not be increased out of the improved value, but the surplus will 
 belong beneficially to the donees. (t) 
 
 Where there is a general gift for charitable purposes, but the particu- 
 lar 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 he 
 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 terms 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 dis- 
 tinguished the principle of the cases where property, given generally to 
 
 (p) Per Lord Eldon, in 2 J. & W. 307 ; and see 2 Russ. 241. 
 
 (g) Att.-Gen. v. Mayor of Bristol, 3 Mad. 319 ; S. C. 2 J. & "W. 294. 
 
 (r) Att.-Gen. v. Christ's Hospital, 4 Beav. 73. 
 
 («) Att.-Gen. v. Caius Coll. 2 Keen, 150 ; Att.-Gen. v. Drapers' Comp. 4 Beav. 67. 
 
 (t) Att.-Gen. v. Grocers' Comp. 12 Law Journ. N. S. Chanc. 196; S. C. 6 Beav. 526; 
 Att.-Gen. v. Skinners' Comp. 2 Russ. 407, 442 ; Att.-Gen. v. Gascoigne, 2 M. &K. 647. 
 
 («) Att.-Gen. v. Todd, 1 Keen, 803 ; Gary v. Abbott, 7 Ves. 490 ; Att.-Gen. v. Green, 
 2 Bro. C. C. 492 ; Da Costa v. De Paz, Ambl. 228 ; S. C. 2 Sw. 487, n. [Martin v. 
 Margham, 14 Sim. 230.] (x) See Att.-Gen. v. Fishmongers' Comp. 2 Beav. 151. 
 
 (y) See the distinction taken by Lord Hardwicke, in Da Costa v. De Paz, Ambl. 228, 
 vide post. [Ayres v. Methodist Church, 3 Sandf. S. C. 352.] 
 
 (z) Paice v. Archbishop of Canterbury, 14 Ves. 372; Moggridge v. Thackwell, 7 Tea, 
 B6 ; Ommaney v. Butcher, T. & R. 27o". [Andrew v. N. Y. Bible and Prayr. Bit. Soc. 
 
OR PRESUMPTIVE TRUST. 195 
 
 charitable purposes, will be applied, under the direction of the royal sign 
 manual, and where the application will be under the immediate adminis- 
 tration 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 gene- 
 ral or some objects pointed out, there the court will take the administra- 
 tion of the trust."(g) 
 
 Thus, to illustrate this rule, in Frier v. Peacock,(a) which is reported 
 in Levinz, under the name of Attorney-General v. Matthews, (b) a testa- 
 tor gave his residue "for the good of poor people forever." 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 ap- 
 plied for the benefit of Christ's Hospital. (c) , 
 
 So in Attorney-General v. Syderfen,(d) where a testator gave 1000?. 
 to be applied to such charitable uses as he had by writing formerly ap- 
 pointed ; and no such writing could be found, the fund was applied to a 
 charity appointed by the royal sign manual. (d) 
 
 And, on the same principle, where the general intention is in favor of 
 *charity, but the law does not suffer the particular purpose to be r *..qi-i 
 carried into effect, 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 question 
 arises as to the application of the fund, the court will assume the admi- 
 nistration of the property, and will direct a scheme for that purpose. (/) 
 And the rule is the same where the trustees designated by the testator 
 decline to act.(^r) 
 
 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, notwithstanding, exer- 
 cise 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 Eosslyn, at the original hearing, considered 
 that the execution of this trust lay with the Court of Chancery, and ac- 
 
 (z) Paice v. Archbishop of Canterbury, 14 Ves. 372 ; Moggridge v. Thackwell, 7 Ves. 
 86 ; Ommaney v. Butcher, T. & R. 270. [Andrew v. N. Y. Bible and Prayr. Bk. Soc. 
 4. Sandf. S. C. 156 ; see 1 Am. Law Reg. 546.] 
 
 (a) Finch, 245. (6) 2 Lev. 167. (c) See 7 Ves. 69. 
 
 (d) Att.-Gen. v. Syderfen, 1 Vern. 224, and 7 Ves. 43, n. 
 
 (e) Cary v. Abbott, 7 Ves. 490 ; Att.-Gen. v. Todd, 1 Keen, 803. 
 
 (f) Attorney-General v. Tonner, 2 Ves. Jun. 1 ; Attorney-General v. Coopers' Comp. 
 3 Beav. 29. (g) Attorney-General v. Reeve, 3 Hare, 191. 
 
 (h) Moggridge v. Thackwell, 1 Ves. Jun. 464 ; S. C. on rehearing, 7 Ves. 36. 
 
196 TRUSTEES BY RESULTING 
 
 cordingly directed a scheme for that purpose. The case was afterwards 
 reheard before Lord Eldon, and most elaborately argued, and his lord- 
 ship, after a minute review of all the authorities from which he collected 
 the principle above stated, affirmed the decree of his predeeessor.(A) 
 
 Where the object of a testator is charity, a far less accurate and defi- 
 nite declaration of his intention will suffice to create a trust against bis 
 next of kin, than, as we have seen, would be required in other cases for 
 that purpose.(i) 
 
 Thus, in the case of Moggridge v. Thackwell,(&) which we have just 
 considered, it is beyond all question that the terms of the residuary be- 
 quest were by far too indefinite and uncertain to have excluded 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 con- 
 trol him in the exercise of that discretion by directing a scheme, unless 
 some case of misconduct is established against him.(n) 
 
 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 interfere. Sir 
 l~*l 391 Wm. *Grant has laid down the rule on this head in the following 
 terms : " The question is, not whether the trustee may not apply 
 it upon purposes wholly charitable, but whether he is bound 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,(</) where a testator " authorized and em- 
 powered" 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 1000Z. ; the Master of the Rolls held, that the charity could 
 not be established, by reason of its uncertainty, observing, that the tes- 
 tator meant to recommend only; it was not mandatory. It was to 
 exempt the trustees from being called to account for doing it.(g') 
 
 (h) Moggridge v. Thackwell, 1 Ves. Jun. 464; S. C. on rehearing, 1 Ves. 36. 
 (i) See Morice v. Bishop of Durham, 9 Ves. 405 ; Mills v. Farmer, 1 Mer. 94. 98, 100. 
 (k) Moggridge v. Thackwell, 1 Ves. Jun. 464; S. C. on rehearing, 1 Ves. 36. 
 (I) See Lord Eldon's observations, in Mills v. Parmer, '1 Mer. 100. 
 (to) Moggridge v. Thackwell, 1 Ves. Jun. 475 ; Bishop of Hereford v. Adams, 1 Ves. 
 324. 
 
 (w) Waldo v. Caley, 16 Ves. 206 ; Horde v. Earl of Suffolk, 2 M. & K. 59. 
 (o) In Morice v. Bishop of Durham, 9 Ves. 406. 
 
 tt-._ tun 1 £A 
 
OR PRESUMPTIVE TRUST. 197 
 
 And so in the recent case of Williams v. Kershaw,^) the testator 
 directed his trustees to apply the residue of the dividends and income 
 of a fund " to and for such benevolent and charitable and religious pur- 
 poses, as they in their discretion should think most advantageous and 
 beneficial, and to and for no other use, trust, intent or purpose whatso- 
 ever:" 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 there- 
 fore take effect. 
 
 And in the subsequent case of Ellis v. Selby,(»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 accountable to any 
 person or persons whomsoever for such their disposition thereof," Lord 
 Cottenham recognized 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 charitable 
 or other purposes, and on that circumstance the Vice-Chancellor appears 
 mainly to have founded his judgment. An alternative bequest of that 
 nature evidently excludes the possibility of its being supported as a valid 
 trust for charity. In Vesey 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 discre- 
 tion 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 indivi- 
 duals, or encouraging undertakings of general utility, in such mode or 
 proportions as their own discretion might suggest. Lord Langdale, M. 
 E.., adopted the *above rule as laid down by Sir Wm. Grant in )-.,.., QQ , 
 Morice v. Bishop of Durham, and stated, that if the trust had L -I 
 ended with the direction to assist " indigent but deserving individuals," 
 he should have said it was a good charitable purpose, because of the word 
 " indigent," but as the testator went on to empower 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 apply- 
 ing the fund to purposes which were not charitable, and consequently 
 that this could not be enforced as a charitable trust. In this case, the 
 
 (r) Williams v. Kershaw, Bolls, 11th Dec. 1835 ; stated in Ellis v. Selby, 1 M. & Cr. 
 298. 
 
 (rr) Ellis v. Selby, 1 Sim. 352 ; S. C. on Appeal, 1 M. & Cr. 286 ; and see Down v. 
 Worrall, 1 M. & K. 561. 
 
 (*) Vesey v. Janson, 1 S. & S. 71 ; but see Johnston v. Swan, 3 Mad. 475. 
 
198 TRUSTEES BY RESULTING 
 
 suit was instituted by the testator's heir and next of kin, and the trus- 
 tees do not appear to have raised any claim to the beneficial interest.^) 
 The court, in determining what will be such a " charitable purpose," 
 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 
 Eliz. c. 4, as well as those expressed in that statute :(u) but it will refuse 
 to recognize any objects, not enumerated by or coming within the spirit 
 of that statute, although such maybe a charitable object in the ordinary 
 meaning of the term^a;) 1 
 
 (t) Kendall v. Granger, 5 Beav. 300. («) Att.-Gen. v. Heelis, 2 S. & St. 76. 
 
 (x) Morice v. Bishop of Durham, 9 Ves. 405 ; and 10 Ves. 540 ; see Nash v. Morley, 
 5 Beav. 177 ; and Kendall v. Granger, lb. 300. 
 
 1 The decisions in the United States with regard to the validity of devises and lega- 
 cies to charitable uses have been frequent, but not entirely consistent. Where the 
 principles of the statute of Elizabeth are in force, considerable latitude of construction 
 has been adopted, with regard to the certainty requisite-in the description of the intended 
 objects of charity. 
 
 Thus a devise of property " to the cause of Christ, for the benefit and promotion of 
 true evangelical piety and religion," which was to be "distributed in such divisions, and 
 to such societies, and religious and charitable purposes," as the trustees " might think 
 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 v. Tayloe, Gil- 
 mer, 336 ; Shotwell v. Mott, 2 Sandf. Ch. 46 ; a devise to be applied to the "dissemina- 
 tion of the gospel at home and abroad ;" Attorney-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 circumstances ;" Shotwell v. Mott, 2 Sandf. Ch. 46 ; a 
 devise of real and personal estate to an unincorporated religious association, " to be 
 applied as a fund for the distribution of good books among poor people in the back part 
 of Pennsylvania, or for the support of an institution or free school in or near Philadel- 
 phia ;" Pickering v. Shotwell, 10 Barr, 23 ; a residuary devise to " the poor and needy 
 fatherless," &c, of two townships named ; Urmey's Ex'rs v. Wooden, 1 Ohio St. N. S. 
 160 ; have all been supported as against the heir at law or next of kin. 
 
 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 v. Hopkins's Academy, 
 14 Pick. 240 ; State v. McGowan, 2 Ired. Eq. 9; Griffin v. Graham, 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. Ellmaker, 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 ; or a bequest of " any surplus income to be ex- 
 pended by my trustees for the support of indigent pious young men preparing for the 
 ministry, in N. H. ;" White v. Fisk, 22 Conn. 32, is void for uncertainty. So in New 
 York, a devise to a corporation not capable of taking, in trust to apply the rents and 
 profits 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 public worship," is 
 
OR PRESUMPTIVE TRUST. 199 
 
 Therefore, where the bequest was in trust " for such objects of benevo- 
 lence and liberality, as the trustee in his own discretion shall most approve 
 of ;"{y) or for " such benevolent purposes as the trustees in their integrity 
 and discretion may unanimously agree on:"(2) the court refused to en- 
 force the trust. Upon the same principle it is now decided that a gift 
 to "private charity" is not such a one as can be recognized by the 
 court :(a) although in some cases this does not seem to have been re- 
 garded 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 chari- 
 table 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.(c^) 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 incapable 
 of taking effect in favor of the particular object, will, nevertheless, ope- 
 rate to exclude the trustee from taking the beneficial interest, and the 
 
 (j/) Morice v. Bishop of Durham, 9 Ves. 399 ; S. C. on Appeal, 10 Ves. 522. 
 
 (z) James v. Allen, 3 Mer. 17. 
 
 (a) Vide post, Ommaney v. Batcher, T. & R. 270 ; Nash v. Morley, 5 Beav. 177. 
 
 (&) Waldo v. Caley, 16 Ves. 206 ; Jemmitt v. Perrill, Ambl. 585, n. ; Johnston v. 
 Swan, 3 Mad. 457-, Horde v. Earle of Suffolk, 2 M. &-K. 59; see Ellis v. Selby, 1 M. 
 & Cr. 292. (c) Kendall v. Granger, 5 Beav. 300. 
 
 (d) Baker v. Sutton, 1 Keen, 224. 
 
 (e) Townsend v. Cams, 13 Law Journ. N. S. 169. 
 
 void. Ayres v. Methodist Church, 3 Sandf. S. C. 351. But see Williams v. Williams, 
 
 4 Selden, 525. 
 
 As to charitable uses in Virginia and Maryland, where the statute of Elizabeth is not 
 recognized, see Baptist Association v. Hart, 4 Wheat. 1 ; Dashiell v. 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. 
 
 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. Goulbourn, 2 Phill. 594; a bequest to 
 the commissioners for the reduction of the National Debt ; Ashton v. Lord Langdale, 
 20 L. J. Ch. 234; "to the minister and members of churches, holding particular doc- 
 trines ;" Att.-Gen. v. Lawes, 8 Hare, 32 ; to the governors of a society, " for the increase 
 and encouragement of good servants;" Loscombe v. Wintringham, 13 Beav. 87; "to 
 be applied 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 ad- 
 vancement, and propagation of education and learning in every part of the world, as 
 far as circumstances would admit.' 7 Whicker v. Hume, 1 De G. M. & G. 506. But in 
 Habershon v. Vardon, 20 L. J.Ch. 549 ; 4 De G. & Sm. 867 ; a gift towards, contribu- 
 tions "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. 
 
200 TRUSTEES BY RESULTING 
 
 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 purpose, 
 r*1 34.1 * wn i° a * s vo ^ as De i n g contrary to the policy of the law, we have 
 ^ -" seen that if the property be devoted generally to charity, it will 
 be applied, upon the failure of the particular purpose, under the direc- 
 tion of the royal sign manual.(^) 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 resulting trust for the donor or his heir at law, or 
 next of kin.(Jf) 
 
 Thus, in De Themmines v. De Bonneval, (<?</) a deed had been executed, 
 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 plaintiff for life, and after his 
 death to apply the same in printing and circulating a treatise, inculcating 
 the supremacy of the Pope in ecclesiastical matters : and the deed con- 
 tained 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 executors and administrators. The cause came before Sir 
 John Leach, M. R., who held the trusts, after the plaintiff's death, to 
 be void, as being contrary to the policy of the law. But his Honor con- 
 sidered 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 
 re transferred to him. (h) 
 
 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 C. 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 intention of the testatrix was, not to 
 benefit the priests or support the chapels, but to secure a supposed bene- 
 fit 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, to which the un- 
 certainty of the object would be no objection; and the gift will therefore 
 
 (/) Morice v. Bishop of Durham, 10 Ves. 522 ; James v. Allen, 2 Mer. IT ; Omma- 
 ney v. Butcher, T. & E. 260 ; Ellis v. Selby, 1 M. & Cr. 286. [Haywood v. Craven, 2 
 Car. L. E. 557.] (g) Vide supra, 130. (ff) Post. (gg) 5 Buss. 288. 
 
 (7i) De Themmines v. De Bonneval, 5 Buss. 288. 
 
 (i) West v. Shuttleworth, 2 M. & K. 684, 698. 
 
OR PRESUMPTIVE TRUST. 201 
 
 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.(/c) 
 
 4th. The last description of resulting trust which now remains for our 
 consideration, is, where a disposition of real or personal property fails 
 altogether or partially, either from being void db initio, or from becoming 
 so from some subsequent event. In either of these cases, the trust, if 
 not otherwise disposed of, will result to the benefit of the donor's heir at 
 law, or next of kin.(Z) 1 
 
 *Thus, where the gift is rendered void by statute, as, for in- r^-ioc-i 
 stance, a disposition of real estate in favor of a Papist(^) before 
 the late acts for the relief of persons of that persuasion ; or in violation 
 of the Mortmain Acts,(wi) or of the Thelluson Act (39 & 40 Geo. Ill, 
 c. 98) ;(n) or where the trusts are invalid at the time of their creation!, 
 or subsequently become so; as tending to a perpetuity ;(o) or where they 
 fail by the death of the donee in the testator'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. 2 
 
 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 undis- 
 posed of, until the event happens, upon which the remainders are limited 
 to take effect. 3 
 
 (k) Corporation of Gloucester v. Wood, 3 Hare, 131. 
 
 (I) 2 Jarm. Pow. Dev. 32 ; 1 Rop. Lega. 627. [Dashiell v. Att.-Gen. 6 H. & J. 1 ; 
 5 H. & J. 392 ; Hawley v. James, 5 Paige, 318 ; Lemmond v. Peoples, 6 Ired. Ch. 137.] 
 
 (II) Carrick v. Errington, 2 P. Wms. 361 ; Davers v. Dewes, 3 P. Wms. 43. 
 
 \m) Att.-Gen. v. Lord Weymouth, Ambl. 20 ; Jones v. Mitchell, 1 S. & S. 294; West 
 v. Shuttleworth, 2 M. & K. 684. 
 
 (n) Byre v. Marsden, 2 Keen, 564 ; McDonald v. Bryce, lb. 276. 
 
 (o) Tregonwell v. Sydenham, 3 Dow. 194; Leake v. Robinson, 2 Mer. 363. 
 
 (p) Ackroyd v. Smithson, 1 Bro. C. C. 503. 
 
 1 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, 15 Penn. St. 500. 
 
 Where a devise to two is made in terms absolute, but with a secret understanding 
 •with one, that the land is to be held in trust for an illegal purpose, there is a resulting 
 trust against both of the devisees. Russell v. Jackson, 10 Hare, 204. 
 
 2 Where the amount ofthe estate to be devoted to an illegal trust is uncertain, it lies 
 on the trustee assenting to the trust, where the gift is otherwise beneficial on its face, to 
 show to what part of the property the trust does not extend. Russell v. Jackson, 10 
 Hare, 204. 
 
 8 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. 305, 314; Richmond v. Vanhook, 
 3 Ired. Ch. 581. So in Yeaton v. Roberts, 8 Foster, 459, it was held that a devise of 
 real and personal property to persons, with vested remainders in succession, did not 
 lapse by the refusal and incapacity of the first taker, but passed at once to the next in 
 succession. See Mahorner v. Hooe, 9 S. & M. 247. 
 
202 TRUSTEES BY RESULTING 
 
 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 of.(g) 
 
 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 per- 
 petuity), with remainders over after the raising of that sum, or the de- 
 termination 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 property 
 is tied up by a series of limitations, and the income directed to be ac- 
 cumulated beyond the period allowed by the Thelluson Act (39 & 40 
 Geo. Ill, c. 98), the excess of accumulations, which is void, will not 
 belong to the party to whom the first estate in possession is limited, but 
 will result as undisposed of to the heir at law or next of kin of the 
 settlor, according to the quality of the estate. (s) 
 
 A residuary bequest, it is well known, operates upon all the personal 
 estate of which a testator is possessed at his death, and consequently 
 includes all bequests failing, either from their illegality, or from the 
 death of the legatee in the testator's lifetime. (t) 1 "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. "(u) 
 
 *It follows, therefore, that where the subject of the disposition 
 ■- -• that fails is personal estate, a resulting trust will arise 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 bequest of personal estate, 
 
 (j) Carrick v. Errington, 2 P. Wins. 361. 
 
 (r) Tregonwell v. Sydenham, 3 Dow. 194. 
 
 (*) McDonald v. Bryce, 2 Keen, 276 ; Eyre v. Marsden, lb. 564 ; and S. C. 4 M. & 
 Cr. 231. 
 
 (t) Jackson v. Kelly, 2 Ves. Jun. 285 ; Brown v. Higgs, 4 Ves. 708 ; Cambridge v. 
 Rous, 8 Ves. 12; Leake v.Robinson, 2 Mer. 363; Bland v. Bland, 2 J. & W. 406; Jones 
 v. Mitchell, 1 S. & S. 298 ; 2 Wms. Exors. 896. 
 
 (a) In Leake v. Robinson, 2 Mer. 392. 
 
 1 King v. Woodhull, 3 Edw. Ch. 79; Marsh v. Wheeler, 2 Edw. Ch. 156; Com. v. 
 Nase, 1 Ashm. 242 ; Woolmer's Estate, 3 Whart. 479 ; Johnson v. Johnson, 3 Ired.Eq. 
 427 ; Taylor v. Lucas, 4 Hawks, 215 ; Pool v. Harrison, 18 Alab. 515; Bryson v. Nickols, 
 2 Hill Ch. 113 ; Vick v. McDaniel, 3 How. Miss. 337 ; Hamberlin v. Terry, 1 Sm. & 
 M. Ch. 589; Swinton v. Egleston, 3 Rich. Eq. 201. 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 Kleeck v. Dutch Church, 20 Wend. 458. 
 
OR PRESUMPTIVE TRUST. 203 
 
 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.^) 1 
 
 But previously to the recent statute 1 Vict. c. 26, a devise of real 
 estate, though residuary in its terms, was in reality a mere specific dis- 
 position 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 ac- 
 count of its being illegal, or lapsed by the death of the devisee, the sub- 
 ject of such a devise would not pass by the residuary clause, however 
 ample, but resulted to the heir at law.(a) 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 Vict. 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) contained 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 unnecessary 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 is 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.(J) 
 
 (x) Skrymsher v. Northcote, 1 Sw. 566 ; MqDonald v. Bryce, 2 Keen, 2T6 ; Byre v. 
 Marsden, lb. 564 ; [Woolmer's Est. 3 Whart. 479.] 
 
 (y) Howe v. Earl of Dartmouth, 7 Ves. 147 ; Broome v. Monck, 10 Ves. 605 ; Hill 
 v. Cock, 1 V. & B. 175 | 2 Jarm. Pow. Dev. 102 ; Cook v. Stationers' Comp. 3 M. & 
 K. 262. [4 Kent Comm. 541, &c. See in New York, Van Kleeck v. Dutch Church, 
 20 Wend. 458.] 
 
 (z) Cook v. Stationers' Comp. 3 M. & K. 262 ; Watson v. Earl of Lincoln, Ambl. 328 ; 
 Oke v. Heath, 1 Ves. Sen. 141 ; Cambridge v. Rous, 8 Ves. 25 ; Jones v. Mitchell, 1 S. 
 & S. 290. [Van Kleeck v. Dutch Church, 20 Wend. 457 ; 6 Paige, 600 ; Lingan v. 
 Carroll, 3 H. & McH. 333.] 
 
 (a) Eyre v. Marsden, 2 Keen, 564 ; Salt v. Chattaway, 3 Beav. 576. 
 
 (6) See 2 Jarm. Pow. Dev. 77, &c. 
 
 ' Where one of several residuary legatees dies during the lifetime of the testator, his 
 legacy lapses for the benefit of the next of kin, and not for that of the other legatees. 
 Floyd v. Barker, 1 Paige Eq. R. 480 ; Frazier v. Frazier, 2 Leigh, 642. See Trippe v. 
 Frazier, 4 H. & J. 446. But see Hogan v. Hogan, 3 Dana, 572. A bequest to a 
 residuary legatee, in trust for illegal purposes, goes to next of kin. Johnson v. Clark- 
 son, 3 Rich. Eq. 305. 
 
204 TRUSTEES BY RESULTING 
 
 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 un- 
 questionably exclude the claim of the heir at law or next of kin to take 1 
 by resulting trust, (c) 
 
 It is clear, that where the disposition, which fails, applies to a defined 
 *and ascertained portion or interest in the property, which is 
 L J excepted and separated from the rest, and devoted to the pur- 
 pose, which cannot take effect ; the person taking the property, 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 inte- 
 rest thus created : unless that interest is otherwise disposed of by the 
 will.(i) 
 
 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 extreme nicety 
 to determine, whether the charge has been so distinctly 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 particu- 
 lar purposes declared shall enure for the benefit of the donee of the 
 estate, so as to cause the charge to sink for his benefit. 1 
 
 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 
 
 (c) Rose v. Rose, 17 Ves. 347 ; Price v. Hathaway, 6 Mad. 304. 
 i (d) See the principle stated by Sir J. Leach, in Cooke v. Stationers' Comp. 3 M. & 
 K. 264-5. 
 
 (e) Attorney-General v. Milner, 3 Atk. 112 ; Croft v. Slee, 4 Ves. 60. [Stone v. Massey, 
 2 Yeates, 369 ; Smith v. Wiseman, 6 Ired. Eq. 540.] 
 
 (f) In Sydenham v. Tregonwell, 3 Dow. 212. 
 
 1 In Cooper's Trusts, 23 L. J. Ch. 25, there was a devise of certain real estate to 
 trustees, upon trust to raise, " by sale or otherwise," out of such estate 20002., and in- 
 vest the same, and upon trust to permit his son P. to enjoy the same estate "after rais- 
 ing as aforesaid." Held, this was a charge and not an exception out of the devised 
 estate. The trusts of the 2000Z. were upon limitations which, as to one-half, did not 
 exhaust the beneficial interest. The sum was actually raised. Held by Knight Bruce, 
 L. J., and Wood, V. Ch., dub. Turner, L. J., that the 1000?., one half, ultra, &c, was 
 to be treated as real estate. 
 
OB PRESUMPTIVE TRUST. 205 
 
 lifetime, the ordinary rule will prevail, and the heir would be entitled by 
 a resulting trust. (g) 
 
 It has been decided that where there is an absolute gift of property, 
 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 condition, 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 be- 
 longed 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 assign- 
 ment of a part.(A) 
 
 However, it seems very difficult upon principle to support any distinc- 
 tion in favor of the donee, merely on the ground that tho particular trust 
 which fails is created in the form of a condition* And this *diffi- ^ qo-i 
 culty is yet greater when, as in Poor v. Mial, the 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.(i) 
 
 In Bland v. Wilkins,(&) lands were given to B. N. in fee, on condition 
 that her executors should pay 101. to a charity ; and' Sir Thomas Sewell 
 held that the 101. should go to the heir.(&) 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 20001. 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, 
 
 (g) 2 Jarm. Pow. Dev. 43. (AfPoor v. Mial, 6 Mad. 32. 
 
 (i) See Cooke v. Stationers' Comp. 3 M. & K. 264 ; [Cooper's Trusts, 23 L. J. Ch. 28.] 
 
 (k) Bland v..Wilkins, I Bro. C. C. 61, n. 
 
 (I) Henchman v. Attorney-General, 2 S. & S. 498 ; and see Cooke v. Stationers' 
 Comp. 3 M. & K. 266, where Sir J. Leach observes, "that a condition to pay legacies 
 is no more than a charge of the legacies.'' 
 
 1 It has been accordingly held in the United States, that a residuary bequest on con- 
 dition to apply it for an illegal purpose, created a resulting trust for the next of kin. 
 Finley v. Hunter, 2 Strob. Eq. 218 ; followed in Johnson v. Clarkson, 3 Rich. Bq. 305. 
 
206 TRUSTEES BY RESULTING 
 
 subject to the payment of the 2000?., which went to the crown, for want 
 of an heir or next of kin.(Z) 
 
 This decision was afterwards reversed on appeal by Lord Brougham, 
 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 by 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 by 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 of the failure.(n) 
 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 legacies, and such a disposition cannot 
 operate to except and separate any particular portion of the estate from 
 what is given to the devisee, 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^vhich case the question, 
 whether the devisee or heir at law will be entitled to the benefit of a 
 r*1 3°fl *f a il u re or lapse, must necessarily be governed by the same rules, 
 which have been established with respect to other 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 per- 
 son, raising the question between that person and the devisees, the heir 
 has no claim ; but if the devisor himself has created the charge, and to 
 the extent of that charge, the intention appears on the face of the 'will, 
 not to give the estate to the devisees, it will to the extent of that charge, 
 the particular object failing, go to the heir: a distinction, which his 
 Lordship characterized " as extremely nice, perhaps not easy of applica- 
 tion."^) 
 
 (I) Henchman v. Attorney-General, 2 S. & S. 498, and see Coolie v. Stationers' 
 Comp. 3 M. & K. 266. 
 
 (m) S. C. on Appeal, 3 M. & K. 435. [See Taylor v. Haygarth, 14 Simons, 8 ; 
 Rittson v. Stordy, 19 Jur. 771.] (n) Kennell v. Abbott, 4 Ves. 811. 
 
 (o) 2 Jarm. Pow. Dev. 44, 90. 
 
 (p) In Sidney v. Shelley, 19 Ves. 363. [Approved in Sheaffer's Appeal, 8 Barr, 42. 
 See Cooper's Trusts, 23 L. J. Ch. 28.] 
 
OR PRESUMPTIVE TRUST. 207 
 
 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 specific definite 
 charge on a devised estate in favor of another person. "(5) 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 1000L ;" 
 and after payment of debts and legacies, he devised the remainder of 
 his estate to the Foundling Hospital. This being in effect a bequest of 
 1000?. to the hospital out of the estate was void by the Statute of Mort- 
 main, and a question arose, whether it should go to the heir, or sink for 
 the benefit of the devisee. Lord Hardwicke decided, that the charge, 
 being well made on the estate, but not well disposed of, was to be con- 
 sidered as part of the real estate undisposed of, and that the heir was 
 therefore entitled by way of resulting trust.(r) 
 
 So in the case of Bland v. Wilkins,(s) which has been already men- 
 tioned, where there was a devise in fee on condition that the devisee's 
 executors should pay 10Z. to a charity, the bequest to the charity was 
 held to result to the heir.(s) *• 
 
 The case of Gravenor v. Hallum,(£) which was decided in favor of the 
 heir, arose upon the claim of the heir in opposition to that of the resi- 
 duary devisees to void annuities given out of real estate. The parti- 
 cular devisees of the estate, out of which the payments were to be made, 
 do not appear to have raised any claim for their own benefit ; indeed in 
 that case they were undoubtedly mere trustees. 
 
 In Wright v. Row,(tt) the question seems to have arisen, but it does 
 not distinctly appear from the report in Brown, what was the decision of 
 the court, although the marginal note states it to have been in favor of 
 the specific devisee. (u) 
 
 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 charged upon, r*i4.on 
 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. (2;) 
 
 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 
 
 (q) 2 Jarm. Pow. Dev. 44. (r) Arnold v. Chapman, 1 Ves. Sen. 108. 
 
 (s) Bland v. Wilkins, 1 Bro. C. C. 61, n. (t) Ambl. 643. 
 
 (w) Wright v. Row, 1 Bro. C. C. 61. (x) Cook v. Stationers' Comp. 3 M. & K. 264. 
 
208 TRUSTEES BY RESULTING 
 
 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.Q/) 
 
 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,(g) 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 testator by 
 writing charged on the estate inter alia sums amounting to about 6000?. 
 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 intended at all events to take 
 10,000?. out of the estate, whereas he meant the reverse. A sum not 
 exceeding 10,000?. had put a charge on the estate, which could not take 
 place, (z) 
 
 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 observed, that both 
 those decisions were against the claim of the residuary 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 au- 
 thority on the general question of the claim of the heir under such cir- 
 cumstances.^) 
 
 But in King v. Denison,(t?) as stated by Sir John Leach, M. R., in 
 his judgment in Cooke v. Stationers' Company,(e) the testator devised 
 her real estates subject to and chargeable with certain annuities for life, 
 but survived all the annuitants ; and Lord Eldon decided against the 
 claim of the heir at law, holding that the devisees took the estate dis- 
 charged of the annuities. 
 
 And in Cooke v. Stationers' Company,(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 10,700?. 3 per cent, consols; 
 r*141~l* an< ^ ^ ie then proceeded to give several legacies, among which 
 was one of 2500?. consols to the Stationers' Company, the in- 
 terest thereof to be paid to his wife during her life, and one of 800?. to 
 the parish of Beckenham, for charitable purposes ; and he gave and 
 
 (y) Hutcheson v. Hammond, 3 Bro. C. C. 128 ; Page v. Leapingwell, 18 Ves. 463; 
 Oibbs v. Rumsey, 2 V. & B. 294. 
 
 (z) Jackson v. Hurlock, Ambl. 487 ; S. C. 2 Ed. 263. 
 
 (a) 1 Bro. C. C. 61, u. ; S. C. 3 Dow. 212 ; and 4 Ves. 811. (6) 12 Yes. 49T. 
 
 (c) See these cases considered in 2 Jarm. Pow. Dev. 47, 9. 
 
 (d) 1 V. & B. 260. (e) 3 M. & K. 266. 
 
OR PRESUMPTIVE TRUST. 209 
 
 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-General, (#) and Lord Brougham'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 specific 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 ob- 
 served, 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 con- 
 sequence of the failure, but the donee will be entitled to the benefit.(i) 1 
 Unless, indeed, there is a sufficient indication of a contrary intention : 
 
 (/) Cooke v. Stationers' Comp. 3 M. & K. 262. 
 
 (g) Henchman v. Attorney-General, 2 S. & S. 498 ; and S. C. 3 M. & K. 485. 
 
 (h) Kennell v. Abbott, 4 Ves. 811. 
 
 (i) Jackson v. Hurlock, Ambl. 487, and 2 Ed. 263 ; King v. Denison, 1 V. & B. 260 ; 
 Cooke v. Stationers' Comp. 3 M. & K. 262 ; Henchman v. Attorney-General, lb. 493. 
 [King v. Mitchell, 8 Peters, 326.] 
 
 1 In Johnston v. Webster, 4 De G. Macn. & G. 474; 24 L. J. Ch. 302, a testator, after 
 charging his real estate with his debts and legacies, gave £6000 to trustees for C, and 
 directed if C. should die without issue, &c, that this sum should sink into the residue 
 of his personal estate, and go to his son B., to whom he also devised all his real and 
 personal estate. B. subsequently made a marriage settlement of all his real estate, ex- 
 pressly subject to this charge. C. died without issue, and afterwards B., and the charge 
 was never raised. It was held (overruling S. C. 23 L. J. Ch. 480), that the charge had 
 merged into the real estate, and that the personal representatives of B. had no right to 
 have it raised as against those claiming under the settlement. 
 
 J4 
 
210 TRUSTEES BY RESULTING 
 
 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.(jfc) 
 
 But where the charges or legacies are in the first place expressly and 
 distinctly made or given with directions to trustees for their appropria- 
 tion 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 
 rHc1 491 the *heir at law, if the original objects contemplated by the tes- 
 L J tator cannot take.(Z)(l) 
 
 Although the legacies be first expressly given, if there be a devise of 
 the residue charged ivith payment of the legacies, it has been decided 
 by Cooke v. Stationers' Company,(w) that such a case comes within the 
 first class of decisions stated above, and the legacies will sink for the 
 benefit of the devisee.(wi) 
 
 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 
 ab initio, or by lapse, there will be no 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) 
 
 (7c) Arnold v. Chapman, 1 Ves. Sen. 108; the circumstances of Bland v. Wilkins are 
 not stated with sufficient minuteness, to enable any conclusion to be drawn from that 
 case ; see 1 Bro. C. C. 61, n. 
 
 (I) Gravenor v. Hallam, Ambl. 643 ; Jones v. Mitchell, 1 S. & St. 290 ; Hutcheson 
 v. Hammond, 3 Bro. C. C. 128 ; Gibbs v. Eumsey, 2 V. & B. 294. [See Johnston v. 
 Webster, 24 L. J. Ch. 302 ; 19 Jur. 145 ; 4 De G. Mac. & G. 474.] 
 
 (to) 3 M. & K. 262. (») 2'Jarm. Pow. Dev. 75, 11. [See ante, 127, note.] 
 
 (1) The observations in the text are throughout based on the assumption that no dis- 
 tinction is to be made between charges void ab initio, and those failing by lapse. How- 
 ever, 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. Went- 
 worth devised certain estates to trustees to sell, and out of the produce to pay amongst 
 other sums the sum of 5000Z. 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 50001. 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 deci- 
 sion 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. Kedes- 
 dale 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 Hutcheson 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. Noel v. Ld. Henley, 1 Dan. 322 and 211 ; S. 0. 7 Pri. 240. And see 
 2 Jarm. Pow. Dev. 89, et seq. 
 
OR PRESUMPTIVE TRUST. 211 
 
 Thus where land is directed to be converted into money, and the pro^ 
 duce applied to purposes which are either illegal and void,(o) or which 
 fail by lapse,(^>) 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 re- 
 spect 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 purposes 
 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,(s) that money directed to be invested in land, 
 and only partially disposed of, will result to the heir at law, will r*-|4q-i 
 not be *extended to those cases where there is a 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.(w) 1 
 
 (o) Howse v. Chapman, 4 Ves. 542 ; Gibbs v. Rumsey, 2 V. & B. 294 ; Byre v. 
 Marsden, 2 Keen, 564. 
 
 (p) Cruse v. Barley, 3 P. Wms. 20 ; Williams v. Coade, 10 Ves. 500. [Craig v. 
 Leslie, 3 Wheat. 583 ; Sheaffer's App. 8 Barr, 42.] 
 
 (g) Arnold v. Chapman, 1 Ves. Sen. 108; Gravenor v. Hallam, Ambl. 643; Hutcheson 
 v. Hammond, 3 Bro. C. C. 128; Page v. Leapingwell, 18 Ves. 463 ; Jones v. Mitchell, 
 1 S. & S. 293. [Sheaffer's App. 8 Barr, 42.] 
 
 (r) Durour v. Motteux, 1 Ves. 320 ; Mogg v. Hodges, 2 Ves. 52 ; Cogan v. Stephens, 
 1 Beav. 482, n. ; Hereford v. Ravenhill, Id. 481 ; Giblett v. Hobson, 5 Sim. 651 ; and 
 3M. &K. 517. («) 3 Bro. P. C. 1. 
 
 (t) Ackroyd v. Smithson, 1 Bro. C. C. 503 ; Amphlett v. Parke, 2 R. & M. 221 ; 
 Johnson v. Woods, 2 Beav. 409 ; Salt v. Chattaway, 3 Beav. 576. 
 
 (u) Durour v. Motteux, 1 Ves. Sen. 108; Phillips v. Phillips, 1 M. & K. 649. 
 
 1 See Craig v. Leslie, 3 Wheat. 583; Burr v. Sim, 1 Whart. 263. So where the pro- 
 ceeds of realty are directed to be divided for the general purposes of the will, as for in- 
 stance, to form with the personalty a common fund, for all the purposes of the will, 
 though it should happen that some of them fail, it will be considered an absolute con- 
 version. Burr v. Sim; Craig v. Leslie, ut supr. ; Morrow v. Brenizer, 2 Rawle, 185. 
 But in England it is now held 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 
 result for the benefit of the heir at law, will not exclude the heir as to an undisposed of 
 surplus, unless, perhaps, there is a direct limitation over to the next of kin in case of a 
 
212 TRUSTEES BT CONSTRUCTIVE TRUST. 
 
 Where the terms of a bequest render it doubtful whether the purpose 
 contemplated by the testator were illegal or not, evidence will be ad- 
 mitted for the purpose of establishing the legality of the bequest. 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 the first place. On 
 this account the onus probandi will always rest on the parties seeking to 
 support the bequest, to rebut the presumption that exists against it.(a?) 
 
 [*144] ^CHAPTER II. 
 
 TEUSTEES BY VIRTUE OF 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 enjoy- 
 ment. 
 
 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, independently of the 
 existence of fraud.(l) 
 
 (a:) 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 un- 
 necessarily, a way is opened to the Lord Chancellor to construe or presume any man in 
 England out of his estate. And so at last every case in court will become casw pro 
 amico." Per Lord Nottingham, in Cook v. Fountain, 3 Swanston, 585. — T. 
 
 failure. Pitch v. Weber, 6 Hare, 145; Robinson v. Governors, 10 Hare, 29; Gordon 
 v. Atkinson, 1 De G. & Sm.478. Phillips v. Phillips, 1 M. & K. 649, above cited, was 
 disapproved in these cases, and expressly overruled in Taylor v. Taylor, 17 Jurist, 583 ; 
 3 De G. Macn. & G. 190, before the Lord Chancellor. There the testator had 
 directed his real estate, to be sold, the proceeds to be joined to the personalty, and 
 divided among certain nephews. One of these died after the date of the will, but be- 
 fore the testator's death, and it was held that his share went to the heir at law, and not 
 to the next of kin. See also Flint v. Warren, 16 Sim. 124 ; 12 Jur. 810 ; Johnston v. 
 Webster, 24 L. J. Ch. 300. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 213 
 
 I.— WHERE THE ACQUISITION OF THE LEGAL ESTATE IS AFFECTED WITH 
 
 FRAUD. 
 
 In cases of fraud, whether constructive or actual, courts of equity have 
 adopted principles extremely broad and comprehensive in the applica- 
 tion of their remedial justice : and especially where there is any fraud 
 affecting the acquisition of property, they will interfere and administer 
 a wholesome justice, and sometimes even a stern justice in favor of inno- 
 cent persons who are sufferers by it, without any fault on their own side. 
 And this is readily done by converting the offending party into a trustee, 1 
 and making the property itself subservient to the proper purposes of 
 recompense, by way of equitable trust.(a)(l) 
 
 (a) 1 Story Eq. Jur. ? 184, &c. [Robertson v. Robertson, 9 W. 32. See Peebles v. 
 Reading, 8 S. & R. 492.] 
 
 (1) A deed may be 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 proceed- 
 ings in courts of equity are much better adapted for the investigation and trial of such 
 questions; and there are many cases of fraud wholly beyond the reach of courts of law, 
 of which equity will take cognizance. The consideration 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 Ponbl. Eq. B. 1, ch. 2, s. 3 ; 1 Mad. Ch. Pr. 341 ; 1 
 Stor. Eq. Jur. j! 184. [See note ('), 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. [Vaughan v. Vander- 
 stegan, 2 Drewry, 363 ; 23 L. J. Ch. 793. So where an infant represents himself to 
 another to be of full age, and executed a release on which the latter acted, it was held 
 
 ' 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 v. Stearns, 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 there- 
 fore devisable. Stump v. Gaby, 22 L. J. Ch. 352 ; 2 De G. Maen. & G. 623. 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 (McKis- 
 siek 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, &c), 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 v. 
 Malin, 1 Wend. 625; Clapper v. House, 6 Paige, 149; Cogswell v. Cogswell, 2 Edw. 
 Ch. 231 ; Morgan v. Holford, 1 Sm. & G. 101. 
 
214 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 r*1 4TI *The court has never ventured to lay down as a general pro- 
 position, what shall constitute fraud ;(S) nor can any invariable 
 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 excluded 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 principle already established, can be ap- 
 plied, 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.(e) 
 
 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. Jansen,(c?) 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 delu- 
 sion, would make, on the one hand, and as no honest or fair man would 
 accept on the other. 3d, Fraud, which may be presumed from the cir- 
 cumstances and condition of the parties contracting : 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 agreernent.(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 instrument 
 through a conspiracy or combination for that purpose, or by surprise, 
 oppression, intimidation, or any other practice at variance with fair deal- 
 ing, that clearly comes within the first and plainest class of cases for 
 equitable relief; and the court will not suffer the parties to avail them- 
 
 (6) Per Lord Eldon in Mortlock v. Buller, 10 Ves. 306 ; Lawley v. Hooper, 3 Atk. 
 279. (c) 1 Mad. Ch. Pr. 341, 3d ed. 
 
 (d) Chesterfield v. Jansen, 2 Ves. 155. [Hiachman v. Emans, Saxt. Ch. 100.] 
 
 that he could not afterwards impeach the release on the ground of his minority. Wright 
 v. Snowden, 2 De G. & S. 321. See Stodlfoos 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 ; Wright v. Arnold, 14 Id. 
 643. But at law a contract entered into through fraud of an infant cannot be enforced. 
 Conroe v. Birdsale, 1 John. Cas. 127 ; Burley v. Russell, 10 N. H. 184; Brown v. Dun- 
 ham, 1 Root, 272. Nor would he be liable in an action of deceit. West v. Moore, 14 
 Vermt. 447 ; Brown v. Dunham, ut supr. ; People v. Kendall, 25 Wend. 399 ; Price 
 v. Hewett, 8 Exch. 145. But in New Hampshire it has been decided differently. School 
 Dist. v. Bragdon, 3 Poster, 507; Pitts v. Hall, 9 N. H. 441.] 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 215 
 
 selves of the legal rights thus acquired, but will interpose and give re- 
 dress.(e) 
 
 And so where a deed, or other instrument conveying an interest in 
 property, however formally and solemnly it may be executed, is obtained 
 by means of some misrepresentation, or concealment of facts, or more 
 strongly still, by both of those means together, the party taking under 
 such an instrument *will be treated as a trustee for the person p,.-. .„-. 
 whom he has thus fraudulently induced to execute it ; and at the 
 suit of the injured party the instrument will be decreed to be delivered . 
 up, and a reconveyance executed. (/) 
 
 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 sup- 
 pressio veri.(g) But first, of those cases where there has been suggestio 
 falsi. 
 
 Where the devisee under a will, which was defectively executed, repre- 
 sented to the heir, that the will was duly executed, and thus induced 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. (i) 
 
 And on the same principle, the court will not recognize an interest 
 under a contract which has been acquired by means of a false statement, 
 that the party was acting for another person ; if it be proved that the 
 false statement induced the other party to enter into the contract, or 
 occasioned him any loss or inconvenience. (k) 
 
 In like manner, where a party had obtained an agreement for an ex- 
 change of estates by a false representation as to part of the property, 
 that the tenants consented to the exchange ; it was held by Sir Thomas 
 
 (e) Earl of Bath and Montague's case, 3 Ch. Ca. 56 ; Bennet v. Vade, 2 Atk. 324; 
 
 " Neville v. Wilkinson, 1 Bro. C. C. 546 ; Evans v. Llewellyn, 1 Cox, 340 ; Willan v. 
 
 Willan, 16 Ves. 82; 1 Fonbl. Eq. B. 1, Ch. 2; 1 Mad. Ch. Pr. 342, &c. ; Baruesly v. 
 
 Powell, 1 Ves. 289 ; Bridgman v. Green, 2 Ves. 627 ; Matthew v. Hanbury, 2 Vern. 
 
 187 ; Say v. Barwiek, 1 V. & B. 195; How v. Weldon, 2 Ves. 517. 
 
 (/) 1 Fonbl. Eq. B. 1, C. 2 ; 1 Mad. Ch. Pr. 348 ; Mitf. Eq. PI. 128, 4th ed. ; 1 
 Story Eq. Jur. \ 187, &c. [Boyce v. Grundy, 3 Pet. U. S. 210 ; Lewis v. McLemore, 10 
 Yerg. 206 ; Spence v. Duren, 3 Alab. 251 ; Pitts v. Cottingham, 9 Porter, 675; Harris 
 v. Williamson, 4 Heyw. 124. See Tyler v. Black, 13 How. U. S. 231.] 
 
 (ff) Jarvis v. Duke, 1 Vernon, 19 ; Broderick v. Broderick, 1 P. Wms. 239. [Smith 
 v. Richards, 13 Pet. 26 ; Torrey v. Buck, 1 Green Ch. 366.] 
 
 (h) Broderick v. Broderick, 1 P. Wms. 239. 
 
 (i) Jarvis v. Duke, 1 Vern. 19 ; and see Murray v. Palmer, 2 Scho. & Lef. 474; James 
 v. Greaves, 2 P. Wms. 270 ; Horseley v. Chaloner, 2 Ves. 83. 
 
 (/c) Phillips v. Duke of Bucks, 1 Vern. 227 ; Harding v. Cox, lb. n. ; Scott v. Lang- 
 staffe, Lofft, 797, 8, cited Fellows v. Lord Gwydyr, 1 Sim. 63 ; S. C. 1 R. & M. 83 ; see 
 1 Sugd. V. & P. 211, 9th ed. 
 
216 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 Plumer, M. B., that the agreement was altogether vitiated by this mis- 
 representation. (Z)(l) 
 
 It was decided, moreover, by this last case, that where a fraudulent 
 misrepresentation applies to part only of the subject-matter of a trans- 
 action, 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 in- 
 ducement of the other party to act.(o) 1 
 
 r*1471 *The misrepresentation may be equally a matter of equitable 
 "- cognizance, whether it be by deeds as by words; by artifices to 
 
 mislead, or by positive assertions. A court of equity, said Lord Thur- 
 low, would make itself ridiculous if it permitted a distinction between 
 the two cases, (p) 
 
 However, it is not every -misrepresentation, even though wilful or 
 
 (Z) Clermont v. Tasburgh, 1J. & W. 112. 
 
 (m) S. C. 1 J. & W. 120 ; but see Lane v. Page, Ambl. 235. 
 
 («) Ainslie v. Medlieott, 9 Ves. 21. 
 
 (o) Pearson v. Morgan, 2 Bro. C. C. 385 ; Burrowes v. Lock, 10 Ves. 470. 
 
 (p) Neville v. Wilkinson, 1 Bro. C. C. 546 ; see Chesterfield v. Jansen, 2 Ves. 155 ; 
 
 1 Story Eq. Jur. <j 192 ; Huguenin v. Basely, 14 Ves. 273. [See State v. Holloway, 8 
 Black. 45.] 
 
 . (1) In the case of Turner v. 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. 
 
 1 Hough v. Richardson, 3 Story, 659 ; Harding v. Randall, 15 Maine, 332 ; Lewis v. 
 McLemore, 10 Yerg. 206 ; Turnbull v. Gadsden, 2 Strob. Eq. 14 ; Rosevelt v. Fulton, , 
 
 2 Cow. 129 ; Smith v. Babcock, 2 Wood & M. 246 ; Thomas v. McCann, 4 B. Monr. 
 601 ; Lockridge v. Poster, 4 Scamm. 570 ; Hunt v. Moore, 2 Barr, 105 ; Joice v. Taylor, 
 6 G. & J. 54; Smith v. Richards, 13 Pet. 26 ; Champlin v. Layin, 6 Paige, 189; 
 Tyler v. Black, 13 How. U. S. 230 ; Reese v. Wyman, 9 Geo. 439 ; Taymon v. Mitchell, 
 
 1 Maryl. Ch. 496 ; Reynell v. Sprye, 8 Hare, 222 ; Pratt v. Philbrook, 33 Maine, 17. 
 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 v. 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 ; Blackie v. Clarke, 22 L. J. Ch. 377. Or 
 though brought about by fraudulent representations on the part of such third person, 
 except, perhaps, on the ground of mistake. Fisher v. Boody, 1 Curtis, 206. In the 
 case of a written contract; parol representations, though erroneous, if made bona fide, 
 must have been inserted in the instrument to be relieved against. Turner v. The 
 Navigation Co. 2 Dev. Eq. 236; Atwood v. Small, 6 CI. & Finn. 232; and this, though 
 the language of many of the cases cited above seems to go farther, is, on principle, the 
 true doctrine. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 217 
 
 fraudulent, that -will go to the extent of avoiding a conveyance or 
 agreement : nor is it fitting ; as that would occasion great uncertainty. 
 The fact misrepresented must be something material, and such as goes 
 to the essence of the contract.(g') 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 mis- 
 representation 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 instance, 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) 1 
 
 It is to be observed, that the effect of misrepresentation in vitiating a 
 transaction has been most frequently considered in suits by the fraudu- 
 lent, persons for the specific performance of agreements, which had been 
 obtained by the misrepresentations of the plaintiffs themselves. It is a 
 universal rule, that a party coming into equity to enforce a specific per- 
 formance, must appear with clean hands ; and very slight proof of im- 
 proper 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 agreement, a 
 much stronger case must be established ; and the subject and extent of 
 the false representation, as well as its other circumstances and conse- 
 
 (q) 1 Fonbl. Eq. Ch. 2, s. 8; 1 Stor. Bq. Jur. § 191, 195. [Hough v. Richardson, 3 
 Story R. 659 ; and see Morris Canal v. Emmett, 9 Paige Ch. 168; Tumbull v. Gadsden, 
 2 Strobh. Eq. 14.] 
 
 (r) 1 Fonbl. Eq. Ch. 2, s. 8 ; 1 Madd. Ch. Pr. 349 ; 1 Sugd. V. & P. 6 ; 1 Story Eq. 
 Jur. $ 197 ; Vernon v. Keys, 12 East, 632. [4 Kent Comm. 484.] 
 
 ' t See 4 Kent Comm. 483 ; notes to Woollam v. Hearn, 2 Lead. Cas. Eq. part i, 541 ; 
 Warner v. Daniels, 1 W. & M. 90 ; Hough v. Richardson, 3 Story, 659 ; Eldredge v. 
 Jenkins, Id. 181 ; Bell v. Henderson, 6 How. (Miss.) 311 ; Best v. Blackburne, 6 Litt. 
 51; Glasscock v. Minor, 11 Miss. 655; Juzan v. Toulmin, 9 Alab. 662; Smith v. 
 Richards, 13 Pet. 26; Speiglemyer v. Crawford, 6 Paige, 254; Hutchinson v. Brown, 1 
 Clark, 408 ; Hobbs v. Parker, 31 Maine, 143 ; Yeates v. Pryor, 6 Engl. Ark. 68. And 
 so if a vendor becomes acquainted with the fraud before completing the bargain, and 
 chooses to go on, equity will not relieve him. Pratt v. Philbrook, 33 Maine, 17 ; 
 Knuckolls v. Lea, 10 Hump. 577 ; see Yeates v. Pryor, 6 Engl. Ark. 68. But a eon- 
 tract may be set aside for fraudulent misrepresentations, though the means of obtaining 
 information were fully open to the party deceived, where, from the circumstances, he 
 was induced to rely on the other party's information. Reynell v. Sprye, 8 Hare, 222 ; 
 affi'd 1 De G. M. & Gord. 660. 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. 
 
218 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 quences, must be such as, according to the foregoing observations, will 
 clearly and unequivocally amount to a case of fraud.(s) 
 
 It is undoubtedly true that a concealment of facts, or suppress™ veri, 
 will not of itself constitute so strong a case of fraud as where there has 
 been suggestio falsi. Thus, in the ordinary relation between the vendor, 
 and purchaser, it has been decided, that the mere concealment by the 
 purchaser of a fact, tending materially to enhance the value of the pro- 
 perty, 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.(i) 
 
 But where the concealment amounts to a wilful suppression of facts 
 by a party for his own benefit, and the consequent injury of 
 L J 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.^) 1 
 
 (s) Willan v. Willan, 16 Ves. 83; Cadman v. Homer, 18 Ves. 10; Mortlocke v. 
 Bnller, 10 Ves. 292. 
 
 (i) Fox v. Macreth, 2 Bro. C. C. 420 ; Turner v. Harvey, Jac. 178 ; 1 Sugd. V. & P. 
 6. [Bowman v. Bates, 2 Bibb, 47 ; Bean v. Herrick, 3 Fairf. 262.] 
 
 (u) Fox v. Macreth, 2 Bro. C. C. 420 ; Gordon v. Gordon, 3 Swanst. 470, 7 ; Bowles 
 v. Stuart, 1 Sch. & Lef. 209; Turner v. Harvey, Jac. 169; Maddeford v. Austwick, 1 
 Sim. 89 ; 1 Mad. Ch. Pr. 351 ; 1 Story Eq. Jur. § 204, 7. 
 
 1 See Halls v. Thompson, 1 S. & M. 443 ; Young v. Bumpass, 1 Freem. Ch. 241 ; 
 Torrey v. Buck, 1 Green Ch. 366 ; White v. Cox, 3 Heyw. 79 ; Jopling v. Dooley, 1 
 Yerg. 290 ; Napier v. Elam, 6 Yerg. 108 ; Snelson v. Franklin, 6 Munf. 210 ; Armstead 
 v. Hundley, 7 Gratt. 52 ; Laidlaw v. Organ, 2 Wheat. 178; Lancaster Bank v. Albright, 
 21 Penn. St. 228. It is difficult to define within what limits a concealment of material 
 facts will be fraudulent. Mr. Justice Story (Eq. Jurispr. \ 207) states it to be "the non- 
 disclosure 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 foro conscientiee, but juris et de jure, to know ;" and see Laidlaw v. Organ, 
 2 Wheat. 178. Chancellor Kent, in an earlier edition of his Commentaries (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 Halls v. Thompson, 1 Sm. & M. 482. In Bowman v. Bates, 2 Bibb, 
 47, 52, which was a bill to rescind a contract 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 in- 
 formation of the fact to his principal, and had concealed the discovery by various arti- 
 fices. The Court of Appeals, Clarke, J. dissenting, held that the fraudulent conceal- 
 ment avoided the contract. In a recent case in Pennsylvania, however, it was held that 
 a sale of land could not be rescinded on the ground that the purchaser had not disclosed 
 to his vendor the existence of a valuable mine on the property, which the former had 
 previously discovered, there being otherwise no fraud in the transaction. Harris v. Tyson, 
 24 Penn. St. 359. This is exactly the well-known case put by Lord Thurlow in Fox v. 
 Macreth. 
 
 In order, however, to set aside a contract on the ground of fraudulent concealment, 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 219 
 
 Thus where a party, in treating for a purchase of a reversion after 
 the determination of two estates for life, carefully suppressed the fact 
 6f the death of one of the tenants for life, and by that means obtained 
 a much better bargain, Lord Eldon set aside the purchase. (x) 
 
 And in another case where the younger of two brothers disputed the 
 legitimacy of the elder, an agreement between them for the division of 
 the family estate was rescinded by the same eminent Judge ; the younger 
 brother having been apprised at the time of the agreement, 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 copart- 
 ner's share for a sum which he knew to be inadequate from accounts 
 which were in his possession, but which he did not communicate 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 
 proportionally more odious.(z/?/) 
 
 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 information, in 
 the doctrine of this court conceals. "(a) 
 
 The rules which we have already seen to have been established with 
 respect to cases of misrepresentation, viz., that the false statements 
 must be of such facts as are material, and do not lie within the knowledge 
 of the other party, and must bave the effect of deceiving him into the 
 transaction, apply a fortiori to cases of suppression or concealment. 
 
 Upon the same principle, where a party executes a conveyance or re- 
 lease, 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 conscience 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 
 
 (x) Turner v. Harvey, Jac. 169. (y) Gordon v. Gordon, 3 Sw. 400. 
 
 (ra) Maddeford v. Austwick, 1 Sim. 89; S. C. on Appeal, 2 M. & K. 2*79; and see 
 Popharn v. Brooke, 5 Russ. 8. 
 
 (yy) See Gordon v. Gordon, 3 Sw. 470, 7 ; Cocking v. Pratt, 1 Ves. 401. [Ogden v. , 
 Astor, 4 Sandf. S. C. 312 ; Farnum v. Brooks, 9 Pick. 234. So in the case of solicitor 
 and client. Higgins v. Joyce, 2 Jones & hat. 282.] 
 
 (z) In Walker v. Symonds, 3 Sw. 73. 
 
 there must be direct personal fraud; no case 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. 
 
220 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 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 
 r*14°/l w *" cn i s tne *suhject of the lapse, the conveyance would not be 
 J suffered to stand good ; and many other instances in which 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:(b) 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 mistake of law, 
 and what one of fact, so as to reconcile those cases with the other deci- 
 sions, (dy Where the object of a mutual conveyance under such cir- 
 
 (a) Turner v. Turner, 2 Ch. Rep. 81 ; Pusey v. Desbouverie, 3 P. Wms. 316 ; Bing- 
 ham v. Bingham, 1 Ves. 126 ; Ramsden v. Hylton, 2 Ves. 304; Dunnage v. White, 1 
 Sw. 137 ; Naylor v. Winch, 1 S. & St. 564; M'Carthy v. Becaix, 2 R. & M.614; EviAs 
 v. Llewellyn, 2 Bro. C. C. 150 ; S. C. 1 Cox, 333 ; Huguenin v. Basely, 4 Ves. 273 ; 
 Hore v. Beeher, 12 Sim. 465 ; Goymour v. Pigge, M. R. May, 1844, 8 Jur. 526. [See 
 Tyler v: Black, 13 How. U. S. 231 ; Beard v. Campbell, 2 A. K. Marsh. 125.] 
 
 (6) Cocking v. Pratt, 1 Ves. 400; M'Carthy v. Decaix, 2 R. & M. 622: Goymourv. 
 Pigge, 13 L. J. Ch. 322. 
 
 (c) Willan v. Willan, 16 Ves. 72; M'Carthy v. Decaix, ubi sup.; Landsdowne v. 
 Landsdowne, Mose. 364; S. C. 2 J. & W. 205. 
 
 (d) Pullen v. Ready, 2 Atk. 587, 591 ; Ingham v. Child, 1 Bro. C. C. 92; Mildmay 
 V. Hungerford, 2 Vern. 242. [Freeman v. Cook, 6 Ired. Bq. 378.] 
 
 1 A court of equity does not in general relieve for mistake of law. Hunt v. Rousma- 
 niere, 1 Pet. S. C. 1 ; Shotwellv. Murray, l t John. Ch. 512 ; Lyon v. Richmond, 2 J. C.B. 
 60 ; Story Bq. Jur. \ 136, where is a full discussion of the cases ; Brown v. Armistead, 
 6 Rand. 594 ; Wintermute's Exr. v. Snyder's Administr. 2 Green Ch. 498 ; Hinchman v. 
 Eman's Adm. Saxt. Ch. 100 ; Gunter v. Thomas, 1 Ired. Bq. 199 ; Ferguson v. Fergus 
 son, 1 Geo. Dec. 135 ; Farley v. Bryant, 32 Maine, 474; Hall v. Reed, 2 Barb. Ch. 503; 
 Lyon v. Sanders, 23 Mississippi, 533; Shafer v. Davis, 13 IUin. 395; Campbell v. Car- 
 ter, 14 Id. 286 ; Magniac v. Thompson, 2 Wallace, Jr. 209. 
 
 It has been said, that whatever exceptions there may be to this rule, they will be 
 found few in number, and to have something peculiar in their character, and to 
 involve other elements of decision. Hunt v. Rousmaniere, Exr. ut supr. ; U. S. Bk. v. 
 Daniel, 12 Pet. S. C. 32 ; Haden v. Ware, 15 Alab. 159. A distinction has some- 
 times been drawn between ignorance and mistake of the law, and the latter when 
 distinctly proved has been held ground for interference. Hopkins v. Mazyck, 1 Hill 
 Eq. 242; Lawrence v. Beaubien, 2 Bail. 623; State v. Paup, 8 Eng. Ark. 135; but 
 see Champlin v. Laytin, 18 Wend. 407. Where also the mistake has been that of 
 the draftsman or conveyancer, relief has been given. Larkins v. Biddle, 21 Alab. 
 256; Wyche v. Green, 11 Geo. 159; 16 Geo. 49; Moser v. Libenguth, 2 Rawle, 
 428 : even where the draftsman has been one of the parties. Larkins v. Biddle, ut 
 supr., though this seems to trench upon the general rule. But mistake as to the 
 legal effect of a conveyance will not be aided, where the conveyance is such as the 
 parties intended at the time. Hunt v. Rousmaniere, ut supr. ; Gilbert v. Gilbert, 9 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 221 
 
 cumstances 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 without 
 notice, and has given the full value for the estate, it is clear, that igno- 
 rance 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. (/) 
 
 It is almost unnecessary to state, that in all these cases the fraudulent 
 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 consideration 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 dismissed. (A) 1 
 
 (e) Stockley v. Stockley, 1 V. B. 23 ; Gordon v. Gordon, 3 Sw. 400 ; Neale v. Neale, 
 
 1 Keen, 672. [See Hoghton v. Hoghton, 21 Law J. Chanc. 482 ; 15 Beav. 218.] 
 (/) Molden v. Mennill, 2 Atk. 8. 
 
 (h) Anglesey v. Annesley, 1 Bro. P. C. 289 ; see King v. Hamlet, 2 M. & K. 481. 
 
 Barb. S. C. 532 ; Arthur v. Arthur, 10 Id. 9 ; Mellish v. Robertson, 25 Verm. 608 ; 
 Farley v. Bryant, 32 Maine, 474. In a case in Kentucky, where a mistake was dis- 
 tinctly shown to be that of the party's counsel, relief was given. Fitzgerald v. Peck, 4 
 Littell, 127 ; but such a doctrine was repudiated in Magniac v. Thompson, 2 Wallace, 
 Jr. 209. In Cooke v. Nathan, 16 Barb. S. C. 342, it was held, that where one party to 
 a contract knew that the other was ignorant of a principle of law involved in the trans- 
 action, and took advantage of it, the contract must be set aside. This subject has been 
 much discussed in the United States, and there is no little diversity of opinion upon it. 
 See as to mistake in compromises and family arrangements, Currie v. Steel, 2 Sandf. 
 S. C. 542 ; Bradley v. Chase, 22 Maine, 524 ; Lawton v. Campion, 18 Jurist, 818 ; 22 
 L. J. Ch. 505 ; Stone v. Godfrey, 18 Jurist, 165 ; affd Id. 524; Richardson v. Eyton, 
 
 2 De G. Macn. & G. 79 ; Ashhurst v. Mill, 7 Hare, 502 ; aff'd 12 Jur. 1035. 
 
 1 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 v. Lemmon, 4 Hamm. 229 ; Lowry 
 v. Cox, 2 Dana, 469 ; Turner v. Clay, 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. 586 ; Doggett v. Emerson, 1 W. & M. 195 ; 
 Cunningham v. Fithian, 2 Gilm. 650; Shaeffer v. Slade, 7 Black. 128; Mill v. Hill, 3 
 H. Lds. Cas. 828 ; King v. Savery, 1 Sm. & G. 271 ; Mason v. Martin, 4 Maryl. 124. 
 But this obligation of " doing equity" in such cases, does not extend to transactions 
 unconnected with the one on suit. Wilkinson v. Fawkes, 9 Hare, 592. 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 be sufficient, if unexplained, to occasion 
 a refusal of that assistance. Lawrence v. Dale, 3 J. C. R. 23 ; De Armand v. Phillips, 
 Walk. Ch. 186 ; Davis v. James, 4 J. J. Marsh. 8 ; Barbour v. Morris, 6 B. Monroe, 120 ; 
 Lacey v. McMillen, 9 B. Monr. 523^ Outlaw v. Morris, 7 Humph. 262 ; Cunningham v. 
 Fithian, 2 Gilm. 650 ; Ayres v. Mitchell, 3 S. & M. 683. 
 
222 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 Upon tbe 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 suffer him to assert a 
 l~*1 Wl c ^ a ™ to tne *possession of that which he never bought, and 
 L 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 spiritual court.(Z) 1 
 But in some cases they appear to have interfered, so far as to declare 
 the party practising the fraud, a trustee for the party prejudiced by 
 
 (i) Ramsden v. Hylton, 2 Ves. 304 ; Beaumont v. Bramley, T. & R. 52 ; Marquis of 
 Exeter v. Marchioness of Exeter, 3 M. & Cr. 321; Lindo v. Lindo, 1 Beav. 496; see 
 Underhill v. Horwood, 10 Ves. 225. [Richardson v. Bleight, 8 B. Monr. 580 ; Belknap 
 v. Sealey, 2 Duer, 570 ; Whaley v.Elliot, 1 A. K. Marsh. 343 (but see Hyne v. Camp- 
 bell, 6 Monroe, 280) ; not however against a bona fide purchaser: Whitman v. "Weston, 
 30 Maine, 285. See on this subject, post, 167, note.] 
 
 (lc) James v. Greaves, 2 P. Wms. 270 ; Webb v. Claverden, 2 Atk. 424 ; Bates v. 
 Graves, 2 Ves. Jun. 287 ; Pemberton v. Pemberton, 13 Ves. 297 ; but see Goss v. Tracy, 
 
 1 P. Wms. 288; S. C. 2 Vera. 700. 
 
 (Z) Plume v. Beale, 1 P. Wms. 388 ; Kerrick v. Barnsby, 7 Bro. P. C. 449 ; Archer v. 
 Mosse, 2 Vern. 8 ; Ex parte Fearon, 5 Ves. 647 ; Allen v. McPherson, 1 Phill. 133 ; 1 
 Mad. Ch. & Pr. 344 ; Gingell v. Home, 9 Sim. 539. 
 
 (m) Herbert v. Lownes, 1 Ch. Rep. 13 ; Thynn v. Thynn, 1 Vern. 296 ; Devenish v. 
 Baynes, Prec. Ch. 3 ; Barnesley v. Powell, 1 Ves. 287, 119 ; 1 Ponbl. Eq. B. 1, Ch. 2, 
 s. 3, u. (u) ; Marriott v. Marriott, 1 Str. 666 ; Segrave v. Kirwan, 1 Beatty, 157 ; Buckley 
 v. Welford, 2 CI. & Fin. 102 ; 8 Bligh. Ill ; Podmore v. Gunning, 7 Sim. 744; 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 consider- 
 able legacies and benefits to the plaintiff by his will [and codicils], and made the de- 
 fendant residuary legatee, by a subsequent codicil revoked the gifts to the plaintiff and 
 
 1 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; McDowall v. 
 Peyton, 2 Desaus. 313 ; Burrows v. Ragland, 6 Hump. 481 ; Hunter's Will, 6 Ohio, 499; 
 Gaines v. Chew, 2 How. U. S. 645 ; Tarver v. Tarver, 9 Pet. U. S. 180; Gould v. Gould, 
 
 3 Story, 516 ; Watson v. Bothwell, 11 Alab. 653 ; see Johnston v. Glasscock, 2 Id. 233; 
 Adams v. Adams, 22 Verm. 50. Where, however, the party claiming against the will is 
 not in possession, and an impediment exists as to part, as, in the case of real estate, an 
 outstanding trust term, 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. McCosker, 1 Comst.^ 
 214. The objection cannot be first raised on appeal. Clarke v. Sawyer, 2 Comstock, 
 498. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 223 
 
 We shall see presently, that parol evidence is undoubtedly admissible 
 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 of 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 Bldon, after reviewing all the authorities, as well as the general 
 principles of the court in dealing with such cases, disallowed the ob- 
 jection and admitted the evidence.(«) 
 
 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 
 
 (n) Marquis of Townshend v. Stangroom, 6 Ves. 328 ; see Mortimer v. Shortall, 2 
 Dr. & W. 363. 
 
 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 
 the 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. E., thereby affirming the existence of 
 this jurisdiction in the court. But this decision was reversed on appeal by Lord Lynd- 
 hurst, 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, for reversing. 2 H. L. Cases, 191. Lord 
 Cottenham, in a very able opinion, endeavored to establish a distinction between 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 ease, and the dis- 
 tinction 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. 
 
 In a recent case, Hindson v. Weatherill, 1 Sm. & Giff. 604, 18 Jurist, 233, V. Ch. 
 Stuart sustained a bill to decree a solicitor, who had obtained a devise, it was alleged, 
 by undue influence, a trustee for the heir, and considered the jurisdiction of equity in 
 such cases not to be affected by the decision in Allen v. Macpherson. See also the remarks 
 in Dimes v. Steinberg, 2 Sm. & Giff. 15 ; Morgan v. Annis, 3 De G. & Sm. 461. On 
 appeal, the case of Hindson v. Weatherill was reversed on another point (18 Jur. 499) ; 
 but Turner, L. J., took occasion to express his doubts whether such a bill were within 
 the jurisdiction of equity. The question of the validity of the execution of a power 
 of appointment of personalty by will, however, has been held to stand on a different 
 footing from that of ordinary testamentary dispositions, and the jurisdiction of Chancery 
 to inquire into the state of mind of the testator, and the influences brought to bear 
 upon it, asserted. Morgan v. Annis, 3 De G. & Sm. 461. It has also been held in 
 England, that pending a suit to recall probate of a will alleged to have been fraudulently 
 obtained by the executor and one of the legatees, a bill for an account and receiver 
 might be sustained against them. Dimes v. Steinberg, 2 Sm. & Giff. 75.] 
 
224 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 decreed to be a trustee for the injured party, to the extent of the interest 
 of which he has been thus defrauded. 1 
 
 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 providing for 
 other parties out of the estate by his will : it was held by Lord Thurlow, 
 that the estate was to be considered exactly 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. (p) 
 
 And in another case where the wife of a copyholder prevented her 
 husband from vesting the copyhold in his son after his death, by pro- 
 mising 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, notwith- 
 standing the Statute of Frauds, on the ground of the fraud. (q) 
 
 And in like manner, if an heir or devisee prevent a testator from 
 charging his estate with annuities or legacies, by promising themselves 
 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.(f) 
 
 As if a will by which a legacy is given be destroyed or concealed 
 
 (o) Luttrell v. Olmins, cited 11 Ves. 638; and 14 Ves. 290. 
 
 (p) Per Cur. in Devenish v. Baines, Prec. Ch. 5. 
 
 (q) Devenish v. Baines, Prec. Ch. 4. 
 
 (?•) Chamberlaine v. Chamberlaine, 2 Preem. 34 ; Oldham v. Lichfield, 2 Vern.506; 
 Mestaer v. Gillespie, 11 Ves. 638 ; Huguenin v. Basely, 14 Ves. 290 ; and see Griffin 
 v. Nainson, 4 Ves. 344. 
 
 (*) Thynn v. Thynn, 1 Vern. 296 ; Reach v. Kennigate, Ambl. 6? ; Barrow v. Green- 
 hough, 3 Ves. 152 ; Chamberlain v. Agar, 2 V. & B. 250 ; Podmore v. Gunning, 1 
 Sim. 644. 
 
 (0 Bates v. Heard, Toth. 66, and 1 Dick. 4; 1 Madd. Ch. Pr. 424. 
 
 1 Richardson v. Adams, 10 Yerg. 273 ; Miller v. Pearce, 6 W. & S. 97 ; Jones v. 
 McKee, 3 Barr, 496; 6 Barr, 428; Morey v. Herrick, 18 Penn. St. 128; Jenkins v. 
 Eldredge, 3 Story, 181 ; Howell v. Baker, 4 J. C. R. 118 ; Hoge v. 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, however, 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. See also Walgrave v. Tebbs, 20 
 Jurist, 85. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 225 
 
 by the executor, the legatee may obtain a decree for payment against 
 him.(w) 1 
 
 And so -where a deed or will is suppressed by the heir, the party 
 claiming under the instrument has been decreed to enjoy the property, 
 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 ;{y) and this proof seems to have been 
 given in the majority of the cases.(z) 
 
 However, in one case, where there was no evidence of a deed, which 
 a party confessed to have burned, he was ordered to be committed until 
 he admitted the deed as stated in the bill.(a) 
 
 And in another case, where there was no exact evidence of a will that 
 had been suppressed, the devisee was decreed to enter and enjoy until 
 the defendant produced the will, and until further order. (6) 
 
 *The recent case of Spencer v. Smith(c) was a suit by devisees r-%* ,-0-1 
 agairist 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 sufficient to en- 
 title the plaintiffs to an inquiry, and an issue devastavit vel non, although 
 no case of suppression was proved against the defendant.(c) 
 
 The court in all these cases acts upon the principle that the instru- 
 ments, which would have been executed, or would have existed, but for 
 the fraud, are to be treated as if actually executed and existing. (d) 
 
 With respect to the second head of fraud, as distinguished by Lord 
 Hardwicke, viz., that apparent from the intrinsic value and subject of 
 
 («) Tucker v. Phipps, 3 Atlc. 360 ; Hayne v. Hayne, 1 Dick. 18. 
 
 (x) Eyton v. Eyton, 2 Vera. 280, and Prec. Ch. 116 ; Dalton v. Coatsworth, 1 P. 
 Wms. 731 ; Woodroffe v. Burton, stated 1 P. Wins. 734. 
 
 (y) Saltern v. Melhuish, Ambl. 249. 
 
 (2) Cowper v. Cowper, 2 P. Wms. 748 ; Garteside v. Radcliffe, 1 Ch. Ca. 292 ; Hunt 
 v. Matthews, 1 Vera. 408 ; Wardour v. Beresford, lb. 452. 
 
 (a) Sanson v. Rumsey, 2 Vera. 561, cited 1 P. Wms. 733. 
 
 (6) Hampden v. Hampden, cited 1 P. Wms. 733 ; S. C. 3 Bro. P. C. 550. 
 
 (c) Spencer v. Smith, 1 N. C. C. 75. 
 
 (d) Middleton v. Middleton, 1 J. & W. 99 ; Salturn v. Melhuish, Ambl. 249. 
 
 1 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. Mat- 
 lock, 8 Humph 390 ; Meade v. Langdon's Heirs, cited 22 Verm. 59. See Story's Equity, 
 § 254 ; Legare v. Ashe, 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 court. The correctness of the inference drawn from Gaines 
 v. Chew, in this case, may, however, well be doubted. In New York, the jurisdiction to 
 establish a lost or destroyed will, is exclusively in the Supreme Court; the surrogate has 
 no power to that end. Bulkley v. Redmond, 2 Bradf. Suit. 286. As to the jurisdic- 
 tion to establish suppressed deeds, see Ward v. Webber, 1 Wash. Va. 274. 
 
 15 
 
226 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 the bargain itself : — It is to be observed, that mere inadequacy of con- 
 sideration of itself, and unaccompanied by other circumstances raising a 
 presumption of fraud, Jwill not in general induce the court to relieve from 
 the consequences of an executed conveyance. [ef 
 
 If a person, said Lord Hardwicke, will enter into a hard and uncon- 
 scionable bargain with his eyes open, equity will not relieve him upon 
 that footing only.(/) 
 
 Where, however, the inadequacy of consideration is so gross and mani- 
 fest, that, as Lord Thurlow has observed, "it is impossible to state it to 
 a man of common sense, without producing an exclamation at the in- 
 equality 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 de- 
 rived. (A) It has been remarked by Lord Eldon that " this principle is 
 loose enough ; but it is one by which judges in equity have felt them- 
 selves 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 ;(k) or the vendor is 
 
 (e) AVood v. Abrey, 3 Mad. 423 ; Floyer v. Sherrard, Ambl. 18 ; Stephens v. Bateman, 
 
 1 Bro. C. C. 22; Griffith v. Spratley, 2 Bro. C. C. 179, n. ; Moth v. Atwood, 5 Ves. 845 ; 
 White v. Damon, 7 Ves. 35 ; Low v. Barchard, 8 Ves. 133 ; Coles v. Trecothick, 9 Ves. 
 246. (/) In Willis v. Jemegan, 2 Atk. 251. 
 
 (ff) In Gwynne v. Heaton, 1 Bro. C. C. 8. 
 
 (A) Heathcote v. Paignon, 2 Bro. C. C. 175; Underhill v. Horwood, 10 Ves. 219; 
 Ware v. Horwood, 14 Ves. 28 ; Stilwell v. Wilkins, Jac. 282. 
 (i) In Gibson v. Jeyes, 6 Ves. 273. 
 (k) Heme v. Meeres, 1 Vera. 465 ; Gibson v. Jeyes, 6 Ves. 266. [Wright v. Wilson, 
 
 2 Yerg. 294; Brooke v. Berry, 2 Gill, 83; Shaeffer v. Slade, 7 Blackf. 178.] 
 
 1 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 Desaus. 
 651; McCormick v. Malin, 5 Blackford, 509; Green v. Thompson, 2 Ired. Eq. 365 ; 
 Dunn v. Chambers, 4 Barb. S. C. 376 ; Mann v. Betterly, 21 Verm. 326 ; Delafield v. 
 Anderson, 7 Sm. & M. 630 ; see Farmers' 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 ; Potter v. Everett, 7 Ired. 
 Eq. 152 ; Robinson v. Robinson, 4 Maryl. Ch. 183 ; Davidson v. Little, 22 Penn. St. 251; 
 Powers v. Hale, 5 Foster, 145 ; Judge v. Wilkins, 19 Alab. 765. Yet it may, in con- 
 nection with suspicious circumstances, be evidence of fraud : Wormack v. Rogers, 9 
 Geo. 60 ; M'Artee v. Engart, 13 111. 242 ; particularly in view of the mental capacity 
 of the seller, or the relations of the parties. And it has been often said, though but 
 seldom acted on, that where the inadequacy is very gross and manifest/so as to "shock 
 the conscience," the court will infer from that alone fraud or imposition. Wright v. 
 Wilson, 2 Yerg. 294; Butler v. Haskell, 4 Desaus. 652; Gist v. Frazier, 2 Litt. 118; 
 Barnett v. Spratt, 4 Ired. Eq. 171 ; Deaderick v. Watkins, 8 Humph. 520; Juzan v. 
 Toulmin, 9 Alab. 662 ; Seymour v. Delancy, 6 J. C. R. 222 ; Eyre v. Potter, 15 How. 
 U. S. 60 ; but see Erwin v. Parham, 12 Id. 197. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 227 
 
 in distress 1 or ignorance ;(Z) or is not competent to protect his own in- 
 terests ;(m) the insufficiency of the consideration will materially 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 interest r-.,.-. rq-i 
 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 necessitous circumstances, 
 and also tending to weaken the due authority of a parent, (ra) Such a 
 sale, therefore, cannot be supported by the purchaser against the heir, 
 unless it be perfectly fair in every respect, and untainted with actual or 
 constructive fraud, and particularly, unless the consideration be ade- 
 quate.^) And it rests upon the purchaser 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. (q) 
 
 These rules, however, will not be applied with the same stringency to 
 sales by auction, which carry in themselves prima facie proof of suffi- 
 
 (l) Heme v. Meeres, ubi sup.; Pickett v. Loggan, 14 Ves. 215; Murray v. Palmer, 
 2 Sch. & Lef. 474; Gwynne v. Heaton, 1 Bro. C. C. 1 ; Wood v. Abrey, 3 Madd. 417. 
 [McKinney v. Pinckard, 2 Leigh, 149 ; Gasque v. Small, 2 Strob. Eq. 72 ; Esham v. 
 Lamar, 10 B. Monroe, 43.] 
 
 (m) Clarkson v. Hamway, 2 P. Wins. 203 ; Gartside v. Isherwood, 1 Bro. C. C. 558 ; 
 How v. WeldoD, 2 Ves. 517 ; Addis v. Campbell, 4 Beav. 401. [Crane v. Coneklin, 
 Saxt. 346 ; Mann v. Betterly, 21 Verm. 326 ; Brooke v. Berry, 2 Gill, 83 ; Holden v. 
 Crawford, 1 Aik. 390; Rumph v. Abercrombie, 12 Alab. 64. It is not necessary that 
 there should be actual lunacy in such case. Ibid.] 
 
 (n) Call v. Gibbous, 3 P. Wms. 290 ; Barnadiston v. Lingood, 2 Atk. 133 ; Gwynne 
 v. Heaton, 1 Bro. C. C. 10 ; Walmesly v. Booth, 2 Atk. 28. [See Jenkins v. Pye, 12 
 Pet. 241, 257 ; notes to Chesterfield v. Jansen, 1 Lead. Cas. Eq. 393.] 
 
 (o) Knott v. Hill, 1 Vern. 167 ; Chesterfield v. Jansen, 2 Ves. 125 ; Peacock v. Evans, 
 16 Ves. 512 ; Earl of Portmore v. Taylor, 4 Sim. 182 ; King v. Hamlet, lb. 223 ; and 
 S. C. 2 M. & K. 456 ; Newton v. Hunt, 5 Sim. 54; Bawtree v. Watson, 3 M. & K. 339, 
 [See Jenkins v. Pye, 12 Peters, 241 ; Varick v. Edwards, 1 Hoff. Ch. 383; Davidson 
 v. Little, 22 Penn. St. 252.] 
 
 (p) Gowland v. De Faria, 17 Ves. 24; Davis v. Duke of Marlborough, 2 Sw. 141 ; 
 Shelley v. Nash, 3 Mad. 236 ; Coles v. Trecothick, 9 Ves. 246.; Earl of Portmore v. 
 Taylor, 4 Sim. 209. [Lord Aldborough v. Trye, 7 CI. & P. 436 ; Edwards v. Burt, 2 
 De G. Macn. & G. 55.] 
 
 (q) Evans v. Cheshire, Belt's Supp. 305, 6 ; Addis v. Campbell, 4 Beav. 401 - h Davis 
 v. Duke of Marlborough, 2 Wils. 146. 
 
 1 In Cockell v. Taylor, 15 Beav. 147, it was held, that a purchase of land at an exor- 
 bitant price, made on condition of a loan of money, by a party whose necessities com- 
 pelled him to borrow, would be set aside. 
 
228 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 ciency and fairness,^) 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 
 recognized, or acted upon by the heirj(£) 
 
 The authorities appear to warrant the application of the foregoing 
 observations to sales by those reversioners only, who combine the cha- 
 racter of heir ;{Vf although an anxious protection is also extended 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 effect 
 a favorable bargain, or that there existed some other equity in favor of 
 the vendor in addition to the mere inadequacy of price.(w) 
 
 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 rever- 
 sion, merely on the ground of the insufficiency of the consideration. (x) 
 
 We now come to the third species of fraud, as denned by Lord Hard- 
 
 wicke, viz., that which is presumed from the circumstances and condition 
 
 *of the parties contracting. And this, added that learned Judge, 
 
 *- J goes farther than the rule of law, which is, that fraud must be 
 
 proved, not presumed, {y) 
 
 The deeds and other engagements of persons who are non compotes 
 mentis, are in general absolutely void 2 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 reconveyance.^) 
 
 (r) Shelley v. Nash, 3 Mad. 232 ; but see Pox v. Wright, 6 Mad. 111. [Newman v. 
 Meek, 1 Freem. Ch. 441 ; see Erwin v. Parham, 12 How. U. S. 197.] 
 
 (s) King v. Hamlet, 2 M. & K. 456. 
 
 (<) Chesterfield v. Jansen, 2 Ves. 125 ; King v. Hamlet, 2 M. & K. 480. 
 
 \u) Wiseman v. Beake, 2 Vern. 121 ; Cole v. GibbonSj 3 P. Wms. 290 ; 1 Sugd. V. 
 & P. 165 ; Barnadiston v. Lingood, 2 Atk. 133 ; Bowers v. Heaps, 3 V. & B. 117 ; Davis 
 v. Duke of Marlborough, 2 Sw. 140, a. ; Addis v. Campbell, 4 Beav. 401. 
 
 (x) Nieholls v. Gould, 2 Ves. 422 ; Henley v. Axe, 2 Bro. C. C. 17 ; S. C. 2 Sw. 141, 
 n. ; Griffith v. Spratley, 2 Bro. C. C. 179, n. ; S. C. 1 Cox, 383 ; Moth v. Atwood, 5 Ves. 
 845 ; Montesquieu v. Sandys, 18 Ves. 302 ; see 2 Swanst. 139, n. 
 
 (y) Chesterfield v. Jansen, 2 Ves. 155. 
 
 (z)Rushloy v. Mansfield, Toth. Trans. 42; Mansfield's case, 12 Co. 123; Addison v. 
 Mascall, 2 Vern. 678 ; and stated 3 Atk. 310 ; 1 Fonbl. Eq. B. 1, Ch. 2, s. 2, u. (*). 
 [See Price v. Berrington, 7 Hare, 394 ; 3 Macn. & G. 486.] 
 
 (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 undervalue, that it was reasonable to regard the 
 vendor at least in as favorable a light as a young heir. How v. Weldon, 2 Ves. 517. 
 
 1 An heir in tail, who is entitled to an immediate possession of one half the land, and 
 of the other half on the death of a tenant by the curtesy, is not, it seems, an heir ex- 
 pectant within the rule. Davidson v. Little, 22 Penn. St. 252. 
 
 2 In the absence of fraud or notice, a lunatic's deed is only voidable. See ante, note 
 to page 46. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 229 
 
 It has been held that mere weakness of mind alone, not amounting to 
 idiotcy or insanity, and unaccompanied with fraud, is not a sufficient 
 ground to invalidate an instrument. 1 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 understanding, 
 must constitute an ingredient, and a most material ingredient, in exa- 
 mining whether an instrument be invalid by reason of fraud, or imposi- 
 tion, or undue influence. Therefore where the party executing an in- 
 strument 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. 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 imposition 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 scintilla 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 ingre- 
 dients, as was said by Lord Thurlow, " there may be made out and evi- 
 denced a collection of facts, that there was fraud or misrepresentation 
 used,"(e) the court will relieve. 
 
 Thus where the provisions of a deed executed by such a person are 
 unreasonable or extraordinary ;{d) or the consideration is nugatory or 
 
 (a) Osmond v. Fitzroy, 3 P. Wins. 130 ; vide et Willis v. Jernegan, 2 Atk. 251 ; 1 
 Fonbl. Eq. B. 1, Ch. 2, s. 3, nn. (p) & (r) ; 1 Madd. Ch. Pr. 373 ; 1 Story's Eq. Jur. 
 g235. 
 
 (6) Bridgman v. Green, Wilm. 61 ; S. C. 2 Ves. 627; and see Lord Thurlow's re- 
 marks in Griffin v. De Veulle, 3 Wood. Leet. App. 16 ; Lord Dennegal's case, 2 Ves. 
 407 ; 1 Fonbl. Eq. B. 1, Ch. 2, s. 3, nn. (p) & (r) ; 1 Madd. Ch. Pr. 375 ; 1 Story's 
 Eq. Jur. I 236; Gartside v. Isherwood, 1 Bro. C. C. 560; Blackford v., Christian, 1 
 Knapp, 77. 
 
 (c) In Griffin v. De Veulle, 3 Wood. Lect. App. 16. \ 
 
 (d) Fane v. Duke of Devonshire, 2 Bro. P. C. 77 ; Bridgman v. Green, 2 Ves. 627 ; 
 Dent v. Bennett, 7 Sim. 539 ; S. C. 4 M. & Cr. 269. 
 
 1 Ex parte Allen, 15 Mass. 58 ; Rippy v. Gant, 4 Ired. Eq. 447 ; Mann v. Betterly, 
 2 1 Verm. 326 ; Mason v. Williams, 3 Munf. 126 ; Morrison v. McLeod, 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 
 McCord'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 ; Whitehorn v. Hines, 1 Munf. 557 ; Brogden v. Walker, 
 2 H. & J. 285; Whelan v. Whelan, 3 Cow. 537; Rippy v. Gant, 4 Ired. Eq. 447 ; 
 Rumph v. Abercrombie, 12 Alab. 64 ; Tracey v. Sackett, 1 Ohio St. N. S. 54. 
 
230 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 > 
 
 insufficient ;(e) or where the instrument is stated, contrary to the truth, 
 to be made for a pecuniary consideration^/) or more strongly still, 
 where *undue practising or influence has been actually used;(#) 
 L -I or from the relations existing between the parties will be pre- 
 sumed to have been used, (A) 1 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 temporary illness or 
 debility; or by the infirmities of extreme old age. (Jc) There is an in- 
 surmountable difficulty, said Lord Thurlow, in laying down abstract pro- 
 positions on such a subject, which depends upon such a variety of 
 circumstances.(Z) The effect of the mental weakness of a contracting 
 party upon the judgment of the court will of course depend upon the 
 extent to which it is supported by the evidence in each particular case.(m) 
 
 Old age of itself is certainly no ground for relieving against the exe- 
 cution of an instrument.(n) And even where the old age is extreme, 
 and attended with great infirmity, yet if there be the intervention 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 in- 
 toxication, equity will not on that account alone interfere to set it aside, 
 
 (e) Clarkson v. Hanway, 2 P. Wins. 203 ; Bridgman v. Green, ubi supra; Gartside v. 
 Isherwood, 1 Bro. C. C. 558. See Hutchinson v. Tindall, 2 Green's Ch. 357 ; Bumph 
 v. Abercrombie, 12 Alab. 64.] (/) Gibson v. Russell, 2 N. C. C. 104. 
 
 (g) Portington v. Eglinton, 2 Vern. 189 ; Gartside v. Isherwood, 1 Bro. C. C. 558; 
 Bridgman V. Green, 2 Ves. 627 ; Edmunds v. Bird, 1 V. & B. 542. 
 
 (7i) Osmond v. Fitzroy, 3 P. Wms. 130 ; Huguenin v. Baseley, 14 Ves. 273; Griffiths 
 v. Robins, 3 Mad. 191 ; Dent v. Bennett, 7 Sim. 539 ; and 4 M. & Cr. 269. 
 
 (i) Lord Donegal's case, 2 Ves. 407 ; see Osmond v. Fitzroy, 3 P. Wms. 130; Por- 
 tington v. Bglington, 2 Vern. 189. [Rippy v. Gant, 4 Ired. Bq. 447.] 
 
 (k) Griffiths v. Robins, 3 Mad. 191 ; Dent v. Bennett, 7 Sim. 539. [Harding v. 
 Handy, 11 Wheat. 103 ; Whelan v. Whelan, 3 Cow. 537 ; Brice v. Brice, 5 Barb. S. C. 
 533. (Z) In Att.-Gen. v. Parnther, 3 Bro. C. C. 443. 
 
 (to) See Hunter v. Atkins, 3 M. & K. 146. 
 
 (n) Lewis v. Pead, 1 Ves. Jun. 19. [Gratz v. Cohen, 11 How. IT. S. 1.] 
 
 (o) Pratt v. Barker. 1 Sim. 1, and 4 Russ. 507; Hunter v. Atkins, 3 M. & K. 113. 
 
 {p) Co. Litt. 447, a. {q) Cole v. Robbins, Bull. N. P. 172. 
 
 1 Kennedy v. Kennedy, 2 Alab. 571 ; McCraw v. Davis, 2 Ired. Eq. 618 ; Buffalowv. 
 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. Berry, 2 Gill, 83. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 231 
 
 as against the party taking under it, for that would be to encourage 
 drunkenness,^) 1 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 tbere has been any contrivance 
 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 setting aside the deed.(i) 
 
 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 ex- 
 cessively drunk, that he is utterly deprived of the, use of reason and 
 ♦understanding. Because in such a case there can by no means 
 be a serious or a deliberate consent ; and without this no contract L J 
 can be binding by the law of nature.(w) This doctrine is certainly in 
 accordance with the maxims of the jurists, and has been recognized with 
 approbation by Mr. Maddock, and other eminent writers on equity juris- 
 prudence.^) 
 
 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 exe- 
 cuted by a drunkard, to enforce its execution ; although no contrivance 
 be used or advantage taken by him ; but the parties will be left to their 
 remedies at law.fj/) 2 
 
 Upon the same principle of fraud, presumed from the circumstances 
 
 (r) Johnson v. Meddlicott, 3 P. Wms. 131, u. ; see Cory v. Cory, 1 Ves. 19 ; Cooke 
 v. Clayworth, 18 Ves. 12; Nagle v. Baylor, 2 Dr. & W. 60. 
 
 (s) Cory v. Cory, 1 Ves. 19; Cooke v. Clayworth, 18 Ves. 12. 
 
 (t) Johnson v. Meddlicott, nbi supra ; Cory v. Cory, Id. ; Cooke v. Clayworth, Id. ; 
 Say v. Barwick, 1 V. & B. 195 ; 1 Fonbl. Eq. B. 1, Ch. 2, s. 3, P. 67. [Crane v. Conck- 
 lin, Saxt. 346 ; Hutchinson v. Tindall, 2 Green's Ch. 357 ; Phillips v. Moore, 11 Mis. 
 600 ; Calloway v. Witherspoon, 5 Ired. Bq. 128.] 
 
 (w) 1 Fonbl. Treat. Bq. 67. [Gore v. Gibson, 13 M. & W. 626 ; Clifton v. Davis, 1 
 Pars. Bq. 31 ; French v. French, 8 Hamm. 214 ; see Harbison v. Lemon, 3 Blackf. 51 ; 
 Wigglesworth v. Steers, 1 Hen. & Munf. 70 ; Shaw v. Thackray, 1 Sui. &, Giff. 537.] 
 
 (a;) Puffendorf, Law of Nat. B. 1, Ch. 4, s. 8 ; Pothier, Trait. Obligat, n. 49 ; 1 Mad. 
 Ch. Pr. 398 ; 1 Stor. Bq. Jur. I 231, &c. 
 
 (y) Cragg v. Holme, 18 Ves. 14, n.; Shiers v. Higgons, cited 1 Madd. Ch. Pr. 399; 
 Nagle v. Baylor, 2 Dr. & W. 64. [See Shaw v. Thackray, ut sup.] 
 
 ' Morrison v. McLeod, 2 Dev. & Batt. Eq. 221 ; Hotchkiss v. Fortson, 7 Yerg. 67 ; 
 Hutchinson v. Brown, 1 Clark's Ch. 408 ; Harbison v. Lemon, 3 Blackf. 51 ; Belcher v. 
 Belcher, 10 Yerg. 121 ; Maxwell v. Pittinger, 2 Green's Ch. 156 ; Whitesides v. Green- 
 lee, 2 Dev. Eq. 152 ; see Moore v. Reed, 2 Ired. Eq. 580, and the remarks in 9 Jur. 
 p. ii. 75. 
 
 2 "Where, however, after a contract fairly entered into with a man addicted to drink- 
 ing, to sell to the plaintiff leasehold premises for 735Z., another person with notice of 
 this contract within a few days, prevailed on the vendor to sell and execute an assign- 
 ment of the lease to him for 760/., the court considered the doctrine above stated not 
 to apply, inasmuch as it could only operate to the benefit of the second vendee, and en- 
 forced specific performance of the first contract. Shaw v. Thackray, 1 Sm. & Giff, 537. 
 
232 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 of the parties, equity will relieve against a conveyance obtained from 
 persons in duress, or under terror or apprehension. (2) 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 of 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. (J) 
 
 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 distress ; and that 
 there could be no title to such relief, unless the advantage or disadvan- 
 tage 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 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 evi- 
 denced, that fraud or misrepresentation was used.(d) 
 
 Wherever, from the peculiar relations or connection existing between 
 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 suffered to abuse this authority or influence by 
 extracting from it any advantage to himself. 1 But the court will look 
 
 (2) Anon. 3 P. Wms. 294, n. e. ; Att.-Gen. v. Sothen, 2 Vern. 497 ; Crow v. Ballard, 
 1 Ves. Jun. 220. [Gest v. Frazier, 2 Litt. 118.] 
 
 (a) Nicholls v. Nieholls, 1 Atk. 409 ; Hinton v. Hinton, 2 Ves. 634. 
 
 (6) Hawes v. Wyat, 3 Bro. C. C. 156 ; Pickett v. Loggan, 14 Ves. 215; Wood v. 
 Abrey, 3 Mad. 417. [MeCants v. Bee, 1 McCord's Eq. 383.] 
 
 («) Ramsbottom v. Parker, 6 Mad. 6. 
 
 (d) In Griffin v. De Veulle, 3 Wood. Lect. App. 16. 
 
 1 For a statement of the principles on which equity acts in cases of this kind, see 
 Ahearne v. Hogan, 1 Dru. 310 ; Bspey v. Lake, 16 Jur. 1106 ; 10 Hare, 260 ; Hoghton 
 v. Hoghton, 15 Beav. 278 ; and Cooke v. Lamotte, Id. 234 ; 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 person, 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 re- 
 siding with her, 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 effect of the instrument. The bond was declared 
 void. But in Beanland v. Bradley, 2 Smales & Giffard, 339, where a person, by deed, 
 eight days before his death, granted a benefit to his grandson and son-in-law, it was held 
 that there was no such confidential relation as in itself to induce the court to presume 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 233 
 
 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, *trustees and cestui que trust, or attorney and client, the r __. 
 transaction is in itself considered so suspicious, owing to the near L J 
 connection 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, bring- 
 ing 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 terms and circum- 
 stances, or otherwise it will be liable to be set aside. (g) 
 
 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. (Jt) 
 
 For it has been repeatedly decided that a transaction of this nature 
 between a parent and a child will be supported as a family arrangement, 
 notwithstanding the relationship between the parties, if it be in other 
 respects reasonable and proper,(«) and more especially if it be such as 
 will conduce to the benefit of the child. (k) And it is not necessary that 
 the parent and child, in dealing with a third person, should act by sepa- 
 rate solicitors. (Z) 1 
 
 (e) Filmer v. Gott, 7 Bro. P. C. C. TO ; Gartside v. Isherwood, 1 Bro. C. C. 560 ; 
 Hunter v. Atkins, 3 M. & K. 135 ; 1 Mad. Ch. Pr. 172, 406 ; 1 Story's Eq. Jur. \ 307, 
 &c. [Whelan v. Whelan, 3 Cow. 537 ; Brice v. Brice, 5 Barb. S. C. 533 ; Taylor v. 
 Taylor, 8 How. 183.] 
 
 (/) Gibson v. Jeyes, 6 Ves. 276 ; Hunter y. Atkins, 3 M. & K. 135. [See the remarks 
 in Cooke v. Lamotte, 15 Beav. 234.] 
 
 (g) Blunden v. Barker, 1 P. fms. 639; Heron v. Heron, 2 Atk. 161; Young v. 
 Peachy, lb. 258; Carpenter v. Heriot, 1 Edw. 328; Cocking v. Pratt, 1 Ves. 401 ; 1 
 Mad. Ch. Pr. 406 ; Story's Eq. Jur. <S 308 ; Wallace v. Wallace, 2 Dr. & W. 452, 470. 
 
 (h) Cocking v. Pratt, 1 Ves. 401 ; as in Heron v. Heron, 2 Atk. 161 ; Young v. 
 Peachy, lb. 258 ; Glisson v. Ogden, cited lb. ; Carpenter v. Heriot, 4 Ed. 328 ; Hawes 
 v. Wyatt, 3 Bro. C. C. 156 ; S. C. 2 Cox, 263. [Findlay v. Patterson, 2 B. Monr. 76.] 
 
 (i) Blaekborn v. Edgly, 1 P. Wms. 607 ; Cory v. Cory, 1 Ves. 19 ; Browne v. Carter, 
 5 Ves. 877 ; Tendrill v. Smith, 2 Atk. 85; Cooke v. Burtchaell, 2 Dr. & W. 165; Twed- 
 dell v. Tweddell, T. & R. 14. 
 
 (7c) Kinchant v. Kinchant, 3 Bro. C. C. 374. [But see the remarks on this case in 
 Hoghton v. Hoghton, 15 Beav. 278.] (I) Cooke v. Burtchaell, 2 Dr. & W. 165. 
 
 fraud. See, in the United States, Buffalow v. Buffalow, 2 Dev. & Batt. 241 ; Taylor v. 
 Taylor, 8 How. U. S. 183 ; Greenfield's Estate, 14 Penn. St. R. 504; Sears v. Shafer, 2 
 Selden, 268, — the latter a case of undue influence of a brother over a sister, in an infirm 
 state of health, and who was in the habit of relying on him for advice in business matters. 
 1 The principle to be deduced from the cases on this subject is thus stated in Hoghton 
 v. Hoghton, 15 Beav. 278, by the Master of the Bolls (Sir John Bomilly) : " If the 
 settlement of the property be one in which the father acquires no benefit not already 
 
23-4 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 And even if there do exist circumstances connected with the trans- 
 action -which might induce the court to relieve against it, the complaint 
 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 acquired an in- 
 terest in supporting the validity of the transaction in question.(m) 
 
 In the case of gifts or conveyances to a guardian by 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 parti- 
 cular instance- there may not be any actual unfairness or imposition. (n) 
 
 (m) Brown v. Carter, 5 Ves. 87V. 
 
 (n) Pierce v. Waring, cited 1 Ves. 380, and 2 Ves. 548 ; Hylton v. Hylton, 2 Ves. 
 547 ; Hatch v. Hatch, 9 Ves. 297 ; Dawson v. Murray, 1 Ball & B. 229 ; Aylward v. 
 Kearney, 2 lb. 463 ; Wood v. Downes, 18 Ves. 126 ; Hunter v. Atkins, 3 M. & K. 135. 
 [Johnson v. Johnson, 5 Alab. 90 ; Somes v. Skinner, 16 Mass. 348 ; Scott v. Freeland, 
 7 Sm. & M. 410 ; Williams v. Powell, 1 Ired. Eq. 460 ; Caplinger v. Stokes, Meigs 
 (Tenn.), 175. Guardian ad litem in partition cannot purchase at the sale (Gallatin v. 
 Cunningham, 8 Cow. 361), nor a testamentary guardian of a devisee at the sale of the 
 testator's land under a surrogate's order. Bostwick v. Atkins, 3 Comstock, 53.] 
 
 possessed by him, and if the settlement be a reasonable and proper one, the court will 
 support it, even though it appear that some influence 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 ease 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 business of the party who endeavors to maintain such a transaction to show that 
 this presumption is adequately rebutted. Hoghton v. Hoghton, Id. 139 ; Archer v. 
 Hudson, 7 Beav. 551. See also Baker v. Bradley, 25 L. J. Ch. 7 ; 20 Jurist, 98; rever- 
 sing S. C. 2 Sm. & Giff. 531. Thus, the resettlement of family estates between a father 
 and a son, where the father obtains extensive advantages, will not be supported in the ab- 
 sence 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 operation qf the respective provisions known 
 to him. Hoghton v. Hoghton. In Baker v. Bradley, 25 L. J. Ch. 7, ut supr., where these 
 questions were much discussed, and a mortgage made by a son just of age, under the 
 influence of his father, very improperly exercised, to his (the father's) benefit, so as to 
 charge in effect his debts on the son's estate, was set aside, Turner, L. J., said: 
 " Transactions between parent and child may proceed upon arrangements between them 
 for the settlement of property or of their rights in property in which they are interested. 
 In such cases this court regards the transaction with favor. It does not minutely weigh 
 the considerations on one side or the other ; an ignorance of rights, if equal on both 
 sides, may not avail to impeach the transaction. On the other hand, the transaction 
 may be one of bounty from the child to the parent, even after the child has attained 
 twenty-one. In such case this court views the transaction with jealousy, and anxiously 
 interposes its protection to guard the child from the exercise of paternal influence." 
 P. 16. As to the doctrine of courts of equity in the United States with regard to con- 
 veyances 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. 235 
 
 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 connection 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.(jp) 
 
 *In one case indeed a voluntary conveyance by one lately come 
 of age to an agent, who had acted in the management of his L J 
 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 objectionable 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. (q) 
 
 This doctrine depends upon the continuance of the connection or in- 
 fluence between guardian and ward, notwithstanding the latter may have 
 come of age : as where the estate remains in the guardian's possession, 
 or the accounts are unsettled, or where no suflicient time has elapsed, to 
 emancipate the mind of the ward from the bias or prejudices of infancy. (r) 
 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, to grant any reaspnable 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 ;{t) or a keeper 
 of an asylum, under whose care the party making the gift had been 
 placed.^) 1 
 
 (o) Mulhallen v. Marum, 3 Dr. & W. 317. 
 
 (p) In Hatch v. Hatch, 9 Ves. 296. (q) Cary v. Mansfield, 1 Ves. 379. 
 
 (r) Wright v. Proud, 13 Ves. 138 ; Dawson v. Murray, 1 B. & B. 232, 6. [Williams 
 v. Powell, 1 Ired. Bq. 460.] 
 
 (s) Hylton v. Hylton, 2 Ves. 549 ; Hatch v. Hatch, 9 Ves. 206, 7 ; 1 Mad. Ch. Pr. 
 172; 1 Story's Eq. Jur. I 320. [Caplinger v. Stokes, Meigs's Tenn. 175; Scott v. 
 Freeland, 7 Sm. & M. 420.] 
 
 (t) Trevelyan v. Charter, Rolls, 2d June, 1835 [affirmed 11 CI. & P. 714; 8 Jur. 
 1015. See 9 Beav. 140] ; Gray v. Mansfield, 1 Ves. 379 ; Revelt v. Harvey, 1 S. & S. 
 502 ; Hugnenin v. Baseley, 14 Ves. 273. {u) Wright v. Proud, 13 Ves. 136. 
 
 1 So with regard to medical advisers. Ahearne v. Hogan, 1 Drury, 310 ; Billage v. 
 Southee, 16 Jur. 188 ; 9 Hare, 534. See Whitehorn v. Hines, 1 Munford, 559 ; Blackie 
 v. Clarke, 22 L. J. Ch. 377. The mere fact, however, of a grantee being the physi- 
 cian to his grantor, who was suffering under a chronic disease, was held not to affect a 
 transaction otherwise valid. Dagget v. Lane, 12 Missouri, 215. 
 
236 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 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. (^(l) 1 
 
 The court does not say that a trustee shall in no case take beneficially 
 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 Eldon, it is a 
 
 {x) Hatch v. Hatch, 9 Ves. 296 ; Hylton v. Hylton, 2 Ves. 549 ; Hunter v. Atkins, 3 
 M. & K. 135. 
 
 (y) Heme v. Meeres, 1 Vern. 465 ; Ayliffe v. Murray, 2 Atk. 59 ; Fox v. Macreth, 2 
 Bro. C. C. 400; Coles v. Trecothick, 9 Ves. 234; Ex parte Lacey, 6 Ves. 625; Morse 
 v. Royal, 12 Ves. 372 ; Hunter v. Atkins, 3 M. & K. 135 ; Whicheote v. Lawrence, 3 
 Ves. 740 ; Scott v. Davis, 4 M. & Cr. 87 ; Kerr v. Lord Dungannon, 1 Dr. & W. 509, 
 541. 
 
 (l)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 Bdw. Ch. 636. So a 
 purchase by a mortgagee is not within the rule. Knight v. Majoribanks, 2 Mac. & G. 
 10 ; 2 Hall & Tw. 308 ; Iddings v. Bruen, 4 Sandf. Ch. 223 ; Murdochs case, 2 Bland, 
 461. Otherwise, if there be a power of sale. Waters v. Groom, 11 Cl#& F. 684. Or 
 a power of attorne}' given to the mortgagee to sell, and pay over the proceeds after 
 payment of debts. Dobson v. Bacey, 4 Selden, 216. And so, of course, if he, without 
 any power of sale, proceeds to sell without foreclosure, and buys in for himself. Gunn 
 v. Brantley, 21 Alab. 633. 
 
 And it applies only to transactions arising on contract inter vivos, for gifts by will 
 always imply bounty, and there is nothing to prevent a trustee from receiving a benefit 
 from his cestui que trust, when conferred by will. Hindson v. Wetherell, 18 Jur. 499. 
 Thus a conveyance to a trustee by a cestui que trust, otherwise voidable, may be con- 
 firmed by will ; when it will not be necessary for the trustee to show fair dealing in ob- 
 taining the confirmation. Stump v. Gaby, 22 L. J. Ch. 353; 2 De G. Macu. & G. 623.] 
 
 1 This has been decided in a great number of cases, among which are Davoue v. 
 Fanning, 2 J. C. R. 252 ; Child v. Brace, 4 Paige, 309 ; Campbell v. Johnston, 1 Sandf. 
 Ch. 148; De Bevoise v. Sandford, 1 Hoff. Ch. 192; Stuart v. Kissam, 2 Barb. S. C. 
 493 ; Michoud v. Girod, 4 How. U. S. 503; Matthews v. Dragaud, 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 v. Campbell, 3 Yerg. 201 ; Lessee of Moody v. Vandyke, 4 
 Binn. 31 ; 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 Blackf. 377; Thompson v. Wheatly, 5 Sm. & M. 499: Scroggins v. McDougald, 8 
 Alab. 382 ; Zimmerman v. Harmon, 4 Rich. Eq. 165 ; and see cases cited in notes 
 to Fox v. Macreth, 1 Lead. Cas. Eq. 37, &e. The rule does not in general apply to the 
 cestui que trust. Walker v. Brungard, 13 Sm. & M. 723 ; but see Chester 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 thereo* ; 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. McCants v. Bee, 
 1 McCord's Ch. 383. See, further, post, 535, and notes. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 237 
 
 difficult case to make out, wherever it is contended that the exception to 
 this rule prevails.(s) 
 
 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 r-%-. ,-q-| 
 and clear contract, ascertained to he such after a jealous and 
 scrupulous examination of all the circumstances, that the cestui que trust 
 intended the trustee should huy ; and there is no fraud, no concealment, 
 no advantage taken, hy the trustee, of information acquired by him, in 
 the character of trustee."^) 1 
 
 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 suspicion, than 
 where the dealing is between the trustee and his cestui que trust. It 
 was laid down by Lord Erskine, that without any consideration of fraud, 
 or looking beyond the relation of the parties, such a contract is void, as 
 interdicted by the policy of the law. (4) And, although the authorities 
 seem scarcely to warrant that assertion in its extreme sense, yet it is 
 indisputably established, that such a transaction 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 of course in that case must be competfent 
 to consent ; and even then it will be 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 ;(d) 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 pur- 
 
 (2) In Coles v. Trecothick, 9 Ves. 247. 
 
 (a) Coles v. Trecothick, ubi supra ; see Morse v.Royal, 12 Ves. 372 ; Naylor v. Winch, 
 1 S. & St. 567; [Bryan v. Duncan, 11 Geo. 77.] And this subject further considered, 
 post [page 536, and notes]. (6) In Morse v. Royal, 12 Ves. 372. 
 
 (c) Campbell v. Walker, 5 Ves. 678 ; Ex parte Lacy, 6 Ves. 625 ; Lister v. Lister, lb. 
 631 ; Downes v. Grazebrook, 3 Mer. 208; Fox v. Macreth, 2 Bro. C. C. 400 ; Ex parte 
 Bennett, 10 Ves. 385. 
 
 (d) Ex parte Haines, 8 Ves. 348 ; Ex parte Bennett, 10 Ves. 393. 
 
 (e) Lister v. Lister, 6 Ves. 631 ; Ex parte Reynolds, 5 Ves. 707 ; Sanderson v. Walker, 
 13 Ves. 603. [McClure v. Miller, 1 Bail. Ch. 107 ; Thorp v. McCullum, 1 Gilm. 624.] 
 
 1 See Lyon v. Lyon, 8 Ired. Eq. 201 ; Pennock's Appeal, 14 Penn. St. 446; Bruch 
 v. Lantz, 2 Rawle, 392; Harrington v. Brown, 5 Pick. 519; Dunlap v. Mitchell, 10 
 Ohio, 117; Scott v. Freeland, 7 Sm. & M. 410; Field v. Arro-wsmith, 3 Humph. 442; 
 Jenison v. Hapgood, 7 Pick. 1. It has been held, however, that a court of equity will 
 never aid a trustee under any circumstances, to enforce such a purchase, though it 
 might refuse to annul it. Monro v. Allaire, 2 Caines' Cases, 183. This distinction is 
 doubtless a valid one in general, yet it may be doubtful whether it can be sustained as 
 one of universal application, in view of modern authorities. See Salmon v. Cutts, 4 
 De G. & Sm. 131. 
 
238 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 chase is made at a public sale by auction ;(/) or by another person as 
 agent for the trustee.^) 
 
 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) 1 or committees with the estate of the 
 
 (f) Whelpdale v. Cookson, 1 Ves. 9 ; Lister v. Lister, 6 Ves. 631 ; Sanderson v, 
 Walker, 13 Ves. 601 ; Downes v. Grazebrook, 3 Mer. 200 ; Campbell v. Walker, 3 Yes. 
 678. [Beeson v. Beeson, 9 Barr, 279 ; Bostwiek v. Atkins, 3 Comst. 53.] 
 
 (g) Campbell v. Walker, 5 Ves. 678. [Hawley v. Cramer, 4 Cow. 717; Davoue v. 
 Fanning, 2 J. C. R. 252 ; Hunt v. Bass, 2 Dev. Eq. 292.] 
 
 [h) Greenlaw v. King, 3 Beav. 49 ; affirmed, S. C. 10 Law Journ. N. S. Chanc. 129. 
 [Van Bpps v. Van Epps, 9 Paige, 237 ; Beeson v. Beeson, 9 Barr, 284.] 
 
 (i) Ex parte Lacey, 6 Ves. 628 ; Ex parte James, 8 Ves. 346 ; Whatten v. Toone, 5 
 Mad. 54; Watson v. Toone, 6 Mad. 15.3 ; Cooke v. Collinridge, Jae. 607. 
 
 1 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; Michoud v. Girod, 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. Geroe, 1 Halst. Ch. 319 ; Ward v. Smith, 3 
 Sandf. Ch. 592; Ames v. Browning, 1 Bradf. (N. Y.) 321 ; Rogers v. Rogers, 3 Wend. 
 503; Conway v. Green, 1 H. & J. 151; Hudson v. Hudson, 5 Munf. 180; Bailey y. 
 Robinson, 1 Gratt. 4 ; Edmunds v. Crenshaw, 1 McCord's Ch. 252 ; Baines v. McGec, 
 
 1 Sm. & M. 308; Braekenridge v. Holland, 2 Blackf.'377 ; Baxter v. Costin, 1 Busbee, 
 Eq. 262 ; and cases cited 1 Lead. Cas. Eq. (1st Am. Ed.) 139. A different rule has 
 been applied in South Carolina and Alabama, as to personalty. Stallings v. Foreman, 
 
 2 Hill's Eq. 401 ; Julian v. Reynolds, 8 aW>. 680 ; Saltmarsh v. Beene, 4 Port. 283. 
 That the purchase is made by the intervention of a third person is not material. 
 Beaubien v. Ponpard, Harr. Ch. 206 ; Woodruff v. 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; Paul v. Squibb, 12 Penna. St. R. 296 ; Buckles v. Lafferty, 2 Rob. Va. 292. 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. Silverthorn v. 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, 117 ; Beeson v. Beeson, 9 Barr, 279 ; Wallington's Estate, 1 Ashm. 307; and 
 so of a sale of the testator's estate on an execution by a creditor. Fleming v. Teran, 
 12 Geo. 394; Spindler v. Atkinson, 3 Maryl. 410. But contra, Fisk v. Sarber, 6 
 W. & S. 18 ; Prevost v. Gratz, Pet. C. C. See Campbell v. Johnson, 1 Sandf. Ch. 
 148 ; Bank of Orleans v. Torrey, 7 Hill, 260. A purchase by an executor jointly 
 with others, makes the whole sale voidable. Paul v. Squibb, 12 Penna. St. Rep. 296; 
 Mitchum v. Mitchum, 3 Dana, 260. Such a sale, however, is not absolutely void (un- 
 less there be actual fraud on the part of the purchaser : see Hudson v. Hudson, 5 Munf. 
 180 ; Van Horn v. Fonda, 5 J. C. R. 388) ; but may be confirmed by the heirs or lega- 
 tees directly (Pennock's Appeal, 14 Penna. St. R. 446 ; Bruch v. Lantz, 2 Rawle, 392 ; 
 Dunlap v. Mitchell, 10 Ohio, 117; Longworth v. 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 ; Lyon v. Lyon, 8 Ired. Eq. 201), or by 
 long acquiescence. Jenison v. Hapgood, 7 Pick. 1 ; Musselman v. Eshelman^lO 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; Baker v. Read, 18 Beav. 398. 
 As to what constitutes such acquiescence, see page 168. A confirmation by legatees or 
 heirs, however, will not affect the rights of creditors. Bruch v. Lantz, 2 Rawle, 3,92. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 239 
 
 lunatic ;(k) or commissioners, assignees, or solicitors of a bankrupt or in- 
 solvent estate purchasing any portion of the assets ;(lf 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, r-%-. ™-. 
 for or to himself.(o) 2 In none of these instances will the trans- 
 action 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 resale of 
 
 (&) Wright v. Proud, 13 Ves. 136. 
 
 (I) Ex parte Hughes, 6 Ves. 617 ; Ex parte Lacey, lb. 625 ; Ex parte Bennett, 10 Ves. 
 381 ; Ex parte Morgan, 12 Ves. 6 ; Ex parte Reynold, 5 Ves. 707 ; Morse v. Royal, 12 
 Ves. 372. 
 
 (m) Downes v. Gravebrook, 3 Mer. 200. [Cram v. Mitchell, 1 Sandf. Ch. 251; 
 Buckles v. Lafferty, 2 Rob. Va. 294.] 
 
 (n) Att.-Gen. v. Earl of Clarendon, 17 Ves. 500. 
 
 (o) Lees v. Nuttall, 1 R. & M. 53 ; Fawcett v. Whitehouse, lb. 132 ; Taylor v. Sal- 
 mon, 4 M. & Cr. 134; Lawless v. Mansfield, 1 Dr. & W. 557, 629 ; Molony v. L'Es- 
 trange, Beat. 406 ; Charter v. Trevelyan, 8 Jur. 1015 ; 11 CI. & F. 714. 
 
 (p) Lowther v. Lowther, 13 Ves. 95; Trevelyan v. Charter, Rolls, 2d June, 1835 
 [affirmed 11 CI. & F. 714] ; Woodhouse v. Meredith, 1 J. & W. 204; Whitcomb v. 
 Minchin, 5 Mad. 91. [Lewis v. Hillman, 3 H. L. Cas. 607.] 
 
 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 Lazarus v. Bryson, 3 Binney, 59. 
 
 1 See Fisk v. Sarber, 6 W. & S. 18 ; Chapin v. Weed, 1 Clark, 464 ; Dorsey v. Dor- 
 sey, 3 H. & J. 410 ; Saltmarsh v. Beene, 4 Porter, 283 ; Beeson v. Beeson, 9 Barr, 284; 
 Wade v. Harper, 3 Yerg. 383 ; Harrison v. Mocks, 10 Alab. 185. 
 
 2 Parkist v. Alexander, 1 J. C. R. 394 ; Sweet v. 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 ; 
 Banks v. Judah, 8 Conn. 146 ; Copeland v. Merc. Ins. Co. 6 Pick. 198 ; Rankin v. 
 Porter, 7 Watts, 387 ; Teakle v. Bailey, 2 Brockenb.,44; so of an agent to pay taxes, 
 Oldhams v. Jones, 5 B. Monr. 467 ;or a cashier of a bank : Bank of Orleans v. Torrey, 
 7 Hill, 260 ; or a director of a railway company: Aberdeen Rail. Co. v. Blaikie Bros. 
 1 Macq. Scott. App. Cas. 461 ; 23 Law Times (H. of L.), 315. So, though the duties 
 of the agent are merely limited to the obtaining of information through which the pur- 
 chase can be effected. Winn v. Dillon, 27 Mississippi, 494. And so, even in a case 
 where he might otherwise show that he was entitled to buy, if an agent buys secretly 
 in the name of a stranger. Lewis v. Hillman, 3 House Lds. Cas. 629. There must 
 be, as was said in that case, some one with whom the agent or trustee is to deal. " No 
 man in a court of equity, is allowed himself to buy and sell the same property. He 
 cannot sell to himself." In Beeson v. Beeson, 9 Penn. St. 280, it was held, however, 
 that a purchase by one trustee through a secret agent, at a sale by his co-trustee, was 
 not absolutely void, unless in the case of actual fraud. 
 
 In Aberdeen R. Co. v. Blaikie Bros. 1 Macq. Scott. App. Cas. 461, ut supr., that the 
 rule which precludes an agent or trustee from dealing to his own profit, with his prin- 
 cipal or cestui que trust, was applicable to all contracts, indifferently; whether as to real 
 or personal estate or mercantile contracts. 
 
240 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 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.(g') 1 
 
 The same doctrine and principles will be applied to transactions be- 
 tween 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 abso- 
 lutely prohibited by the rules of the court (although the dictum of Lord 
 Erskine in Wright v. Proud(r) 2 would seem to carry the doctrine even to 
 that extent in case of a gift), but the court, before 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 pro- 
 priety, rests with the attorney.(s) Therefore, if such proof cannot be 
 given, the case will be treated as one of constructive fraud, and the 
 transaction will be set aside.(£) 3 
 
 (q) Ex parte Hughes, 6 Ves. 617 ; "Whieheote v. Lawrence, 3 Ves. 740 ; Griffin v. 
 Griffin, 1 Sch. & Lef. 352 ; Docker v. Somes, 2 M. & K. 655, and cases cited ; Killick 
 v. Flexney, 4 Bro. C. C. 161 ; Whelpdale v. Cookson, 1 Ves. 9. [See notes, post, 537.] 
 
 (r) Wright v. Proud, 13 Ves. 138 ; and see Lord Eldon's observations in Hatch v. 
 Hatch, 9 Ves. 296, 7, and Montesquieu v. Sandys, 18 Ves. 313; Wood v. Downes, lb. 
 127. [Berrien v. McLane, 1 Hoff. Ch. 421. But see notes (s) & (<).] 
 
 (s) Harris v. Tremenhere, 15 Ves. 34; Cane v. Lord Allen, 2 Dow. 289; Montesquieu 
 v. Sandys, 18 Ves. 302 ; Bellow v. Russell, 1 Ball. & B. 104, 7 ; Champion v. Rigby, 1 
 R. & M. 539; Hunter v. Atkins, 3 M. & K. 135, 6; Edwards v. Meyrick, 2 Hare, 60,68. 
 [Howell v. Ransom, 11 Paige, 538 ; Hawley v. Cramer, 4 Cow. 717 ; Miles v. Ervin, 1 
 McCord's Ch. 524 ; Evans v. Ellis, 5 Demo, 640.] 
 
 (t) Newman v. Payne, 2 Ves. Jun. 199 ; Wells v. Middleton, 1 Cox, 112, and 4 Bro, 
 P. C. 245 ; Walmsley v. Booth, 2 Atk. 30 ; Gibson v. Jeyes, 6 Ves. 277 ; Wood v. 
 Downes, 18 Ves. 120 ; Champion v. Rigby, 1 R. & M. 539 ; Uppington v. Buller, 2 Dr. 
 & W. 184. [Salmon v. Cutts, 4 De G. & Sm. 131 ; Robinson v. Briggs, 1 Sm. & Giff. 
 184; Holman v. Loynes, 23 L. J. Ch. 531 ; King v. Savery, 1 Sm. & Giff. 271 ; Merritt 
 v. Lambert, 10 Paige, 357; S. C. 2 Den. 607, sub noiu. Wallis v. Loubat; Mott v. 
 Harrington, 12 Verm. 199; Greenfield's Estate, 2 Harris (Penn.), 489; Barry v. Whit- 
 ney, 3 Sandf. S. C. 696 ; Howell v. Ransom, 11 Paige, 538. See Lewis v. Hillman, 3 
 House L. Cas. 607.] 
 
 1 Where a trustee or agent agrees to accept a benefit from an intended purchaser, 
 the sale cannot be sustained. Bailey v. Watkins, Sugden, Law of Property, 726. 
 
 2 In Holman v. Loynes, 23 L. J. Ch. 536, it was said by Turner, L. J., and in Tomson 
 v. Judge, 24 L. J. Ch. 785, 19 Jur. 583, 3 Drewry, 306, it was held by V. Ch. Kinders- 
 ley, that the rule against gifts to an attorney or solicitor, while the relation or the in- 
 fluence of the relation, lasted, was absolute, and that they were entirely prohibited. 
 
 In Hindson v. Wetherill, 18 Jurist, 499, overruling S. C. 1 Sm. & Giff. 604, however, 
 it was held by the Court of Appeal in Chancery, that the same rule did not apply where 
 the gift to the solicitor was by will, and that such a testamentary provision would be 
 supported if it were valid at law or in the ecclesiastical courts. See, however, the re- 
 marks in 23 Law Review, 442, and in Reporter's note to the case in 1 Sm. & Giff. 624. 
 In Stump v. Gaby, 22 L. J. Ch. 352, 2 De G. Macn. & G. 623, it was held by Lord St. 
 Leonards that a conveyance obtained by an attorney might be confirmed by will, when 
 it would not be necessary to show good faith in procuring the devise. 
 
 3 An attorney cannot purchase from his client unless he can show that his diligence 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 241 
 
 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 he 
 has the management; particularly if it be connected with the subject of 
 the suit.(w) 
 
 The same rules will not apply, where the relation of attorney and 
 client, as well as the influence arising from that relation, has completely 
 ceased ;{x) nor where the attorney is dealt with by the client in the par- 
 ticular transaction not as his attorney, but as a person wholly inde- 
 pendent of that character : for the reasons arising from the danger of a 
 breach of confidence, &c, do not apply to such cases.^) 1 
 
 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 lordship, "may L J 
 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 
 
 (u) Oldham v. Hand, 2 Ves. 259 ; Hall v. Hallett, 1 Cox, 134 ; "Wood v. Downes, 18 
 Ves. 120. [See Leisenring v. Black, 5 W. 303 ; Hoekenbury v. Carlisle, 5 W. & S. 
 350. This does not apply to the attorney for the defendant buying at a sheriff's sale : 
 Bank v. Porster, 8 W. 305 ; nor to one merely incidentally consulted in a cause : Devin- 
 ley v. Norris, 8 W. 314; Dobbins v. Stevens, 17 S. & R. 13.] 
 
 {x) Wood v. Downes, 18 Ves. 127. 
 
 (y) Bellow v. Russell, I B. & Beat. 104; Montesquieu v. Sandys, 18 Ves. 302 ; Ed- 
 wards v. Meyrick, 2 Hare, 60. [See the remarks on these cases in Holman v. Loynes, 
 23 L. J. Ch. 531.] ^ 
 
 (z) Hunter v. Atkins, 3 M. & K. 135, 6. [See the remarks in Stump v. Gaby, 22 L. 
 J. Ch. 354.] 
 
 to do the best for his vendor has been as great as though he were only an attorney for 
 that vendor dealing with a stranger. Holman v. Loynes, 23 L. J. Ch. 530. In this 
 case the relation of attorney and client was held to continue, though the former had 
 not acted as such for the client for more than a year previous to the purchase, as he had 
 been previously employed about an attempted sale of the same property. In a recent 
 case in Pennsylvania (Henry v. Raiman, Jan'y, 1850, MS.), a most stringent but 
 salutary doctrine was enunciated by the Supreme Court of that State. It was held that 
 not only is an attorney prohibited from acquiring any interest in property about the title to 
 which he has been professionally consulted, or in regard to which he has conducted a 
 suit, but that this prohibition does not terminate with the relation of counsel and client, 
 but is perpetual in its character, and follows the title of the client into whosoever'* 
 hands it passes, so that any purchase of adverse claims, incumbrances, or the like, by 
 him, will be in trust for the holder of that title. 
 
 1 The rule applies, 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 he became acquainted as clerk : Poillon v. Martin, 1 Sandf. Ch. 569 ; and 
 to one also who acts as confidential adviser before a magistrate 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. 
 
 16 
 
242 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 a lease. No law can ever forbid such a transaction, 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 advantageous 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 off, as it were, the connection which bound him 
 to the party giving or contracting, and that nothing has happened which 
 might not have happened, had no such connection subsisted. The 
 authorities mean nothing else than this, when they say, as in Gibson 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 subsists, 
 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 difficulty 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 examination. "(2) 
 
 The doctrine is the same with regard to gifts or sales by a principal 
 to his steward or agent, (a) 
 
 On this subject the law was thus stated by Sir John Leach, V. C, in the 
 case of Lord Selsey v. Rhoades,(6) " There is no rule of policy which pre- 
 vents a steward from being a lessee under his employer. There is no rule 
 of policy which prevents a steward from receiving from the bounty of his 
 employer a beneficial lease. But where the transaction proceeds not upon 
 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 motives 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 
 r*1fi21 °^ tne em pl°y er ' These doctrines may be Considered as com- 
 prised in the general maxim, that a steward dealing with his 
 
 (z) Hunter v. Atkins, 3M.4K. 135, 6. 
 
 (a) Huguenin v. Basely, 14 Ves. 273; Harris v. Tremenhere, 15 Ves. 40; Molony v. 
 Kernati, 2 Dr. & W. 31 ; Lord Selsey v. Rhoades, 2 S. & St. 41 ; Earl of Winchelsea 
 v. Garrety, 1 M. & K. 253; Ker v. Lord Dungannon, 1 Dr. & W. 509, 541. 
 
 (6) Lord Selsey v. Rhoades, 2 S. & S. 49, 50; S. C. 1 Bligh. 1. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 243 
 
 employer shall derive no advantage from his situation as steward. The 
 employer may, if he pleases, treat with his steward preferably to any 
 other person ; and this preference is a bounty. But the steward cannot 
 take advantage of this preference, unless he fully imparts to his em- 
 ployer all the circumstances of existing competition." 
 
 Besides the known and defined relations which we have already con- 
 sidered of parent and child, guardian and ward, trustee and cestui que 
 trust, attorney and client, and principal and agent ; there may be a re- 
 lation between parties created by friendly habits, or habitual reliance on 
 advice and assistance, accompanied with partial employment in doing 
 some sort of business. (c) 
 
 In this case the court will take care that no undue advantage shall be 
 taken of the influence thus acquired ;(c?) 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 effects, 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 inquiry 
 we are to say, has or has not an undue influence been 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 influence over him. 
 
 If, however, there is proof of concealment, misrepresentation, or con- 
 trivance in procuring the bargain or gift, or the circumstances and capa- 
 city 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 interposed, to give relief, (i) 
 
 (c) Per Lord Brougham in Hunter v. Atkins, 3 M. & K. 140. [Greenfield's Est. 2 
 Harris, 489. See ante, 161, n. z.] (d) Ibid. 
 
 (e) 4 M. & Cr. 277. [Greenfield's Estate, 2 Harris (Penn.),492; Cooke v. Lamotte, 
 15 Beav. 234.] (/) Hunter v. Atkins, 3 M. & K. 140, 1. 
 
 (ff) Hunter v. Atkins, 3 M. & K. 113. [Or to a clergyman. Greenfield's Estate, 24 
 Penn. 232.] 
 
 (A) Pratt v. Barker, 1 Sim. 1 ; S. C. 4 Russ. 507. See ante, 158, note 1. 
 
 (t) Huguenin v. Baseley, 14 Ves. 273 ; Popham v. Brooke, 5 Russ. 8 ; Griffiths v. 
 Robins, 3 Mad. 191 ; Dent v. Bennett, 7 Sim. 539; S. C. 4 M. & Cr. 269; Gibson v. 
 Russell, 2 N. C. C. 104. 
 
244 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 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 fraud. " Let the hand receiving the gift be ever so chaste," said 
 Lord Chief Justice Wilmot, " yet if it comes through a polluted channel, 
 
 [*168] 
 
 *the obligation of restitution will follow it."(&) 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 transaction, 
 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 arrangement, 
 secretly obtains from the debtor a conveyance of property, or some other 
 additional benefit for himself ; that will be a fraud upon the other credi- 
 tors, which a court of equity will not suffer to take effect.(wi) It seems, 
 indeed, that such a transaction could not be sustained even at law.(n) 
 
 Upon the same principle a conveyance by a woman, on the point of 
 marriage, of her estate to a stranger, if made without the knowledge of 
 the husband, is a fraud upon him, 1 and the person taking under such an 
 
 (h) Bridgman v. Green, 2 Ves. 627, and Wilm. 58, 64; Luttrell v. Olurins, cited 11 
 Ves. 638, and 14 Ves. 290; Huguenin v. Baseley, 14 Ves. 289. (I) Vide supra. 
 
 (m) Chesterfield v. Jansen, 2 Ves. 156 ;. Ex parte Saddler and Jackson, 15 Ves. 52. 
 [See Mann v. Darlington, 15 Penn. St. R. 310.] 
 
 (n) Leicester v. Rose, 4 East, 372 ; Stock v. Mawson, 1 Bos. & P. 286. 
 
 1 The same rule has been applied to the case of a man conveying his property away 
 in fraud of an intended wife. Smith v. Smith, 2 Halst. Ch. 515 ; Petty v. Petty, 4 B. 
 Monr. 215. And in Smith v. Smith, though the alleged purpose of the conveyance was 
 to provide for an imbecile daughter by a former marriage. So, on the other hand, a 
 conveyance by a husband pending proceedings for a divorce on the part of the wife, in 
 order to avoid the effects of a decree for alimony, will be set aside. Blenkinsopp v. 
 Blenkinsopp, 1 De Gex M. & G. 495. See Krupp v. Scholl, 10 Penn. St. 193. 
 
 In cases of this nature, the question, in the absence of any representation as to speci- 
 fic property, or of any express or implied contract, is whether the evidence is sufficient 
 to raise a presumption of fraud. Cole v. O'Neill, 3 Maryl. Ch. 174; Wrigley v. Swain- 
 son, 3 De G. & Sm. 458. If it does not appear that the husband had notice of the con- 
 veyance, during the treaty of marriage, it is to be presumed that he was ignorant of it. 
 Ibid. But in Cole v. O'Neill, ut supr., it was doubted whether registration of the deed 
 would not be considered equivalent to notice. The fraud, moreover, must have been 
 designed against the very person who thereafter becomes husband ; and therefore a 
 secret settlement made by a woman pending a treaty of marriage with A., and intended 
 to defraud him, will not be held void as against B., whom she marries afterwards, in- 
 stead of A. Wilson v. Daniel, 13 B. Monr. 351 ; following Strathmore v. Bowes, 2 Bro. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 245 
 
 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 concurrence or knowledge of the intended 
 husband ;(»•) and the proof that the transaction amounts to a fraud on his 
 marital rights, lies upon the husband or other person claiming in oppo- 
 sition to the deed.(s) 
 
 Upon the same ground, equity will not suffer a bond or other premium 
 or benefit given for procuring a marriage ;(t) or a public office or situa- 
 tion ;(w) or for any other purpose, which is forbidden either hy 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 members of society generally. (a;) 1 
 
 (o) Hunt v. Mathews, 1 Vern. 408 ; Strathmore v. Bowes, 2 Bro. C. C. 345 ; S. C. 2 
 Cox, 28, and 1 Ves. Jilh. 22 ; Ball v. Montgomery, 2 Ves. Jun. 191 ; Goddard v. Snow, 
 1 Russ. 485 ; England v. Downes, 2 Beav. 522. [Logan v. Simmons, 3 Ired. Eq. 487 ; 
 Tucker v. Andrews, 13 Maine, 124; Waller v. Armistead, 2 Leigh, 11; Manes v. 
 Durant, 2 Rich. Eq. 404; Lewellin v. Cobbold, 17 Jurist, 448; 1 Sm. & Giff. 376 ; 
 Wrigley v. Swainson, 3 De G. & Sm. 458 ; and note to Strathmore v. Bowes, 1 Lead. 
 Cases Eq. 317 (1st Amer. Ed.)] 
 
 (p) Blanchet v. Forster, 2 Ves. 264. [But if a consideration be falsely recited in 
 the deed, that alone would make it void. Lewellin v. Cobbold, 17 Jur. 448 ; 1 Sm. & 
 Giflf. 376.] 
 
 (q) De Maneville v. Crompton, 1 V. & B. 354; England v. Downes, 2 Beav. 522. 
 [See Tucker v. Andrews, 13 Maine, 128; but contra, Manes v. Durant, 2 Rich. Eq. 
 404: Terry v. Hopkins, 1 Hill Eq. 1 ; Smith v. Smith, 2 Halst. Ch. 515.] 
 
 (»•) St. George v. Wake, 1 M. & K. 610. [McGlure v. Miller, 1 Bail. Eq. 108 ; though 
 under age : Kottman v. Peyton, 1 Speer's Eq. 46.] 
 
 (*) St. George v. Wake, 1 M. & K. 210 ; England v. Downes, 2 Beav. 522. 
 
 (t) Drury v. Hook, 1 Vern. 412 ; Smith v. Bruning, 2 Vern. 392 ; Roberts v. Roberts, 
 3 P. Wms. 76 ; Smyth v. Aykwell, 3 Atk. 566 ; Cole v. Gibson, 1 Ves. 507 ; William- 
 son v. Gihon, 2 Seh. & Lef. 357; Debenham v. Ox, 1 Ves. 277. 
 
 (m) Whitingham v. Burgoyne, 3 Anst. 900 ; Morris v. M'Culloch, Ambl. 432, and 2 
 Ed. 190; see Hanington v. Du Chatel, 1 Bro. C. C. 124; Hartwell v. Hartwell, 4 Ves. 
 811, 15. * 
 
 (a;) Robinson v. Gee, 1 Ves. 251 ; Franco v. Bolton, 3 Ves. 370; Gray v. Mathias, 
 5 Ves. 286 ; 1 Fonbl. Eq. B. 1, ch. 4, s. 4; 1 Mad. Ch. Pr. 377 ; Story, Eq. Jur. \ 260, 
 &c. 
 
 Ch. C. 345. In Cole v. O'Neill, ut supr., it was held that the rule did not apply to pro- 
 perty of the wife to which the marital rights would not have attached ; as where the 
 woman has a life-estate to her separate use, to the exclusion of any future husband, 
 with an absolute power of appointment by deed or will, and exercises her power before 
 marriage, in the execution of a re-settlement on herself. 
 
 A settlement by a woman, in contemplation of marriage, without knowledge of the 
 husband, is not void at law, unless there were actual fraud, the husband not being a 
 purchaser. Doe d. Richards v. Lewis, 11 C. B. 1035. 
 
 As to how far representations by a parent before marriage amount to a contract to 
 6ettle, see Hamersley v. De Biel, 12 CI. & Fin. 45 ; Maunsell v. Hedges, 4 House.Lds. 
 Cases, 1039. 
 
 1 As to the fraudulent exercise of a power of appointment, see post, 488, and note. 
 
 Upon a similar principle to that stated in the text, it has been held, that where a 
 
246 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 *And where the transaction is against public policy, this equity 
 L J may be enforced by the party himself, who has created the 
 interest, although he be in pari delicto with the defendant : l but relief will 
 only be given in these cases upon the terms of returning any considera- 
 tion, that may have been received. (y) 
 
 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.^) 
 
 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 
 paVties, 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 be admitted by the answer,(i) 
 or otherwise sufficiently 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. (d) 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 pur- 
 chases 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, a fortiori, a volunteer taking with 
 notice, is in equity bound by the trust to the same extent, and in the 
 
 (y) St. John v. St. John, 11 Ves. 535, 6« 
 
 (z) Smith v. Bruning, 2 Vern. 392 ; Morris v. McCulloch, Ambl. 432. 
 
 (a) Muckleston v. Brown, 6 Ves. 52, 67; Strickland v. Aldridge, 9 Ves. 516; see 
 Chamberlain v. Agar, 2 V. & B. 259; Podmore v. Gunning, 7 Sim. 644; Edwards v. 
 Pike, 1 Ed. 267. [Robinson v. King, 6 Geo. 550. See Walgrave v. Tebbs, 20 Jurist, 
 83.] 
 
 (6) Cottingham v. Fletcher, 2 Atk. 155 ; Bozon v. Statham, 1 Ed. 508 ; Bishop v. 
 Talbot, cited 6 Ves. 60. 
 
 (c) Edwards v. Pike, 1 Ed. 267 ; see Podmore v. Gunning, 7 Sim. 665. 
 
 (d) Adlington v. Cann, 3 Atk. 141; Paine v. Hall, 18 Ves. 473 ; see 1 Ed. 515,n.(o) 
 («) Pring v. Pring, 2 Vern. 99 ; Strickland v. Aldridge, 9 Ves. 520. [How v. Camp, 
 
 Walk. Ch. 427.] 
 
 creditor about to purchase at a sale on his execution, states, for the purpose of stifling 
 competition, that he is going to buy the property in for the bene6t of the debtor, after 
 the satisfaction of his debt, he will be treated as a trustee for the debtor, on the ground 
 of fraud. Kinard v. Hiers, 3 Rich. Eq. 423 ; Loyd v. Currin, 3 Humph. 462. 
 
 1 Reynell v. Sprye, 1 De G. Macn. & G. 660 ; and this against an executed convey- 
 ance. Ibid. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 247 
 
 same manner, as the person from whom he purchased. (/)' And this 
 will be the case equally, whether it be an express trust (as in the case of 
 a conveyance from a trustee of a term or of a settlement^) ), or a con- 
 structive trust (such as one arising from an agreement or contract re- 
 specting 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) 
 
 *Notice of the trust to a purchaser before actual payment of p^r-i 
 the money, although it be secured, and the conveyance actually L 
 executed ;{k) or before the execution of the conveyance, notwithstanding 
 that the money be paid,(Z) is equivalent to notice before the contract.(m) 2 
 
 (/) Mead v. Ld. Orrery, 3 Atk. 238 ; "Winged v. Lefebury, 1 Eq. Cas. Abr. 32, pi. 
 43 ; Earl Brook v. Bulkley, 2 Ves. 498 ; Taylor v. Stibbert, 2 Ves. Jun. 437 ; Crofton 
 v. Ormsby, 2 Sch. & Lef. 583, 2 Sugd. V. & P. 269 ; Adair v. Shaw, 1 Sch. & Lef. 262. 
 [See Pooley v. Budd, 14 Beav. 34.] 
 
 (fir)Mansell v. Mansell, 2 P. Wms. 681; Sanders v. Dehew, 2 Vern. 271; Pye v. 
 Gorge, 1 P. Wms. 128. 
 
 (h) Earl Brook v. Bulkley, 2 Ves. 498 ; Molony v. Kernan, 2 Dr. & W. 31. 
 
 (i) Kennedy v. Daly, 1 Sch. and Lef. 379 ; see Boney v. Smith, 1 Vern. 145. 
 
 (A-) Tourville v. Naish, 3 P. Wms. 307 ; Story v. Ld. Windsor, 2 Atk. 630 ; More v. 
 Mayhew, 1 Ch. Ca. 34 ; Jones v. Stanley, 2 Eq. Ca. Abr. 685, pi. 9. 
 
 {1) Wigg v. Wigg, 1 Atk. 384. (m) 2 Sugd. V. & P. 274. 
 
 1 Wormley v. Wormley, 8 Wheat. 421 ; Oliver v. Piatt, 3 How. U. S. 333 ; Clarke v. 
 Haekethorne, 3 Yeates, 269 ; Peebles v. Reading, 8 S. & R. 495 ; Reed v. Dickey, 2 
 Watts, 459 ; Hood v. Pahnestock, 1 Barr, 470 ; Wilkins v. Anderson, 1 Jones (Penn'a), 
 399 ; 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 ; Trues- 
 dell v. "Callaway, 6 Mis. 605; Suydam v. Martin, Wright (Ohio), 384'; Benzien v. 
 Lenoir, 1 Car. L. R. 504 ; Ligget v. Wall, 2 A. K. Marsh. 149 ; notes to Le Neve 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, Davies, 154; see Goepp's App. 15 
 Penn. St. R. 428. But the right of pursuit fails, where the means of ascertainment 
 fails ; as where the trust property is converted into money and mingled with other 
 money, or is blended with a mass of property of the same description. Thompson's 
 App. 22 Penn. St. 16. 
 
 1 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 ac- 
 cordance with the English rule as stated in the text. Wilcox v. Callaway, 1 Wash. Va. 
 38 ; Snelgrove v. Snelgrove, 4 Desaus. 274 ; Moore v. Clay, 7 Alab. 742 ; Blair v. Owles, 
 1 Munf.40; Simms v.Richardson, 2 Litt.274; Williams v. Hollingsworth, 1 Strob.Eq.103; 
 Bush v. Bush, 3 Strob. Eq. 131 ; Alexander v. Pendleton, 8 Cranch, 462 ;. Wormley v. 
 Wormley, 8 Wheat. 421 ; Boone v. Chiles, 10 Pet. 177 ; Halstead v. Bank of Kentucky, 4 J. 
 J. Marsh. 554 ; Pillow's heirs v. Shannon's heirs, 3 Yerg. 508 ; notes to Bassett v. Nos- 
 worthy, 2 Lead. Ca. Eq. p. 2, page 95, &c. (1st ed.). But in Youst v. Martin, 3 S. & 
 R. 430 ; Boggs v. Varner, 6 W. & S. 469 ; Juvenal v. Jackson, 14 Penna. St. R. 519 ; 
 and in Doswell 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 doctrine 
 
248 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 However, although a person may have notice of a trust affecting a 
 property, if the person from whom he purchases it hought bona fide, and 
 for valuable consideration, the notice to the second purchaser will not 
 make him a trustee,^) 1 although the circumstance may influence the 
 court with respect to costs.(o) But if the second purchaser, in such a 
 case, be the original trustee, who reacquires the estate, he will be fixed 
 with the trust, (p) 
 
 The notice in these cases may be either to the purchaser himself or to 
 his counsel, attorney, or agent ;(q) 2 though the counsel, attorney, or 
 agent be himself the vendor,(r) or be concerned for both vendor and 
 purchaser.(s) But the notice to the agent must as a general rule be in 
 the course of the same transaction ;(t) and it seems that that will also be 
 the rule even with regard to notice to the principal himself.(w) Although 
 
 (re) Harrison v. Forth, Prec. Ch. 51 ; Bradling v. Ord, 1 Atk. 571 ; Lowther v. Charle- 
 ton, 2 Atk. 242 ; Sweet v. Southcote, 2 Bro. C. C. 66. * 
 
 (o) Andrew v. Wrigley, 4 Bro. C. C. 125 ; 2 Sugd. V. & P. 274. 
 
 (p) Bovey v. Smith, 1 Vern. 149 ; 1 Cruis. Dig. 12, ch. 4, s. 14. 
 
 (g) Brotherton v. Hatt, 2 Vern. 574 ; Newstead v. Searles, 1 Atk. 265 ; Le Neve v. 
 Le Neve, 3 Atk. 646, and 1 Ves. 64; Ashley v. Bailley, 2 Ves. 368; Maddox v. Maddox, 
 1 Ves. 61 ; Tunstall v. Trappes, 3 Sim. 301 ; 2 Sugd. V. & P. 278. 
 
 (r) Sheldon v. Cox, Ambl. 624 ; Dryden v. Frost, 3 M. & Or. 670. 
 
 (s) Le Neve v. Le Neve, 3 Atk. 646"; Kennedy v. Green, 3 M. & K. 699 ; Dryden v. 
 Frost, 3 M. & Cr. 670. [Sergeant v. Ingersoll, 15 Penna. St. R. 350.] 
 
 (/) Preston v. Tubbin, 1 Vern. 286 ; Warwick v. Warwick, 3 Atk. 291 ; Worsley v. 
 Earl of Scarborough, Id. 392 ; Hine v. Dodd, 2 Atk. 275 ; Lowther v. Carleton, Id. 242; 
 Ashley v. Bailley, 2 Ves. 368 ; Mountford v. Scott, 3 Mad. 34. [Bracken v. Miller, 4 
 W. & S. Ill ; Henry v. Morgan, 2 Binn. 497.] 
 
 (u) Hamilton v. Royse, 2 Sch. & Lef. 327 ; 2 Sugd. V. & P. 277, 9th ed. [Boggs v. 
 
 Varner, 6 W. & S. 469.] 
 
 of the English cases, payment of a part of the money will be a protection, pro tanto. 
 Youst v. Martin, ubi supra; Bellas v. McCarty, 10 Watts, 13 ; Juvenal v. Patterson, 10 
 Barr, 282 ; 14 Penna. St. Rep. 519 ; accord. Flagg v. Mann, 2 Sumn. 486 ; Frost v. 
 Beekman, 1 J. C. R. 288, Actual payment is, moreover, usually decided to be neces- 
 sary. Murray v. Ballou, 1 John. C. R. 566 ; Jackson v. Cadwell, 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 J. C. R. 65) ; or those of the vendee if actually negotiated 
 (Frost v. Beekman, 1 J. C. R. 288 ; Freeman v. Deming, 3 Sandf. Ch. 327), are equiva- 
 lent to payment for this purpose. In Pennsylvania, valuable improvements before 
 notice (Boggs v. Warner, 6 W. & S. 469) ; or payment of part, the rest secured to be 
 paid on a contingency (Bellas v. McCarthy, 10 Watts, 13), has been held sufficient. 
 This subject is very fully and ably discussed in the American notes to Bassett v. Nos- 
 worthy, 2 Lead. Cas. Eq. [20], and to Le Neve v. Le Neve, 2 Lead. Cas. Eq. [32]. 
 
 1 Lacy v. Wilson, 4 Munf. 313 ; Truluck v. Peeples, 3 Kelly (Geo.), 446 ; Bracken v. 
 Miller, 4 W. & S. 102; Fletcher v. Peck, 6 Craneh. 36 ; Boone v. Chiles, 10 Pet. 177; 
 Boynton v. Reese, 8 Pick. 329 ; Griffith v. Griffith, 9 Paige, 315 ; Mott v. Clarke, 9 Barr, 
 399 ; 2 Lead. Cas. Eq. part ii, page 83 (1st Am. Ed.) ; but see Schutt v. Large, 6 Barb. 
 S. C. 373. 
 
 2 Astor v. Wells, 4 Wheat. 466 ; Westervelt v. Haff, 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 v. Sponable, 1 Hill, 567; affirmed 
 7 Hill, 427. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 249 
 
 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.(z) 
 
 The notice also may he either actual or constructive. Actual notice 
 requires no definition: in that case knowledge of the existence of the 
 trust is brought positively home to the purchaser. Constructive notice 
 is in its nature no more than evidence of actual notice ; but it is difficult 
 as a general rule to lay down what will constitute constructive notice : 
 each case must depend on its own circumstances.(«/) This, however, is 
 a subject which it will be necessary, to consider more at large hereafter. 1 
 
 It is upon this principle that a purchase from an executor or adminis- 
 trator of his testator's estate will not be suffered to prevail against the 
 beneficial'title of the creditors or particular legatees(l) or next of kin, 
 if *the purchaser bought with notice or knowledge that the trans- pn ™-i 
 action amounted to a devastavit or misapplication of the assets. (s) 
 However, the power of the executor or administrator 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 dis- 
 position of the assets by a person filling either of these situations. (a) a 
 
 (x) Mountford v. Scott, T. & R. 280 ; Hargreaves v. Roth-well, 1 Keen, 154 ; Perkins 
 v. Bradley, 1 Hare, 230. 
 
 (y) Hine v. Dodd, 2 Atk. 275 ; Tolland v. Stainbridge, 3 Ves. 478 ; Eyre v. Dolphin, 
 2 Ball. & B. 301 ; 2 Ponbl. Eq. B. 3, Ch. 3, s. 1, n. (6) ; 2 Sug. V. & Pd. 276 ; Pearce v. 
 Newlyn, 3 Mad. 186. [Post, page 510, and see the notes to Le Neve v. Le Neve, 2 
 Lead. Cas. Eq. (p. ii, 12.] " (z) 1 Mad. Ch. Pr. 379 ; Story Eq. Jur. § 422. 
 
 (a) Ibid. ; Crane v. Drake, 2 Vern. 616 ; Ewer v. Corbett, 2 P. Wms. 148 ; Newland 
 v. Champion, 1 Ves. 105 ; Jacomb v. Harwood, 2 Ves. 268 ; Elmslie v. McAulay, 3 
 Bro. C. C. 626 ; Utterson v. Maire, 4 Id. 270 ; and 2 Ves. Jun. 95 ; Scott v. Tyler, 2 
 Dick. 725 ; Bonney v. Ridgard, 1 Cox, 145 ; Dickson v. Lockyer, 4 Ves. 42, 3 ; Doran 
 v. Simpson, Id. 665 ; Hill v. Simpson, 7 Ves. 152; McLeod v. Drummond, 14 Ves. 353, 
 and 17 Ves. 172 ; [Collinson v. Lister, 20 Jurist, 75, 25 L. J. Ch. 38 ; aff'g S. C. 24 Id. 
 762 ; 18 Jur. 839 ; McNeillie v. Acton, 23 L. J. Ch. 11 ; 4 De G. M. and G. 744.] 
 
 (1) A distinction appears to have been established in this respect between particular 
 and residuary legatees; for it has been said, that residuary or general legatees are never 
 permitted to question the disposition which the executors have made of the assets. 
 Mead v. Ld. Orrery, 3 Atk. 235 ; McLeod v. Drummond, 14 Ves. 361. Although this 
 distinction was doubted by Lord Eldon in the same case of McLeod v. Drummond, 
 when it came before him on appeal, 17 Ves. 169, 170 ; see 1 Mad. Ch. Pr. 382 ; [and is 
 now overruled; Wilson v. Moore, 1 Myl. & K. 337; see Cole v. Miles, 10 Hare, 179; 
 but it would seem that a co-executor cannot avoid a fraudulent transfer of assets. Cole 
 v. Miles, ut supr. See Saxon v. Barksdale, 4 Desaus. 526. The distinction between 
 creditors and residuary legatees in this respect was asserted in McNair's App. 4 Rawle, 
 155, but denied in Johnson v. Johnson, 2 Hill Eq. 277.] 
 
 1 As to the effect of the recording acts in the various States upon the doctrines as to 
 notice, see post, 510. 
 
 2 In general, a purchaser of personal property from an executor or administrator, or 
 guardian, except in those States where the common law power of the latter over his 
 ward's estate is restricted by statute, in good faith, and having no knowledge of any in- 
 
250 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 We have seen that in some cases, such as in transactions with an ex- 
 pectant heir, or between guardian and ward, trustee and cestui que trust 
 or solicitor and client, the relation between the parties is of itself suffi- 
 cient to raise a presumption against the propriety of the transaction, so 
 as to throw upon the parties who endeavor to support it, the burden of 
 establishing its validity, (b) 
 
 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 
 
 (6) Davis v. D. of Marlborough, 2 Sw. 141 ; Hunter v. Atkins, 3 M. & K. 135, vide 
 supra. 
 
 tended breach of trust, is not responsible for a misapplication of the proceeds. Field v. 
 Schieffelin, 7 J. C. R. 155 ; Hertell v. Bogert, 9 Paige, 57 ; Tyrrell v. Morris, 1 Dev. & 
 Batt. Eq. 559: Rayner v. Pearsall, 3 J. C. R. 578 ; Bond v. Zeigler, 1 Kelly, 324; 
 Hunter v. Lawrence's Ex'rs, 11 Gratt. 117 ; Yerger v. Jones, 16 How. U. S. 37. See 
 Miles v. Durnford, 2 Sim. N. S. 234. 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, 
 12 Alab. 305 ; Baines v. 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 creditors, legatees, or distributees, 
 and the property may be pursued. Field v. Schieffelin, ut sup. ; Colt v. Lasnier, 9 Cow. 
 320 ; Williamson 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. Castleman, 3 Rand. 204, &c; Sacia v. Berthoud, 17 Barb. S. C. 15 ; 
 Swink's Adm. v. Snodgrass, 17 Alab. 653; Lowry v. Farmers' Bank, 10 P. L.J. (3 Am. 
 L. J. n. s.) Ill, per Taney, C. J. ; Williamson v. Morton, 2 Maryl. Ch. Dec. 94. In this 
 last case the distinction is said to be that at law actual collusion is necessary to make 
 the purchaser liable, while equity will consider the whole transaction. It is sufficient if 
 the circumstances are of a character to put the purchaser on inquiry. McNeillie v. 
 Acton, 23 L. J. Ch. 71 ; 4 De G. Macn. & G. 744. 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; Dodson v. Simpson; Field v. Schieffelin; Williamson v. Branch Bank; 
 Williamson v. Morton, ut supr. ; Collinson v. Lister, 25 L. J. Ch. 38 ; 20 Jurist, 75. 
 But in Tyrrell v. Morris, 1 Dev. & Batt. Eq. 559, a pledge for a contemporaneous ad- 
 vance to one in good faith was held to be within the general rule ; and see Petrie v. 
 Clarke, ut supr. And where the original advance of the money was made to the exe- 
 cutor for the benefit of the estate, and on a representation that it was needed therefor, 
 and the executor subsequently, on being pressed for 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, 2 Sim. N. S. 234. See 
 on this subject generally, 11 Jurist, part ii, 124. It has recently been held that not 
 only has an executor power to mortgage the assets, but also to add to the mortgage 
 a power of sale. Russell v. Plaice, 18 Beav. 21 ; 23 L. J. Ch. 441 ; 18 Jur. 254. See 
 the remarks on this case in 19 Jurist, p. ii, 445. 
 
 The doctrine in question, 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. 
 Philips, 2 Wash. Va. 87 [68] ; and see post, 372, and notes. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 251 
 
 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, evi- 
 dence will be admitted for the purpose of establishing that case ; even 
 though the effect of such evidence be to alter or vary a written instru- 
 ment, and although the benefit of the statute be insisted upon by the 
 defendant. (d) 1 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 of admitting parol evi- 
 dence to prove it."(e) But in all these cases the bill must contain allega- 
 tions of fraud.(/) a 
 
 (c) In Reech v. Kennegate, 1 Ves. 125 ; and see Hutchins v. Lee, 1 Atk. 448 ; Mont- 
 acute v. Maxwell, 1 P. Wms. 620 ; Walker v. Walker, 2 Atk. 98 ; Young v. Peachy, 2 
 Atk. 258. 
 
 (d) Sellack v. Harris, 5 Vin. Ab. 521 ; Thyn v. Thyn, 1 Vern. 296 ; Oldham v. Lich- 
 ford, 2 Vern. 506; Drakeford v. Wilks, 3 Atk. 539; Beech v. Kennegate, 1 Ves. 125, 
 and Ambl. 67 ; Irnham v. Child, 1 Bro. C. C. 93 ; Cripps v. Jee, 4 Bro. C. C. 475 ; 
 Pilmer v. Gott, 7 Bro. P. C. 70 ; Pember v. Mathers, 1 Bro. C. C. 52 ; Wilkinson v. 
 Bradfield, 2 Vern. 307 ; Young v. Peachy, 2 Atk. 257. 
 
 (e) In Shelborne v. Inchinquin, 1 Bro. C. C.,350; and see Hare v. Sherewood, 1 Ves. 
 Jun. 243 ; Townshend v. Stangroom, 6 Ves. 333 ; Pym v. Blackburn, 3 Ves. 38, n. (a), 
 where the cases are collected ; [Miller v. Cotten, 5 Geo. 346 ;] but see contra, Conolly 
 v. Lord Howe, 5 Ves. 701. 
 
 (/) Irnham v. Child, 1 Bro. C. C. 94; Putmore v. Morris, 2 Id. 219. 
 
 1 Miller v. Cotten, 5 Geo. 346 ; Elliott v. Connell, 5 Sm. & M. 91 ; Watkins v. Storkett, 
 6 H. & J. 435 ; Christ v. Diffenbach, 1 S. & R. 464 ; notes 'to Woollam v. Hearn, 2 
 Lead. Cas. Eq. p. ii, page 558 (1st ed.) 
 
 2 Gouverneur v. Elmendorff, 5 J. C. R. 79 ; Forsyth v. Clark, 3 Wend. 637 ; Thompson 
 v. Jackson, 3 Rand. 504; Booth v. Booth, 3 Litt. 57; Fitzpatrick v. Beatty, 1 Gilm. 
 454 ; Miller v. Cotten, 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 ; McCalmont v. Rankin, 8 Hare, 15 ; 
 Skrine v. Simmons, 11 Geo. 401. Bat, on the other hand, where the bill does not, on 
 the facts stated, show a case of fraud, the employment of allegations to that effect will 
 not aid it, even on demurrer. Magniac v. Thompson, 2 Wall. Jr. 209. Unfounded 
 allegations of fraud, indeed, are greatly discouraged ; and where the complainant in- 
 troduces them into his bill, he will debar himself, in general, from other relief, to which 
 the facts stated might otherwise have entitled him. Price v. Berrington, 3 Macn. & 
 Gord. 486; Eyre v. Potter, 15 How. U. S. 56; Fisher v. Boody, 1 Curtis, 211; Mt. 
 Vernon Bank v. Stone, 2 Rhode Isl. 129. In Parr v. Jewell, 1 K. & Johns. 671, how- 
 ever, it was laid down that if a case of fraud is made by a bill, and is not established 
 by the evidence, and another case for relief is alleged in the same bill and proved, so 
 much of the bill as relates to the case of fraud is dismissed, and relief may be given 
 on the other part of it. S. P. Baker v. Bradley, 25 L. J. Ch. 8, L.JJ. But if a case 
 of actual fraud is alleged, the plaintiff cannot obtain relief on such a bill by proving 
 only a case of constructive fraud. Parr v. Jewell. But see on this last point, Baker v. 
 Bradley, contra, semble, 
 
252 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 *And the same rule prevails where relief is sought on the 
 L J 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 plaintiffs title to the re- 
 lief prayed. " How," observed Lord Hardwicke, in Baker v. Paine, 
 "can a mistake in an agreement be proved but by parol evidence !"(gr)(iy 
 
 (g) Baker v. Paine, 1 Ves. 457 ; Towers v. Moor, 2 Vera. 98 ; Langley v. Brown, 2 
 Atk. 203 ; Barstow v. Kilvington, 5 Ves. 593 ; Taylor v. Radd, 5 Ves. 595, cited Jenkins 
 v. Quinchant, 5 Ves. 596, n. ; Henkle v. Royal Assurance Company, 1 Ves. 318 ; 
 Marquis of Townshend v. Stangroom, 6 Ves. 328 ; Rogers v. Earl, 1 Dick. 294. 
 
 (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. & W. 363. See Alexander v. Crosbie, LI. & G. 145. 
 [Where the answer denies the mistake, the proof must be of the clearest and most 
 conclusive kind. Lyman v. United Ins. Co. 2 J. C. R. 630; S. C. 17 John. R. 373; 
 Watkins v. Stockett, 6 H. & J. 435 ; Preston v. Whitcomb, 17 Verm. 183 ; U. S. v. 
 Munroe, 5 Mason, 572 ; Gray v. Woods, 4 Blackf. 432.] 
 
 1 Hunt v. Rousmanier, 8 Wheat. 174; Keisselbrack v. Livingston, 4 J. C. R. 144; 
 Harrison v. Howard, 1 Ired. Eq. 407 ; Perry v. Pearson, 1 Humph. 431 ; Newsom v. 
 Bufferlow, 1 Dev.Eq. 379 ; Peterson v. Grover, 20 Maine, 363; Goodell v. Field, 15 Verm. 
 448 ; Blanchard v. Moore, 4 J. J. Marsh. 471 ; Gower v. Sterner, 2 Whart. 75. 
 
 There is no question in the United States as to the jurisdiction of a court of equity 
 to reform a written instrument on the ground of mistake, upon parol evidence, where 
 no statutory provision intervenes. Gillespie v. Moon, 2 Johns. Ch. 585 ; Newsom v. 
 Bufferlow, 1 Dev. Eq. 379 ; Shipp v. Swann, 2 Bibb, 82 ; Bellows v. Stone, 14 N. H. 
 175 ; and Keisselbrack v. Livingston, 4 Johns. Ch. 144 ; Harrison v. Howard, 1 Ired. 
 Eq. 407 ; Peterson v. Grover, 20 Maine, 363 ; and cases collected in the note to Woollam 
 v. Hearn, 2 Lead. Cas. Eq. part i, 1st Am. Ed. 570 ; Bradford v. Union Bank of Ten- 
 nessee, 13 How. U. S. 57 ; Bunnell v. Read, 21 Conn. 586 ; Stedwell v. Anderson, Id. 
 139 ; Craig v. Kittredge, 3 Foster, 231 ; Lavender v. Lee, 14 Alab. 688 ; Wall v. Arring- 
 ton, 13 Geo. 88. Though the evidence must be very strong, clear, and precise, espe- 
 cially where it is against the auswer. Reese v. Wyman, 9 Geo. 430 ; Mosby v. Wall, 
 23 Mississippi, 81 ; Ligon's Adm. v. Rogers, 12 Geo. 281 ; Goldsborough v. Ringgold, 
 1 Maryl. Ch. 239 ; Beard v. Hubble, 9 Gill. 420 ; Leas' Ex'rs v. Eidson, 9 Gratt. 277 ; 
 U. S. v. Munroe, 5 Mason, 572 ; Farley v. Bryant, 32 Maine, 474. As to cases 
 ■within the Statute of Frauds, however, the authorities in the United States are conflict- 
 ing, where the evidence is resorted to, not for the purpose of rescinding or resisting 
 execution of a contract, but in order to compel a specific performance with a variance; 
 though the prevailing opinion is, that it is admissible. Wall v. Arrington, 13 Geo. 88; 
 Mosby v. Wall, 23 Mississippi, 81 ; Phillpott v. Elliott, 4 Maryl. Ch. 273; Moale v. 
 Buchanan, 11 Gill. & Johns. 325; Tilton v. Tilton, 9 N. H. 385 ; Bellows v. Stone, 14 
 Id. 175; Bradford v. Union Bank, 13 How. U. S. 57 ; Gillespie v. Moon, 2 Johns. Ch. 
 585 ; Keisselbrack v. Livingston, 4 Johns. Ch. 144. And this doctrine is strongly ap- 
 proved by Judge Storj', Eq. Jur. \ 160, &c. But in other American cases, as Elder v. 
 Elder, 10 Maine, 80 ; Osborn v. Phelps, 19 Conn. 63 ; Westbrook v. Harbeson, 2 McCord 
 Ch. 112 ; Brooks v. Wheelock, 11 Pick. 439 ; see Miller v. Chetwood, 1 Green. Ch. 
 199 ; Dennis v. Dennis, 4 Rich. Eq. 307 ; Best v. Stow, 2 Sandf. Ch. 298; and in Eng- 
 land, Woollam v. Hearne, 7 Ves. Jr. 211 ; Nurse v. Ld. Seymour, 13 Beav. 254, it is 
 held that mistake cannot furnish a reason for active relief by the execution of the 
 agreement in the face of the statute. For, it is obvious, if any part of the agreement 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 253 
 
 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, irre- 
 fragable evidence ;(A) or if it be contradicted or controverted by other 
 testimony, (i) 
 
 And where an important provision in a deed was omitted intentionally 
 by the parties,^) 1 whether through a mistake of the law,(Z) 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 
 permitted to add to or vary the instrument. 
 
 It has been decided also that where a deed is sought to be impeached 
 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 allegations 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 these allegations are positively denied by the answer, parol 
 evidence will be admitted to prove them ; and if the case be thus suffi- 
 
 (h) Shelburne v. Inchinquin, 1 Bro. C. C. 341 ; Marquis of Townshend v. Stangroom, 
 6 Ves. 334. [Miller v. Cotten, 5 Geo. 346.] 
 
 (i) Barrow v. Greenhough, 3 Ves. 154. [lb.] (k) Lemati v. Whitley^4 Russ. 423. 
 
 (I) Irnham v. Child, 1 Bro. C. C. 92 ; Potmore v. Morris, 2 Bro. 0. C. 219. [London 
 Railway Co. v. Winter, 1 Cr. & Ph. 57 ; Wheaton v. Wheaton, 9 Conn. 96 ; Hunt v. 
 Rousmanier, 1 Pet. S. C. 1 ; Lyon v. Richmond, 2 J. C. R. 60 ; Garwood v. Eldridge, 
 1 Green. Ch. 146. See ante, p. 149.] 
 
 (m) Rich v. Jackson, 4 Bro. C. C. 614, and 6 Ves. 334, u. ; Anon. Skin. 159, and 1 
 Sugd. V. & P. 167, 8 ; Hare v. Shearwood, 1 Ves. Jun. 241 ; Jackson v. Cator, 5 Ves. 
 688. (») Conolly v. Lord Howe, 5 Ves. 700. [Bradley v. Chase, 22 Maine, 511.] 
 
 (o) Vide snpra 61, Muckleston v. Brown, 6 Ves. 67. [Stoval v. North Bank Missis- 
 sippi, 5 Sm. & M. 17 ; Ross v. Vertner, 1 Freem. Ch. 587.] 
 
 (p) Cottington v. Fletcher, 2 Atk. 155, vide supra, 61. 
 
 remain in parol, the whole must be so, to all intents and -purposes. This view is also 
 supported by Judge Hare, in his able note to Woollam v. Hearn, 2 Lead. Cas. Eq. 571. 
 
 It has been generally held that relief will be granted on the ground of mistake, not only 
 as between the original parties, but all claiming in privity with them, as heirs, legatees, 
 devisees, &c. Simmons v. North, 3 Sm. & M. 67 ; Whitehead v. Brown, 18 Alab. 682; 
 Stone v. Hale, 17 Id. 557 ; Davis v. Rogers, 33 Maine, 222; Wall v. Arrington, 13 Geo. 
 88 ; Godwin v. Yonge, 22 Alab. 553. But see Dennis v. Dennis, 4 Rich. Eq. 307. 
 
 1 Robson v. Harwell, 6 Georgia, 589 ; Parkhurst v. Van Cortlandt, 1 J. C. R. 282 ; 
 Movan v. Hays, Id. 339 ; Chamness v. Crutchfield, 2 Ired. Eq. 148 ; Westbrook v. Har- 
 beson, 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 Woollam v. 
 Hearn, 2 Lead. Cases Eq. p. i, page 561, 1st ed. ; but see Keiselbrack v. Livingston, 4 
 J. C. R. 144. In Pennsylvania, however, it has been constantly held that contempo- 
 raneous verbal stipulations or provisions, on the faith of which a contract has been 
 entered into, will control its operation. Christ v. Diffenbach, 1 8. & R. 464 ; Clark v. 
 Partridge, 2 Barr, 13 ; 4 Barr, 166 ; Oliver v. Oliver, 4 Rawle, 141 ; Rearich v. Swine- 
 hart, 1 Jones (Pa.), 238. 
 
254 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 ciently established relief will be decreed,(<?) and it has been decided that 
 the court will act upon the parol testimony 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) 
 
 *And according to the universal rule of evidence, where parol 
 L J proofs are admitted on the one side to establish a case of fraud, 
 they will also be received on the other for the purpose of rebutting it.[t) 
 
 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,(w) " A court of equity, which is never active in relief against con- 
 science 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."(w) 
 
 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 be- 
 tween 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 dismissed 
 solely on account of long acquiescence on the part of the plaintiffs ; and 
 this, though the circumstances were such as would no doubt have origin- 
 ally entitled the parties to the relief prayed. (y) However, it has been 
 decided, that a bill charging fraud in obtaining an estate cannot be de- 
 murred to on the ground of long acquiescence ; for the operation of 
 
 (q) See Podmore v. Gunning, 7 Sim. 654; but see Mortimer v. Shortall, 2 Dr. & W. 
 3G3. (r) Reech v. Kennegate, 1 Ves. 125. 
 
 (s) Jorques v. Statham, 3 Atk. 388 ; Woolam v. Hearne, 7 Ves. 211 ; Marquis of 
 Townshend v. Stangroom, 6 Ves. 328 ; 1 Sugd. V. & P. 137. 
 
 (<) Vide supra, p. 96, 125. 
 
 («) Smith v. Clay, 3 Bro. C. C. 639, n. ; and see Marquis of Cholmondley v. Lord 
 Clinton, 2 J. & W. 141, 151 ; Chalmer v. Bradley, 1 J. & W. 59 ; et vide post, Applica- 
 tion of Stat, of Limitation [263]. 
 
 (x) In Beckford v. Wade, 17 Ves. 97 ; and see Portlock v. Gardner, 1 Hare, 594, 607. 
 
 (y) Bonny v. Eidgard, cited 4 Bro. C. C. 138 ; Andrew v. Wrigley, 4 Bro. C. C. 124; 
 Blennerhasset v. Day, 2 Ball. & B. 118; Gregory v. Gregory, Cowp. 201; S. C. Jac. 
 631 ; Selsey v. Rhoades, 1 Bligh. N. S. 1 ; Champion v. Rigby, 1 R. & M. 539; Ex 
 parte Granger, 2 Deac. & Ch. 459 ; Collard v. Hare, 2 R. & M. 675 ; Norris v. Neve, 
 3 Atk. 38 ; Pryce v. Byrn, 5 Ves. 681, cited Campbell v. Walker, 5 Ves. 678-82 ; Morse 
 v. Royal, 12 Ves. 355 ; Medlicott v. O'Donnell, 1 Ball. & B. 156 ; Portlock v. Gardner, 
 1 Hare, 594. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 255 
 
 delay as a bar to the relief is a conclusion from facts, and is not a matter 
 of law.(z) 1 
 
 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 
 (2) Earl of Deloraine v. Browne, 3 Bro. C. C. 633, 646. 
 
 1 Long acquiescence or laches in the case of fraud or mistake is a bar in equity to 
 relief. Hawley v. Cramer, 4 Cowen, 717; Powell v. Murray, 2 Bdw. Ch. 644; 10 
 Paige, 256 ; Dobson v. Racey, 3 Sandf. Ch. 61 ; Piatt v. Vatier, 9 Pet. 405 ; McKnight 
 v. Taylor, 1 How. U. S. 161 ; Wagner v. Baird, 7 How.U. S. 234; Veazie v. Williams, 
 8 How.U. S. 134; Hallett v. Collins, 10 How. U. S. 174; Hough v. Richardson, 3 
 Story, 659 ; Gould v. Gould, Id. 516 ; Irvine v. Robertson, 3 Rand. 549 ; Coleman v. 
 Lyne, 4 Rand. 454; Anderson v. Burwell, 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. \ 520, in notes. This may be even in cases unaffected by 
 the Statute of Limitations, on the mere ground of staleness. Ingam v. Toulmin, 9 
 Alab. 662 ; Mason v. Crosby, 1 Wood. & M. 342 ; Piatt v. Vatier, 1 McLean, 146 ; 9 
 Peters, 405 ; In Massachusetts the statute applies in equity to constructive trusts, and 
 therefore, except in cases of actual and undiscovered fraud, six years' delay precludes 
 relief. Parnam v. Brooks, 9 Pick. 212. New York, by the Code of Procedure adopted 
 in 1851, g 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 g 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 
 party of the fact constituting the fraud (see Sears v. Shafer, 2 Selden, 268 ; the answer 
 must set up the fact of the discovery of the fraud beyond the period of limitation, 
 Ibid.) ; 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 commenced within ten 
 years after the cause of action shall have accrued. See Williamson v. Field, 2 Sandf. 
 Ch. 534. In Wisconsin, similar limitations exist. So in Pennsylvania, by a recent act, 
 (22 April, 1856, P. L. 533), the period of limitation being five years. See on this 
 subject, post, 169, note. 
 
 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. Barnet, 4 Wash. C. C. R. 631 ; 
 Dunlap v. Gibbs, 4 Yerg. 94; Humbert v. Rector of Trinity 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 Missis- 
 sippi Rep. (1 Cush.) 214; Fellers v. Lee, 2 Barb. S. C. 490; Ferris v. Henderson, 12 
 Penn. St. R. 49 {per Lowrie, J.) ; Bank U. S. v. Biddle, 2 Pars. Eq. 27 ; McLean v. 
 Barton, Harrington Ch. 279 ; Pratt v. Northam, 5 Mason, 95 ; Story Eq. Plead. § 484 ; 
 contra Bulkley v. Bulkley, 2 Day, 363 ; Hickman v. Stout, 2 Leigh, 6; see Denston v. 
 Morris, 2 Edw. Ch. 37. But the laches must appear distinctly by the bill itself. Muir 
 v. Trustees, 3 Barb. Ch. 477; Battle v. Durham, 11 Geo. R. 17. And a general de- 
 murrer 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. 
 Fellers v. Lee, 2 Barb. Sup. Ct. 490. And generally, the objection 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. 
 
256 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 of such a trust must also be aware of his rights, and acquiesce in being 
 deprived of them ; and time, in order to bar the remedy, will not begin 
 to run until he acquires, or might have acquired, the knowledge of the 
 fact on which the trust is founded.(as) However, it seems that the mere 
 poverty of a party is not sufficient to do away with the effect of laches 
 in prosecuting his claim. (5) 
 
 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. (e) And in this sense and to this extent the dicta, which are to be 
 r*1fio-| *found in the books, are undoubtedly true, that "no length of 
 time will sanctify or cover a fraud. "(d) 
 
 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 valu- 
 able 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 transaction the 
 plaintiff was unable to obtain full information of his rights ;(e) or where 
 the party entitled is of weak understanding, or he continues 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. (g) 1 
 
 (a) Ryder v. Bickerton, 3 Sw. 81, n. ; Blennerhasset v. Day, 2 Ball. & B. 118; Tre. 
 velyan v. Charter, 11 CI. & P. 714 ; [Bowens v. Evans, 2 H. L. Cases, 237 ; Warner v. 
 Daniels, 1 W. & M. Ill; Michoud v. Girod, 4 How. U. S. 561; Doggettv. Emerson, 
 3 Story, 700 ; Phalen v. Clark, 19 Conn. 421 ; Halett v. Collins, 10 How. U. S. 174.] 
 
 (6) Roberts v. Tuustall, 4 Hare, 257. [Perry v. Craig, 3 Mis. 516 ; Locke v. Arm- 
 strong, 2 Dev. & Batt. 147 ; nor the supposed poverty of the defendant, see Maxwell v. 
 Kennedy, 8 How. U. S. 210.] 
 
 (c) Stackpole v. Devoren, 1 Bro. P. C. 9; Vernon v. Vaudry, 2 Atk. 119; Alder v. 
 Gregory, 2 Ed. 280; Randall v. Errington, lOVes. 423; Purcell v. M'Namara, 14Ves. 
 91; Watson v. Toove, 6 Mad. 153; Gordon v. Gordon, 3 Swanst. 400; Malonyv. 
 L'Estrange, 1 Beat. 406. In Trevelyan v. Charter, Sir C. Pepys, M. R., set aside a pur- 
 chase at an undervalue by a steward, after an interval of forty-seven years. Rolls, 2d 
 June, 1835. [Affirmed, 11 CI. & P. 714.] 
 
 (d) Mulcahy v. Kennedy, 1 Ridg. P. C. 337 ; Pickering v. Lord Stamford, 2 Ves. Jun. 
 280. [See Prevost v. Gratz, 6 Wheat. 481; Michoud v. Girod, 4 How. U. S. 560 ; 
 Marks v. Pell, 1 J. C. R. 598.] (e) Murray v. Palmer, 2 Sch. & Lef. 487. 
 
 (/) Aylward v. Kearney, 2 Ball.& B.463 ; Pickett v. Loggan, 14 Ves. 215; Purcell 
 v. M'Namara, Id. 91. [Ferris v. Henderson, 12 Penn. St. R. 49.] 
 
 {g) Randall v. Errington, 10 Ves. 427, 8 ; Downes v. Grazebrook, 3 Mer. 208. [See 
 Doggett v. Emerson, 3 Story, 700 ; Callender v. Colegrove, 17 Conn. 1 ; Phalen v, 
 Clark, 19 Conn. 421.] __ 
 
 1 In a case of confirmation by devise the rule is different. Stump v. Gaby, 22 L. J- 
 Ch. 352 ; 2 De G. Macu. & G. 623. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 257 
 
 However, where a party comes to the court after a great distance of 
 time, to impeach a transaction for fraud, Yery 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. (I) 
 
 It is difficult to lay down as a general proposition what length of ac- 
 quiescence will be a bar to relief on the ground of fraud. 1 This must 
 
 (h) Chandos v. Brownlow, 2 Ridg. P. C. 397 ; Chalmers v. Bradley, 1 J. & W. 59. 
 [Bowen v. Evans, 2 H. L. Cases, 257 ; Jennings v. Broughton, 5 De G. M. & G. 126 ; 
 Montgomery v. Hobson, Meigs, 437; Westbrooke v. Harbeson, 2 McCord Eq. 112; 
 Page v. Booth, 1 Rob. Va. 161 ; Phillips v. Belden, 2 Edw. Ch. 1 ; Powell v. Murray, 
 10 Paige, 256.] 
 
 (i) Pickett v. Loggan, 14 Ves. 215; Malony v. L'Estrange, 1 Beatt. 406 ; Mulhallen 
 v. Marum, 3 Dr. & W. 317. 
 
 (k) Attorney-General v. Ld. Dudley, Coop. 146, 8 ; Pearce v. Newlyn, 3 Mad. 189. 
 
 (I) Pearce v. Newlyn, 3 Mad. 189. [See note below.] 
 
 1 In Michoud 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 witbi* thirty years 
 after it has been discovered, or becomes known to the party whose rights are affected 
 by it." In "Ward v. Van Bokkelen, 1 Paige, 100, it was decided that by analogy to the 
 Statute of Limitations, twenty years was the shortest period which could bar a proceed- 
 ing in equity to set aside a conveyance obtained by fraud. This analogy to the statute 
 was adopted as the rule, where the fraud had or might have been discovered, in Thomp- 
 son v. Blair, 3 Murphy, 593; Farrv.Parr, 1 Hill Eq/391 ; Field v. Wilson, 6 B.Monroe, 
 479 (see Bruce v. Child, 4Hawks, 372) ; Perry v. Craig, 3 Mis.525; Miller v. Mclntyre, 
 6 Peters, 61 ; Bank U. S. v. Biddle, 2 Pars. Eq. 31 ; Ferris v. Henderson, 12 Penn.St. 
 R. 54 ; Walker v. Walker, 16 S. & R. 379 ; see McDowall v. Goldsmith, 2 Johns. Mary. 
 Ch. 370 ; and 19 Am. Jur. 339. It has been recently held, however, in South Carolina, 
 that a bill to set aside a sale of land and negroes, or to enforce a parol trust thereon, is 
 in the nature of an action of deceit, and must be brought within the period of limita- 
 tion of a personal action, after the fraud has been discovered ; and that it will not be a 
 sufficient excuse that the party did not discover evidence to establish his claim till within 
 that period. Parham v. McCravy, 6 Rich. Eq. 143 ; affirming McDonald v. May, 1 Rich. 
 Eq. 91 ; and, overruling Bradley v. McBride, Rich. Eq. Cas. 202. With regard to the 
 last point, this decision is doubtless correct ; but upon the first it appears to run counter 
 to principle and authority. The English cases cited in the opinion refer to personal 
 property only. 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. Varick v. Edwards, 1 Hoff. Ch. 
 417 ; Elmendorf v. Taylor, 10 Wheat. 176 ; Barbour v. Whitlock, 4 Monr. 197. Most 
 cases lay down no certain period, but leave it to rest very much on the facts. Acquies- 
 cence for 18 years, Bell v. Webb, 2 Gill, 163 ; for 11 years, Rhinelander v. Barrow, 17 
 John. R. 538 ; for 12 years, Butler v. Haskell, 4 Desaus. 651 ; has been held insufficient. 
 On the other hand, a delay unexplained of "nearly 30 years:'' Harrod v. Fountleroy, 
 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. Burwell, 6 
 
 17 
 
258 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 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 considered as authorities on the point. 
 The legal bar of twenty years appears to have been treated as the proper 
 limit on several occasions ;{m) and it was distinctly decided in one case, 
 that equity will not relieve, where the facts constituting the fraud are in 
 the knowledge of the party, and he lies by for twenty-five years,(w) and 
 r*l 70H * n * an °th er case twenty-one years' acquiescence was held to be 
 a bar to the relief, (o) 
 
 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,(<2) Sir John Leach, M. R., re- 
 fused to set aside a purchase by a solicitor from his client after an ac- 
 quiescence on the part of the plaintiff for eighteen years. (q) 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) 
 
 (»i) Smith, v. Clay, 3 Bro. C. C. 639, n. ; Hovenden v. Ld. Annesley, 2 Sch. & Lef. 
 636, 7 ; Stackhouse v. Bamston, 10 Ves. 46G. 
 (n) Blennerhasset v. Day, 2 Ball. & B. 118. 
 (o) Selsey v. Rhodes, 1 Bligh. N. S. 1. 
 (p) Gregory v. Gregory, Coop. 201 ; S. C. Jac. 631. 
 (q) Champion v. Rigby, 1 R. & M. 539. 
 (r) Roberts v. Tunstall, V. C. Wigram, 27th Feb. 1845, MS. [4 Hare, 257.] 
 
 Grattan, 405 ; of 27 years, with a, lapse of 26 years after bill filed, Hayes v. Goode, 7 
 Leigh, 486 ; has been ruled to be laches. In Baker v. Read, 18 Beav. 398, the Master of 
 the Rolls refused to set aside a purchase by an executor, after 17 years. See ante, p.159, n. 
 But where the delay has been caused by the act of the defendant in any way, the lapse 
 of time will not be material. Richardson v. Jones, 3 G. & J. 163 ; Doggett v. Emerson, 
 3 Story, 700 ; Callender v. 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. XJ. S. 174. (The reporter has neglected the dates of 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, espe- 
 cially 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. 
 
 See as to the time from which an account of rents and profits is to be taken, Hicks 
 v. Sullitt, 23 L. J. Ch. 571 ; 3 De G. Macn. & G. 782. Though in a case of laches, on 
 the part of the plaintiff, or of bona fides on the part of the defendant, such account may 
 be confined to the period since the filing the bill, it must, in the case of an infant, 
 always extend back to the time when his title accrued. Ibid., by full Court of Appeal. 
 See also on this subject, Dormer v. Fortescue, 3 Atk. 124 ; Gettiward v. Prescott, 7 Tes. 
 541 ; Pickett v. Loggon, 14 Id. 215 ; Bowes v. East Lond. Waterworks, 3 Mad. 375 ; 
 Dmmmond v. Duke St. Albans, 5 Ves, 432. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 259 
 
 In such cases, however, unless the case of acquiescence is extremely 
 strong, a hill -will usually be dismissed -without costs.(s) 
 
 In Pryce v. Byrn, Lord Alvanley, M. K., dismissed a bill to set aside 
 a purchase by trustees made twenty years before.(i) But in Molony v. 
 L'Estrange,(w) relief was given against a purchase by an agent after an 
 acquiescence of thirty years. (w) 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 receiver, where there had been 
 a delay of eleven years in instituting the suit.(:c) 
 
 "Where the right is vested in a large body of persons, such as creditors, 1 
 it has been decided, that acquiescence is no argument against decreeing 
 the relief.(y) Although, in the instances where this was decided, the 
 acquiescence does not seem to have been for a very long period. 
 
 This exception will always prevail in favor of large societies of persons, 
 such as a society of dissenters, for whose benefit relief was decreed in 
 one case by Sir William Grant, after a delay of twenty-two years, 
 although without costs, on account of the length of time. (2) And the 
 same rule has been established in favor of charities generally.(a) But 
 this subject will be considered more at length in a future chapter.(S) 
 
 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 carried 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 by fraud, either actual or r*-i 7-1-1 
 constructive, into a trustee for the party who is entitled by the 
 rules of equity to the beneficial interest. 
 
 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 ;(c) 
 
 (s) Gregory v. Gregory, Coop. 201 ; Champion v. Rigby, 1 R. & M. 539 : Portlock v. 
 Gardner, 1 Hare, 594. (i!) Pryce v. Byrn, cited 5 Ves. 681. 
 
 (m) Molony v. L'Estrange, Beat. 406. (x) Mulhallen v. Maram, 3 Dr. & W. 317. 
 
 (y) Whicheote v. Lawrence, 3 Yes. 745, 52; Case in Exchequer, cited 6 Ves. 632 ; 
 York Buildings Company v. Mackenzie, 8 Bro. P. C. 42. 
 
 (z) Attorney-General v. Ld. Dudley, Cowp. 146. 
 
 (a) Attorney-General v. Hungerford, 8 B). N. C. 437 ; Attorney-General v. Flint, V. 
 C. Wigram, Mich. Term, 1844. [4 Hare, 147 : Atty.-Gen. v. Magdalen Coll. 18 Beav. 
 223 ; 18 Jurist, 363.] (6) Post, Pt. 2, eh, 2, s. 5. 
 
 (e) Francis's Maxims, 13; 1 Fonbl. Eg. Tr. B. 1, ch. 6, s. 9. 
 
 1 Pinkston v. Brewster, 14 Alab. 320. 
 
260 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 and acting on this principle, when the contract is made, it considers 
 the vendor as a trustee for the purchaser of the estate sold ;(cZ)' and the 
 purchaser as a trustee of the purchase-money of the vendor.(e) 
 
 This equity attaches immediately on the making df the contract, and 
 will not, therefore, be affected by the subsequent death or bankruptcy, 
 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.^) Therefore 
 where a trust is created, but the party creating it has appointed no trus- 
 tee;^) or the trustee by the rules of law is incapable of taking ;(t) or 
 the appointment of the trustee fails by his death or refusal, or other- 
 wise ;(&) 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) 2 
 
 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. 518 ; Davie v. Beardsham, 1 Ch. Ca. 39; Green v. 
 Smith, 1 Atk. 572 ; 1 Sugd. V. & P. 171 ; Wall v. Bright, U. & W. 500. 
 
 (e) Green v. Smith, ubi supra ; Pollexfen v. Moore, 3 Atk. 273 ; 1 Sugd. V. & P. 171. 
 (/) Paul v. Wilkins, Toth. 106 ; Barker v. Hill, 2 Ch. Rep. 113 ; Winged v. Lefebury, 
 
 2 Eq. Ca. Abr. 32, pi. 43 ; Orlebar v. Fletcher, 1 P. Wms. 737 ; Bowles v. Eogers, 6 
 Ves. 95, n.; Whitworth v. Davis, 1 V. & B. 545; 1 Sugd. V. & P. 171, 2. [Not By 
 death, Newton v. Swazey, 8 N. H. 9 ; Jacobs v. Locke, 2 Ired. Eq. 286 ; Glaze v. Dray- 
 ton, 1 Desaus. 109 ; Tiernan v. Roland, 15 Penn. St. 429; Rutherford v. Green, 2 Ired. 
 Eq. 121.] 
 
 (ff) Co. Litt. 290, b. ; Butl. note 1, VI; 1 Mad. Ch. Pr. 580. 
 
 (h) Co. Litt. Butl. not. ubi supra ; White v. White, 1 Bro. C. C. 12. 
 
 (i) Sonley v. Clockmakers' Company, 1 Bro. C. C. 81. [Stone v. Griffin, 3 Verm. 400; 
 Vidal v. Girard, 2 How. U. S. 128.] 
 
 (k) Hewett v. Hewett, 2 Ed. 332 ; Co. Litt. 113 a, n. 2 ; Doiley v. Sharrat, 2 Fonbl. 
 Eq. 216 ; Lewis v. Lewis, 1 Cox, 162. 
 
 (1) 1 Mad. Ch. Pr. 580 ; White v. White, ante, 48 ; 5 Beav. 222. 
 
 • See notes to Woollam v. Hearne, 2 Lead. Cas. Eq. p. i [355]; and to Mackreth'v. 
 Simmons, 1 Id. [195] ; McKay v. Carrington, 1 McLean, 50 ; Crawford v. Bertholf, 
 Saxt. Ch. 458 ; Ten Eick v. Simpson, 1 Sandf. Ch. 244 ; Waddington v. Banks, 1 Brock, 
 97; Malin v. 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. 
 
 2 Equity never suffers a trust to fail for want of a trustee, but if necessary will ap- 
 point one ; ante, page 48, note ; King v. Donnelly, 5 Paige, 46 ; Field v. Arrowsmith, 
 
 3 Humph. 442; Dawson y. Dawson, Rice Eq. 243 ; Lee v. Randolph, 2 Henn. & Mun. 
 12 ; Danscomb 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 & M. Co., 9 Hamm. 
 203 ; McKennan v. Phillips, 6 Whart. 571 ; Boykin v. Ciples, 2 Hill's Eq. 200; Griffith 
 v. Griffith, 5 B. Monroe, 113; Pool v. Cummings, 20 Alab. 563. Thus where a hus- 
 band by bill of sale conveys personal property to his wife, though it cannot operate at 
 law, it will be treated in equity as an irrevocable declaration of trust. Huntly v. Huntly, 
 8 Ired. Eq. 250 ; see Garner v. Garner, 1 Busbee's Eq. 1. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 261 
 
 and forfeiture of trust estates. The fourth section of that act, expressly 
 extends its operation to trusts arising or resulting by implication 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 circumstanced would devolve in de- 
 fault 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 maintain 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 forever gone 
 and discharged. (w) 
 
 *In equity, however, the executor will be accountable for 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 tes- 
 tator.^)* 
 
 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.(q) However, we have seen that it would be different with regard 
 to a bona fide purchaser for a valuable consideration. (ff But persons, 
 
 (to) 1 Mad. Ch. Pr. ubi supra. [In Hughes v. Wells, 9 Hare, 749, so decided.] , 
 
 (ra)Nedham's case, 8 Co. 136, a; Wentw. Off. Ex. Ch. 2, p. 73, 14th ed.; 2 Wms. 
 Exors. 811, and cases cited. 
 
 (o) Flud v. Ruinsey, Yelv. 160 ; Phillips v. Phillips, Preem. 11, and 1 Ch. Ca. 292 ; 
 Errington v. Evans, 2 Dick. 456 ; Carey v. Goodinge, 3 Bro. C. C. Ill ; Berry v. Usher, 
 11 Ves. 90; Simpson v. Gutteridge, 13 Ves. 264; 2 Wms. Exors. 815, 16. [Story's 
 Eq. \ 12ff9.] 
 
 (p) Brown v. Selwyn, Cas. temp. Talb. 203 ; S. C. 3 Bro. P. C. 607 ; Carey v. Good- 
 inge, 3 Bro. C. C. 110. [See Pusey v. Clemson, 9 S. & R. 204.] 
 
 (q) Pye v. George, 1 P. Wms. 128; 1 Cruis. Dig. Tit. 12, Ch. 4, s. 16; Mansell v. 
 Mansell, 2 P. Wms. 681. [Ante, 164, note.] (r) Ante, p. 164. 
 
 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. & B. 204 ; Griffith v. 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 Carolina, 
 1 Rev. Stat. (1837), 278; South Carolina, Grimke, Pub. Laws, 494; Georgia, Cobb's 
 Dig. 302 ; Alabama, Clay's Dig. 228 ; Florida, Thompson'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. (1831), 349. 
 
 2 The stock and other property of corporations is constructively a trust fund for the 
 payment of their debts ; so that their creditors have, in equity, a lien or priority in pay- 
 ment on it, over the stockholders. Therefore, if a corporation is dissolved, the contracts 
 
262 TRUSTEES BY C ON ST R U CT I VE TRUST. 
 
 ■who obtain possession of an estate by actual ouster and disseisin, with- 
 out 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) 1 And a term outstanding in a trustee 
 will attend the inheritance for the benefit of the disseisor.(tf) 
 r*l 731 *Upon the death of a mortgagee in fee, who has not foreclosed, 
 the mortgage debt will constitute part of his personal assets, hut 
 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 construc- 
 ts) Finch's case, 4 Inst. 85 ; Sugd. Gilb. Us. 429. . 
 (<) Reynolds v. Jones, 2 S. & St. 206. 
 
 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 pur- 
 ehaser ; for such property will be held affected with a trust, primarily for the creditors 
 of the company, and, subject to their right, secondarily for the stockholders, pro rata. 
 (Mumma v. 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 corporation. The counsel for the plaintiff 
 appear to have entrapped themselves by their case stated and agreement, and the deci- 
 sion, or rather the reasoning of the court upon the excluded point (p. 28.6), 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 cor- 
 poration pro ilia vice, there was no party defendant in court. 
 
 The capital stock of an incorporated bank is also, constructively, a trust fund 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 rata, 
 'to contribute to the discharge of such debts out of the fund in his own hands. Vose v. 
 Grant, 15 Mass. Rep. 505, 51V ; Spear v. Grant, 16 Id. 9; Wood v. Dummer, 3 Mason, 
 308, a. 
 
 The remedy, however, is in equity alone ; for a court of common law is incapable 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 construction 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. 
 
 1 The registration of a deed or mortgage is only notice to those claiming through or 
 under the grantor or mortgagor : Tilton v. Hunter, 11 Shepley, 29 ; Keller v. Nutz, 5 
 S. & R. 246 ; Woods v. Farmere, 1 Watts, 382 ; Bates v. Norcross, 14 Pick. 224 ; Stuy- 
 vesant v. Hall, 2 Barb. Ch. 151 ; Crockett v. Maguire, 10 Mis. 34. 
 
TRUSTEES BY CONSTRUCTIVE TRUST. 263 
 
 tion of equity, for the benefit of the parties entitled to the personal 
 estate.(w) 1 
 
 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 immediately upon the satis- 
 faction of the debt, until a reconveyance be executed. (a;) 
 
 Money deposited by a person with a banker creates a legal debt be- 
 tween 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, [y) 
 
 There is another class of trustees, which may be referred to a con- 
 structive trust of the description now under consideration. This is trus- 
 tees de son tort, or those, who of their own authority enter into the pos- 
 session or assume the management of property which belongs beneficially 
 to others. 2 Such persons will, of course, be always liable to be deprived 
 of the possession which they have thus assumed, at the will of the par- 
 ties beneficially entitled. And, as a general rule, they will doubtless be 
 liable to the payment of any costs or expenses, which their unauthorized 
 
 («) Ellis v. Guavas, 2 Ch. Ca. 60 ; 1 Fonbl. Tr. Eq. B. 3, C. 1, s. 13 ; 2 Cruis. Dig. 
 90,1. 
 
 (a;) Baldwin v. Banister, 3 P. Wins. 251, n. (A.) ; Poole v. Pass, 1 Beav. 600. 
 
 (y) Foley v. Hill, 1 Phill. 399, [affirmed, 2 CI. & Finn. N. S. 28. See Pott v. Clegg, 
 16 M. & W. 321, and American notes]. 
 
 1 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. 
 
 2 An administrator who interferes with the real estate of his intestate, and assumes 
 to act as trustee, may be treated as such, and cannot demur to a bill asking for his re- 
 moval 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. Sid- 
 dall, 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. In this case, the party acting as 
 trustee, had sold, under a power in the real trustee to sell and give receipts for the 
 purchase-money, to a bona fide purchaser ; and it was subsequently held in another 
 branch of the suit, that the purchaser was not liable, especially as it appeared that the 
 estate of the trustee de son tort was sufficient to pay the whole amount. Hope v. Liddell, 
 20 Jurist, 107. Master of Rolls. 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 v. 
 Smallwood, 1 Gill, 367; Goodhue v. Barnwell, Rice's Eq. 198; Blomfield v. Eyre,. 8 
 Beav. 250; and being thus a fiduciary, he cannot set up the Statute of Limitations; 
 Goodhue v. Barnwell, ut snpr. 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 can- 
 not single one out, as he could at law. Wyllie v. Ellice, ut supr. ; see also Phene v. 
 Gillan, 5 Hare, 5. 
 
264 TRUSTEES BY CONSTRUCTIVE TRUST. 
 
 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 
 other constructive trustees. (s) 1 
 
 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 they will only be 
 
 *■ J bound to recognize the person who has the legal title to the 
 
 stock.(a) 2 
 
 (z) See Wilson v. Moore, 1 M. & K. 127, 146. [Boddy v. Lefevre, 1 Hare, 602, n. 
 and cases cited.] 
 
 (a) Pearson v. Bank of England, 2 Bro. C. C. 529 ; Hartgo v. Bank of England, 3 
 Ves. 55 ; Bank of England v. Parsons, 5 Ves. 665 ; Austin v. Bank of England, 8 Ves, 
 522 ; Bank of England v. Lunn, 15 Ves. 583 ; Bristed v. Wilkins, 3 Hare, 235. 
 
 1 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 distributees, 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 legatees 
 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 follow 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 exe- 
 cutor 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 Eussell 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. 
 
 As it is now held in England that the contract of life insurance is absolute and not 
 one of indemnity (Dalby v. India, &c. Life Ins. Co. 15 C. B. 365 ; overruling Godsall 
 v. Boldero, 9 East, 72), it has been decided that there is a resulting trust in favor pf a 
 debtor upon a policy of insurance effected on his life by a creditor, (the premiums 
 being paid by or charged to the former), fbrthe balance after payment of debts, premiums, 
 if unpaid, and costs. Morland v. Isaacs, 24 L. J. Ch. 753. Master of the Rolls. In 
 Rivers v. Gregg, 5 Rich. Eq. 274, however, it was held by the Court of Appeals of 
 South Carolina, that where a creditor has effected an insurance on the life of his debtor, 
 the fact that the debt itself is not enforceable, by reason of the infancy of the latter, 
 will not entitle his administrator to the proceeds of the policy in the hands of the 
 creditor ; and see Brown <r. Freeman, 4 De Cr. & Sm. 444. 
 
 2 In Lowry v. Commercial Bank, 3 Banker's Magazine, 201 ; 10 Penna. Law Journ. 
 (3 Am. L. J. N. S.), Ill, in the Circuit Court of the United States for the Maryland 
 District, it was said by Chief Justice Taney that the decisions as to the Bank of Eng- 
 land above cited were exceptions depending merely on the meaning and policy of the 
 acts of Parliament by which the management of the public stocks was transferred by 
 
THE CREATION OF TRUSTEES. 265 
 
 *DIYISION III. [*!75] 
 
 THE CONSTITUTION OF TRUSTEES BY WAY OF SUBSTI- 
 TUTION 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 time 
 to time by the death, or resignation, or refusal to act, of the original 
 
 it, and 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 at the legal estate." It was accordingly there held under the charter of a bank 
 requiring the transfer of stock to be made at the bank and by its officers, that the bank 
 permitting a transfer by an executor of stock standing in his name as such, and which 
 had been specifically bequeathed to him in trust, and having constructive knowledge 
 that such transfer was made as a pledge for the private debt of the executor, and not 
 for the purposes of the estate, was liable to the cestui que trust. So in Mechanics' Bank, 
 &c, v. Seton, 1 Peters' S. C. 299, it was held that a bank having notice that stock on 
 its books was in fact held in trust, could not claim any lien against it, or refuse to 
 permit its transfer by reason of any indebtedness to the bank of the nominal holder. 
 To the same effect is Porter v. Bank of Rutland, 19 Verm. 410, though the point was 
 not actually decided. And see Albert v. Savings Bank, 1 Maryl. Ch.Dec. 407 ; 2 Maryl. R. 
 160 ; Farmers', &c, Bank v. Wayman, 5 Gill, 356, in which last case it was held that 
 where stock in a bank, held in trust for a married woman, was negligently entered by 
 the bank in the name of the cestui que trust, instead of the trustee, so that it was after- 
 wards improperly transferred, without the consent of the trustee, the bank was liable. 
 
 In Albert v. Savings Bank, ut supr., however, it was held that the mere addition of 
 the word " trustee" to the name of the holder of the stock, without any specification of 
 the trusts, or of the beneficial owner, was not of itself such notice as would render the 
 bank responsible for permitting the trustee to transfer the stock in breach of trust. 
 But see Walsh v. Stille, 2 Pars. Eq. 17 ; Christmas v. Mitchell, 3 Ired. Eq. 535 ; 
 Reeder v. Barr, 4 Hamm. 446. As a guardian has power to dispose of the personal 
 estate of his ward, so a bank cannot prevent the transfer of stock so held, and will not 
 be liable for not doing so. Bank of Va. v. Craig, 6 Leigh, 399. 
 
 How far purchasers of stock will be held to have constructive notice of a trust on 
 which it is held, and which appears on the books of the bank or other corporation, or 
 on the certificate, is somewhat doubtful. In Lowry v. Commercial, &c, Bank, ut supr., 
 it was said that in this respect a transfer of stock differs from " an ordinary conveyance 
 of real and personal property. The instrument transferring the title is not delivered 
 to the party. The law requires it to be written on the books of the bank in which the 
 stock is held. The party to whom it is transferred rarely, if ever, sees the entry, and 
 relies altogether upon the certificate of the proper officer of the bank, stating that he is 
 entitled to so many shares; that is to say, that so many shares have been transferred to 
 him by one who has a lawful right to make the transfer." It was accordingly held, that 
 a bona fide purchaser would not be affected by any such trust. This decision was fol- 
 lowed in Albert v. The Savings Bank, 2 Maryl. R. 160. In Walsh v. Stille, 2 Pars. 
 Eq. 17, however, it was held that one who takes a pledge of certificates of stock, stand- 
 ing in the name of the borrower as " trustee," together with a power of attorney to 
 transfer the same, is bound to inquire into the authority of the trustee to transfer the 
 stock, and is liable to replace the stock if such authority did not exist. It is sufficient 
 
266 THE CREATION OF TRUSTEES 
 
 trustees. New trustees may be created, either, 1st, in exercise of a 
 power contained in the trust instrument ; or, 2d, by the interposition of 
 the Court of Chancery. 
 
 CHAPTER I. 
 
 THE SUBSTITUTIONARY CREATION OF TRUSTEES IN 
 EXERCISE OP A POWER. 
 
 The office 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 heir or personal representatives of the last survivor. Nor will there 
 be any means of continuing the original number and the proper suc- 
 cession of trustees by any fresh appointment, except under a decree of 
 the Court of Chancery. 
 
 If a trustee convey away the trust estate to another, though it be to 
 his co-trustee, without any such authority created by the trust instru- 
 ment, or the sanction of the court, the conveyance will doubtless 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 cestui que 
 trusts for any misconduct or breach of trust, committed by 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.(5)' 
 
 (a) Chalmers v. Bradley, 1 J. & W. 68 ; Wilkinson v. Parry, 4 Russ. 272 ; 6 Jam. 
 Bythewood's Conveyancing, 506, 3d. ed. ; Adams v. Paynter, 14 Law Jour. N. S. Chanc. 
 54 ; 1 Collyer's Ch. 532. (6) Ibid, et vide Lord Braybroke v. Inskip, 8 Yes. 417. 
 
 that an assignee has notice that his assignor is a trustee, without knowing who is the 
 particular cestui que trust. And see Reeder v. Barr, 4 Hamm. 446. So in Simons v. 
 S. W. Railway Bank, 2 Am. L. Reg. 546, where a certificate of state stock issued in 
 the name of " B., Master in Equity, in trust for L. and H., or his assigns," was trans- 
 ferred by the trustee as collateral security for advances made upon false allegations as 
 to his object in raising the money, and of his powers over the stock, the pledgee of the 
 stock was decreed to replace it, the trustee having no power whatever over it. There 
 cannot, indeed, be much difficulty with cases such as Walsh v. Stille, and Simons v. 
 S. W. Bank, where the certificate of stock showing the trust has been actually seen 
 by or handed over to the pledgee or purchaser. In other cases, much must depend 
 upon the mode of transfer established by the charter of the corporation^ and the usual 
 course of business with relation to such transfers. 
 
 ' Though he will be liable as a trustee de son tort if he do. See ante, 173. 
 
UNDER A POWER. 267 
 
 *A power to nominate new trustees can seldom exist, except r 
 where the trust has been expressly created by deed or will. In •- -• 
 all other cases of trust the continuance of the trustee by substitutionary 
 appointment must be provided for by application to tbe Court of Chan- 
 cery, which will form the subject of consideration in the next chapter. 1 
 
 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, appointed 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 trus- 
 tees to fill the vacancies actually created, but it will also sanction the 
 insertion of a direction in the scheme, that regular appointments may 
 be made^ by proper parties from time to time, as often as occasion may 
 require.(^) 
 
 Every well-drawn deed of settlement and will creating trusts, which 
 may by possibility endure beyond a very short period, contains powers 
 enabling any of the trustees for the time being to relinquish the trust, 
 as well as provisions for supplying by fresh nominations the vacancies to 
 be occasioned by the resignation or the death or incapacity of any trus- 
 tee, (e) A suit in Chancery will be the almost certain consequence of 
 the omission of these provisions. 
 
 ^uch a power will be inserted in a settlement under articles as a 
 
 (c) Bayley v. Mansell, 4 Mad. 226 ; Southwell v. Ward, Taml. 314 ; but see Joyce v. 
 Joyce, 2 Moll. 276 ; 2 Sugd. Pow. 533, 6th ed. ; Brown v. Brown, 3 Y. & C. 395. 
 
 (d) Attorney-General v. Shore, 1 M. & Cr. 394 ; 2 Sugd. Pow. 533, 6th ed. ; Attorney- 
 General v. Winchelse, 3 Bro. C. C. 373; S. C. Seton, Deer. 131 ; case, 12 Sim. 262. 
 
 (e) 6 Jarm. Bythew. Convey. 506, 3d. ed. 
 
 (1) However, in Joyce v. Joyce, 2 Molloy, 276, which was a suit for the appointment 
 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 trustees ; and see White v. White, 
 5 Beav. 221 ; and Lampayo v. Gould, 12 Sim. 426, and post, chap. II, sect. 3, [These 
 cases are now overruled. See Holder v. Durbin, 18 L. J. Ch. 479, 1 1 Beav. 594 ; Bowles 
 v. Weeks, 14 Sim. 591 ; Oglander 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. Planck v. Schermerhorn, 3 Barb. Ch. 644; 
 but see Robins v. Bmbry, 1 Sm. & M. Ch. 207. 
 
 A settlement by a, feme sole before marriage provided that the trustee, B., might re- 
 sign at pleasure, and the settlor might nominate a new trustee, and that said E. should 
 transfer all the trust property to such new trustee, who should henceforth have and 
 exercise all the rights and powers, and be subject to all the duties hereby vested in or 
 imposed on the said B. It was held that the power to appoint new trustees was not 
 exhausted by one appointment, and that in case of a second appointment, the court 
 would direct the trust estate to be conveyed to the new trustee. Bowditch v. Banuelos, 
 1 Gray, 220 ; S. P. Foster v. Goree, 4 Alab. 440. 
 
268 THE CREATION OF TRUSTEES 
 
 " reasonable and proper power." Thus in Lindow v. 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 settlement.(/) Some reliance 
 indeed, was placed by the court upon the direction being in a separate 
 and distinct sentence, but Sir E. Sugden, 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 provide 
 for every possible contingency, in which a change or new appointment 
 of trustees may become necessary or desirable, so as to obviate the ex- 
 pense and trouble of an application to the Court of Chancery.(l) And 
 where an *appftintment is made under such a power, it is of the 
 L J last importance both to the retiring and the newly appointed 
 trustee, as well as to the cestui que trusts, and other persons interested, 
 
 (f) Lindow v. Fleetwood, 6 Sim. 152 ; Lampayo v. Gould, 12 Sim. 426. 
 
 (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 strict settlement. 
 
 Provided always, and it is hereby further declared, that if the trustees hereby ap- 
 pointed, 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 cases, and so often as the same shall happen, it shall be lawful for 
 the said (the cestui que trusts [if any] for life), or the survivors 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 surviving trnstees or trustee, or executors or administrators re- 
 spectively, shall be willing to act in other respects or not), by any writing 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 heredita- 
 ments, &c, which shall for the time being be holden upon the trusts hereof, shall be 
 thereupon conveyed, assigned, and transferred respectively, in sueh 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 con- 
 cerning 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 thence- 
 forth 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. 
 
UNDER A POWER. 269 
 
 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 ap- 
 pointed trustee will be unable to exercise the powers attached to the 
 office.(ft) 
 
 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 original 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.(l) 
 
 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 trus- 
 tees, 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 upSn such appointment the surviving co-trustees should convey the 
 estate, *so that the surviving trustee and trustees, and the new r^ 70-1 
 trustee or trustees, might be jointly concerned in the trusts, in 
 the same manner as such surviving 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 authorized by the power ; but the objection was waived without argu- 
 ment.^') 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 plain- 
 tiff's counsel waived the objection must have been, that the intention of 
 the power was, that new trustees should be appointed, whenever circum- 
 
 (h) See Adams v. Paynter, 14 L. J. N. S. Ch. 54: 1 Coll. Ch. 532. 
 (i) Morris v. Preston, 7 Ves. 547. 
 
 (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 appro- 
 bation, to purposes distinct from the intention of the founder. Attorney-General v. 
 Pearson, 3 Mer. 412. 
 
270 THE CREATION OP TRUSTEES 
 
 stances might require it. " Clear as this point appears 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, "(k) However, 
 the case of Morris v. Preston has since been judicially recognized 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 nominate 
 new trustees, with a direction that the trust estate should thereupon be 
 vested in the new trustee, jointly with the surviving or continuing 
 trustee. One of the original trustees died, and the other became bank- 
 rupt, and it was objected that the power was consequently gone; but the 
 Lord Chancellor (Sir E. Sugden) overruled the objection, observing that 
 it happened in many cases without the power being affected.(Z) 
 
 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 trustees 
 or trustee to appoint new trustees. Two of the trustees died in 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," observed his* Honor, 
 " at least very questionable, whether Mr. John Gladstone (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) 1 
 
 The grounds of this opinion of the learned Judge doubtless were, that 
 the persons dying in the testator's lifetime never filled the character 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 trustees *die 
 L -I before or after the testator, or before or after the acceptance of 
 the trust. 
 
 (k) 2 Sugd. Pow. 529, 30. (Z) Re Roche, 1 Conn. & Laws. 306 ; 2 Dr. & W. 287. 
 
 (m) Walsh v. Gladstone, 8 Jur. 51 ; [14 Sim. 2.] 
 
 1 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 cestui que trust during her 
 life, and after her death to the then surviving or continuing trustee, to appoint any new 
 trustee or trustees, as often as any of the first or future trustees shall die, &c, did not 
 authorize the appointment by the cestui que trust of a new trustee in place of one who 
 died in the testator's lifetime. But in the subsequent oases of Barle of Lonsdale v. 
 Beckett, 19 L. J. Ch. 342 ; and Hadley's Trust, 21 L. J. Ch. 109 ; 16 Jur. 98 ; 5 De G. 
 & S. 67, this decision appears to be overruled, and such a power will apply where the 
 trustee dies during the testator's lifetime, as well as after. 
 
UNDER A POWER. 271 
 
 In Sharp v. Sharp,(n) the power in a will provided that, in case either 
 of the testator's two trustees should happen to die, or desire to be dis- 
 charged 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 trustees 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, ex- 
 pressly 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 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. (0) 
 
 The same case has also determined, that where three distinct classes 
 of trustees are appointed by name for three distinct properties ; 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 mentioned. Q>) 
 
 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 
 
 (n) Sharp v. Sharp, 2 B. & A. 405. 
 
 (o) See Eaton v. Smith, 2 Beav. 236, 9, and Hawkins v. Kemp, 3 East, 410 ; Cooke 
 v. Crawford, 11 Law Journ. N. S. Chanc. 406 ; 13 Sim. 91. 
 (p) Sharp v. Sharp, 2 B. & A. 405. 
 \q) Re Roche, 1 Conn. & Laws. 306 ; 2 Dr. & W. 287. 
 
 ' 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 ; In Re Roche was, however, recognized. See 
 Turner v. Maule, 15 Jur. 761, accord. But a trustee of property in the city of London, 
 who had been domiciled for several years in the United States as a bookseller, was held 
 within these words, in Mennard v. Welford, 1 Sm. & Giflf. 426. Contra, Withington v. 
 Witbington, 16 Sim. 104. In Walker v. Brungard, 13 Sm. & M. 724, 758, a power of 
 
272 TIIE CREATION OF TRUSTEES 
 
 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) 1 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, as 
 r*1 801 * usua Uy corded, clearly does not authorize one of the trustees 
 to retire, and without appointing another person in 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 ex- 
 press clause, (t) 
 
 Upon this principle, the original number of trustees cannot in general 
 be lessened ; and whore two trustees were originally appointed, 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.(«)(2) 2 
 
 (r) White v. Parker, 1 Bing. N. C. 582. [See post, 183, note.] 
 (s) Wilkinson v. Parry, 4 Euss. 274 ; Adams v. Paynter, 14 Law Journ. N. S. Chanc. 
 154 ; [1 Coll. Ch. 532.] (t) See 6 Jarm. Bythew. Convey. 509, 3d edit, 
 
 (u) Hulme v. Hulme, 2 M. & K. 682. 
 
 (1) Where the exercise 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. Al- 
 though 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 
 
 this nature was held to be entirely within the cestui que trust's discretion. Under the 
 New York statute, which declares that letters of administration, &c, shall not be 
 granted "to any person who shall be judged incompetent by the surrogate to execute 
 the duties of such trust by reason of drunkenness, improvidence, or want of understand- 
 ing," it has been held that professional gambling was prima facie evidence of improvi- 
 dence, from the habits it engenders. McMahon v. Harrison, 2 Selden, 443. But moral 
 delinquency per se is not within the statute. Coope v. Lowerre, 1 Barb. Ch. 45 ; McMahon 
 v. Harrison, ut sup. 
 
 1 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 incapable of acting, 
 &c, the surviving trustee, although himself residing abroad, may appoint another 
 trustee in the place of the one deceased. O'Reilly v. Alderson, 8 Hare, 101. 
 2 See Hospital v. Amory, 12 Pick. 445 ; but see Greene v. Borland, 4 Mete. 332. 
 
UNDER A POWER. 273 
 
 *And so with regard to the converse case of appointing several r%« n*-. 
 trustees in the place of one. As a general rule, the original 
 
 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 benefit of his children and the issue of any deceased 
 child in such manner, &c, as his wife (who was also one of the trustees) should appoint. 
 The will contained 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 retirement, 
 &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 afterwards died at different 
 intervals, and upon the death of the third, A. and B., the two surviving trustees, exe- 
 cuted 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 trustees) 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 dayj 
 which recited the desire of G. to retire from the trust, D. appointed E. F. and O., to be 
 new trustees jointly with herself in the place of C. and the original trustees. These 
 appointments were accompanied by conveyances of the legal estate to the newly ap- 
 pointed 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 cestui que trusts and the trustees, 
 and a bill was accordingly filed by the cestui que trusts praying alternately in the first 
 instance, that the appointment 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-Chan cellor Wigram, who expressed a very decided opinion, that 
 the appointment 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 
 plaintiffs 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 appointment of D. E. F. and G., as the new trustees, was good. Corrie v. Byrom, 
 Vice-Chaucellor Wigram, 26th April, 2845, M. S. 
 
 As this decision was made in an amicable suit, and without being adversely argued, 
 it cannot be regarded as an authoritative 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 tlie trust. It may be remarked, that the observation* of Vice-Chancellor Knight 
 
 18 
 
274 THE CREATION OF TRUSTEES 
 
 number of trustees ought to be adhered to ; it is a rule of convenience, 
 and generally settled.(a:) 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 authorized by the terms of the power. 1 
 
 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, (z) But this ground of construction fails where the number 
 of trustees originally created is more than two. (a) 
 
 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 trustees has 
 been sanctioned on general grounds without reference to the special terms 
 
 (jc) Per V. C. K. Bruce in Meinertzhagen v. Davis, 8 Jur. 973 ; S. C. 1 Coll. Ch. E. 
 335. {y) Ex parte Davis, 2 N. C. C. 468 ; see Devy v. Peace, Taml. 11. 
 
 (z) D'Almaine v. Anderson, Lewin, Trust, 465; Meinertzhagen v. Davis, ubi supra. 
 (a) Ex parte Davis, 2 N. C. C. 468. 
 
 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 
 protection 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 cau- 
 tion. [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 ap- 
 pointed, 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 per- 
 son or persons to be trustee or trustees in the place of such trustee or trustees so 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 appoint- 
 ment was good, and the retiring 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. The 
 same decision was made in Pool Bathurst's Trusts, 2 Sm. & Giff. 169 (V. Ch. Stuart), 
 in which Corrie v. Byrom was cited upon a power identical in its terms with the fore- 
 going. In that case, however, the appointment sought to be set aside, had been made 
 more than forty years before, and the trusts had ever since been administered on that 
 footing : and the V. Ch. said, " that it must be borne in mind, that on questions of this 
 kind, the court must be a good deal governed by the selection of the cestui que trusts, 
 the state of the property, and the time at which the appointment is brought to the notice 
 of the court." See further to same point, Miller v. Priddon, stated post, 183, note ; 
 and see Bulkeley v. Earl of Eglinton, 19 Jurist, 994.] 
 
 ' 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. 
 
UNDER A POWER. 275 
 
 of the p%wer. In the late case of Sands v. Nugee,(6) by a settlement 
 ro 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 objected to the title on the *ground that the ap- 
 pointment of three trustees was not authorized by the power ■- -• 
 in the settlement: but Sir L. Shadwell, V. C, considered, that there 
 ■was nothing in the objection, and overruled the exception which had 
 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 warrant the 
 appointment of three ; that appointment must therefore have been sup- 
 ported 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 reason 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 afforded to the trust estate by the 
 plurality of trustees. In addition to this, the incumbrance and com- 
 plexity which may thus be occasioned to the title, is an obvious and not 
 an insignificant objection to such an exercise of the power. In the case 
 of D'Almaine v. Anderson, (c) 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 trustees 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 by the proviso. (c) 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 
 
 (6) Sands v. Nugee, 8 Sim. 130 ; aud see In re Welch, where, on a reference to the 
 Master, four trustees were appointed by him in the place of the survivor of the three 
 original trustees ; 3 M. & Cr. 293. (c) Lewin, Trust. 465. 
 
276 THE CREATION OF TRUSTEES 
 
 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 trustees 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 trustees in 
 the place of one, as in D'Almaine v. Anderson, and his Honor dis- 
 tinguished 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.(«!) 
 
 In a still later case also, before V. C.~ K. Bruce, the original number 
 r*i «<n * ^ * rus * ees °f a settlement was two ; and the power of appoint- 
 L ing new trustees, was expressed alternatively in the 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 contemplated by the 
 settlement, (e) 
 
 In order to preclude any question on this point, it might be advisable 
 to insert a proviso that the original number of trustees is to be main- 
 tained in every appointment. And if that be not the intention of the 
 parties, an express direction authorizing the increase or diminution 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 immediate 
 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 com- 
 petent parties who have a direct and certain beneficial interest in the 
 trust property, it may sometimes be a question whether the power shall 
 be vested in the surviving or continuing, or in the retiring trustee, or the 
 representative of the deceased trustee. On this subject Mr. Jarman has 
 the following observations : " On behalf of the surviving 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 objects of having 
 a plurality of persons in the trust, namely, that one should be a check 
 
 (d) Ex parte Davis, 2 N. C. C. 468. 
 
 (e) Meinertzhagen v. Davis, 1 Coll. Ch. R. 353 ; [Hillman v. "Westwood, 24 L. J. Ch. 
 57 ; and see the remarks in Stones v. Rowton, 17 Jur. 750. See Ex parte Robert, 
 2 Strobh. Eq. 89.] 
 
UNDER A POWER. 277 
 
 upon thb other, may be defeated, since the continuing trustee, if he were 
 dishonestly disposed, would select for his coadjutor one who would further 
 his designs. Perhaps the best mode of meeting the difficulty is to give 
 the power to both the retiring and continuing trustees, or such of them 
 as shall think proper to exercise it; butnthis 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 trustees ; and the consequence, therefore, of any malversation would 
 be so 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 powers, 
 a power of appointing new trustees can be exercised only by those persons 
 to whom it is expressly given. 1 Therefore, if the power be given to 
 particular persons by name, without adding any words of survivorship, 
 the power will be gone upon the death of one of the parties named. (s) 
 If, *however, it be given to three or more 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 
 
 (r) 6 Jarm. Bythew. Convey. 506, 7. 
 
 (*) Co. Litt. 113, a. ; 1 Sugd. Pow. 141, 6th ed. ; Basier v. Hudson, 9, 11, 16. 
 
 1 A settlement contained a proviso that in case either of the trustees should die or 
 become unwilling to aet, the acting trustees or trustee, or the executors or administrators 
 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 nominate a new trustee to act in his place, 
 and that the appointment by recital was good. Miller v. Priddon, 18 L. J. Ch. 226 ; 
 aff'd, 1 De G. Mac. & G. 335. But in Stones v.Rowton, 17 Jurist, 750, a different con- 
 clusion 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 adminis- 
 trators of the last acting trustee, might appoint any other person or persons to be a 
 trustee or trustees in the stead of the trustee or trustees so dying or desiring to be dis- 
 charged, 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) after- 
 wards 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 Miller v. 
 Priddon was distinguished. 
 
278 THE CREATION OP TRUSTEES 
 
 remains ;(t) and where "executors" are the donees of a power, it may 
 be exercised by a single surviving executor.(w) 
 
 In like manner the power cannot be exercised by the heirs, or personal 
 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 the precise 
 description. Therefore, a power given to a trustee, his heirs, executors, 
 or administrators, will not be well executed by a devisee,(y) or an 
 assignee(z) of the trustees. 1 However, it has been already stated that a 
 power for a "surviving" trustee to appoint will be 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, (b) 
 
 However, on the other hand, it has been decided that the power may 
 be well exercised in such a case, before the trustees are reduced to the 
 specified number. In one case, a deed of conveyance 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 comple- 
 ment to twenty-five. When the number was reduced to seventeen, twelve 
 of that number (the other five dissenting) elected eight new trustees, and 
 this appointment was held to be within the scope of the power. Lord 
 Chief Baron Eyre observed, that the period of the trustees being re- 
 
 (<) 1 Sugd. Pow. 144; Gartland v. Mayott, 2 Vern. 105. [See Byam v. Byam, 24 
 L. J. Ch. 209 ; 19 Jur. 79 ; 19 Beav. 58.] («) 1 Sugd. Pow. 244, 6th edit. 
 
 (x) 1 Sugd. Pow. 145, &c; Bradford v. Belfield, 2 Sim. 264; see Eaton v. Smith, 2 
 Beav. 236. [Post, 283.] 
 
 (y) Cole v. "Wade, 16 Ves. Jun. 2? ; 1 Sugd. Pow. 148 ; and see Cafe v. Bent, 3 Hare, 
 245. [Ockleston v. Heap, 1 De Gex & Sm. 640; McKim v. Handy, 4 Maryl. Ch. 230. 
 See post, 283.] (z) Bradford v. Belfield, 2 Sim. 264. 
 
 (a) Sharp v. Sharpe, 2 B. & A. 405 ; Eaton v. Smith, 2 Beav. 236. [See ante, 184, 
 note; and Lane v. Debenham, 17 Jur. 1005.] 
 
 (6) Jarm. Byth. Conv. 512, 3d ed.; sed vide Att.-Gen. v. Ployer, 2 Vern. 748; Atfc- 
 Gen. v. Bishop of Litchfield, 5 Ves. 825 ; and this subject considered, post, in this 
 chapter. 
 
 1 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 re- 
 nounced probate ; and a vacancy in the trust occurring, it was held that the two acting 
 executors had power to appoint the new trustee. Earl Granville 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. T>. was not thereby created trustee, no intention to that 
 effect being manifested in the creation of the trust. Mortimer v. Ireland, 11 Jur. 721. 
 
UNDER A POWER. 279 
 
 duced 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 trustees, 
 as well as any other power, in the manner and to the extent prescribed 
 by the instrument by which the authority is created.(d) An infant, how- 
 ever, cannot exercise such a power, except, indeed, it be a simply col- 
 lateral 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.(f) 1 But 
 where a suit is once instituted, and the court has assumed the con- 
 trol or administration of the trust estate, the trustee will not in general 
 be permitted *to exercise his power by appointing a new trustee, r#ia t-,' 
 without the sanction of the court ; more especially where a con- L -• 
 siderable remuneration is attached to the office of trustee. (g) 
 
 There is no doubt, said Lord Eldon, in Webb v. Lord Shaftesbury, (h) 
 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 trustees 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 ap- 
 pointing without an application to the court.(i) 
 
 In the recent case of Attorney-General v. Claek,(&) a charity was to 
 be administered by eight trustees, and when the number of trustees 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 
 
 (c) Doe d. Dupleix v. Roe, 1 Anstr. 86. (d) 1 Sugd. Pow. 184. [Ante, 49, n. 2.] 
 
 (e) Hearle v. Greenbank, 1 Ves. 298 ; 1 Sugd. Pow. 213, 20. 
 
 (/) 2 Sugd. Pow. 531, 6th ed. [Hodgson's Settlement, 9 Hare, 118 ; 15 Jur. 552. 
 See Bowditch v. Banuelos, 1 Gray, 220.] 
 
 (fir) Millard v. Eyre, 2 Ves. Jim. 94; Webb v. Lord Shaftesbury, 7 Ves. 480; Att.- 
 
 Gen. v. Clack, 1 Beav. 467 ; 2 Sugd. Pow. 531, 2 ; and see v. Kobarts, 1 J. & W. 
 
 251 ; vide post, Discretionary Powers, p. 485. 
 
 (h) Webb v. Lord Shaftesbury, 7 Ves. 487, 8. 
 
 (i) Ibid. [But the Master is not bound to approve the persons so proposed, though 
 he is to have regard to the power. Middleton v. Eeay, 7 Hare, 106 ; 13 Jur. 116 ; 18 
 L. J. Ch. 153.] (ft) Att.-Gen. v. Clack, 1 Beav. 467. 
 
 1 It is the duty, however, of trustees to make the appointment with regard to the in- 
 terest of the cestui que trusts, and generally on communication with them. O'Reilly v. 
 Alderson, 8 Hare, 101 ; Marshall v. Sladden, 7 Hare, 428 ; 14 Jur. 106; Peatsfield v. 
 Benn, 23 L.'J. Ch. 497 ; 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. So it is the duty of the new 
 trustee to communicate with the cestui que trusts, before acceptance of the trust ; and 
 a trustee who had neglected this duty was refused his costs on a supplementary bill 
 made necessary by his appointment. Peatsfield v. Benn. 
 
280 THE CREATION OF TRUSTEES 
 
 trustees from appointing in the meantime. However, pending that in- 
 formation, the surviving trustees, without the sanction of the court, ap- 
 pointed four new trustees. The case came before Lord Langdale, M. E., 
 who held that the appointment was neither a contempt nor an act alto- 
 gether 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 Lordship 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 re- 
 fused to annul the appointment of new trustees made by the old ones 
 after the filing of the bill.(£&) 
 
 With regard to the manner in which powers to appoint new trustees 
 must be exercised, it need only be observed, that in the execution of this 
 as well as of every other power, all the formalities prescribed by the in- 
 strument creating the power, must be duly observed, both with respect 
 to the nature of the instrument, and also in its execution and attesta- 
 tion :(l) except, indeed, so far as the law on this subject has been altered 
 by the 10th section of the recent Will Act, 1 Vict. c. 26, which pro- 
 vides, 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. 1 
 
 Where the consent of one, or of several persons, who are named, is 
 
 r*1 8fi1 * re( l u i re( i 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.(?ra) 
 
 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 or continuing 
 
 [kk) Cafe v. Bent, 3 Hare, 249, and see this subject considered, post, Effect of Suits. 
 
 (l) See 1 Sugd. Pow. 265, &c, 6th ed. Therefore, where it is required to be executed 
 by will, an execution by deed will be bad, and vice versa. Ibid. Scott v. Davis, 4 M. & 
 Cr. 87. 
 
 (m) 1 Sugd. Pow. 334; Hall v. Dewees, Jac. 192; but see Morris v. Preston, 1 Ves. 
 547, and supra. 
 
 1 Where the trust property is personal estate, and it is not specially required, the new 
 appointment need not be in writing. Poster 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 sufficient. Crosby v. Huston, 1 
 Texas, 203. An appointment by recital in the deed of conveyance from the old to the 
 new trustee, is sufficient. Miller v. Priddon, 1 De G. Mac. & G. 335, stated ante, p. 
 183, note. 
 
UNDER A POWER. 281 
 
 trustees, if any.(n) Where the legal estate in fee simple is vested in the 
 surviving or continuing trustee, the conveyance 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 remainders 
 in a settlement, it has been usually considered essential that the new 
 trustees should have a seisin, to serve the uses, in the same manner 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 ap- 
 pointed 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 endorse- 
 ment), 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 circuitous 
 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 con- 
 sequently, 3d, That there is no seisin to transfer, and therefore the revo- 
 cation 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 ap- 
 pointed trustees by one deed, as may be done where the estate is of free- 
 hold 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 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, r-%* „»■, 
 upon the trusts of the original settlement.^) Or what is better, 
 the transfer may be made first ; and a deed, declaring 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 
 
 (n) Folley v. Wontner, 2 Jac. & W. 248 ; see Owen v. Owen, 1 Atk. 496. 
 
 (0) 2 Sugd. Pow. 527, 8, 6th ed. (p) 2 Sugd. Pow. 528, 6th ed. 
 
 (g) 6 Jarm. Byth. Conv. 524. (r) 6 Jarm. Byth. Conv. 527, n. 3d 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 appointment 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 trustees could alone execute a 
 power of sale. Warburton v. Sandys, 9 Jur. 441, 503 ; 14 Sim. 622. A power to ap- 
 point by any deed or writing is well executed by a duplicate instrument. (Ibid.) 
 
282 THE CREATION OF TRUSTEES 
 
 estate, upon the appointment of a new trustee, a simple conveyance 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 lease- 
 hold. 
 
 It is not in general imperative upon the donees of a power of appoint- 
 ing 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 trus- 
 tees should die before the drawing of the lotteries, and the conveyance 
 of the prizes, the survivors or survivor should and were thereby required 
 to appoint a new trustee or trustees, it was objected 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 conveyance. 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 over- 
 ruled, (t) So in Attorney-General v. Floyer,(w) the devise was to six 
 trustees and their heirs, and the testator directed that when the number 
 was reduced to three they should choose others. All the trustees died 
 but one ; and the sole survivor appointed other trustees and conveyed 
 the property to them. And it was held, to be only directory on the 
 trustees 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 effect.(l) 
 
 However, the terms of the power may unquestionably make it impera- 
 tive on the trustees to appoint others either on every vacancy, or when 
 they are reduced to a certain number.(«/) 
 
 (s) Attorney-General v. Bishop of Litchfield, 5 Ves. 825 ; and see Attorney-General 
 v. Floyer, 2 Vern. 749. [See Forster v. Goree, 4 Alab. 440.] 
 
 (t) Doe d. Read v. Godwin, 1 Dowl. & By. 259 ; and see Attorney-General v. Cum- 
 ing, 2 N. C. C. 139. («) 2 Vern. 748. (i) 5 Ve's. 825. 
 
 (y) Doe v. Roe, 1 Anst. 89 ; Foley v. Wontner, 2 J. & W. 245. 
 
 (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 exercised by C. ; B. 
 having died, and A. having renounced the trusts of the will. (Cafe v. Bent, 9 Jur. C53; 
 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 appointeil 
 trustees, but only because they happened to be the trustees for the time." (The Vice- 
 Ch. (Wigram) Ibid.) 
 
UNDER A POWER. 283 
 
 These questions have usually arisen on charitable trusts. 
 
 *There is no doubt, that where the donees of the power neglect r*-ioo-t 
 to exercise it on the occurrence of any vacancy, equity under a 
 proper application will interpose, and itself make the appointment, (z) 
 Although this will only be done, where, the number of trustees is so re- 
 duced, 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 con- 
 veyance or assignment, stands precisely in the same situation, and is in- 
 vested with the same powers and privileges with reference to the trust 
 estate, as if he had been originally appointed a trustee ;(c) with the ex- 
 ception indeed of discretionary powers personally given to the original 
 trustees.(cZ) 
 
 It is almost unnecessary to observe, that a conveyance or assignment 
 of trust property to a new trustee, duly executed by the trustees or other 
 persons, in whom the legal estate is vested, will operate 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.(/) 
 
 However, where the whole beneficial interest in the trust estate is 
 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 requisition 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 expressly 
 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.(A) 
 
 Where the settlement is governed by the English law, and the parties 
 
 (z) See next chapter, Att.-Gen. v. Bishop of Litchfield, 5 Ves. 831. [See Hodgson's 
 Settlement, 9 Hare, 1 18.] 
 
 (a) Re Marlborough School, 13 Law Jour. N. S. Chanc. 2 [7 Jur. 1047] ; Re Faver- 
 sham Charities, stated supra. 
 
 (6) Re Warwick Charities, MS., 22 Nov. 1844, L. C. (c) Vide supra. 
 
 \d) Cole v. Wade, 16 Ves. 27 ;,1 Sugd. Pow. 148 ; post, Pt. Ill, Div. I, Chap. II, s. 3. 
 
 (e) Doe v. Godwin, 1 D. & B,'. 259 ; White v. Parker, 1 Scott, 542 ; 6 Jarm. Byth. 
 Conv. 508, n. (f) Vide supra. 
 
 (g) Angier v. Stannard, 3 M. & K. 566. 
 
 (h) Attorney-General v. Pearson, 3 Mer. 412. 
 
284 THE CREATION OF TRUSTEES UNDER A POWER. 
 
 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.(i') 1 
 
 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. (k) 
 
 It may be added, that the appointment of one of the cestui que 
 trusts as *a trustee is clearly improper, for a trustee ought to be 
 ■- J disinterested for the benefit of all parties. 2 
 
 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 in- 
 strument ; and the interest of the cestui que trust for life is not prima- 
 rily chargeable with this expense ; although his misconduct, in occasion- 
 ing the necessity of the new appointment, may sometimes be a reason for 
 making him bear the costs. (I) 
 
 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 
 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 implicated 
 in the validity of the previous vicious appointment, it cannot be sup- 
 ported ; as, for instance, where the subsequent appointment is in place 
 of that trustee irregularly appointed, or still more strongly if it be made 
 oy that trustee, or if the new trustee be expressed to be appointed to 
 act with the irregularly appointed trustee, (m) 3 
 
 (i) Meinertzhagen v. Davis, 8 Jur. 973 ; S. C. 1 Coll. N. C. C.353. [See the remarks 
 in Ex parte Robert, 2 Strob. Bq. 88.] (k) Ibid. 
 
 [I] See Coventry v. Coventry, 1 Keen, 758. 
 
 (m) See Adams v. Paynter, 14 Law Journ. N. S. Chanc. 54. [1 Coll. Ch. 532 ; 
 Crosby v. Huston, ante, 185, n.] 
 
 1 A power 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. 
 On the other hand, in Mennard v. Welford, 1 Sm. & Giff. 426, under a power to ap- 
 point new trustees, in the same terms as Withington v. Withington, a trustee of lease- 
 hold property in the city of London, who had been domiciled for several years in the 
 United States as a bookseller, was held " incapable of acting," and a new appointment 
 in such case supported. 
 
 2 But in Ex parte Clutton, 17 Jurist, 988, it was held that the trusts, being very 
 onerous, so that it would have been difficult to get a stranger to undertake them, one of 
 the cestui que trusts might be appointed by the court. 
 
 3 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 ; see Bowditoh v. Banuelos, 1 Gray, 220. 
 
THE SUBSTITUTION OF TRUSTEES. 285 
 
 "CHAPTER II. [*190] 
 
 THE SUBSTITUTION OF TRUSTEES BY THE COUET OF 
 CHANCERY. 
 
 I. — In what Cases the Court will III. — Whom it will Appoint, and 
 act [190]. the Effect of the Appoint- 
 
 II. — How the Court acts [194]. ment [210]. , 
 
 I._IN WHAT CASES THE COUET WILL ACT. 
 
 "Wherever circumstances render it necessary or desirable to appoint 
 new trustees, the Court of Chancery in exercise of its inherent juris- 
 diction will interpose upon a proper application, and make the appoint- 
 ment.^) 1 
 
 (a) 2 Sugd. Pow. 532, 6th ed. ; [Chambers v. Mauldin, 4 Alab. 477.] 
 
 1 la 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 Pennsylvania. Williams 
 v. Maus, 6 Watts, 278. 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 some of the principal 
 regulations with reference thereto. 
 
 Pennsylvania. — There having been at first no Court of Chancery in Pennsylvania, 
 the execution of trusts was left very much to the voluntary action of the parties. See 
 Shaw v. McCameron, 11 S. & E. 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 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' Acts 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 or will ; except as to trusts created by will and 
 vested in executors or administrators, either by express words or operation of law, over 
 whom the Orphans' Court has jurisdiction : (and, indeed, as to all trusts given to exe- 
 cutors nominatim or virtute officii, the Orphans' Court has concurrent jurisdiction. 
 Browne's Appeal, 12 Penn. St. R. 333 ; see on this subject Seibert's App. 19 Id. 49.) 
 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 comprehend 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. The court may dismiss a trustee before he has entered upon his 
 duties upon a proper case made. Piper's App. 20 Penn. St. 67. By sect. 18, in cases 
 
286 THE SUBSTITUTION OP TRUSTEES 
 
 This jurisdiction exists, and will be equally enforced, whether the in- 
 strument creating the trust does or does not contain a power to appoint 
 
 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 appli- 
 cable 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 fol- 
 lows. 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 residence 
 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 the 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 settled, that 
 notice has been given as required by the Act, and that he has surrendered the trust estate 
 to trustees 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 depositary 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 2d section of the Act of May 
 3, 1855 (Bright. Purd. Supp. 1156), supplementary to the Act of 1836, it is provided 
 that where any trust, power, or authority shall be conferred on two or more per- 
 sons by name, and one or more of them shall die, renounce, or be legally discharged, 
 the survivors or survivor, or remaining trustees, shall have and exercise all the title 
 and authority which the whole might have done, unless the trust or power conferred 
 shall require the whole number to act, in which case the vacancies are to be filled in 
 the manner provided by the Act of 1836. By the 5th section of the act of 1855, the 
 provisions of the 23d section of the Act of 1836, just cited, are extended to cases 
 where a surviving trustee shall have died, although the legal title may have descended 
 to his heir at law. 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, 
 resignation, or removal of the old trustees, and may dismiss or discharge in cases falling 
 under the 23d section of the Act of 1836 ; and by the act of 1849 (Dunlop, 1053), in all 
 cases of trusts created 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 ap- 
 point a trustee or trustees in his place. Sect. 24 (of Act of 1836). This power of 
 appointment, &c, may be exercised on application by bill or petition of any person 
 interested, &c, and not otherwise, and on due notice. Sect. 25. The trustees thus ap- 
 pointed 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 appointment, 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. Pitler, 6 W. & S. 326. In the counties of Philadelphia 
 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 exe- 
 cuted by the executors, they may renounce, without affecting their office or trust as 
 
BY THE COURT OF CHANCERY. 287 
 
 new trustees.(J) 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, will not 
 
 (6) Webb v. Earl of Shaftesbury, 7 Ves. 480 ; Re Fauntleroy, 10 Sim. 252 ; Finlay 
 v. Howard, 2 Dr. & W. 490. [In re Foxhall, 2 Ph. 281 ; Suarez v. Pampelly, 2 Sandf. 
 Ch. 336.] 
 
 executors 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 (Dunlop, 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. 330. 
 
 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 sup- 
 plements; 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, fj 45, passive 
 trusts are abolished, the legal estate vesting at once in the cestui que trust, and there- 
 fore 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 sub- 
 sist ; 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 trus- 
 tee djes (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. Don- 
 nelly, 5 Paige, 46 ; Matter of Van Schoonhoven, 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 re- 
 ceiver, 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 accept his resignation, and dis- 
 charge 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 Van Schoonhoven, 5 Paige, 559; Cruger v. Halliday, 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 violate his trust, or who 
 shall be insolvent, 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. S. C. 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 con- 
 sent of all persons who are, or on a future contingency may be interested in the exe- 
 cution of the trust. The usual course of proceeding is by bill. Matter of Van Wyck, 
 1 Barb. Ch. 565. 
 
288 THE SUBSTITUTION OF TRUSTEES. 
 
 suffer any fresh appointment of trustees to be made except under its 
 
 sanction and control.(c) 
 
 (c) Millard v. Eyre, 2 Ves. Jun. 94 ; Webb v. Ld. Shaftesbury, 7 Ves. 480 ; — i. T . 
 Roberts, 1 J. & W. 251 ; Att.-Gen. v. Clack, 1 Beav. 467. 
 
 To these powers of appointment and removal under the Revised Statutes the Su- 
 preme Court has now succeeded, under the new code. Vander Volgen v. Yates, 3 Barb. 
 Ch. 242. 
 
 Massachusetts. — By the Revised Statutes of 1836, p. ii, tit. iv, ch. 69, % 1, testamen- 
 tary 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 iusane, 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 in the will, the judge of 
 probate shall, after notice (4 Metcalf, 330), appoint a new trustee, to act alone, or 
 jointly with the others, as the 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 con- 
 veyances by former trustee or representative as may be proper or convenient. Sect. 9. 
 Every new trustee is to give bond as before. The Supreme Court has power, however, 
 under its general equity jurisdiction, to permit a trustee to resign on his own applica- 
 tion, notwithstanding the R. S. Bowditch v. Banuelos, 1 Gray, 220. 
 
 New Jersey. — 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 per- 
 son 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, are 
 to be regarded as declining. Sect. 5. Any trustee may decline or resign when the Pro- 
 bate Court shall j udge proper to allow it. 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, Probate Court, after notice, may 
 appoint new trustee to act alone or jointly. Judge of Probate may appoint in the place 
 of testamentary trustee declining. Williams v. Cushing, 34 Maine, 370. SeGt 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 removed 
 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. Trustees to render an account 
 once a year, and on failure, may be removed. By Act of 1843 (Clay's Dig. 350), where 
 
BY THE COURT OF CHANCERY. 289 
 
 No person interested could be advised to rest satisfied with the appoint- 
 ment of a new trustee under a power, unless the terms of the power 
 clearly and distinctly authorize the appointment in the particular 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 
 
 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, ch. 70, sect. 28, \ 1 ; 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 ; Wil- 
 liams v. Cushing, 34 Maine, 370. 
 
 Virginia. — By Rev.-Code, 1849, p. 675, it is provided, that the personal representa- 
 tive 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 ap- 
 pointed for the purpose, by a Court of Chancery having jurisdiction. See Hughes v. 
 Caldwell, 11 Leigh, 342. See other provisions as to " Fiduciaries" in general, page 
 546. Where the cestui que trusts of personalty are non-residents, the fund may be 
 transferred on bill or petition to a trustee appointed by a court of record in the proper 
 State, which, when done, will be a discharge pro tanto to the resident trustee. Page, 
 639, 40. 
 
 South Carolina. — The Act of 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 ; Thompson v. Dulles, 5 Rich. Eq. 370) ; 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 Court of Equity is 
 authorized to permit such one or more of the first or former trustees to surrender his 
 or their trust (by petition or consent indorsed 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, secu- 
 rity to be given, 2 Strob. Eq. 88), as may appear proper and advisable ; and the trus- 
 tees 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 condi- 
 tions, &c, as the old trustees : provided, that a certificate of such appointment be in- 
 dorsed on the original deed or will, and also recorded therewith. In McNish v. Gue- 
 rard, 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 Ingersoll v. Cooper, 5 Blackford, 426. All parties interested must be 
 made parties. Ex parte Tunno, 1 Bail. Eq. 395. The act does not apply to executors : 
 Ex parte Galluchat, 1 Hill Eq. 148 ; who cannot be discharged from their office. Hai- 
 good v. Wells, Id. 59. 
 
 See further, Michigan, — Rev. Stat. 300, 301 ; Tennessee, — Act of 1831, Carr. & 
 Nich. 693 ; Wooldridge v. Planters' Bank, 1 Sneed, 297 ; Ohio,— Rev. Stat. 1841, 1001 ; 
 Wisconsin, — Rev. St. 1849, Ch. 57, the provisions of which are copied from the New 
 York Act. 
 
 19 
 
290 THE SUBSTITUTION OF TRUSTEES 
 
 appointment, for the security of all parties, should be made only under 
 the sanction of the court, (d) 
 
 It seems that the circumstances and nature of the trust property — as 
 ■where the administration of a charity is in question — will justify an ap- 
 plication to the court for the appointment of new trustees, in the first 
 instance, notwithstanding the existence of a power in the trust instru- 
 ment to make such an appointment : and this, though no request may 
 have been made to the existing trustees to exercise the power, and no 
 charge of misconduct is made against them by thebill.(e) But in gene- 
 ral it would be improper to burden the estate with the expenses of a 
 suit, unless that course were rendered necessary by the refusal of the 
 donees of the power to make the appointment, 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 death 
 *- J of any existing trustee,(A)(l) or by bis having gone abroad and 
 released,(«) or by no person being able to be found, answering to the 
 description of the trustee in the instrument creating the trust,(&) 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 ex- 
 isting 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 trustees, will then proceed to supply the 
 vacancy by appointing another person to act in the trust, and by direct- 
 ing 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;(Z) or were desirous of being discharged \{m) or 
 
 (d) See Millard v. Eyre, 2 Ves. Jun. 94. (e) Att.-Gen. v. Clack, 1 Beav. 470, 1. 
 
 (/) Finlay v. Howard, 2 Dr. & "W. 490. [See In re Lloyd, 3 J. & Lat. 255.] 
 
 (g) Finlay v. Howard, ubi supra. [Matters of Jones, 4 Sandf. Ch. 616.] 
 
 (7t) Hibbard v. Lambe, Ambl. 309 ; Hewitt v. Hewitt, Ambl. 508 ; Att.-Gen. v. Clack, 
 1 Beav. 467; Drayson v. Pocock, 4 Sim. 283; Finlay v. Howard, 2 Dr. & W. 490; 
 Devey v. Pace, Taml. 77. (i) Buchanan v. Hamilton, 5 Ves. 722. 
 
 (k) Att.-Gen. v. Stephens, 3 M. & K. 347. 
 
 (I) Miles v. Neave, 1 Cox, 159 ; v. Robarts, 1 J. & W. 251. [In re Russell's 
 
 Trust, 1 Sim. N. S. 404, a trustee may, however, decline, except for the purpose of ap- 
 pointing new trustees. Hadley's Trust, 5 De G. & S. 67.] 
 
 (m) Howard v. Rhodes, 1 Keen. 581 ; Coventry v. Coventry, Id. 758; Hamilton v. 
 Fry, 2 Moll. 458; Greenwood v.Wakeford, 1 Beav. 576. [See Matter of Jones, 4 
 Sandf. Ch. 615.] 
 
 (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 appointment 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 Lynd- 
 hurst, his Lordship expressed an opinion to the same effect. Re Faveisham Charities, 
 L. C. 15 November, 1844, MS. 
 
BY THE COURT OF CHANCERY. 291 
 
 had absconded ;(«) or were incapable of acting through age and in- 
 firmity ;(o) or could not discharge the trust through disagreement 
 amongst themselves ;{p) or had been guilty of breaches of trust ;{q) or 
 become bankrupt.^) 1 
 
 And in like manner, it has been considered a sufficient reason for 
 changing a trustee, where a corporation, which was originally appointed 
 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 
 
 (n) Millard v. Eyre, 2 Ves. Jun. 94. (o) Bennett v. Honeywood, Ambl. 710. 
 
 (p) Bagot v. Bagot, 10 Law Journ. N. S. Chane. 116 ; see TJvedale v. Patrick, 2 Ch. 
 Cas. 20. 
 
 (g) Mayor of Coventry v. Att.-Gen. 7 Bro. P. C. 235 ; Ex parte Greenhouse, 1 Mad. 
 92 ; Att.-Gen. v. Shore, 7 Sim. 290, 309, n. ; Att.-Gen. v. Drummond, 1 Dr. & W. 353 ; 
 3 Id. 162. 
 
 (r) Bainbrigge v. Blair, 1 Beav. 495 ; Re Roche, 1 Conn. & Laws, 306 ; 2 Dr. & W. 
 287. [See Turner v. Maule, 15 Jur. 761, under a power, and ante, 179, note. 
 
 (*) Att.-Gen. v. Mayor of London, 3 Bro. C. C. 171. * 
 
 1 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 ; De Peyster v. Clendining, 8 Paige, 295 ; Matter' of 
 Mechanics' Bank, 2 Barb. S. C. 446 ; McCosker v. Brady, 1 Barb. Ch. 329 ; Potts' Peti- 
 tion, 1 Ashm. 340; Lee v. Randolph, 2 Hen. & Munf. 12; Dawson v. Dawson, Rice's 
 Eq. 243 ; Field v. Arrowsmith, 3 Hump. 442 ; or omit to enter security where the act 
 --requires it: Johnson's Appeal, 9 Barr, 416; or die : State Bank v. Smith, 6 Alab. 75 ; 
 Ex parte Conrad, 2 Ashm. 527; Pate v. McClure, 4 Rand. 164; Dunscombe v. Duns- 
 combe, 2 Hen. & M. 11 ; or are incapable of acting : Suarez v. Pumpelly, 2 Sandf. Ch. 
 336 ; as by long-continued habits of intemperance : Bayles v. Staats, 1 Halst. Ch. 513 ; 
 or by lunacy: Matter of "Wadsworth, 2 Barb. Ch. 381 ; see In re Smith, 17 Law Journ. 
 Ch. 415 ; though great age by itself is not enough : Hosack v. Rogers, 6 Paige, 415 ; 
 or having been guilty of breaches of trust : Parsons v. Winslow, 6 Mass. 169 ; Cooper 
 y. 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 in- 
 vestments of the trust money: Gibbes v. Smith, 2 Rich. Eq. 131 ; Johnson's Appeal, 9 
 Barr, 416 ; or, in general, where they "show a disposition to violate the duties of their 
 trust," so as to. endanger the trust property. Harper v. Straws, 14 B. Monr. 57. Con- 
 structive fraud alone, however, as buying in the trust property at his own sale, is not 
 enough. Webb v. Dietrich, 7 W. & S. 401. Mere disagreement between trustee and 
 cestui que trust will not be sufficient. Clemens v. Caldwell, 7 B. Monr. 171. Where a 
 cestui 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 residing out of the jurisdiction will not be appointed, unless 
 on security given. Ex parte Robert, 2 Strob. Eq. 86. It seems that it is only perma- 
 nent 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, 21 Law J. Chanc. 
 875. Where the trusts under a will vested in the executor are distinguishable from 
 those attached to his office, the court may dismiss him as to the former, and not as to 
 the latter. Craig v. Craig, 3 Barb. Ch. 76 ; Matter of Wadsworth, 2 Barb. Ch. 381. 
 
 It has been recently held in Tennessee that where a trustee is incapable in consequence 
 of infirm health to devote such attention to the trust as its importance demands, the 
 court might, without divesting him of the legal title, appoint some suitable person to 
 perform the active duties of trustee. Franklin v. Franklin, 2 Swan, 521. See also 
 ante, 79, note. 
 
292 THE SUBSTITUTION OF TRUSTEES 
 
 denied any intention of quitting the kingdom, and stated her desire of 
 continuing in the trust.(tf) And in the case of a charity, -where two of 
 the original trustees were the holders for the time heing of offices which 
 ■were changed annually, the inconvenience of so frequent a change was 
 held a sufficient reason for appointing other trustees.(w) 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 mis- 
 taking or misunderstanding his duty, will not of itself be a sufficient 
 r*1Q9T g roun d f° r ^removing him.(y) And the bona fide refusal of a 
 L trustee to exercise a pure discretionary power for the benefit of 
 
 the trust estate (as a power of varying securities) is also a wholly in- 
 sufficient reason for a suit to have him discharged from the trust.(g) 
 
 The fact of the original trustees having been appointed by an act of 
 Tarliament instead of any private instrument, will not prevent the court 
 from asserting and exercising its jurisdiction by appointing other trus- 
 tees in their room, where circumstances render it necessary.(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 ex- 
 pressly given to the court, to be exercised (as we shall presently have 
 occasion to consider) in a more concise and summary way. 
 
 Thus the general Bankrupt Act (6 Geo. IV, c. 16, a. 79), provides, 
 that if any bankrupt shall as trustee be seised or possessed of, or enti- 
 tled to, either alone or jointly, any real or personal estate, or any 
 interest secured thereon or arising out of the same, or shall have stand- 
 ing in his name as trustee either alone or jointly any government or other 
 stock in England, Scotland, or Ireland, it shall be lawful for the Lord 
 Chancellor, on the petition of the persons entitled in possession to the 
 receipt of the rents, &c, and on due notice to all other persons inte- 
 rested, 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. 56, s. 2), 
 this, as well as the other jurisdiction of the Lord Chancellor in matters 
 
 (t) Lake v. De Lambert, 4 Ves. 592. (u) Ex parte Blackburne, U. & W". 297. 
 
 (a;) Uvedale v. Patrick, 2 Ch. Ca. 20. 
 
 (y) Att.-Gen. v. Coopers' Comp. 19 Ves. 192 ; Att.-Gen. v. Caius Coll. 2 Keen, 150. \ 
 
 (z) Lee v. Young, 2 N. C. C. 532. 
 
 (a) Buchanan v. Hamilton, 5 Ves. 722. [But see Callis v. Bidout, 7 Gr. & J. 1-] 
 
BY THE COURT OF CHANCERY. 293 
 
 of bankruptcy, is transferred to the Court of Review, subject to the 
 right of appeal to the Lord Chancellor.(J) 1 
 
 The statute, 11 Geo. IV, & 1 Will. IV,. c. 60, was introduced by Sir 
 E. Sugden, to obviate the inconvenience occasioned by the disabilities, 
 &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 mentis ;(d) 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 ;(g){l) or where any trustee, or heir or executor of any last surviving 
 trustee, refuses or neglects to convey, assign, surrender, or transfer the 
 *trust property, when required to do so as directed by the act ;(A) 2 
 it shall be lawful for the Lord Chancellor \on petition to direct a ^ -I 
 conveyance, &c, to be made by the trustee himself, or by any person 
 whom the court shall appoint in his place. 3 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 decla- 
 ration of tJie 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 trus- 
 tees, without compelling the parties seeking such an appointment to file 
 a bill for that purpose, although there is no power in any deed or instru- 
 ment creating or declaring the trusts of such land or stock to appoint 
 
 (6) Archb. Bkrupt. Law, 9th ed. 248 ; see Williams v. Bird, 1 V. & B. 3. 
 (e) 7 Ann. c. 19 ; 36 Geo. Ill, c. 90 ; 6 Geo. IV, c. 74. [Repealed and supplied by 
 the " Trustee Act of 1850 ;" 13 & 14 Vict. c. 60 ; 14 Jur. part ii, p. 360.] 
 
 (d) Sect. 3, 4, 5. [Trustee Act, 1850, g 3, 4, 5, 6.] 
 
 (e) Sect. 6, 7. [Trustee Act, 1850, g 7, 8.] 
 
 (/) Sect. 8, 9, 10. [Trustee Act, 1850, \ 9, 10, 11. Watts' Settlement, 9 Hare, 106 ; 
 15 Jur. 459. See Plyer's Trust, 15 Jur. 766 ; Re Mais, 21 Law J. Chanc. 875.] 
 
 (g) Sect. 8, 9, 10. [Trustee Act, 1850, § 13, 14, 15, or there is a contingent right of 
 unborn trustees, &c, \ 16.] (h) Sect. 8, 9. 
 
 (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. [Trus- 
 tee Act, 1850, ? 15.] 
 
 1 The Bankruptcy Consolidation Act of 12 & 13 Vict. c. 106, has now transferred 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. 
 
 2 Trustee Act, 1850, g 17, &e. And see on construction of these sections, Rowley v. 
 Adams, 14 Beav. 130; 15 Jur. 1002; In re Hodson's Settlement, 9 Hare, 118; Ex 
 parte Russell, 1 Sim. N. S. 404 ; 15 Jur. 100 ; In re Hartnall's Will, 5 De G. & S. Ill ; 
 Smyth's Settlement, 20 Law J. Chanc. 255. 
 
 3 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 contingent right, &c. ; 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. 
 
294 THE SUBSTITUTION OF TRUSTEES 
 
 new trustees ; it is enacted, that in any suchjase 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 
 ac£, 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 instnir 
 ment 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.(i) 
 
 In cases of charity, we shall presently see, that a similar general 
 summary jurisdiction is conferred on the court by 62 Geo. Ill, c. 101 
 (Sir Samuel Romilly's Act). And in consequence of the great expense 
 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 de- 
 fault the court is authorized to appoint new trustees, and to order a con- 
 veyance to be made to them of the trust property without the necessity 
 of any decree, (k) And this enactment has since been embodied and 
 extended by subsequent statutes. (I) 1 
 
 (i) Re Nieholls, Ca. Temp. Sugd. 17; Re Fitzgerald, Id. 20 ; Re Pennefather, 2 Dr. 
 & W. 292 ; Re Hartford, lb. ; Hart v. Ld. Ffrench, lb. ; Re Whitley, Id. 23 ; Ex parte 
 Boyne, Ca. Temp. Plunk. 134; Re Earl of Mayo, Id. 124; Re Fairsewell, 2 Jux. 987; 
 Re Clark, 1 Jur. 737 ; Re Anderson, Ca. Temp. Sugd. 27. 
 
 (k) 2 Sugd. Pow. 533, 4. 
 
 (I) 2 & 3 Will. IV, c. 57, s. 3, 4; 5 & 6 Will. IV, c. 71, s. 18, 20. [See in ReBelke's 
 Charity, 13 Jur. 317 ; and " Trustee Act, 1850," s. 45.] 
 
 1 Now by the Trustee Act of 1850 (13 & 14 Vict. e. 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 instrument : Matter of Davies, 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 Tunstall, 15 Jur. 645) any existing (which includes disclaiming, 
 Tyler's Trust, 5 De Gr. & S. 56) trustee or trustees, who (sect. 33) shall have the same 
 
BY THE COURT OF CHANCERY. 295 
 
 Where no trustees of a charity had been appointed since 1634, the 
 court on an application made in 1844, presumed the death of all the 
 ^trustees, and directed a reference to the Master in the terms of ^.^ 
 the 23d section of the above act.(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 new 
 trustees at the expense of the charity.(w) But where the number of the 
 original trustees is lessened by one-third, the court on petition will pro- 
 ceed to the appointment of others.(o) 
 
 II.— HOW THE COURT ACTS IN APPOINTING 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. 1 In some instances, 
 however, as we have already seen, 'the court has been expressly em- 
 powered 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, (p) 
 
 Thus, in a recent case that occurred since the passing of the statute 6 
 
 (m) Re Nightingale's Charity, 3 Hare, 336. 
 
 (») Ee Marlborough School, 13 Law Journ. N. S. Chano. 2 ; Re Faversham Charities, 
 L. C. 15th Nov. 1844, MS. 
 
 (o) Re Warwick Charities, cor. Ld. Lyndhurst, Ch. 22d Nov. 1844, MS. 
 \p) See Ex parte Rees, 3 V. & B. 11; Miller v. Knight, 1 Keen, 129. 
 
 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 Re Davidson, 20 Law J. Chanc. 
 644), 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 appli- 
 cation (sect. 31) for such order may be made by any person beneficially interested, 
 though under disabilities, or by the old trustee. ( In order to the application, the parties 
 may (sect. 38) go before a Master first and establish the fact (see Re Parmer, 16 Jur. 
 634) or (sect. 39) immediately to the Chancellor or Court. See Robinson's Trust, 15 
 Jur. 187. Sect. 40. Costs to come out of the estate in general. (See In re Eulham, 
 15 Jur. 69.) 
 
 ' See Ex parte Knust, 1 Bailey's Eq. 489 ; Ex parte Hussey, 2 Whart. 330 ; Matter 
 of Van Wyck, 1 Barb. Ch. 565. But in Georgia new trustees may be appointed by 
 petition, where all parties are represented and consenting, and no fact is in dispute. 
 Mitchell v. Pitner, 15 Geo. 319. 
 
296 THE SUBSTITUTION OF TRUSTEES 
 
 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 beiDg taken in the case of a 
 charity (whose interests the court is bound of itself to protect), the addi- 
 tional expense incurred by the proceeding by suit would probably be 
 visited on the parties by whose conduct it was unnecessarily occasioned. 
 We shall presently Wave occasion to consider the cases in which a suit will 
 be necessary notwithstanding those statutes.(f) 
 
 A bill for the appointment of new trustees may be filed, either by the 
 party beneficially interested in the trust estate against the existing 
 *trustees, and this is the more usual course ;(«) or, if eircum- 
 L J stances require it, by the existing or continuing trustees, against 
 their cestui que trust ;{x) or again, one or more of several trustees may 
 join as co-plaintiffs 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 ad- 
 visable to proceed by petition under either Sir Samuel Romilly's(z) or 
 Sir Edward Sugden's(a) Acts, the proceeding will be by information filed 
 by the Attorney-General on behalf of the charity ;{b) and relators, 
 though usual in such a case, are not indispensable. (e) 
 
 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 ap- 
 pointment, and the directions for the execution of the necessary convey- 
 ance, should be prayed by the bill. 
 
 However, the court has sometimes directed a reference to the Master 
 
 (q) Bainbrigge v. Blair, 1 Beav. 495. (r) Attorney-General v. Clack, 1 Beav. 467. 
 
 (i) See Pinlay v. Howard, 2 Dr. & W. 490. 
 
 (u) Bennet v. Honeywood, Ambl. 708, 14; Millard v. Eyre, 2 Ves. Jun. 94; Bu- 
 chanan v. Hamilton, 5 Ves. 722 ; Earl of Portsmouth v. Fellows, 5 Mad. 450 ; Howard 
 v. Rhodes, 1 Keen, 581 ; Bainbrigge v. Blair, 1 Beav. 495. 
 
 (x) Coventry v. Coventry, 1 Keen, 758 ; Greenford v. Wakeford, 1 Beav. 576. 
 
 (y) Lake v. De Lambert, 4 Ves. 592. 
 
 (z) 52 Geo. Ill, c. 101. (a) 1 Will. IV, c. 60. 
 
 (6) Att.-Gen. v. Mayor of London, 3 Bro. C. C. 171 ; Att.-Gen. v. Stephens, 3 M. & K. 
 347 ; Att.-Gen. v. Clack, 1 Beav. 467. 
 
 (c) Re Bedford Charity, 2 Sw. 520 ; 1 Dan. Ch. Pr. 13. 
 
BY THE COURT OF CHANCERY. 297 
 
 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) 1 
 
 Where the object of a suit is to have a trustee removed for miscon- 
 duct, 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 a 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 different object, a distinct 
 bill need not be filed for the appointment of new trustees, but the court 
 will entertain an application for that purpose 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 appoint 
 any person who may be proposed as the new trustee ; but it will be re- 
 ferred to the Master to approve of a proper person to be trustee ;{h)(l) 
 *or if the appointment of any particular person may have been . _ 
 asked, the reference will be to inquire whether the party pro- ■- -* 
 
 (d) Attorney-General v. Stephens, 3 M. & K, 349, 52 ; see Wilson v.Witson, 2 Keen, 
 251. 
 
 (e) Wardle v. Hargreaves, 11 Law Journ. N. S. Chanc. 126. [See In re Smith, 2 De 
 G. & S. 781 ; Ex parte Tunno, 1 Bail. Eq. 395.] 
 
 (/) Per Sir J. Leach, V. C. in Earl of Portsmouth v. Fellows, 5 Mad. 450. 
 
 {g) v. Osborne, 6 Ves. 455 ; Webb v. E. of Shaftesbury, 7 Ves. 487 ; v. 
 
 Roberts, U. & W. 251. 
 
 (h) Luther v. Chamberlen, Seton's Deo. 249 ; Buchanan v. Hamilton, 5 Ves. 722 ; 
 Millard v. Eyre, 2 Ves. Jun. 94 ; Att.-Gen. v. Stephens, 3 M. & K. 352 ; Howard v. 
 Rhodes, 1 Keen, 581 ; Seton's Decrees, 249, 50. [Matter of Stuyvesant, 3 Edw. Ch. 
 299 ; but see now under Trustee Act of 1850, Robinson's Trust, 15 Jur. 187.] 
 
 (1) Sometimes the reference will be to the Master at once to appoint theinew trustees. 
 Att.-Gen. v. Arran, 1 J. & W. 229 ; Millard v. Eyre, 2 Ves. Jun. 94 ; Seton's Decrees, 
 250. 
 
 1 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. 26. 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 cesluis 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 party to a bill 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 it was made. Thomas v. Higham, 1 Bailey's Eq. 222. 
 
THE SUBSTITUTION OF TRUSTEES 
 
 posed 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 appointment. (k) 
 
 However, where all parties, being competent, consent to the appoint- 
 ment 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) 1 - 
 
 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 office than the person approved 
 of by the Master, the court will not enter into the question of the com- 
 parative fitness of the parties.(m) ' 
 
 The appointment of the new trustee by the court would not be com- 
 plete without a conveyance or transfer of the trust property to him. 
 The decree therefore usually goes on to direct a proper conveyance 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 representatives of the last 
 survivor, or a trustee who by the same decree is removed from his 
 office, (n) 
 
 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 conse- 
 quential 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 sufficient reason for 
 making the application, and does not act from obstinacy 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 be- 
 tween 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^ 2 and if no such reason be 
 given, he will not be allowed his costs of a suit, instituted by the cestui 
 
 {i) O'Keeffe v. Calthorpe, 1 Atk. 18 ; v. Roberts, U. & W. 251. 
 
 (h) Attorney-General v. Clack, 1 Beav. 474.? 
 
 (Z) O'Keeffe v. Calthorpe, 1 Atk. 18. (m) Att.-Gen. v. Dayton, 2 S. & S. 528. 
 
 (ra) O'Keeffe v. Calthorpe, 1 Atk. 18 ; Seton's Deer. 249, 50. 
 (o) Coventry v. Coventry, 1 Keen, 758 ; see Taylor v. Glanville, 3 Mad. 176 ; Curteis 
 v. Chandler, 6 Mad. 123 ; Greenford v. Wakeford, 1 Beav. 581. 
 {p) 3 Dan. Ch. Pr. 77. 
 
 1 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. 
 
 8 See Cruger v. Halliday, 11 Paige, 314 ; Re Molony, 2 J. & Lat. 391. 
 
BY THE COURT OP CHANCERY. 299 
 
 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 ovin.(q) 
 It has been laid down that in England a trustee will never be removed 
 on a bill filed by 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.(r) 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 1 „ 
 the case of Hamilton v. Fry.(»-) L J 
 
 In the recent case of Greenford v. Wakeford,(s) the law on this sub- 
 ject was thus laid down by Lord Langdale, M. R. : " If a trustee under- 
 takes 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 continue 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 has, in 
 consequence of that change of circumstances, a right to come to the 
 court to\be relieved ; and the court will judge whether the circumstances 
 were such as to make it fair for him to decline acting longer upon his 
 own responsibility, "(s) 
 
 There can be no question, but that the heir or personal representative 
 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, (t) 
 
 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 con- 
 templated, was held a sufficient 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;(w) 
 
 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 
 
 (q) Howard' v. Rhodes, 1 Keen, 581. [Courtenay v. Courtenay, 3 J. & Lat. 529 ; 
 Matter of Jones, 4 Sandf. Ch. 416.] 
 
 (r) Hamilton v. Fry, 2 Moll. 458. («) Greenford v. Wakeford, 1 Beav. 581, 2. 
 
 (t) Greenford v. Wakeford, ubi supra. (u) Coventry v. Coventry, 1 Keen, 758. 
 
300 THE SUBSTITUTION OF TRUSTEES 
 
 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 favor; but from his Lord- 
 ship's observations it may be concluded, that the decree would have been 
 the same had the bill been filed by the original trustee himself.(y) 
 
 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 i 1 
 
 There has been already occasion to observe, that by particular enact- 
 ments of the legislature the court has been empowered in certain cases 
 to dispense with the institution of a formal suit, and to exercise its 
 jurisdiction of appointing new trustees in a more summary way upon 
 petition. 3 
 
 I"*1 Q81 * Tnus > in tne case of trusts for charitable purposes, the statute 
 L J 52 Geo. Ill, 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 pur- 
 poses, it shall be lawful for any two or more persons 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 affidavits 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 ap- 
 pointment 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 
 
 (x) Greenford v. Wakeford, 1 Beav. 576, 582. (y) 1 Beav. 582. 
 
 \z) Att.-Gen. v. Clack, 1 Beav. 474 ; see Ex parte Greenhouse, 1 Mad. 92, 109 ; and 
 see this subject further considered, post, Costs. 
 
 (a) Ex parte Greenhouse, 1 Mad. 92, 109 ; Ex parte Seggears, 1 V. & B. 497. 
 
 1 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 re- 
 moved on petition. Ex parte Knust, 1 Bail. Eq. 489 ; see note, ante, 190. 
 
 2 See the Act of 1850, stated ante, 193. 
 
BY THE COUTtT OF CHANCERY. 301 
 
 occasion considerable inconvenience to the charity (although from no 
 personal default of theirs), the court will appoint 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 authorizes 
 " any two or more persons" to present a petition, yet that must be under- 
 stood to mean persons having an interest ; and therefore 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. (d) 
 
 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 de- 
 liberation as to a regular information, (e) An order made upon a peti- 
 tion, 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.Q?) 
 
 We have already had occasion to remark that the act does not make 
 it imperative on the parties to proceed by petition.(A) If, however, 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 consider which should pro- 
 ceed.^') 
 
 *The act does not authorize the court to decide on petition r*iQq-i 
 any adverse claims affecting the charity, whether such claims 
 arise between the trustees themselves, or the parties claiming a benefit.(&) 
 And where a petition presented under the act, embraces in its prayer 
 relief, which partly can and partly cannot be granted in that form of 
 proceeding, the court will have great difficulty in separating the proper 
 from the improper objects of the petition.(Z) It has been held also, that 
 constructive trusts are not within the operation of this act.^) 
 
 The substance and object of the provision, contained in the 23d sec- 
 tion 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 subse- 
 quent statute (2 & 3 Will. IV, c. 57, s. 3).(rj The object' of those 
 
 (b) Ex parte Blackburne, 1 J. & W. 297. (c) Re Bedford Charity, 2 Swanst. 518. 
 
 (d) Corporation of Ludlow v. Greenhouse, 1 Bl. N. S. 17, 91. 
 
 (e) Ex parte Skinner, Re Lawford Charity, 2 Mer. 453, 6. 
 (/) Attorney-General v. Green, 1J. & "W. 303. 
 
 {g) Re Dovenby Hospital, 1 M. & Cr. 279. 
 
 (h) Ex parte Rees, 3 V. & B. 11 ; and see ante, p. 194. 
 
 (i) Attorney-General v. Green, 1 J. & W. 303. 
 
 (k) Corporation of Ludlow v. Greenhouse, 1 Bligh. N. S. 17 ; Re West Retford, 10 
 Sim. 101, 8. (Z) Ex parte Skinner, 2 Mer. 457. 
 
 > (q) Ex parte Brown, Coop. 295. (r) Vide supra, p. 193. 
 
 (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. 
 
302 THE SUBSTITUTION OF TRUSTEES 
 
 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 At- 
 torney-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 convey- 
 ance 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 presented 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. Ill, 
 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 petition must, there- 
 fore, 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.(«) The petition may of course be presented by the At- 
 torney-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 sec- 
 tion expressly extended to trusts for charity or friendly societies. 
 
 The bankruptcy of a trustee, as we have already seen, is another in- 
 stance in which the court has been expressly authorized by the legisla- 
 ture to appoint a new trustee in room of the bankrupt summarily upon 
 petition ; and the substance of the seventy-ninth section of the General 
 P2001 Bankrupt *Act (6 Geo. IV, c. 16), by which this power was 
 given to the court, has been already stated.(«/) 
 
 It has also been stated, that this power is now vested by the Bank- 
 ruptcy Court Act (1 & 2 Will. IV, c. 56) in the Court of Review, sub- 
 ject to the appellant jurisdiction of the Lord Chancellor.^) 
 
 A new trustee will be appointed in the place of a trustee who had be- 
 come bankrupt, though the latter had obtained his certificate.(a) The 
 Court of Review has no jurisdiction to appoint new trustees of a fund 
 
 (s) Re Powey's Charities, 4 Beav. 225. [t) 2 Swanst. 518. 
 
 (u) Re Nightingale's Charity, 3 Hare, 336. {x) Be Fowey's Charities, 4 Beav. 225. 
 
 (y) Preceding section, p. 192. 
 
 (z) Ante, preceding section, 192. (a) Ex parte Smith, Re Dry, 3 Jur. 1129. 
 
BY THE COURT OF CHANCERY. 303 
 
 on the bankruptcy of the existing trustees, unless the persons beneficially 
 interested are before the court. x Therefore, no new trustee can be ap- 
 pointed ■where the cestui que trust is out of the jurisdiction. (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. IV, c. 23, s. 2. These are the disability of the existing trustees 
 from lunacy or infancy ; their absence from the jurisdiction ; or refusal 
 to convey or assign ; or where it is unknown who was the survivor of 
 several trustees ; or where the sole or last surviving trustee 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 expressly em- 
 powers the court to appoint new trustees on petition, has been held to 
 apply only to these cases of disability, &c, in the existing trustees, which 
 are provided for in the previous sections of the act.(e) Orders obtained 
 under this section in other cases, said Sir B. Sugden, 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 appointment of new trustees by petition 
 under this act, taking the several cases in which such an application is 
 authorized, in their order as stated above. That is, 1st, The lunacy of 
 the existing trustee ; 2d, His infancy ; and lastly, His being out of the 
 jurisdiction, or unknown, 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 sections of the act. 
 
 By the interpretation clause (sect. 2), it is declared that the provisions 
 relating to a "lunatic" are to extend to any "idiot" or "person of un- 
 sound mind," or incapable of managing his affairs. 
 
 Where a petition is presented under the act on the lunacy of the ex- 
 isting 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 inquire 
 whether the person named in the petition was a lunatic trustee *- ^ 
 within the act, although his jurisdiction ceased at that point.(/)(l) 
 
 (6) Re Molineux, 8 Jur. 132. (c) Ante, preceding section. 
 
 (d) In re Fitzgerald, Ca. Temp. Sugd. 22 ; Re Pennefather, 2 Dr. & W. 292 ; Harte 
 v. Lord Ffrench, Ibid. 
 
 (e) The jurisdiction of the court under this act to direct a conveyance by a trustee 
 under disability is considered in a future chapter on that subject. 
 
 (/) Anon, 5 Sim. 322. 
 
 (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. • 
 
304 THE SUBSTITUTION OF TRUSTEES 
 
 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 lunatic trustees 
 must be made by the person intrusted with the jurisdiction over lunatics 
 by the royal sign manual.(</) This decision excludes also the jurisdic- 
 tion of the Master of the Rolls in such cases. Therefore, where there 
 had been some proceedings in a suit in the Exchequer, relative to the 
 estate of a lunatic trustee, the Lord Chancellor (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. (i)(l) 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 sufficient to give 
 the court jurisdiction to appoint a new one on petition. (I) 
 
 Where the existing trustee has not been found lunatic on inquisition, 
 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 seised or possessed 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 any power in the instru- 
 ment to appoint new trustees"; — Fifthly, A direction 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 trustees.(m) 
 
 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 Chancellor 
 of England has no power under the act to order the committee of the 
 estate to convey or transfer to a new trustee, (n) 
 
 2d. In case of the infancy of the existing trustee. 
 
 Where the infancy of the existing trustee is the ground for the ap- 
 plication for the appointment of a new one under the act, the court mil 
 
 (g) Ee Shorrocks, 1 M. & Cr. 31 ; Re Mount, 12 Law Journ. N. S. Chanc. 95. 
 
 (h) Re Prideux, 2 M. & Cr. 640. (i) Re Welch, 3 M. & Cr. 292. 
 
 (k) Re Walker, 1 Cr. & Ph. 147. (Z) Re Wakeford, 1 Jones & Latouche, 2. 
 
 (m) Re Pigott, 2 R. & M. 683. 
 
 (») Re Tottenham, 2 M. & Cr. 39 ; S. C. 1 Jur. 653. 
 
 (1 ) It has been decided that such a case was within the stat. 36 Geo. Ill, c. 90. Simms 
 v. Naylor, 4 Ves. 360 ; West v. Ayles, T. & R. 330. 
 
BY THE COURT OF CHANCERY. 305 
 
 refer it *to the Master to inquire, whether the party is an infant p^onon 
 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,(j»)(l) were all repealed, and their 
 provisions adopted and extended by the act of 6 Geo. IV, c. 4, which 
 last act itself was also repealed by the 1 Will. IV, c. 60, though the 
 substance of its provisions was 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 personal 
 representative of a trustee of personalty, the inconvenience might be 
 remedied according to the existing law, by taking out letters of ad- 
 ministration durante minore cetate. 
 
 If an infant trustee refuse to comply with an order to convey to 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.^) 
 
 The fifteenth section of 1 Will. IV, c. 60, expressly extends its pro- 
 visions to trustees (otherwise within the meaning of the act), who have 
 a beneficial interest in the trust property, but by the same section a dis- 
 cretionary 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 bene- 
 ficial interest :(r) and the court would unquestionably 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, («) or Calcutta, (t) or the Island of Nevis, (w) However, we shall 
 
 (0) Ex parte Marshall, 17 Ves. 383, a.; Ex parte Anderson, 5 Ves. 240. 
 
 {p) 7 Ann. c. 19. [In force in South Carolina, 2 Cooper's Stat. 547.] 2 Geo. II, c. 
 10 ; 36 Geo. Ill, c. 90 ; 6 Geo. IV, c. 74. 
 
 (q) Re Beech, 4 Mad. 128 ; see 1 Will. IV, c. 60, s. 13. 
 
 (r) Re Pigott, 2 R. & M. 684. (s) Evelyn v. Forster, 8 Ves. 96. 
 
 {t) Ex parte Anderson, 5 Ves. 240. (u) Ex parte Prosser, 2 Bro. C. C. 325. 
 
 (1) It was expressly decided by the Master of the Rolls, in Ex parte Anderson, 5 
 Ves. 240, that the statute of 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 description 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. Pomfret, 2 Cox, 221. See Rigg v. 
 Sykes, 1 Dick. 400. 
 
 20 
 
306 THE SUBSTITUTION OP TRUSTEES 
 
 see presently, that these acts apply only in plain cases, (a;) 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 out of the 
 r*2031 jurisdiction. The eighth section, (1) by which such an emer- 
 gency is provided for, has been held by Lord Cottenham, when 
 Master of the Eolls, to relate only to positive or nake'd trustees, and 
 not to trustees by construction or operation of law.(y) The reason ap- 
 pears 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 insti- 
 tuted. 
 
 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 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 the 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 resident in Ireland. 
 
 The other grounds for the application to the court under the 8th sec- 
 tion are, — the uncertainty as to who was the survivor of several trus- 
 tees ;(e) or whether the last known trustee be living or dead ;(d) 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 executor (as the case 
 may be), to convey, assign, or transfer, when properly required.(e) In 
 all these cases, the jurisdiction of the court is conferred by the same 
 sections, and in the same wards that apply to the case of a trustee being 
 out of the jurisdiction ; and the decisions and observations, that have 
 
 (x) Vide post. 
 
 (y) Re Dearden, 3 M. & K. 508, 12. The same construction was applied to the G 
 Geo. IV, c. 74; Dew v. Clark, 4 Russ. 511 ; King v. Turner, 2 Sim. 550; Ee Moodp 
 Taml. 4. (z) Hutchinson v. Stevens, 5 Sim. 498. 
 
 (a) Ex parte Hughes, 1 Jones & Lat. 32. (6) Ibid. 
 
 (c) Re Nightingale's Charity, 3 Hare, 336. (d) Ex parte Dover, 5 Sim. 501. 
 
 (e) Ex parte Winter, 5 Russ. 294 ; Ex parte Hoggeu, 1 Beav. 98 ; Ex parte Foley, 
 8 Sim. 395 ; Warburton v. Vaughan, 4 Y. & C. 247 ; Prendergast v. Eyre, 1 LI. & fi- 
 ll ; Robinson v. Wood, 5 Beav. 246 ; Cockell v. Pugh, 6 Beav. 293. 
 
 (1) The 8th section provides for the trustees of land being out of the jurisdiction, 4c, 
 the 9th section for trustees of leaseholds or terms for years, and the 10th section for 
 trustees of stock. 
 
BY THE COURT OP CHANCERY. 307 
 
 been just considered -with reference "to this last case, will apply with equal 
 force and authority to all the others.(l) 
 
 *By the act for the amendment of the Law of Escheat of r*oo41 
 Property held in trust (4 & 5 Will. IV, c. 23), the provisions of 
 the 1 Will. IV, c. 60, are extended to cases where a trustee dies with- 
 out having an heir, an event which had been purposely left unprovided 
 for by the latter act, in 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 inconvenience ; as ad- 
 ministration may at any time be taken out, limited to the trust property ; 
 and, indeed, it was stated judicially by Sir B. Sugden, that the distinc- 
 tion between the 8th and the 9th and 10th sections was made purposely, 
 as it was not intended to render administration unnecessary, by supply- 
 ing a personal representative, but to provide only for the want of a real 
 representative, because there was no other way of supplying such a repre- 
 sentative^/) 
 
 Therefore, in a case where the surviving trustee of a property, con- 
 sisting 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 representa- 
 tive was obtained, they could not apply under the act to have a new 
 trustee of the personalty appointed, as the administrator would be under 
 (/) In re Anderson, Cas. Temp. Sugd. 27. 
 
 (1) The 8th section, which applies to trustees of real estate, is as follows : — "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 uncertain (where there 
 were several trustees) which of them was the survivor.; or it shall be uncertain, whether 
 the trustee, last known to be seised as aforesaid, be living or dead ; or (if known to be 
 dead) it shall not be known who is his heir; or if any trustee seised 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 for making such conveyance shall have been 
 tendered for his execution by, or by an agent duly authorized by any person entitled to 
 require 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 seised as aforesaid, or his heir, had made and executed the 
 same." The 9th section contains the same provisions mutatis mutandis respecting trus- 
 tees 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." 
 
'308 THE SUBSTITUTION OF TRUSTEES 
 
 no disability ; and they must therefore 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.(^) 
 
 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 such 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, kc.(h) 
 
 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 ;(i) 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. (k) 
 
 And in such cases the person whom the court appoints to convey to 
 r*90 f il * t ' ie new trustee may at once execute the deed which had been 
 L tendered to the refusing trustee, the attestation clause expressing 
 
 that it was executed by him in place of the refusing trustee, in pursu- 
 ance of the order of the court made on the petition.(Z) 
 
 It has been expressly decided in a recent case by Sir L. Shadwell, 
 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 considerable doubt from the 
 wording of the 22d section, whether the jurisdiction 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 trustees. (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 refused 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 
 
 (g) Re Anderson, Cas. T. Sugd. 21. (h) 6 Jarm. Byth. Conv. 432, n. 3d ed. 
 
 (t) Warburton v. Vaughan, 4 Y. & Coll. 247 ; Prendergast v. Eyre, 1 LI. & Gr- Hi 
 Robinson v. Wood, 8 Beav. 246. 
 
 (k) See Williams v. Bird, 1 V. & B. 3, see Ex parte Foley, 8 Sim. 395 ; 2 Sugd. Pow. 
 532, 6th ed. 
 
 (Z) Ibid. (m) Re Fauntleroy, 10 Sim. 252 ; Re Roche, 1 Conn. & Laws. 306. 
 
 (n) See 6 Jarm. Byth. Conv. 433, n. (o) Re Ryley, 3 Hare, 619. 
 
 (p) Re Down, 2 Jur. 886 ; and see Re Chasteney, Jac. 56. 
 
BY THE COURT OP CHANCERY. 309 
 
 not accepted the trust, the court will not appoint new trustees, without 
 proof that the trusts have acquired existence by being accepted. (q) The 
 case of a sole trustee, or all the trustees, renouncing 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 the act, and will be ordered to 
 transfer the trust stock to new trustees. (m) 
 
 The husband of a feme trustee for the sale of an estate is a trustee 
 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 appointment of new 
 trustees, but Sir E. Sugden, Lord Chancellor of Ireland, refused to 
 make the *order, on the ground that the surviving trustee must r*90fin 
 be considered to have accepted the trust after such a lapse of 
 time.(y) 
 
 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 bene- 
 ficial interest in the subject of the trust.(g) 
 
 We have already seen that the 22d section empowers the court to ap- 
 point new trustees on petition only in cases " where the recent creation 
 or declaration of the trust or other circumstances may render it safe 
 and expedient" for the court to direct a conveyance or transfer. (a) 
 Therefore, even where the disability, &c, of the existing 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 otherwise, be clearly established.(J) 
 
 And the insecure nature of the trust property is of itself no ground 
 for the interference of the court.(c) 
 
 (q) Re Clark, 1 Jur. 737. (r) Re Hartford, 2 Dr. & W. 292. 
 
 (*) Ex parte Dover, 5 Sim. 500. 
 
 (i) Ex parte Winter, 5 Russ, 284 ; Ex parte Hagger, 1 Beav. 98 ; Re Needham, 1 
 Jones & Lat. 34. («) Cockell v. Pugh, 6 Beav. 293. 
 
 (a;) Re Ryley, 3 Hare, 614. (y) Re Uniacke, 1 Jones & Latouche, 1. 
 
 (z) Moore v. Winter, 12 Sim. 161. (a) See the 22d section, stated ante. 
 
 (6) Re Nicholls, Cas. T. Sugd. 17 ; Re Whitley, Id. 23. 
 (c) Re Whitley, Cas. T. Sugd. 23. 
 
310 THE SUBSTITUTION OF TRUSTEES 
 
 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 dis- 
 cretion of the court, which will be controlled and governed by the nature 
 and circumstances of each individual case.(cZ) There are but few deci- 
 sions on the point, but on one occasion Sir E. Sugden, L. C, instanced 
 a trust created within ten years, or a simple trust 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 trustee 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 appointed 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 :(h) although this is not essential 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 evi- 
 
 L -I dence of those facts.(m) 
 
 And in all these cases of application to the court by petition, the 
 statement of the facts of the case must be corroborated by affidavit.(w) 
 
 In every case of an application to the court for the appointment of 
 new trustees, by petition as well as by suit, the general rule of practice 
 is, that the court will not in the first instance make an order for the con- 
 veyance 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 
 
 (d) See Re Merry, 1 M. & K. 677, and Re De Clifford Estates, 2 M. & K. 624, stated 
 supra ; and see also Ex parte Dover, 5 Sim. 500 ; Re Pareswell, 2 Tur. 987. 
 
 (e)Re Nicholls, Cas. T. Sugd. 18, 19. 
 
 (/) Ex parte Swan, 2 Dick. 749 ; Seton Decrees, 252, 3 ; Re Law, 11 Law Journ. 
 N. S. Chanc. 112 ; 4 Beav. 509. (</) Re King, 10 Sim. 605, 7. 
 
 (h) Re Law, 4 Beav. 509. (i) Re Odell, Jr., Exch. Rep. 257. 
 
 (7c) Re Law, 11 Law Journ. N. S. Chanc. 118 ; 4 Beav. 509. 
 
 (I) Ibid. ; and see Re Fowler, 2 Russ. 449. 
 
 (m.) Moore v. Penten, 10 Law Journ. N. S. Chanc. 345 ; De Crespigny v. Kitson, H. 
 34G, n.; S. C. 12 Sim. 161. 
 
 (n) See Ex parte Winter, 5 Russ. 284. (o) Re Law, 4 Beav. 509. 
 
 (1) By the practice of the Court of Review, the reference is made to the registrar. 
 
BY THE COUKT OF CHANCERY. 311 
 
 approve of a proper person to be the new trustee, and also (if necessary) 
 of a proper person to convey to the 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. E,., 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 evi- 
 denced by the application itself: and it is the frequent practice of the 
 court to appoint a new trustee in the place of the bankrupt without a 
 reference, on affidavit of the solvency and fitness of the proposed 
 trustee.(.s) And the smallness of the property will always be a reason 
 for dispensing with the reference. (t) And so if all parties (being com- 
 petent) appear, and consent to the appointment of the person proposed, 
 the court will act at once upon such an assurance.(w) 
 
 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 gone to settle in 
 America, *on the ground that the petitioner was the only person T ^ on Q-, 
 interested in the property.(y) L -I 
 
 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 the court 
 
 • (p) Att.-Gen. v. Arran, U. & W. 229 ; Re Roche, 2 Dr. & W. 287 ; Ex parte Wish, 
 2 M. & A. 214 ; Re Sharrocks, 1 M. & Cr. 31 ; Re Welsh, 3 M. & Cr. 292 ; Re Pigott, 2 
 R. & M. 683 ; Ex parte Anderson, 5 Ves. 240 ; Ex parte Dover, 5 Sim. 500 ; Re De 
 Clifford Estates, 2 M. & K. 624, 6. 
 
 (q) Att.-Gen. v. Arran, 1 J. & W. 229. (r) Neale v. Dell, 9 Jur. 99. 
 
 (s) Ex parte Page, 1 D. & Ch. 321 ; Ex parte Buffery, 2 D. & Ch. 576 ; Ex parte 
 Beveridge, 4 D. & Ch. 455 ; Ex parte Walton, 2 M. & A. 242 ; Ex parte Inkersole, 2 
 Gl. & J. 230 ; Ex parte Palmer, 4 Deac. 177. 
 
 (t) Ex parte Wish, 2 M. & A. 214. (u) Ex parte Wish, ubi supra. 
 
 (x) See O'Keefe v. Calthorpe, 1 Atk. 18. 
 
 (y) Ex parte Shick, 5 Sim. 281 ; and see Re Trapp, 13 Law. Journ. N. S. Chanc. 
 168. [8 Jur. 437.] 
 
 (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. 
 
312 THE SUBSTITUTION OP TRUSTEES 
 
 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, (z) 
 
 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 sub- 
 ject 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, (b) 
 
 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 beneficially 
 entitled, (c) 
 
 When the Master has made his report upon the order of reference, 
 the proper course is to apply by petition(d) to have the report con- 
 firmed^].) 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 trustee 
 who was of unsound mind, although the original number of trustees was 
 
 (z) Ex parte Foley, 8 Sim. 395. (a) Vide supra, Ee Beech, 4 Mad. 128. 
 
 (6) See Re Pigott, 2 R. & M. 684; Ee Welch, 3 M. & Cr. 293. 
 
 (c) Re King, 10 Sim. 605. 
 
 (d) Re Welch, 3 M. & Cr. 293 ; and it must not be on motion: see Evelyn v. Forster, 
 8 Ves. 96 ; Anon. 1 Y. & Coll. 75 ; Baynes v. Baynes, 9 Ves. 462. 
 
 (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 Decrees, 253 
 
BY THE COURT OF CHANCERY. 313 
 
 ■not more than three.(/) And where the survivor of two original 
 trustees *becomes bankrupt, the court may appoint two new r*nr\q-\ 
 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 ap- 
 pointed, need not join in the conveyance to the new trustee, where they 
 disclaim all interest in the property ;(h) but the bankrupt himself will be 
 ordered to convey.(i) Where a mortgage is made to a trustee who be- 
 comes bankrupt, the mortgagor must be a party to the conveyance to a 
 new trustee. (4) 
 
 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.^) 
 
 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 
 trust estate, in the absence of any misconduct on the part of the 
 trustees.(m) 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 trust. Ex parte Brydges, therefore, is 
 unquestionably overruled by this last decision.^) However, it seems 
 that the estate of a lunatic mortgagee is still liable to these costs.(g') 
 
 (/) Re Welch, ubi supra. (ff) Ex parte Wilkinson, 3 M. & A. 145. 
 
 (ft) Ex parte Walton, 2 M. & A. 242; Ex parte Painter, 2 D. & Ch. 584 ; but see In 
 re Remington, 3 D. & Ch. 24. (i) Ex parte Painter, 2 D. & Ch. 584. 
 
 (k) Ex parte Orgill, 2 D. & Ch. 413. (1) Reg v. Pitt, 3 Jur. 1028. 
 
 (m) See Ex parte Cant, 10 Ves. 554; Re King, 10 Sim. 605; Re Bedford Charities, 
 2 Sw. 532. (m) Ex parte Cant, 10 Ves. 554. (o) Coop. 290. 
 
 (p) Ex parte Pearse, T. & R. 325, 1; and see Ex parte Tutin, 3 V. & B. 149. 
 
 (q) Ex parte Richards, 1 J. & W. 264. 
 
314 THE SUBSTITUTION OF TRUSTEES 
 
 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) 1 
 
 *III. — WHOM THE COURT WILL APPOINT TO BE A NEW TRUSTEE, 
 [*210] AND THE EFFECT OF THE APPOINTMENT." 
 
 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 ;(t) although an immediate appointment may be made, 
 where all the parties interested consent to the appointment in the first 
 instance. (m) Where the reference is in general 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 ap- 
 parent objection, to propose themselves before the Master ;{x) 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 pos- 
 sibly be occasioned in the administration of the trust in the event of her 
 marriage.^/) 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. (z) 3 
 
 But it will be no objection to allowing parties to propose themselves 
 before the Master, that the same parties were previously nominated 
 
 (r) Ex parte "Whitley, 3 M. & A. 696 ; S. C. 1 Deao. 478. 
 
 (s) Re King, 10 Sim. 605. (t) Vide supra, 196, and Seton's Dec. 249. 
 
 («) O'Keeffe v. Calthorpe, 1 Atk. 18. 
 
 (x) Att.-Gen. v. Shore, 1 M. & Cr. 394 ; Att.-Gen. v. Clack, 1 Beav. 474. [The court 
 pays great attention to the recommendation of majority of cestui que trusts. Thorn- 
 burg v. Macauley, 2 Johnson, Maryl. Ch. Dec. 427.] 
 
 (y) Brook v. Brook, 1 Beav. 531. [Though see Gibson's case, 1 Bland, 138. It 
 seems that a nun may be appointed. Smith v. Young, 5 Gill, 197.] 
 
 (z) Ex parte Smith, Re Dry, 3 Jur. 1129. 
 
 1 The retiring trustee is entitled to have the accounts taken. Nott v. Foster, 1j 
 Jur. 3. 2 See note, ante, p. 190. 
 
 3 Where one of several trustees refused the trust by a formal instrument, it was held 
 that he could not be reinstated while any of his co-trustees continued to act. Matter 
 of Van Schoonhoven, 5 Paige, 559. But that in the case of an executor, a formal renuncia- 
 tion will not in general preclude his subsequently entering on the administration : see 
 Harrison v. Harrison, 2 Rob. Ecc. 406; Venables v. 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 OE CHANCERY. 315 
 
 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, (b) 
 
 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 incapable of 
 joining in the execution of the trust, and to be desirous of being dis- 
 charged ; and Lord Camden, C, without directing the appointment of a 
 new trustee, ordered the trust to be carried on by the other three.(c) 1 
 
 Where a trustee, who had been originally appointed, by his answer 
 declined to act, and on hearing it was referred to the Master to appoint 
 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 decline the appoint- 
 ment of new trustees.(d) 
 
 If the devisees in trust for a charity die in the lifetime of the testator, 
 it *has been decided that the conduct of the charity will devolve r*oi-|-i 
 upon his heirs at law as trustees for that purpose.(e) 
 
 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 of juris- 
 diction, as one of universal application. (/) And in one case such an 
 authority was expressly repudiated by the court, (g) 2 
 
 (a) Att.-Gen. v. Clack, 1 Beav. 474. 
 
 (6) Att.-Gen. v. Shore, 1 M. & Cr. 394. (c) Bennet v. Honeywood, Ainbl. 710. 
 
 (d) Miles v. Neave, 2 Cox, 159. 
 
 («) Att.-Gen. v. Downing, Ambl. 571 ; Att.-Gen. v. Bowyer, 3 Ves. 714. 
 
 (/) Ante, Ch. 1 of this division ; Re Welch, 3 M! & Cr. 293. 
 
 (g) Devey v. Peace, Taml. 
 
 1 In Bulkeley v. Earl of Bglinton, 19 Jurist, 994, it was held that under special cir- 
 cumstances two trustees might be appointed, though the original number was three. 
 
 2 Where the trusts were very onerous, so that it would have been very difficult to get a 
 stranger to undertake them, one of the cestui que trusts was reluctantly appointed. Ex 
 parte Clutton, 17 Jurist, 988. But, in general, the court never places trust funds be- 
 longing to persons not sui juris in the power of a sole trustee. Dickinson's Trusts, 19 
 Jurist, 724. 
 
316 TUB SUBSTITUTION OP TRUSTEES 
 
 When a person has been appointed a trustee by the order or decree 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 com- 
 pletely as if he had been at first invested with it. (A) 1 # As a general rule 
 he will be considered to have taken upon himself all the duties and lia- 
 bilities incident to the office, and therefore will be invested with all the 
 powers and authorities requisite for its due discharge ; 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 court. (J) 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)(l) 
 
 (7j) Cole v. Wade, 16 Ves. 44. 
 
 (i) Drayson v. Pocock, 4 Sim. 283 ; 2 Sugd. V. & P. 51. 
 
 (k) Per Sir Win. Grant, M. R., in Cole v. Wade, 16 Ves. 44. [Newman v. Warner, 
 1 Sim. N. S. 457. See post, notes to pp. 226 and 485, &c] 
 
 (I) Att.-Gen. v. Doyley, 2 Eq. Ca. Abr. 194 ; S. C. 7 Ves. 58, n. and cited 16 Ves. 47; 
 1 Sugd. Pow. 151, 6th edit. ; Hibbard v. Lambe, Ambl. 309. 
 
 (m) Att.-Gen. v. Doyley, cit. 16 Ves. 47 ; Cole v. Wade, 16 Ves. 45, 6 ; see Eaton 
 v. Smith, 2 Beav. 236 ; [post, 485, &c] 
 
 (1) In a late case a testator appointed three executors and trustees,* with the usual 
 power of appointing new ones in ease of death, &c, and he gave 300Z. 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 testator's lifetime, and two other per- 
 sons were appointed by 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 tlje legacies of 300Z. Walsh v. Gladstone, 8 Jut. 51; 
 14 Sim. 2. 
 
 1 The mere appointment of a new trustee does not amount to a substitution of Mm 
 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 ; Barribeau v. Brant, 17 How. 
 U. S. 43. See, however, in Virginia, Revised Code of 1849^. 675. In a recent case 
 in Kentucky, it was held, that a husband who had been appointed trustee by the Court, 
 merely " to hold the property for the benefit of his wife and children," could not exercise 
 
BY THE COURT OP CHANCERY. 317 
 
 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 i-^oiot 
 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 considera- 
 tion, directed, that the tenant for life should be at liberty to cut timber 
 from time to time with the approbation of the Master, (n) 
 
 It has been previously observed, that where there is no power of ap- 
 pointing new trustees in the instrument creating the trust, the court can- 
 not delegate to others its power of supplying vacancies in the trust ; and 
 therefore the trustee appointed by the court will not in general be em- 
 powered to nominate others to act in his place, (o)(l) although this may 
 be done in settling a scheme for the administration of a charity. .(p) 
 
 Where circumstances render such a course desirable, the court, ou a 
 motion in the cause, supported by an affidavit verifying the circumstances, 
 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 trustee, will be sufficient to 
 induce the court to accede to such an application.(g') And a receiver 
 has been appointed, where the trustee is guilty of laches or other mis- 
 conduct in administering the trust ;(r) or becomes bankrupt ;(s) or dies or 
 goes abroad ;(t) or declines or is unable to act.(w) 
 
 (n) Hewitt v. Hewitt, Ambl. 508. 
 
 (0) Ante, p. 176 ; Bayley v. Mansell, 4 Mad. 226 ; Southwell v. "Ward, Tarnl. 314 ; 
 Brown v. Brown, 2 Y. & Coll. 395 ; 2 Sugd. Pow. 533 ; but see Joyce v. Joyce, 2 Moll. 
 276. 
 
 {p) Att.-Gen. v. "Winchelsea, 3 Bro. C. C. 373 ; S. C. Seton Decrees, 131 ; Re 52 Geo. 
 Ill, c. 101 ; 12 Sim. 262 ; 2 Sugd. Pow. 533. 
 
 (g) Middleton v. Dodswell, 13 Ves. 266 ; Hayers v. Havers, Barn. 23. 
 
 (r) Att.-Gen. v. Boyer, 3 Ves. 714 ; Bainbrigge v. Blair, 10 Law Journ. N. S. Chanc. 
 193. (s) Langley v. Hawk, 5 Mad. 46. 
 
 (0 Tidd v. Lister, 5 Mod. 433. 
 
 (w) Brodie v. Barry, 3 Mer. 695 ; Bainbrigge v. Blair, 10 Law Journ. N. S. Chanc. 
 103. 
 
 (1) But in a recent case, where both the trustees of a will had died in the testator's 
 lifetime, and there was a suit for the appointment of new trustees, Lord Langdale, 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 cir- 
 cumstances 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 v. Oglander, 2 De G. & Sm. 381 ; 12 Jur. 786 ; 17 
 L. J. Ch. 439; Bowles v. Weeks, 14 Sim. 591.] 
 
 a power of sale originally connected with the trust ; and the court further say, that a 
 substituted trustee derives his powers from the Chancellor, and not from the instrument 
 creating the trust, and can only execute the trust in the manner directed by the order or, 
 decree of appointment. Harris v. Rucker, 13 B. Monr. 565. But the langnage of the 
 court in this respect seems to be broader than was necessary to the decision, and can- 
 not be considered as entirely accurate. 
 
318 ACCEPTANCE OF THE OFFICE OF TRUSTEE. 
 
 But the court -will not thus interfere with the management of the 
 estate by a trustee unless a sufficient reason be assigned. (x) 1 
 
 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 consent of 
 the remaining trustees.(t/) But a receiver will necessarily be appointed 
 where the co-trustees cannot act through disagreement amongst them- 
 selves.^) 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 
 receiver. (22) But a receiver has been appointed upon an affidavit that 
 the trustee is insolvent, (a) 
 
 r *Upon the appointment of new trustees the receiver will be 
 
 •- J discharged on the application of any party interested in the 
 cause, although the discharge be opposed by some of the cestui que 
 trusts.{b) 
 
 [*214] *DIYISION IY. 
 
 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 trustee : — 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 bis assent 
 to it. 2 
 
 {x) Barkley v. Lord Reay, 2 Hare, 308. 
 
 (V) Middleton v. Dodswell, 13 Ves. 266 ; but see Tait v. Jenkins, 1 N. C. C. 492; 
 Brodie v. Barry, 3 Mer. 695 ; Tidd v. Lister, 5 Mad. 433; Browell v. Read, 1 Hare, 
 434. (z) Bagot v. Bagot, 10 Law Journ. N. S. Chanc. 116. 
 
 (zz) Hawthornethwaite v. Russell, 2 Atk. 126 ; Howard v. Papera, 1 Mad. 142. 
 
 (a) Scott v. Beecher, 4 Price, 346. 
 
 (6) Bainbrigge v. Blair, 10 Law Journ. N. S. Chanc. 103. 
 
 1 Ogden v. Kip, 6 Johns. Ch. 160 ; Poythress v. Poythress, 16 Geo. 406. There must 
 be good reason to fear that the trust property will not be forthcoming at the end of the 
 litigation. It is not enough to allege that the habits of the trustee whose removal is 
 sought by the bill are bad, and his conduct towards the cestui que trust capricious. 
 Poythress v. Poythress, ut supr. 
 
 2 See Maccubbin v. Cromwell, 1 Gill & Johnson, 157 ; Trask v. Donoghue, 1 Aik. 370; 
 and statutes of different States, stated ante, p. 190. 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 319 
 
 We "will now proceed to consider what acts of conduct of an intended 
 trustee will amount to an acceptance of the office ; and when and how 
 he may refuse or disclaim. 
 
 CHAPTEK I. 
 
 WHAT WILL BE AN ACCEPTANCE OF THE OFFICE OF TRUSTEE. 
 
 Evert 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 effec- 
 tual mode of testifying the acceptance of the trust by the trustees is 
 their execution of the deed. 1 All the provisions of the instrument will 
 then be binding on those parties by whom it is executed. Where the 
 trust property consists of money or stock, which is placed under the ex- 
 clusive control of the trustees, and more especially if there be only a 
 single trustee, it is peculiarly desirable that he should testify his accept- 
 ance of the trusts by executing the deed, (b) 
 
 Where the trust is created by will, and the same person is appointed 
 executor and trustee, the probate of the will by him will be an acceptance 
 of the trusts, (c) 2 
 
 (a) Per Ventris, J., in Thompson v. Leech', 2 Ventr. 198 ; Per Bayley, J., in Townson 
 v. Tickell, 3 B. & Al. 36 ; 5 Mart. Conv. 60? ; 3 Jarm. Byth. Conv. 698; 4 Cruis. Dig. 
 404, 6. [Wilt v. Franklin, 1 Binn. 502 ; Eyrick v. Hetrick, 13 Penn. St. 494; Read 
 v. Robinson, 6 W. & S. 331 ; Wise v. Wise, 2 J. & Lat. 412 ; King v. Phillips, 16 Jur. 
 1080 ; 4 Kent. Comm. 500, and notes. The renunciation must be by "express re- 
 jection, or tacit refusal to act," 6 W. & S. 333.] 
 
 (6) Lord Montfort v. Lord Cadogan, IT Ves. 488, 9; S. C. 19 Ves. 638; Small v. 
 Marwood, 9 B. & Cr. 300. 
 
 (c) Mucklow v. Fuller, Jac. 198; Booth v. Booth, 1 Beav. 128 ; Williams v. Nixon, 
 2 Beav. 4*72 ; see Clarke v. Parker, 19 Ves. 1 ; Ward v. Butler, 2 Moll. 533. [Worth 
 v. M'Aden, 1 Dev. & Batt. Eq. 209.] 
 
 1 But the signature of the deed by the trustee is not necessary, unless there be some 
 covenant, &c, on his part. Flint v. Clinton Co. 12 N. H. 432. 
 
 2 Probate by an executor is an acceptance of the office. Peebles' Appeal, 15 S. & 
 R. 39 ; Worth v. McAden, 1 Dev. & Batt. Eq. 209 ; Venables v. East Ind. Co. 2 Exch. 
 633 ; Easton v. Carter, 5 Exch. 8 ; Cummins v. Cummins, 3 J. &. Lat. 64. Giving 
 bond, it would seem, is sufficient. Sears v. Dillingham, 12 Mass. 358. 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 property 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. Carter, 5 Exch. 8 ; Venables v. East Ind. Co. 2 Exch. 633 ; Mitchell v. Rice, 
 6 J. J. Marsh. 625. It has been ruled, however, in States where an executor, in addition 
 
320 ACCEPTANCE OF THE OFFICE OF TRUSTEE. 
 
 r*oi n *Where the same person is appointed both executor and trustee 
 *- -J it is difficult, though sometimes of importance, to 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. (d) 
 
 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 binding proofs 
 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 executed the in- 
 strument ;(e) and the same rule obtains where the trust is created by 
 ™ll.(/)' 
 
 (d) Ex parte Dover, 5 Sim. 500 ; vide post, Part II, Ch. 1, sect. 2 ; Phillipo v. Man- 
 nings, 2 M. & Cr. 309. [See Ld. Brougham v. Ld. ffm. Powlett, 24 L. J. Ch. 23V; 
 19 Beav. 119; Dex v. Barford, Id. 409; Knight v. Loomis, 30 Maine, 204; Wheatly 
 v. Badger,,? Barr, 461; "Wilson's Estate, 2 Barr, 325, and post, 237.] 
 
 (e) Lord Montfort v. Cadogan, 17 Ves. 488, 9 ; S. C. 19 Ves. 638. 
 
 (/) Conyngham v. Conyngham, 1 Ves. 522 ; Doyle v. Blake, 2 Sch. & Lef. 231 ; 
 James v. Prearson, 1 N. C. C. 370. 
 
 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. Rice, 
 6 J. J. Marsh. 625 ; Carter v. Carter, 10 B. Monr. 327 ; Robertson v. Gaines, 2 Hump. 
 381 ; Trask v. Donoghue, 1 Aik. (Verm.) 373. Therefore, where one of several execu- 
 tors had been qualified, had delivered up, before probate, a note to be cancelled, believ- 
 ing 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 execu- 
 tors, was held to be a conclusive 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, other than an indorsement 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 executor, of the last-mentioned land, was not pre- 
 cluded from showing that the other executor had refused and neglected to act. Rose- 
 boom v. Mosher, 2 Denio, 61. 
 
 Where by statute trustees are required to give bond, the giving bond as executor only, 
 by one who is both executor and trustee under a will, is to be deemed a refusal to act 
 in the latter capacity, and another trustee may be appointed. Williams v. Cushing, 34 
 Maine, 370; Deering v. Adams, 37 Id. 265. 
 
 1 Flint v. The Clinton Comp. 12 N. H. 432 : Maccubbin v. Cromwell, 7 G. & J. 157; 
 Chaplin v. Givens, Rice, Eq. 133 ; Latimer v. Hanson, 1 Bland. 51 ; Godwin v. Yonge, 
 22 Alab. 553. 
 
 Where one of two executors obtains probate, the right of the other being reserved, 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 321 
 
 And in such a case a trustee cannot limit his acceptance and conse- 
 quent 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.(</)' 
 
 And if one of several trustees, with notice of his appointment, inter- 
 fere 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 alleging that he acted merely 
 as the factor or agent of the cestui que trust.ih) 
 
 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 direction of the ' 
 acting trustee, he will not be considered to have accepted the trust, al* 
 though he may not have executed any formal renunciation 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 disposi- 
 tion of the trust estate, as the agent of the other trustee, who had ac- 
 cepted the trust, but who was not so competent to the management 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 subsequent conduct become account- r#oi«-i 
 able as trustee and executor, and his Honor dismissed a bill as 
 against him with costs. (k) 
 
 With regard to what acts or conduct of a trustee will be held an ac- 
 
 (g) Doyle v. Blake, 2 Sch. & Lef. 231; see Read v. Truelove, Ambl. 417 ; and Urch 
 v. Walker, 3 M. & Cr. 702. [Post, 221 ; ante, 196 ;' Vanhorn v. Fonda, 5 J. C. R. 403.] 
 
 (h) Conyngham v. Conyngham, 1 Ves. 522 ; see Harrison v. Harrison, 1 P. Wms. 
 241, n. (y), 6th ed. ; S. C. 1 Wms. Exors. 151. [Chaplin v. Givens, 1 Rice Eq. 154.] 
 
 (i) Stacy v. Elph, 1 M. & K. 195 ; Lowry v. Fulton, 9 Sim. 115 ; and see Orr v. New- 
 ton, 2 Cox, 274 ; Balchen v. Scott, 2 Ves. Jun. 678. [Carter v. Carter, 10 B. Monr. 327 ; 
 Judson v. Gibbons, 5 Wend. 224.] 
 
 (k) Dove v. Everard, 1 R. & M. 231. 
 
 it enures to the benefit of both ; and on the death of the one proving the 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. 
 Rice, 6 J. J. Marsh. 625, contra ; and note to p. 214. 
 
 1 In Malzy v. Edge, 20 Jurist, 80, however, a, distinction appears to have been drawn 
 in this respect, between a devise, — where, by the operation of the will, the whole estate is 
 cast on the devisee, so as to require an express disclaimer or decree to get it out of him, 
 — and a settlement by deed, at least of personalty. There, one of several trustees of a 
 marriage settlement, who had never executed the deed, or acted in the trust, fourteen 
 years afterwards signed a memorandum on the deed, which asserted, and it was so 
 represented to him, untruly as it appeared, that the property, subject to the trusts, had 
 been invested in certain stock. It was held, that there was no acceptance so as to fix 
 him with the trusts beyond the particular stock. 
 
 21 
 
322 ACCEPTANCE OP THE OFFICE OF TRUSTEE. 
 
 ceptanoe of the trust ; it is a question of considerable nicety and one 
 ■which may still be considered as not altogether settled, -whether the exe- 
 cution of a release or conveyance of the trust estate by a trustee, made 
 with the intention of disclaiming or'refusing the trust, will or will not 
 amount to an acceptance of the trust by him. 1 
 
 This doctrine, which at first sight, may appear somewhat paradoxical, 
 was established by Lord Rosslyn in the case of Crewe v. Dicken.(Z) In 
 that case, one of two surviving trustees for sale, being unwilling to act, 
 by deed conveyed and released the estate and all his interest 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. (Z) 
 
 The point came again' before the court in the case of Nicloson.v. 
 Wordsworth, (ra) There one of three trustees being desirous of disclaim- 
 ing 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 plaintiff, who, being 
 advised that the concurrence of the trustee, who had released, was neces- 
 sary to perfect his title, filed his bill against all the three original 
 trustees for a specific performance of the contract by them, and to re- 
 strain 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 dis- 
 tinction 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 diffi- 
 culties, 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 evi- 
 dence 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 Lord- 
 ship subsequently observed, " My opinion is, that if a person, who is ap- 
 
 (Z) Crewe v. Dicken, 4 Ves. 101. (m) Nicloson v. Wordsworth, 2 Swanst, 365. 
 
 1 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 desiring to be discharged, or refus- 
 ing, 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. As 
 to ac3eptance after disclaimer, see post, 224, note. 
 
ACCEPTANCE OF THE OFFICE OF TRUSTEE. 323 
 
 pointed co-trustee by any instrument, executes no other act than a con- 
 veyance to his co-trustees, when the meaning and intent of that con- 
 veyance 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 inference that the releasor has accepted the estate shall prevent the 
 effect of it."(w) 
 
 It will be perceived on examination, that in Nicloson v. Wordsworth 
 there was no direct adjudication on the point in question. Lord Eldon 
 said, that the form of the record was such, that no judgment could then 
 *be pronounced :(o) and it appears from the report, that the de- r-^o-m 
 claration that the trustee, who had released, 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 1100Z. to the defen- 
 dant 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 became 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 
 outstanding in them, by virtue of the will, they had consented, at the 
 request of the grandson, to convey such estate to him in manner therein- 
 after mentioned." And the two devisees then, " in pursuance and perform- 
 ance 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 
 110QI., praying that the defendant, who was the survivor of the two 
 trustees named in the will, might be declared personally 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, and directed an inquiry, whether, 
 but for his wilful default, he might have received the 1100Z. legacy; 
 and that decree was affirmed on the appeal by the Lord Chancellor.^) 
 
 (»i) Nicloson v. Wordsworth, 2 Swanst. 370, 1. (o) 2 Swanst. 369. 
 
 (_p) See Lord Cottenham's observations in Urch v. Walker, 3 M. & Cr. 710. 
 (q) Urch v. Walker, 3 M. & Cr. 702. 
 
324 ACCEPTANCE OF THE OFFICE OF TRUSTEE. 
 
 His Lordship said, "The question is, whether execution of this deed was 
 not of itself an acceptance of the trusts of the will. I think it would be 
 sanctioning a gross deceit on the part of the appellant, if it were to be 
 construed otherwise, because it was for the purpose of giving effect to 
 the devise 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)(l) 
 
 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 en- 
 L J deavored to reconcile *his opinion with Lord Kosslyn'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 these particular circumstances, but rather to have rested it 
 on the general principle, that the execution of the conveyance of itself 
 amounted to an acceptance of the trust ;(t) a principle which appears to 
 have been expressly recognized and adopted by Lord Cottenham in 
 Urch v. Walker, (w) 
 
 Moreover, the dicta of Lord Eldon in Nicloson v. Wordsworth, al- 
 though entitled to the greatest possible weight as proceeding from such 
 a quarter, were certainly extrajudicial; and their authority has been 
 much shaken, if not altogether overruled, by what fell from Lord Cotten- 
 ham in the case of Urch v. Walker. (z) 
 
 On the whole, therefore, a trustee, whose object is to disclaim, cannot 
 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 to contend (al- 
 though 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 various 
 
 (r) 3 M. & Cr. T08. 
 
 (s) See 2 Swanst. SYO ; sed vide contra Adams v. Taunton, 5 Mad. 435. 
 
 (t) 4 Ves. 100. (m) 3 M. & Or. 708. 
 
 (x) See 3 M. & Cr. 110. 
 
 (1) A similar distinction as to the effect of a disclaimer or a surrender of a copyhold 
 was recognized by the Court of Common Pleas, in the recent case of Doe d. Wyatt v. 
 Hogg. 5 Bing. N. C. 5G4. 
 
ACCEPTANCE OP THE OFFICE OF TRUSTEE. 325 
 
 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 person with 
 notice of his appointment continue to receive the income arising from 
 the trust estate ;{y) or execute a power of attorney ;{z) 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 ;(c) 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, of 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 accept- 
 ance 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. (/) 
 
 *So where a person is present when the instrument is read by r!)c91 cn 
 which he is made a trustee, and makes no objection to the ap- L ■* 
 pointment ; that, though scarcely conclusive, will form a material item 
 of evidence to prove his assent to the trust, (g) 1 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.(A) It is, per- 
 haps unnecessary to remark, that where a party has once fixed himself 
 by any means with the acceptance of a trust, he cannot afterwards by 
 
 (y) Conyngham v. Conyngham, 1 Ves. 522. 
 
 (z) Harrison 'v. Graham, 1 P. Wms. 241 n. 6th edit.; S. C. 1 Wins. Exors. 151; 
 Hanbury v. Kirkland, 3 Sim. 265. 
 
 (a) Saddler v. Hobbs, 2 Bro. C. C. 114; Broadhurst v. Balguy, 1 N. C. C. 16. 
 (6) Doyle v. Blake, 2 Sch. & Lef. 231. 
 
 (c) Lord Montfort v. Lord Cadogan, J7 Ves. 487. 
 
 (d) Lord Montfort v. Lord Cadogan, 17 Ves. 489. [Penny v. Davis, 3 B. Monroe, 
 314; Pond v. Hine, 21 Conn. 519.] 
 
 (e) James v. Frearson, 1 N. C. C. 375, 7. [Shepherd v. McEvers, 4 J. C. R. 136 ; see 
 3 McLean, 67.] 
 
 (/) Dove v. Everard, 1 R. & M. 231 ; Orr v. Newton, 2 Cox, 274 ; Stacy v. Elpli, 
 1 M. & K. 195; Lowry v. Pulton, 9 Sim. 115; Balchen v. Scott, 2 Ves. Jun. 678, 
 [Ante, 215.] 
 
 (g) James v. Frearson, 1 N. C. C. 375. (A) Evans v. John, 4 Beav. 35. 
 
 1 But in Doe d. Chidgey v. Harris, 16 M. & W. 517, a trustee by will had disclaimed 
 by deed sixteen years after the testator's death. On the other hand, it was proved 
 that at the time of reading the will, he had said, " he ought to have £5 for being trust." 
 It was held that this was insufficient evidence of assent to go to a jury, the disclaimer 
 having thrown the burden of proof on those alleging it. Butler and Baker's case, 
 3 Rep. 26 a, was referred to, as showing that a verbal waiver of or disagreement- in pais 
 from a devise is insufficient. But the court, without deciding the point, seemed to doubt 
 the authority of that case on this point. 
 
326 ACCEPTANCE OF THE OFFICE OF TRUSTEE. 
 
 disclaimer renounce or repudiate the duties and responsibilities of the 
 office, (i) 1 
 
 Parol evidence of admissions and conversations are admissible against 
 a party for the purpose of proving his acceptance of a trust ;(k) 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 al- 
 leged 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.(m) 
 
 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 con- 
 clusion denied, as in the case of the execution of a release for the pur- 
 pose of disclaiming. In that case no reference is requisite, but the court 
 will itself decide on the point at once.(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 exe- 
 L ^ J cuted 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. (c)(1) 2 
 
 (i) Conyngham v. Conyngham, 1 Ves. 522 ; Read v. Truelove, Ambl. 41V ; Doyle 
 v. Blake, 5 Sch. & Lef. 231 ; Stacy v. Elph, 1 M. & K. 195. 
 
 (k) Urch v. Walker, 3 M. & Cr. 703 ; James v. Frearson, 1 N. C. C. 375. 
 (I) Doyle v. Blake, 2 Sch. & Lef. 240. 
 
 (m) James v. Frearson, 1 ! N. C. C. 377 ; see Urch v. Walker, 3 M. & Cr. 707. 
 (n) Urch v. Walker, 3 M. & Cr. 702. 
 
 (0) 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 comments 
 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 Chan- 
 cellor had merely considered him as having the dry legal estate, it is submitted, that 
 
 1 Shepherd v. McEvers, 4 J. C. R. 136 ; Cruger v. Halliday, 11 Paige, 319 j Perkins 
 v. McGavock, 3 Hey. 265 ; Jones v. Stockett, 2 Bland, 409 ; Strong v. Willis, 3 Florida, 
 124; Chaplin v. Givens, 1 Rice Eq. 133; Latimer v. Hanson, 1 Bland, 51. 
 
 2 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 presumed. Eyrick v. Hetrick, 
 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 v. 
 Baird, 3 McLean, 65. Query as to this presumption, where the trustee is ignorant of 
 the trust. See Read v. Robinson, 6 W. & S. 333. 
 
REFUSAL OF THE OFFICE OF TRUSTEE. c27 
 
 *C HAPTEN II. [*221] 
 
 OF THE REFUSAL OR DISCLAIMER OF THE OFFICE OF 
 
 TRUSTEE. 
 
 I. When a Trustee may Dis- III. The Effect of a Disclaim- 
 
 claim [221]. er [225]. 
 
 II. How he may 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, provided 
 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 
 
 (a) Ante, p. 214; Sheph. Touchst. 285, 318 ; Smith v. Wheeler, 1 Ventr. 128 ; Thom- 
 son v. Leech, 2 Ventr. 198; Hawkins v. Kemp, 3 East, 410 ; Denn v. Judge, 11 East, 
 288 ; Townson v. Tickell, 3 B. & Aid. 31. 
 
 he would have ordered him to assign or disclaim, an order which would not have neces- 
 sarily 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 presumption afforded by lapse of time, and neglect to disclaim. As- 
 suming the decision 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 pre- 
 sumed 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 pre- 
 sumed 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 determine 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 i& 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 presumption merely for the purpose of fastening a legal liability on a 
 person morally innocent. We leave the difficulty, however, to our learned readers ; re- 
 gretting 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. 
 
328 REFUSAL OP THE OFFICE OF TRUSTEE. 
 
 accepted the trust, the effect of such an acceptance is conclusive ; and 
 he cannot afterwards by renunciation or disclaimer throw off, or repu- 
 diate, the duties and responsibilities of the office. (J) 1 
 
 A disclaimer in writing has in itself no operation ; it is merely useful 
 as being the most perfect and convenient evidence of the refusal 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 inconsistent 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 trustee ; 
 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 his heirs on 
 
 certain trusts. The fine was levied ; and Richard Ellison died intestate 
 
 „ in 1774, leaving *his brother his heir at law ; the brother after- 
 T*2221 . . . . 
 
 L J wards died intestate, leaving his two daughters 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 accepted the trust, and referred to several trans- 
 actions of importance with respect to the property since the execution 
 of the deed of 1767, in which the concurrence of any person as trustee 
 
 (&) Ante, p. 219 ; Conyngham v. Conyngham, 1 Ves. 522 ; Reed v. Truelove, Ambl. 
 417 ; Doyle v. Blake, 2 Sch. & Lef. 231 ; Staeey v. Elph, 1 M. & K. 195. 
 
 (c) 5 Mart. Conv. 607, S ; see Staeey v. Elph, 1 M. & K. 199. 
 
 (d) Staeey v. Elph, 1 M. & K. 195, 9. (e) Goodson v. Ellison, 3 Russ. 583, 7. 
 
 1 Drane v. Gunter, 19 Alab. 731 ; Shepherd v. McEvers, 4 J. C. R. 136 ; Cruger v. 
 Halliday, 11 Paige, 314; Perkins v. McGavock, 3 Heyw. 265; Jones v. Stockett, 2 
 Bland, 409 ; Strong v. Willis, 3 Florida, 124; Latimer v. Hanson, 1 Bland,^l ; Chaplin 
 v. Givens, 1 Riee Eq. 133. Even a provision in a will for the appointment 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. 
 
REFUSAL OF THE OFFICE OF TRUSTEE. 329 
 
 had not been required ; 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 different parcels. His Lordship alluded in his judgment to the 
 question raised by the answer 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 repre- 
 sentative of a donee in trust may well be supported, where the original 
 donee has done no act in his lifetime to testify his acceptance of the 
 trust. Wherever such a question could arise, it would almost invariably 
 be found, that the trust estate is expressly limited to the heir or repre- 
 sentative 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 previous act of the latter. And even where there 
 are no such words of limitation of the trust estate, the estate of the heir 
 or personal representative is merely a 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 applies with equal 
 force to an heir or personal representative, as to the original donee. 1 
 
 (e) Goodson v. Ellison, 3 Russ. 583, 7. 
 
 1 But in King v. Phillips, 16 Jur. 1080, 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, devised in general terms all his 
 mortgage and trust estate to two persons, who proved his will and acted under some of 
 its trusts, but 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. 
 
330 REFUSAL OF THE OFFICE OF TRUSTEE. 
 
 [~*22TI *^ t 1S we ^ known *° nave heen long established, that an execu- 
 tor may accept the executorship of his own testator, but at the 
 same time decline that of another person, to whom his testator 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 repre- 
 sentative 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, therefore, no 
 longer competent for the heir to repudiate by a single disclaimer 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. 1 
 
 Where the subject-matter of the trust is personal estate, the probate 
 of the will of the trustee immediately vests in the executor all the testa- 
 tor's trust estates : and there does not appear to be any power for ah 
 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 possibly 
 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 entitled 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 originally 
 appointed might have done; and whether the original trustee has 
 accepted the trust or not. 
 
 Some doubt appears to have arisen in practice, as to whether the 77th 
 sect, of the Fines and Kecoveries Act (3 & 4 Will. IV, c. 74), autho- 
 rizes a, feme coverte trustee to disclaim by a deed acknowledged accord- 
 ing 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 dis- 
 claimed 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 
 
 (/) Hayton v. Wolfe, Cro. Jac. 614; Wangford v. Wangford, Freem. 521 ; 1 Wins. 
 Exors. 153. [Worth v. McAden, 1 Dev. & Batt. Eq. 199 ; Mitchell v. Adams, 1 Ired. 
 Law, 298.] {g) Co. Litt. 9, a ; 3 Cruis. Dig. 318. 
 
 ' See Act of 1855 of Pennsylvania ; Rev. Stat. Maine, tit. " Testamentary Trustees," 
 ch. Ill, § 5 ; and of New York and Virginia, &c, ante, p. 190. 
 
REFUSAL OF THE OFFICE OF TRUSTEE. 331 
 
 the word " disclaim" into the 68th sect., which corresponds with the 77th 
 sect, of the English Act.(h) 
 
 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 ;(«') 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- r*2941 
 claimer of a gift, either by deed or will, of copyholds, or lease- 
 holds, or chattels personal, would be suflicient ;{h) and authorities are 
 also to be found in favor of the validity of a parol disclaimer of a similar 
 gift of freeholds. (I) 
 
 But the expression of refusal must be unequivocal ; and must extend 
 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.(m) 
 
 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 pur- 
 chased part of the trust estate, and took a conveyance from the devisee 
 for life, and the heir of the testator, in whom 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 ; 
 
 (A) See 4 Cruis. Dig. by White, 19, u. ; 1 Id. App. 12, 13. 
 
 («) Townson v. Tiekel!, 3 B. & Al. 31 ; Stacey v. Elph, 1 M. & K. 198. [Peppercorn 
 v. Wayman, 21 Law J. Chanc. 827.] 
 
 (k) Bonifant v. Greenfield, Cro. Eliz. 80 ; Smith v. Wheeler, 1 Ventr. 128; Thomsons 
 v. Leech, 2 Ventr. 198 ; Rex v. Wilson, 5 Man. & K. 140 ; Shep. Touch. 285 and 452; 
 and see Small v. Marwood, 4 Man. & R. 190, and cases cited in note. [See as to parol 
 renunciation by an executor, Thompsons v. Meek, 7 Leigh, 419 ; Roseboom v. Mosher, 
 2 Denio, 61 ; Comm. v. Mateer, 16 S. & R. 416.] 
 
 (I) Townson v. Tickell, 3 B. & Al. 39 ; Per Holroyd, J., Doe d. Smith v. Smith, 6 B. 
 & Cr. 112 ; Shep. Touch. 452 ; Bingham v. Clanmorris, 2 Moll. 253. 
 
 (m) Doe v. Smith, 6 B. & C. 112. [See Judson v. Gibbons, 5 Wend. 224.] 
 
 (n) Stacey v. Blph, 1 M. & K. 195, 8. [Ayres v. Weed, 16 Conn. 291 ; Thornton v. 
 Winston, 4 Leigh, 152; ante, note to p. 214. May be presumed after twenty years' 
 neglect to qualify or act. Man v. Peay, 2 Murph. 85.] 
 
 (o) Stacey v. Elph, 1 M. & K. 199. 
 
332 REFUSAL OF THE OFFICE OF TRUSTEE. 
 
 because such deed is clear evidence of the disclaimer, and admits of no 
 ambiguity."^) 1 
 
 In the case of Townson v. Tickell, Qo) 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 esta- 
 blished.^) 
 
 In the same case Holroyd, J., said, that the disclaimer need not be 
 even by deed ;(g) andthat opinion, though certainly extrajudicial in the 
 particular case, seems to be well founded on principle, and is also sup- 
 ported by other authorities, implying that a refusal of a gift, testified by 
 any written instrument, or an answer in Chancery, will be sufficient, al- 
 though probably not so convenient for title.(r) 2 
 
 (o) Stacey v. Elph, 1 M. & K. 199. 
 
 lp) Townson v. Tickell, 3 B. & Aid. 31 ; Begbie v. Crook, 2 Bing. N. C. TO; and 
 see Nieloson v. Wordsworth, 2 Sw. 369 ; Adams v. Taunton, 5 Mad. 435 ; Bingham 7. 
 Clanmorris, 2 Moll. 253. 
 
 (q) Townson v. Tickell, ubi supra. [See Doe v. Harris, 16 M. & W. 517, 520. But 
 see Butler and Baker's case, 3 Rep. 26 (a) ; Re Ellison's Trusts, 20 Jurist, 62.] 
 
 {r) 5 Mart. Conv. 608 ; Stacey v. Elph, 1 M. & K. 198 ; Miles v. Neaves, 1 Cox, 159 ; 
 Sherratt v. Bentley, 1 R. & M. 655 ; Norway v. Norway, 2 M. & K. 278 ; Bray v. West, 
 9 Sim. 429. 
 
 1 In Judson v. Gibbons, 5 Wend. 224, it was held, that a trustee might execute at 
 any time, though there had been a previous refusal. Otherwise, if he has released or 
 executed a deed of disclaimer. Matter of Schoonhoven, 5 Paige, 559. And see Mac- 
 cubbin v. Cromwell, 7 Gr. & J. 165. In Pond v. Hine, 21 Conn. 525, it was held, that 
 a trustee refusing to accept, except on terms, might afterwards accept, unless his pre- 
 vious conduct, by producing an alteration in the condition of the parties, amounted to 
 an estoppel. In the case of an executor, indeed, even a formal renunciation will not 
 in general prevent his subsequent acceptance of the office, so long as the chain of ex- 
 ecutorship has not been broken by the grant of administration ; Harrison v. Harrison, 
 2 Rob. Eccl. 406 ; Venables v. East India Co., 2 Exch. 648 ; Wood v. Sparks, 1 Dev. 
 & Batt. 396 ; Robertson v. McGeoeh, 11 Paige, 643; even in those States, where, by 
 statute, executors are required to give bond within a fixed period. Perry v. De Wolf, 
 2 Rh. Isl. 103 ; Taylor v. Tibbatts, 13 B. Monr. 184. 
 
 2 In re Ellison's Trusts, 20 Jurist, 62, however, where trustees attempted to disclaim 
 upon a petition, Sir W. P. Wood directed a formal deed of disclaimer to be executed. 
 He drew a distinction between a disclaimer on a bill filed, which was of record, and on 
 petition, which was only in parol, and doubted whether a, parol disclaimer would be 
 good. See, however, the distinction stated between trusts created by deed and by will 
 in this respect, by Sir J. Stuart, in Malzy v. Edge, 20 Jur. 83. "A testator," he said, 
 " who by will devises his estates to a person named in the will, casts the estate on that 
 person in such a way, as that the estate cannot be got out of him without a disclaimer 
 or a decree of some court, or without some positive act: it must remain in the party 
 upon whom it is cast." See ante, p. 215, note. It is worthy of notice, perhaps, that in 
 the decisions on this subject, the distinction between cases on conveyances under the 
 Statute of Uses, and those on feoffment and other common law conveyances, such as 
 Butler and Baker's case, 3 Rep. 26 (a), has not always been attended to. In the latter 
 class, livery of seisin, besides presupposing the presence of the grantee, or some one 
 
REFUSAL OF THE OFFICE OF TRUSTEE. 333 
 
 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 advised to 
 trust to the sufficiency of a verbal refusal, or even to one contained in a 
 simple writing ; but the disclaimer should be made by deed under his 
 hand and seal, and as soon as possible after the appointment is made 
 known to him ; and the most advisable form of such an instrument is a 
 deed poll, and not an indenture between the disclaiming party r*9osn 
 and his co-trustees or cestui que trusts, to preclude any question 
 as to the instrument's operating as a conveyancers) 
 
 The greatest care, moreover, should be taken in the framing and word- 
 ing 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 with the accept- 
 ance 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 arfer 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 ;(t) it should witness, that he had and thereby did abso- 
 lutely 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 
 
 (s) 3 Jarm. Byth. Conv. 704, 3d edit. (t) See Urch v. Walker, 3 M. & Cr. 709. 
 
 acting for him, and in so far implying an acceptance, operates ex necessitate to divest 
 the grantor of the estate. It was, therefore, very properly held in this view by the old 
 authorities, that the estate being in the grantee, could only be got out of 'him, by a dis- 
 claimer of record, or a deed of at least equal solemnity with that which invested him. 
 with the title. But doctrines thus originating would seem to be wholly inapplicable to the 
 former class of conveyances, with respect to which neither is the actual co-operation of 
 the grantee necessary, nor is there any controlling efficacy in the deed itself to override 
 the intention of the parties. It might, therefore, be very well argued that at the present 
 day, it would be good law, as it undoubtedly is good sense, to hold the acceptance or 
 refusal of a trust by deed to be a mere question of fact, determinable upon the circum- 
 stances of each case, and the presumptions to which they give rise. To throw upon a 
 person nominated trustee without his consent, the expense of a deed of disclaimer, 
 hedged in by technical refinements, as the text shows it to be, or to fix him with the 
 stringent liabilities of the office, by reason of acts ignorantly or innocently performed, 
 appears to be contrary to the plainest principles of justice. At least, notice ought in 
 every case to be established in the first instance. With regard to devises, there is, in- 
 deed, the difficulty that under the Statute of Wills, they are treated as feoffments, and 
 the inheritance is out of the heir. But there is no reason why the analogies of the 
 present system of conveyancing, instead of that of the common law, should not be 
 applied to them now, especially under the language of the statutes in force in this 
 country; and as to the disposal of the inheritance before acceptance, it can as well re- 
 main in the heir, as in the case of an executory devise, or one to a child en ventre sa mere. 
 
ft 
 
 334 REFUSAL OF THE OFFICE OF TRUSTEE. 
 
 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 some- 
 times 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. (u) 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 foundation 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 disclaimer.^) 
 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.(z) 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 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 ;{b) and if 
 r ofin the *person disclaiming be one of two or more trustees, the entire 
 *• -^ estate is vested in the other trustee or trustees. (e) 1 
 
 Whenever the disclaimer may be made, if it be valid at all, it will 
 
 (m) Nicloson v. Wordsworth, 2 Swanst. 3T2. 
 
 (x) Stacey v. Elph, 1 M. & K. 195 ; see 5 Mart. Conv. 608. 
 
 (y) Re Needham, 1 Jones & Lat. 34. 
 
 (z) Re Uniacke, 1 Jones & Lat. 1. [See ante, p. 219.] 
 
 (a) Smith v. Wheeler, 1 Ventr. 128; Townson v. Tickell, 3 B. & Aid. 31 ; Hawkins 
 v. Kemp, 3 Bast, 410 ; Begbie v. Crook, 2 Bingh. N. C. 70. 
 
 (6) Stacey v. Elph, 1 M. & K. 195, 9. 
 
 (c) Bonifant v. Greenfield, Cro. Eliz. 80 ; Smith v. Wheeler, 1 Ventr. 128 ; Thomson 
 v. Leach, 2 Ventr. 198 ; Hawkins v. Kemp, 3 East, 410 ; Denn v. Judge, 11 East, 288; 
 Townson v. Tickell, 3 B. & Aid. 31 ; Begbie v. Crook, 2 Bingh. N. C. 70. 
 
 1 King v. Donnelly, 5 Paige, 46 ; Trask v. Donoghue, 1 Aik. 370 ; Putnam Free 
 School v. Fisher, 30 Maine, 523 ; Jones v. Maffet, 5 S. & R. 523 ; Taylor v. Galloway, 
 1 Hamm. 232 ; Corlies v. Little, 2 Green, 373 ; Brunner v. Storm, 1 Sandf. Ch. 357; 
 see Smith v. Shackelford, 9 Dana, 452 ; Leavens v. Butler, 8 Porter, 380. 
 
REFUSAL OF THE OFFICE OF TRUSTEE. 335 
 
 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 trustee. (d) 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 re- 
 quisite for the administration of the trust. Therefore, 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. (g) 
 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) 
 
 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 of the purchase-money, al- 
 though he may have attempted to disclaim, and has released his estate 
 to his co-trustees. (k) 
 
 It is no objection to a disclaimer in the case of copyholds, that it was 
 made to defeat the lord's rights to fines.(Z) 
 
 Powers, however, that imply a personal confidence in the donees, can 
 only be exercised by the person 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. 1 
 
 (d) Stacey v. Elph, 1 M. & K. 195 ; 5 Mart. Conv. 608. [Even after sale by acting 
 trustees. Peppercorn v. Wayman, 21 Law J. Chanc. 827.] 
 
 (e) Small v. Marwood, 9 B. & Cr. 307. 
 
 If) Cooke v. Crawford, 11 Law Journ. N. S. Chanc. 406; [13 Sim. 91;] Crewe 
 v. Dicken, 4 Ves. 97. 100 ; Nicloson v. Wordsworth, 2 Sw. 375 ; Adams v. Taunton, 5 
 Mad. 435. 
 
 (g) Smith v. Wheeler, 1 Ventr. 128 ; Hawkins v. Kemp, 3 East, 410 ; 2 Sugd. V. & 
 P. 51. 
 
 (h) Crewe v. Dicken, 4 Ves. 100 ; Adams v. Taunton, 5 Mad. 435. 
 
 (i) Sharp v. Sharp, 2 B. & A. 405. [Peppercorn v. Wayman, 21 Law J. Chanc. 827.] 
 - (£) Crewe v. Dicken, 4 Ves. 97 ; 2 Sugd. V. & P. 50, 1. 
 
 (1) Rex v. Wilson, 10 B. k Cr. 80. 
 
 (to) Vide supra, 211 ; et post, Part III, Div. I, Ch. II, sect. 3. 
 
 1 Upon this subject see notes, post, 486, 473 ; 4 Kent Comm. 326. In Lancashire 
 v. Lancashire, 2 Phill. 657, a trustee of a will, who had formerly renounced by a deed, 
 
336 REFUSAL OF TUB OFFICE OF TRUSTEE. 
 
 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 might change, and 
 L J that he would behave and demean himself with affection to his 
 brothers and sisters, and with respect towards his (the testator's) execu- 
 tors 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 authority 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 renounced, 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. R., that the acting trustee had executed 
 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. (n) 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 in- 
 tended."^) 
 
 Where a power is given to persons expressly by name in their indivi- 
 dual character, and not as trustee, it can only be exercised by the 
 persons to whom it is given, and will therefore fail on the disclaimers of 
 any one of them ; unless that event be provided for by the terms of the 
 power, (p) 
 
 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 
 
 (n) Eaton v. Smith, 2 Beav. 236 ; vide post Discretionary Powers, 481, &c. 
 
 (o) 2 B. & A. 405. 
 
 {p) 1 Sugd. Pow. 139, &c. 
 
 (q) Ante, p. 224, and note. [Judson v. Gibbons, 5 Wend. 224.] 
 
 which purported, but ineffectually, to appoint a successor, being applied to, eleven years 
 after, to join with his original co-trustee iu a deed purporting to be an exercise of dis- 
 cretionary 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 cir- 
 cumstances stated, could be regarded 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. 
 
REFUSAL OF THE OFFICE OF TRUSTEE. 337 
 
 deed, the party who executes it would be estopped from claiming the 
 estate, 
 
 In one case, however, where a trustee had disclaimed by his answer 
 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 
 truster) 1 
 
 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 purpose* 
 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.^) 
 
 But a person who has been named in an instrument as a trustee, and 
 has not actually disclaimed, will be properly made a defendant to such 
 a suit.(i) And if he then disclaim by his answer, and the bill is dis- 
 missed 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 y. Bentley,(w) indeed, Sir J. Leach, M. R., gave a defendant 
 under *such circumstances his costs, as between solicitor and r^noo-i 
 client. But in a subsequent case, where Sherrat v. Bentley was 
 cited, the same learned Judge laid it down as the general rule, that a 
 person named trustee, who declines to accept the office, is in the situation 
 of any other defendant, against whom a bill is dismissed, and therefore 
 could only have the ordinary costs as between party and party. (x) And 
 this last decision was afterwards acted upon by Sir L. Shadwell, V. C, 
 where the plaintiffs, 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, (y) 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 defen- 
 dant 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. (2) 
 
 (r) Miles v. Neaves, 1 Cox, 159. (s) Richardson v. Hulbert, 3 Anstr. 68. 
 
 (t) See Norway v. Norway, ubi supra ; Bray v. West, 9 Sim. 429. 
 
 (u) 1 R. & M. 655. 
 
 (x) Norway v. Norway, 2 M. & K. 278. [Bulkeley v. Earl Eglinton, 19 Jurist, 99-i.] 
 
 (y) Bray v. West, 9 Sim. 429 ; see 3 Dan. Ch. Pr. 77. 
 
 (z) See Williams v. Longfellow, 3 Atk. 582. 
 
 1 See ante, 224, note (s.) 
 22 
 
[*229] *PART II. 
 
 OF THE ESTATE OF TRUSTEES. 
 
 OF THE NATURE, EXTENT, AND LEGAL PROPERTIES OF 
 THE ESTATE OF TRUSTEES ; AND OF ITS DISPOSITION 
 AND LEGAL DEVOLUTION. 
 
 CHAPTER I. 
 
 OF THE NATURE OR QUALITY OF THE ESTATE OF TRUSTEES; 
 AND THEREIN WHERE THEY TAKE THE LEGAL ESTATE. 
 
 I. Where the Trust Propertt II. Where it consists or Personal 
 consists or Real Estate 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 be real or personal ; and the nature and quality of that 
 estate will, in general, depend upon the limitations contained in the in- 
 strument under which he takes. However, notwithstanding 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 beneficial 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 exe- 
 cuted by the statute in a cestui que use on a conveyance or devise to 
 uses, but will vest in the donee to uses, as a trustee for the cestui que 
 use, or cestui que trust, as it would have done before the statute.(a) 1 
 
 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 
 
 (a) Ante, Part I, Div. I, Chap. II, Sect. 1, page 63. 
 
 1 The intent of the statute, it was said in Vander Volgen v. Yates, 3 Barb. Ch. 243, 
 is 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 duration ; and, there- 
 fore, 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.' 
 
OF THE LEGAL ESTATE IN TRUSTEES. 339 
 
 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 requisite that he should take rsH9 oA-i 
 the legal estate.(J) 1 *- J 
 
 (6) Ibid. Co. Litt. 272 a, Butl. note VIII; Ibid. 290 b, n. II; Cruis. Dig. tit. 12, 
 ch. 1, s. 4. [Ramsey v. Marsh, 2 McCord, 252 ; Norton v. Leonard, 12 Pick. 157 ; 
 McNish v. Guerard, 4 Strob. Bq. 74.] 
 
 1 The Statute of Uses is in force in many of the United States. See 4 Kent's Comm. 
 299 ; French v. French, 3 N. H. 239 ; Marshall v. Fisk, 6 Mass. 31 ; Norton v. Leo- 
 n'ard, 12 Pick. 156; Bryan v. Bradley, 16 Conn. 474; 3 Binn. App. 619 ; Ramsey v. 
 Marsh, 2 McCord, 252 ; West v. Biscoe, 6 H. & J. 465 ; Webster v. Cooper, 14 How. 
 U. S. 499. 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 Lomax Dig. 188; and consequently 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 substantially the same words. 
 The Revised Code of Delaware (1852), 266, provides generally that lands may be trans- 
 ferred 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 ; Williams v. Presbyterian Church, 1 Ohio St. N. S. 
 497. 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. In New York, 1 
 Rev. St. 728, and in Wisconsin, Rev. St. p. 318, uses and trusts are abolished, except 
 so far as is therein expressly provided. The effect of those provisions is to put an end 
 to all passive, and to convert most active trusts into powers, if lawful as such, unless in 
 certain cases where the legal estate and actual possession is required for the purposes of 
 the trust. These statutes, and the decisions under them, will be found collected and 
 considered, in 4 Kent Comm.' 294 ; 1 Hilliard R. Prop. 359. It has recently been held 
 in New York, however, that where, on a conveyance in fee to one in trust for the use 
 of another, the trustee gives a mortgage for the purchase-money, the cestui que trust, 
 though he takes the legal estate at once by force of the Revised Statutes, yet holds it 
 subject to the mortgage. Rawson v. Lampman, 1 Selden, 456. 
 
 There is a very marked difference in this country as regards the effects of convey- 
 ances 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 regulations, 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 ex- 
 pressly abolished : Wisconsin, Delaware, Texas, Ohio, North Carolina, and other States. 
 See Thornton on Conveyancing, sub. cap. In Pennsylvania, by the Act of 1715 (Dunlop, 
 Dig. 72), all deeds and conveyances, 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. 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 
 
340 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 The first two of these rules originated in a strict and technical con- 
 struction 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 be 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 1 or other mode of assurance 1 
 to A. and his heirs to the use of B. and his heirs to the use of 0. and 
 his heirs(cZ) — 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 
 heir3 to the use of B. and his heirs, in trust to permit 0. and D. to re- 
 ceive the rents ;(/) — in all these cases it has been held, that the statute 
 executes the first use in B. and his heirs, and that the legal estate is 
 vested in him as a trustee for the parties, to whom the beneficial interest 
 
 (c) Tyrrell's case, Dyer, 155, a; 1 Cruis.Dig. tit. 12,Ch. l,s.4tol4; 1 Pow. Dev. 220. 
 
 (d) 2B1. Com. 336. 
 
 (e) Whetstone v. Bury, 2 P. Wins. 146 ; Wagstaff v. Wagstaff, Id. 258 ; Doe v. Pas- 
 singhara, 6 B. & Cr. 305. 
 
 (/) Att.-Gen. v. Scott, Forrest, 138. [See Jones v. Bush, 4 Harr. (Del.) 1.] 
 
 bargain and sale if there were a valuable consideration, 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 v. 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. 15V), 
 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, Wisconsin, and Indiana, from the language of their Acts, it cannot be considered 
 as any longer applicable, it was referred to in Ramsey v. Marsh, 2 McCord, 252 ; 
 Calvert's Lessee v. Eden, 2 Harris & McHenry, 331 ; Jackson v. Myers, 3 John. E. 
 396 ; Jackson v. Cary, 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 
 formalities, equivalent to feoffments, it is conceived that so deeply-rooted a rule of con- 
 veyancing as the one stated ought not to be deemed abolished in the absence of an 
 express provision to that effect. Indeed, to do so, would be to destroy all passive trusts 
 created in the conveyance of land ; and this can be hardly supposed to have been in 
 the intention of the various legislatures. 
 
 In a very recent case, the Supreme Court of Pennsylvania has apparently cut up by 
 the root the English doctrines with respect to the subject of the text. Kuhn v. Newman, 
 13 Legal Intelligencer, 260. The effect of that decision is to convert equitable into 
 legal estates, except in the case of active trust, and even then, when the purposes of the 
 trust " do not furnish a legitimate reason for preserving it from being executed in the 
 beneficiary." Such a reason was not found to exist in the case of a trust for the main- 
 tenance and education of minors, and it was therefore declared to be void as such. 
 This is contrary to what was hitherto supposed to be the settled law of that State. 
 
 1 So of a lease and release. Hurst's Lessee v. McNeil, 1 Wash. C. C. R. 70 ; Durant 
 v. Ritchie, 4 Mason, 65 ; Williams v. Waters, 14 M. & W. 166. 
 
OF THE LEGAL ESTATE IN TKUSTEES. 341 
 
 is given. 1 And in the case of a devise the rule of construction is the 
 same ;(g) for it is settled, on principle and authority, that the Statute pf 
 Uses applies to uses created 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 
 B. 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 instances 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 re- 
 solved 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) 2 
 
 These two principles of construction, however narrow and technical, 
 are now so well established, and so universally recognized and under- 
 stood, that *at the present day a question can rarely arise, as to r^nq-i-i 
 whether a trustee in any of those cases does, or does not take the 
 legal estate in land under a conveyance or devise. We shall see pre- 
 sently, however, that there may be considerable difliculty 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 
 
 (g) Jones v. Lord Saye and Sele, 1 Eq. Ca. Abr. 383 ; Hopkins v. Hopkins, 1 Atk. 
 581 ; Marwood v. Darell, Ca. Temp. Hard. 91 ; 1 Pow. Dev. 220. 
 
 (£) 1 Sugd. Pow. 172, 7th edit. ; see Co. Litt. 271, b. Butl. note ; 1 Sand. Us. 195 ; 2 
 Fonbl. Tr. Eq. 24, n. c. ; 1 Pow. Dev. 209. [Ramsay v. Marsh, 2 McCord, 252.] 
 
 (i) Gilb. Uses, 67, 347, n.; 1 Cruis. Dig. tit. 12, Ch. 1, s. 9 ; 1 Sugd. Pow. 10, 240, 
 6th edit. [See Jackson v. Cary, 16 John. 304.] 
 
 (A) Gilb. Ten. 182 ; Gilb. Us. 67, n. ; Cowp. E. 709 ; Dyer, 369, a ; Bac. Read. 42 ; 
 1 Cruis. Dig. tit. 11, Ch. 3, s. 22, and tit. 12, Ch. 1 ; Pow. Dev. 232 ; 1 Sugd. Pow. 10. 
 
 1 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 ; s&e, however, post, 232, note. 
 
 2 Rice v. Burnett, 1 Spear's Eq. 579 ; Pyron v. 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 Lorn. Dig. 196. 
 
342 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 to vest in the donee to uses, in order to enable him to perform the duties 
 with which he is intrusted ; and it was established at a very early period, 
 and has since been generally acted upon.(Z) 1 
 
 Thus where there is a conveyance, (ra) or devise,(ra) 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)(l) And this construction will 
 not be affected by the existence of a power given to one of the benefi- 
 cial tenants for life, to control the sale of part of the estate by the trus- 
 tees, (p) 
 
 (I) Fearne's Op. 422 ; 1 Cruis. Dig. tit. 12, Ch. 1, s. 14, 25. 
 
 (m) Keene v. Deardon, 8 Bast, 248. [Chamberlain v. Thompson, 10 Conn. 244.] 
 
 (ra) Bagshawe v. Spencer, 1 Ves. 142. 
 
 (0) Bagshawe v. Speneer, 1 Ves. 142 ; Keene v. Deardon, 8 Bast, 248 ; Fearne's Op. 
 422 ; Sandford v. Irby, 3 B. & Al. 654; 1 Cruis. Dig. tit 12, Ch. 1, s. 21 ; 1 Pow. Dev. 
 221, n. 7 ; but see Popham v. Bampfield, 1 Vern. 79. 
 
 (p) Wykham v. Wykham, 18 Ves. 395, 413. 
 
 (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 ex- 
 pressly to have admitted the legal title of A. The decision, therefore, cannot be re- 
 garded as a binding authority on that point. Popham v. Bampfield, 1 Vern. 79. 
 
 1 This rule has been generally adopted in America. Brewster v. Striker, 2 Comst. 
 19; Norton v. Leonard, 12 Pick. 157; Morton v. Barrett, 22 Maine, 261; Porter v. 
 Doby, 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 ; McGaw v. Galbraith, 7 Rich. L. 74. But see Kuhn v. 
 Newman, 13 Leg. Int. 260, stated in note to page 230, supra. In Massachusetts, 
 however, before the vesting of Chancery powers in the Supreme Court, it was said, 
 upon principles of public policy in that State, 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. On a devise of a farm, 
 slaves, and other property, to a trustee in trust for H., a widow, for life, remainder to 
 her children living at her death, the trustee being directed so to use and conduct the 
 property devised, as to be most advantageous to the interest and support of said H. and 
 her children, during her lifetime, the trustee takes the legal estate. Nickell v. Handly, 
 10 Gratt. 336. But where a tract of land was conveyed to a father in fee to have and 
 to hold in trust for his children then alive and named in the deed, and snch other chil- 
 dren 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 afterborn children. McNish v. Guerard, 4 Strobh. Eq. 66 ; S. P., see Smith v. 
 Thompson, 2 Swan, 386 ; Aiken v. Smith, 1 Sneed, 304. 
 
OP THE LEGAL ESTATE IN TRUSTEES. 343 
 
 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 trus- 
 tees will, notwithstanding, take the legal estate instanter, independently 
 of the fact of its eventual applicability. (q) 
 
 However, it is otherwise where the charge of debts, &c, on the real 
 estate is expressly contingent upon the insufficiency of the personalty, 
 or on the deficiency of any particular fund, which is designated for the 
 payment in the first instance ; for in that case the trustees 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 expressly directed 
 to pay them, or the will contains some other indication of an intention 
 to create a positive trust for the purpose, (s) 
 
 For instance, where a testator, as to his real and personal estate, sub- 
 ject to his debts, legacies, and funeral expenses, devised the same unto 
 M. and W. and their heirs, upon trust, and to and for the several uses, 
 &c, *following, that is to say, to the intent that they (the trus- r*oqo-| 
 tees) should in the first place apply his personal estate in dis- 
 charge 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 executed in R. P. for his life. 
 Lord Alvanley said, unless it appeared manifestly that the testator in- 
 tended that the trustees should be active in paying the debts, the legal 
 estate would not vest in them ; and although his Lordship admitted that 
 it would be much more convenient that the trustees should take the legal 
 estate, yet he held, that as there was no such apparent intention on the 
 face of the will, the court could not from an argument ab inconvenienti 
 construe the testator to have said, what he in fact had not said.(f) 
 
 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 they should 
 take the legal estate. («) And, as we shall see presently, the legal fee 
 will vest in the trustees by virtue of such a trust. (a;) 
 
 However, if a mere power of leasing be given to the trustees, a good 
 legal term may be created by the exercise of that power, and the legal 
 
 (q) Murthwaite v. Jenkinson, 2 B. & Cr. 357 ; 1 Jarm. Pow. Dev. 224, a. ; see Wyk- 
 ham v. Wykham, 18 Ves. 395 ; see 413, 14. 
 
 (r) Goodtitle v. Knott, Coop. 43 ; Hawker v. Hawker, 3 B. & Aid. 537 ; 1 Jarm. Pow. 
 Dev. 224, n. ; but see Gibson v. Lord Montfort, 1 Ves. 485. 
 
 (s) 1 Jarm. Pow. Dev. 224, ... [Doe v. Claridge, 6 C. B. 659.] 
 
 (t) Kenrick v. Lord Beauclerk, 3 B. & P. 178 ; Doe d. Cadogan v. Ewart, 1 Ad. & 
 Ell. 636, 668. [See on this subject, post, 355, note.] 
 
 (w) Doe d. Tompkius v. Willan, 2 B. & Aid. 84 ; Doe d. Keen v. Walbank, 2 B. & 
 Aid. 554. [Osgood v. Franklin, 2 J. C. R. 20 ; Brewster v. Striker, 2 Comst. 19 ; Burr 
 v. Sim, 1 Whart. 266.] {x) See next chapter. 
 
j44 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 estate will not vest in them unless the general construction in other re- 
 spects require it.(sz) 1 
 
 So where there is a gift of real estate to trustees, with a direction to 
 convey,(z) or to pay the rents and profits to certain persons ;(a) or to 
 receive the rents, and apply them for the maintenance of an individual 
 during his life ;(b) or to pay an annuity out of the rents to a person for 
 life ;(e) 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 possession of the legal estate is requisite 
 for the due performance of the duty imposed on the trustees, and con- 
 sequently, 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 will be limited to the continuance of the duties which 
 they are required 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 legal estate.(/) 2 
 
 (y) Doe d. White v. Simpson, 5 Bast, 162 ; Doe d. Tompkins v. Willan, 2 B. & Aid. 84. 
 
 (z) Garth v. Baldwin, 2 Ves. 645 ; 1 Pow. Dev. 222; Mott v. Buxton, 7 Ves. 201; 
 Doe d. Shelley v. Edliu, 4 Ad. & Ell. 582. 
 
 (a) Symson v. Turner, 1 Eq. Ca. Abr. 383, u. ; Garth v. Baldwin, 2 Ves. 645; Robin- 
 son v. Grey, 9 East, 1 ; Doe d. Leicester v. Biggs, 2 Taunt. 109 ; Bro. Abr. tit. Feoff- 
 ment al Use, 52. [Ramsay v. Marsh. 2 McCord, 252 ; Wood V. Wood, 5 Paige, 596 ; 
 Vail v. Vail, 4 Id. 317 ; 2 Comst. 33 ; Barker v. Greenwood, 4 M. & W. 421.] 
 
 (6) Sylvester v. Wilson, 2 T. R. 444 ; see Doe d. Hallen v. Ironmonger, 3 East, 533. 
 
 (c) Chapman v. Blisset, Forr. 145 ; S. C. Ca. Temp. Talbot, 145 ; Jones v. Lord 
 Saye and Sele, 1 Eq. Ca. Abr. 383 ; Naylor v. Arnitt, 1 R. & M. 501 ; Curtis v. Price, 
 12 Ves. 89 ; Doe d Cadogan v. Ewart, 7 Ad. & Ell. 636, 668. 
 
 (d) Shepland v. Smith, 1 Bro. C. C. 74 : see Brown v. Ramsden, 3 Moore, 612 ; Tierny 
 d. Gibbs v. Moody, 3 Bing. 3. (e) See next chapter. 
 
 (/) Nevill v. Saunders, 1 Vern. 415 ; South v. Alleyne, 5 Mod. 63, 101 ; Lord Saye 
 and Sele v. Jones, 1 Eq. Ca. Abr. 383 ; S. C. 3 Bro. P. C. 113 ; Bush v. Allen, 5 Mod. 
 63 ; Robinson v. Grey, 9 East, 1 ; Hawkins v. Luscombe, 2 Sw. 375, 91. Ante, 230. 
 
 ' In Brewster v. Striker, 2 Comstock, 19, however, a testator had devised his estate 
 to his three grandchildren and their heirs forever. 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 any time 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, issues, and profits of the same shall 
 be annually paid to my said heirs in equal proportions, and if either of my children 
 should choose to occupy any part of my said estate, he, she, or they shall have a pre- 
 ference over any other applicant, on paying a reasonable rent for the same." The 
 Court of Appeals (Judge Johnson dissenting) held that the executors took the legal 
 estate by implication. A similar conclusion was arrived at in Burr v. Sim, 1 Whart. 
 252, where there was an absolute direction to executors to sell, and in the same clause, 
 the testator added, " and my will is, that my houses be rented out until the same shall 
 be so sold as aforesaid." But see Doe v. Cafe, stated post, 242. 
 
 2 McNish v. Guerard, 4 Strobh. Eq. 75 ; Bass v. Scott, 2 Leigh, 356 ; Franciscus v. 
 Reigart, 4 Watts, 109 ; Rogers v. Ludlow, 3 Sandf. Ch. 104; Escheater, &c. v. Smith, 
 
OF THE LEGAL ESTATE IN TRUSTEES. 345 
 
 *The cases, however, have established a very material distinc- r*oqq-i 
 tion, where the direction to the trustees is, not to pay over the 
 rents and profits to another person, hut to permit and suffer him to re- 
 ceive them. In the former case the trustees must necessarily receive the 
 rents, and they will take the legal estate for that purpose ; but in the 
 latter case no such receipt by the trustees is requisite ; and the legal 
 estate will be vested by the statute in the person who is to receive the 
 rents.(^) 1 
 
 In the early case of Burchett v. Durdand,(A) this distinction was 
 denied ; but the decision in that case was afterwards expressly overruled, 
 and the rule of construction as stated above has ever since been recog- 
 nized and acted upon as law, although on one occasion, Sir James Mans- 
 field, while yielding to the weight and current of the authorities, strongly 
 questioned the soundness and propriety of the distinction. (i) 
 
 Where both expressions are used, and the direction to the trustees is 
 in the alternative " to fay 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 u to pay to him," it has been held, that the last 
 expression controlled the effect of the previous direction "to pay," and 
 
 (g) Broughton v. Langley, 2 Ld. Raym. 873 ; S. C. Salk. 679 ; Doe d. Leicester v. 
 Biggs, 2 Taunt. 109 ; Bight d. Phillips v. Smith, 12 East, 455 ; Gregory v. Henderson, 
 4 Taunt. 772. [See Parks v. Parks, 9 Paige, 107 ; Ramsay v. Marsh, 2 McCord, 252 ; 
 Barker v. Greenwood, 4 M. & W. 429.] (h) 2 Ventr. 312. 
 
 (i) In Doe d. Leicester v. Biggs, 2 Taunt. 109. 
 
 4 McCord, 452 ; Ayer v. Ayer, 16 Pick. 327. In Williman v. Holmes, 4 Rich. Eq. 475, 
 a trust "for the sole and separate use, benefit, and behoof of a feme covert for life," with 
 remainder to her children, was held to give the legal estate to the trustees for the life of the 
 feme. And in Ware v. Richardson, 3 Maryl. R. 505 ; 2 Am. L. Reg. 485, it was said, that 
 in the case of devises and conveyances for the separate use of femes covert, the court 
 would, if possible, construe them so as to produce this effect. It was accordingly there 
 held on a deed in trust, that a married woman :! shall and may, during her life, have, 
 hold, use, occupy, and enjoy," the estate conveyed, " and the rents, issues, and profits 
 thereof," "to her own proper use and benefit, notwithstanding her coverture, and that 
 without the let, &c, of her present or any future husband ;" or being liable for his 
 debts, " as fully in every respect as if she were sole and unmarried," that the trust was 
 not executed, for otherwise the intention to exclude the husband would be defeated. 
 But in Williams v. Waters, 14 M. & W. 166, on a conveyance by a woman by way of 
 marriage settlement to a trustee, in trust Sov herself for life, for her own sole and sepa- 
 rate use, &c, remainder to the use of her heirs, it was held, that the legal estate never- 
 theless vested in the feme, and that she took a fee. See, however, the remarks on this 
 case in Ware v. Richardson, ut supr. So it has been held that on a conveyance to A. 
 and his heirs, " in trust for the use of B. (a married woman) and her heirs," with power 
 of disposal in B. by will, B. takes an estate in fee. Moore v. Shultz, 13 Penn. St. 98. 
 1 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. 
 
346 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 carried the legal estate to A., to the exclusion of the trustees.^) 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 op- 
 tion.^) 
 
 However, notwithstanding a direction in a will for the trustees to per- 
 mit and suffer another person to receive the rents, yet if any additional 
 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 trus- 
 tees, to enable them to perform the trust. (m) 1 
 
 Therefore, where a testator devised his freehold and copyhold estate 
 to his executors thereinafter named and their heirs, executors, and ad- 
 ministrators, for and during the life of his son to the intent to support the 
 contingent remainders after limited, but in trust nevertheless 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 de- 
 vised 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 purpose of preserving the contingent re- 
 mainders, (n) 
 
 And so where a controlling power is given to the trustees ; as where 
 r*934.1 * tnere was a trust to permit and suffer a woman to receive the 
 rents, but a direction was added, that her receipts, with the ap- 
 probation 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 permit 
 and suffer a feme covert 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 covert the exclusive beneficial in- 
 terest. For, as was said by Lord Kenyon, if the legal estate vested in 
 
 {k) Doe d. Leicester v. Biggs, 2 Taunt. 109 ; 1 Jarm. Pow. Dev. 222, u.; and see 
 Pybus v. Smith, 3 Bro. C. C. 340. (1) 1 Jarm. Pow. Dev. 222, n. 
 
 (m) Fearne's Op. 422 ; 1 Cruis. Dig. tit. 12, ch. 1, s. 25 ; 1 Jarm. Pow. Dev. 222, n.; 
 Keene v. Deardon, 8 Bast, 248. 
 
 (n) Biscoe v. Perkins, 1 V. & B. 485, 9 ; [See Vanderheyden v. Crandall, 2 Demo, 
 9 ; Barker v. Greenwood, 4 M. & W. 421 ; Webster v. Cooper, 14 How. U. S. 499.] 
 
 (o) Gregory v. Henderson, 4 Taunt. 772 [cited with approbation in Barker v. Green- 
 wood, 4 M. & W. 430, and see New Parish v. Odiorne, 1 N. H. 232] ; but see Brough- 
 ton v. Langley, 2 Ld. Raym. 873 ; Salk. 679 ; 1 Pow. Dev. 216, 7. 
 
 1 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. 
 573, where the same effect was given to the word " clear.'' 
 
01" THE LEGAL ESTATE IN TRUSTEES. 347 
 
 the married woman, the husband would be entitled to receive the profits, 
 and so defeat the object of the devisor.(p) 1 
 
 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 annuities, 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 beneficial 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, (q) 
 
 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 de- 
 pend upon the intention of the devisor, as collected from the will.(r) 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 suffered to extend that operation in contravention 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 cir- 
 cumstances 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 in- 
 tention may be collected. 2 
 
 Thus, where a testator gave to his wife 200?. per annum in addition to 
 her jointure, and, his just debts being previously paid, he gave unto his 
 younger children 6000Z. each, to be paid when they severally reached 
 
 (p) Harton v. Harton, 7 T. R. 652 [see the remarks on this case in 14 M. & W. 172] ; 
 and see Hawkins v. Luscombe, 2 Sw. 391 ; Bush v. Allen, 5 Mod. 63 ; Neville v. Saun- 
 ders, 1 Vern. 415. [McNish v. Guerard, 4 Strob. Eq. 75 ; Bass v. Scott, 2 Leigh, 356 ; 
 Rogers v. Ludlow, 3 Sandf. Ch. 104.] (q) Naylor v. Arnitt, 1 R. & M. 501. 
 
 (r) Per Lord Kenyon in Harton v. Harton, 7 T. R. 653, 4 ; see 1 Cruis. Dig. tit. 12, 
 ch. 1, s. 25. (.9) 1 Jarm. Pow. Dev. 217, u. 3. 
 
 1 So, where on 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 "Aave, use, and possess" the same during their joint lives, &c. ; and it was pro- 
 vided 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 Bq. 580. See, as to Marriage Settlements generally, Magniac v. Thompson, 1 
 Baldwin, 344. 
 
 2 On a devise to A. " in trust, and upon condition, that the said A. is to have and hold the 
 said tract, &c, for the use and benefit of my brother H. ; the legal title to remain in the 
 said A. until such time as the said IL, now an alien," shall become duly naturalized ; 
 in which event the trustee was directed to convey to H., the trust is not executed, and 
 the trustee takes a fee. McCaw v. Galbraith, 7 Richard. L. 74. 
 
348 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 twenty-one, and he appointed three persons by name as trustees of in- 
 heritance for the execution thereof ; on 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, certified that the trustees took the 
 legal estate in fee. A previous certificate by the Court of Common 
 r*9qc-i]?l eas > *that the trustees took no estate, was not considered satis- 
 factory by the Lord Chancellor, who in consequence sent a second 
 case for the opinion of the court, (t) 
 
 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 throughout; and 
 will not be divested and revested again from time to time, as the dif- 
 ferent trusts take effect. And this will be the case, although the trusts, 
 which require the existence of the legal estate in the trustees (as for 
 instance trusts for the separate use of feme coverts), are not limited to 
 arise until the determination of previous interests, which would other- 
 wise clearly carry with them the legal estate, (u) 
 
 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.^) 1 
 
 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.(?/) 
 
 So if a gift were made to trustees and their heirs for the benefit 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 statute in B., 
 unless the general intention of the donor required, that it should be 
 vested in the trustees.^) 
 
 (t) Trent, v. Harming, 10 Ves. 495 ; S. C. 1 B. & P. N. C. 116 ; 7 East, 95. 
 
 (m) Hawkins v. Lusoombe, 2 Sw. 375, 391. [See post, 242, note.] 
 
 (x) Doe d. Terry v. Collier, 11 East, 377; Eure v. Howard, Prec. Ch. 338, 345; 
 Broughton v. Langley, 2 Salk. 679; Right v. Smith, 12 East, 454; Hummer- 
 ston's case, Dyer, 166 a, n. (9) ; Bacon, Uses, 47 ; 1 Cruis. Dig. tit. 11, ch. 3, s. 33; 
 Co. Litt. 290, b, Butl. note. [See Jackson v. Fish, 10 Johns. R. 456.] 
 
 (y) Doe d. Terry v. Collier, 11 East, 377. [See Parks v. Parks, 9 Paige, 107.] 
 
 (z) See Fearne's Op. 422 ; 1 Cruis. Dig. tit. 12, ch. 1, s. 25. 
 
 1 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., &c, vests the legal estate in the cestui que we. 
 Ramsay v. Marsh, 2 MeCord, 252. See Moore v. Shurtz, 13 Penn. St. R. 98. 
 
OP THE LEGAL ESTATE IN TRUSTEES. 349 
 
 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 trustees 
 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 imperative ; 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 persons shall sell, or let, or 
 mortgage, or otherwise dispose of his estate for payment of his debts, 
 &c. ; or directs, *that his executors shall raise his debts out of 
 his estate ; it has been decided, that no estate vests in the de-„ *- J 
 visees, but simply a power of disposition. (b) 1 
 
 (a) Whetstone v. St. Bury, 2 P. Wms. 146 ; S. C. Prec. Ch. 591 ; Symson v. Turner, 
 1 Eq. Ca. Abr. 383, pi. 1 ; Hopkins v. Hopkins, 1 Atk. 581 ; Hawkins v. Luscombe, 
 3 Sw. 376, 388 ; 1 Jarm. Pow. Dev. 224 n.; Keene v. Deardon, 8 East, 248. 
 
 (6) Reeve v. Att.-Gen. 2 Atk. 223 ; Fowler v. Jones, 1 Cha. Ca. 262 ; Yates v. Comp- 
 ton, 2 P. Wms. 308 ; Bateman v. Bateman, 1 Atk. 421 ; Lancaster v. Thornton, 2 Burr. 
 1027 ; Hilton v. Keuworthy, 3 East, 553 ; Co. Litt. 113 & 290 b, n. IX ; 1 Pow. Dev. 
 233 ; 2 Sugd. Pow. 174, 6th edit. 
 
 1 It is the general rule in the United States, that a devise or direction that executors 
 shall sell or charge for payment of debts, gives no estate in the land, but simply a 
 power. Bk. U. S. v. Beverly, 1 How. U. S. 134 ; 16 Pet. 532 ; Burr v. Sim, 1 Whart. 266 ; 
 Guyer v. Maynard, 6 Gill & Johns. 420 ; Shelton v. Homer, 5 Mete. 462 ; Bradshaw v. 
 Ellis. 2 Dev. & Batt. Eq. 20 ; Hope v. Johnson, 2 Yerg. 123 ; Jameson v. Smith, 4 
 Bibb, 307 ; 4 Kent's Coram. 320. See Dabney v. Manning, 3 Ohio R. 321. But in 
 Pennsylvania, by the act of 1834, § 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 conveyance, 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. 
 Under this act it is held that the descent is broken, and the legal estate vests in the 
 executor. Miller v. Meetch, 8 Penn. St. 417. See, as to New York, 4 Kent's Comm. 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 testator's estate, real or personal, with full power 
 to execute deed or deeds effectual in law to pass a complete title," and it was held that 
 they had not the legal estate. In Deering v. Adams, 37 Maine, 264, where a will pro- 
 hibited for twenty years the vesting of the real estate in the heirs at law, who were the 
 minor grandchildren of the testatrix, and gave to the executors the entire care and 
 management of it during that period — required that from the income the grandchildren 
 should be supported and educated, and the surplus income invested by the executors — 
 that during the twenty years the estate should remain undivided, and that immediately 
 afterwards it should vest in the grandchildren — prohibited any sale of it by the exe- 
 cutors, but authorized them to lease it, and to exchange a specified part of it for other 
 land, and to execute deeds therefor — required that upon the marriage of the female 
 grandchildren, the executors should protect the portion of each one of them, from the 
 control of their respective husbands — and provided that if within the twenty years the 
 grandchildren should all die without issue, the estate should be appropriated for 
 
350 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 It may be observed here, that the usual estate given to trustees in 
 settlements to preserve contingent remainders is a vested estate.(c) 
 
 II.— WHERE THE TRUST PROPERTY CONSISTS OF PERSONAL ESTATE. 
 
 The refinements and complication attending conveyances or devises 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 trustees of such property. 
 
 As a general rule, the legal interest in a chattel will pass by an assign- 
 ment or bequest, to the donee in trust. 1 
 
 (c) Co. Litt. 265 a, n. 2 ; 337 b, a. 2. [Laurens v. Jenney, 1 Spears, 365.] 
 
 relieving the poor of the vicinity, in such manner as the executors should prescribe — 
 but contained no express words of grant or limitation to the executors ; it was held that 
 the executors took the legal estate, and that they had a fee simple, defeasible at the 
 end of the twenty years, or when the trusts should have been accomplished. On the 
 other hand, in Jackson v. Schauber, 7 Cowen, 187, a testator gave by his will to his 
 son S., twenty shillings "for his birthright, wherewith (in the words of the will) I do 
 hereby utterly exclude, debar, and preclude him, my said son, from having or claiming 
 any other or farther pretensions, claims, or demands whatsoever, as being my heir at 
 law, or by any other pretexts, pretence, color, or show whatsoever." Then, after specific 
 legacies he authorized and empowered, ordered, and directed, his executors to sell all 
 his estate, real and personal, but without any direct devise to them, and then directed 
 the moneys arising from such sale to be divided among his children, including S. It was 
 held bythe Supreme Court, that the executors had not the legal estate, but only a naked 
 power, for in order to exclude the heir, the estate must be devised expressly or by impli- 
 cation to some other person, and in the particular case, the purposes of the trust being for 
 sale, did not require the legal title. This case was reversed in the Court of Appeals on 
 another ground (2 Wendell, 12), but the question involved in the point above stated, 
 was much discussed. The Chancellor, in his opinion, strongly supported the doctrine 
 of the Supreme Court ; but Senators Oliver and Stebbins came to a different conclu- 
 sion, and considered that the plainly expressed intention of the testator was to govern. 
 The latter view seems to be approved by the court, in Deering v. Adams, ut supr. p. 
 274, though it was not necessary to the decision there ; for in that case the purposes of 
 the trust, e. g. the control and management of the estate, the support, maintenance, and 
 education of the cestui que trusts, the power to lease and exchange, to make settlements 
 on marriage, and the trust on default, &c, for the relief of the poor, were clearly suffi- 
 cient on the authorities to give the legal estate, independently of any provision exclud- 
 ing the heirs. See this subject more fully considered, post, 471, &c. 
 
 1 In the case of personal estate, it not being within the Statute of Uses, the legal 
 title remains in the trustee until the purposes of the trust are accomplished. Rice v. 
 Burnett, 1 Spear's Eq. 590 ; Schley v. Lyon, 6 Georgia, 530; Harley v. Platts, 6 Rich. 
 L. 315. The equitable interest of a husband in personalty under a marriage settle- 
 ment, therefore, cannot be taken in execution by his creditors. Eice v. Burnett, ut 
 supr. ; Iorr v. Hodges, 1 Spear's Eq. 593. But where all the objects of the trust are at 
 an end, the absolute estate is in the person entitled to the last use. Possession in such 
 case is sufficient, without a formal conveyance. Bice v. Burnett, 1 Spear's Eq; 587 ; 
 Dunkin Ch. See Bringhurst v. Cuthburt, 6 Binn. 398. But in order thus to terminate 
 the trust, actual delivery by the trustee is necessary, and if the cestui que trust be an 
 infant, and thus incapable of assent, even then the trust will not be executed. Harley 
 v. Platts, ut supr. 
 
OF THE LEGAL ESTATE IN TRUSTEES. 351 
 
 There is an exception to this rule in the case of choses 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 consideration 
 will be recognized and enforced in equity. (1) 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 benefit 
 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.(/) 
 
 It has been already seen that, where the same person is appointed 
 executor of a will as well as trustee, the probate of the will by him will 
 be an acceptance of the trust. (g) It sometimes becomes material to 
 ascertain the period at which the party has assumed the latter character, 
 and divested himself of the former ; for the powers and liabilities of 
 trustees and executors with regard to the administration of the estate are 
 not in *all respects identical ;(A) and questions not unfrequently r*oq7-i 
 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 posses- 
 sion in the character of executor or administrator ceases, and that in the 
 character of trustee commences. Every case must depend upon its own 
 
 (d) Co. Litt. 232 (b), n. 1 ; 1 Mad. Ch. Pr. 686, 3d edit. 
 
 (e) 1 Mad. Ch. Pr. 686 ; 1 Wms. Exors. 547. [See the notes to Ryall v. Rewles, 2 
 Lead. Cas. Eq. p. ii, 201.] 
 
 (/) 1 Wms. Exors. 526 ; 2 Id. 843. [Story's Eq. \ 591 ; but in Pennsylvania it is 
 different : Holloback v. Van Buskink, 4 Dall. 147.] 
 
 (ff) Ante, p. 214, and notes; 2 Wms. Exors. 1105; Mueklow v. Fuller, Jac. 198; 
 Booth v. Booth, 1 Beav. 125. 
 
 (h) See Bight v. Cathell, 5 East, 491 ; Denne v. Judge, 11 East, 288 ; 2 Wms. Exors. 
 620. [Myers v. Daviess, 10 B. Monroe, 396.] 
 
 (t) See Ex parte Dover, 5 Sim. 500 ; Philippo v. Munnings, 2 M. & Cr. 309 ; Denne 
 v. Judge, 11 East, 288. 
 
 (1) The effect of a voluntary disposition or attempted disposition of a chose in action 
 in trust, and how far such a trust can be enforced, has been considered in a previous 
 chapter. 
 
352 OF THE LEGAL ESTATE IN TRUSTEES. 
 
 circumstances. (&) 1 In one case, a testator gave all his real and personal 
 estate to two persons (whom he afterwards appointed executors) in trust 
 to sell for the benefit of his children; and he gave his wife an annuity 
 of 250?. for her life, and all the residue of his estate to his children abso- 
 lutely ; 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 to January, 1834. The residue had been divided 
 amongst the testator's children. In June, 1834, one of the trustees 
 and executors died ; and the other having gone abroad, the widow and 
 children presented 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 in- 
 quiry as to the circumstances under which the stock was originally in- 
 vested and then remained in the names of the two executors ; and upon 
 the Master's report, finding that the surviving executor was a trustee 
 
 (k) See 1 Wms. Exors. 405, 6 ; Byrchall v. Bradford, 6 Mad. 235. [De Peyster v. 
 Cleudinning, 8 Paige, 310 ; Pyron v. Mood, 2 MoMull. 288 ; Ld. Brougham v. Ld. 
 Wm. Paulett, 24 L. J. Gh. 237 ; 19 Beav. 119.] 
 
 1 A will contained the following clause: ''For the purpose of having my estate pro- 
 perly 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 per- 
 sonal, to her, in trust, with full power to sell, either at public or private sale, all or any 
 part thereof, and the proeeeds 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, &e., 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. 7 Alab. 386. An executor is to 
 be considered as holding a legacy in that character, unless it clearly appear from the 
 will that the testator intended it to be held as trustee. State v. Nicols, 10 Gill 
 & Johns, 27 ; Perkins v. Moore, 16 Alab. 9. Therefore, where a testator makes a 
 pecuniary bequest, with a, direction that it shall " be kept and loaned out upon interest 
 by my executors,'' until the happening of a certain event, and then to be divided among 
 the legatees, the executors will be considered as holding the funds as executors, not as 
 trustees. Perkins v. Moore, ut supr. If an executor be appointed also trustee, it must 
 appear by some plain and unequivocal act that he intended to hold as trustee. Newcomb 
 v. Williams, 9 Metcalf, 525 ; Perkins v. Moore, ut supr. And where bond is required 
 by statute from a trustee, and it is not given in such case, it is conclusive. Newcomb 
 v. Williams. 
 
 In England, however, it is held that where. an executor assents to a specific legacy in 
 trust, he thereupon becomes trustee. Dix v. Burford, 19 Beav. 409. 
 
OF THE LEGAL ESTATE IN TRUSTEES. 353 
 
 within the meaning of the act, his Honor subsequently made the order 
 as prayed by the petition. {I) 
 
 In another case a testator amongst other bequests gave the sum of 
 4001. to Buscall (whom he afterwards appointed executor) in trust to in- 
 vest, 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 4:001. to answer the legacy in trust; and he died in the year 
 1799, having appointed the defendant Munnings his executor. The bill 
 was filed in the year 1834 by the parties beneficially entitled to the 
 400Z. legacy against Munnings for the payment of that sum. The de- 
 fendant by his answer admitted, that the sum of 4001. 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 plaintiffs, 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 fund. Suppose the fund had been given by L J 
 the will to anybody else, as a trustee, and not to the executor, it would 
 then be clearly the case of a breach of trust. What he would have done 
 by paying it to a trustee, he has done by severing it from the testater'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 trustee."^) 1 
 This question can only arise respecting personal estate ; for when real 
 estate is given to persons in trust by a will, and the same persons 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 executors.(n) 
 
 (I) Ex parte Dover, 5 Sim. 500. 
 
 (to) Phillippo v. Munnings, 2 M. & Cr. 309, 315. [See Ld. Brougham v. Ld. Powlett, 
 2-1 L. J. Ch. 237, 19 Beav. 119.] (») Denne v. Judge, 11 East, 288. 
 
 1 Where one is both executor and trustee, the presumption after twenty years is 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 aud 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 per- 
 sons " 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. 
 
 23 
 
354 OF THE EXTENT AND DURATION OF THE 
 
 [*239] ^CHAPTER II. 
 
 OP THE EXTENT AND DURATION OF THE ESTATE OP 
 
 TRUSTEES. 
 
 I. Where their Estate is crea- ance, or" surrender, will 
 
 ted by "Will [239]. be presumed [253], 
 
 II. Where their Estate is crea- V. Of the Application of the 
 
 ted by Deed [248]. Statutes of Limitation be- 
 
 III. Of the Merger of their tween Trustees and Cestui 
 
 Estate [252]. que Trusts [263]. 
 
 IV. In what Cases a Reconvey- 
 
 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 gene- 
 ral 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 expressions 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) 1 
 Therefore the estate devised to trustees 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, notwithstanding the express 
 limitation to them in fee.(6) a 
 
 (a) 1 Jarm. Pow. Dev. 225, n. and case cited ; Co. Litt. 209 b, Butl. note VIII. 
 
 (6) Lord Saye and Sele v. Jones, 1 Eq. Ca. Abr. 383; S. C. 3 Bro. P. C. 113; Doe 
 d. Player v. Nicholls, 1 B. & Cr. 342; Chapman v. Blissett, Forr. 145; Shaplandv. 
 Smith, 1 Bro. C. C. 75 ; Doe v. Hicks, 7 T. R. 433 ; Nash v. Coates, 3 B. & Aid. 839; 
 "Warter v. Hutchinson, 5 Moore, 153, and 1 B. & Cr. 721 ; 1 Jarm. Pow. Dev. 225, n.; 
 Co. Litt. 290 b, Butl. note; Heardson v. Williamson, 1 Keen, 33. 
 
 1 See Payne v. Sale, 2 Dev. & Batt. Eq. 460 ; Norton v. Norton, 2 Sandf. Sup. Ct. 
 297 ; Nicoll v. Walworth, 4 Denio, 385 ; Hawley v. James, 5 Paige, 318 ; Williman v. 
 Holmes, 4 Rich. Eq. 475 ; Deering v. Adams, 37 Maine, 265 ; Ward v. Amory, 1 Curtis 
 C. C. 427 ; Webster v. Cooper, 14 How. U. S. 499 ; Comby v. McMichael, 19 Alab. 
 751 ; Powell v. Glenn, 21 Id. 468; Mr. Greenleaf'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 cestui que trusts named, the trust does not result, but descends to their 
 heirs. Gill v. Logan, 11 B. Monroe,i233. 
 
 2 In Watson v. Pearson, 2 Exch. 593, the rule is laid down by Baron Parke, in these 
 words : " It is certainly true that where the purposes of the trust on which an estate is 
 
ESTATE OP TRUSTEES OF A WILL. 355 
 
 In the case of Lord Saye and Sele v. Jones, (c) lands were devised to 
 trustees and their heirs in trust to pay several legacies and annuities, 
 and then to pay the surplus rents into the proper hands of a, feme covert; 
 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 con- 
 sulting with the Judges. 
 
 *So, in Chapman v. Blissett,(d!) a testator devised all his realp^o^n-i 
 and personal estate to three trustees, their heirs and assigns, 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 education of his son's 
 children ; and he then gave one moiety of the estate to his son's chil- 
 dren, and the other moiety to the children of his grandson. Lord Tal- 
 bot said, the whole depended on the testator's intent as to the continu- 
 ance of the estate devised to the trustees ; whether he intended the whole 
 legal estate to continue in them, or whether only for a particular time or 
 purpose. Where particular 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 per- 
 
 (c) Lord Saye and Sele v. Jones, 1 Eq. Ca. Abr. 383 ; S. C. 3 Bro. P. C. 113. [This 
 case was commented on and questioned in Ex parte Gadsden, 3 Richardson's Rep. App. 
 468.] And see Doe d. Allen v. Ironmonger, 3 East, 533 ; Robinson v. Grey, 9 East, 
 1, to the same effect. [Doe v. Claridge, 6 C. B. 641 ; Pearce v. McClenaghan, 5 Rich. 
 L. 1Y8 ; Williman v. Holmes, 4 Rich. Eq. 475 ; Ware v. Richardson, 3 Maryl. R. 505 ; 
 Barker v. Greenwood, 4 M. & W. 429 : Adams v. Adams, 6 Q. B. 866.] 
 
 (cZ) Chapman v. Blissett, Forr. 145 ;' S. C. Cas~Temp. Talb. 145, 150. 
 
 devised to trustees are such as not to require a fee in them, as for instance, where the 
 trust is to pay annuities, or to pay over rents and profits to a party for life, there, if 
 subject to the specified trusts, the estate is given over, the parties taking under such 
 devise over have been held to take legal estates ; the estate given to the trustees (even 
 when given with words of inheritance) having been in such cases taken to have been 
 meant to be coextensive only with the trust to be performed. This rule of construc- 
 tion 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 rule is, 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 respect of the estate vested in them." It was ac- 
 cordingly decided, that where a fee was expressly given to trustees, and also a general 
 power of sale, that the legal estate 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 raise annuities, and to 
 mortgage for debts, &c. ; though in addition to the circumstances of Watson v. Pear- 
 son, the ulterior limitations were, in terms, legal estates. See Brown v. Whiteway, 8 
 Hare, 156. 
 
356 OF THE EXTENT AND DURATION OF THE 
 
 son 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) However, as we shall 
 presently see, great caution must be used in applying this rule of con- 
 struction 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, notwithstanding the limitation of the fee to them.(g) 
 And 7 the estate of the trustees has been so restricted although there have 
 been express trusts for the payment of annuities, and debts, and lega- 
 cies ;(h) or even a direction to them to convey to the cestui que trust on 
 his attaining the required age.(i) The same construction, restricting the 
 estate of the trustees to a chattel interest in such cases, will be adopted 
 d fortiori, where there is no express limitation to them infee.(k) 
 
 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 re- 
 stricted 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. There- 
 fore, where estates in remainder were given to trustees subsequently to 
 a limitation to them in fee, the court would consider that to be sufficient 
 evidence of the testator's intention that the trustees should not take the 
 r*9d.n * ent i re f ee > un der the first limitation,(m) for otherwise the subse- 
 L J quent limitations would be merely nugatory. Indeed, a term of 
 years, limited to the trustees 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 
 
 (e) Doe v. Hicks, 7 T. R. 433 ; Nash v. Coates, 3 B. & Aid. 839 ; [Webster v. Cooper, 
 14 How. U. S. 499; Beaumont v. Marq. of Salisbury, 19 Jurist, 458; 19 Beav. 198.] 
 The counter decision in Boteler v. Allington, 1 Bro. C. C. 72, cannot now be considered 
 of any authority ; see Lord Kenyon's remarks in Doe v. Hicks, 7 T. R. 437. 
 
 (/) Vide post, 248, &c. 
 
 (g) Goodtitle v. Whitby, 1 Burr. 228 ; Doe d. Wheedon v. Lea, 3 T. R. 41 ; Stanley 
 v. Stanley, 16 Ves. 491 ; Warter v. Hutchinson, 1 B. & Or. 721 ; Doe d. Badder v. Har- 
 ris, 2 Dowl. & Ry. 76 ; Doe d. Pratt v. Timins, 1 B. & Aid. 530 ; Doe d. Brune v. Mar- 
 tin, 8 B. & Cr. 497. [Tucker v. Johnston, 16 Sim. 341.] 
 
 (h) Warter v. Hutchinson, 1 B. & Cr. 721. 
 
 (i) Stanley v. Stanley, 16 Ves. 491. 
 
 (7c) Boraston's case, 3 Co. 19 ; Doe d. Player v. Nicholls, 1 B. & Cr. 336. 
 
 (1) Glover v. Monckton, 3 Bingh. 13. ' 
 
 (m) Doe v. Hicks, 7 T. R. 437 ; Nash v. Coates, 3 B. & Aid. 839 ; and see Warter v. 
 Hutchinson, 5 Moore, 153 ; S. C. 1 B. & Cr. 721 ; this circumstance also occurred in 
 Hawkins v. Luscombe, 2 Sw. 375. [See Doe v. Claridge, 6 C. B. 660.] 
 
 (n) Curtis v. Price, 12 Ves. 89, 101. 
 
ESTATE OF TRUSTEES OF A WILL. 357 
 
 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 considered 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 notwithstanding 
 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 pre- 
 serve contingent remainders, or for any other purpose confined to the 
 duration of a, particular life.(o) And it has been decided, that this con- 
 struction may prevail even in the case of a deed.(^) 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 limitations were expressly to the use of the 
 persons taking the beneficial interest. {q) 1 
 
 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(r) — their estate would not be 
 cut down into one pur autre vie, or any other partial interest, unless 
 the smaller estate were clearly sufficient to carry out the purposes of 
 the trust. 
 
 Thus in Harton v. Harton there was a devise to trustees and their 
 heirs, in trust to permit and suffer a feme covert 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 
 
 (o) Hawkins v. Luscombe, 2 Swanst. 375, 391. 
 
 (p) Curtis v. Price, 12 Ves. 89 ; and see Venables v. Morris, 7 T. R. 342. 
 
 (q) 1 Jarm. Pow. Dev. 225, n. (r) See Venables v. Morris, 7 T. B. 342, 438. 
 
 1 In El 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 to 
 the trustee be general, without words 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 circum- 
 stances 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 share and share alike, to 
 them, their heirs and assigns forever, 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. 
 
358 OP THE EXTENT AND DURATION OF THE 
 
 daughters in tail ; with similar devises in remainder (but without repeat- 
 ing the limitation to the trustees) in trust for other femes coverts and 
 to the use of their respective children, and with an ultimate devise to the 
 testator's right heirs. It was held by the Court of K. B., that the tes- 
 tator's object was to secure the beneficial enjoyment of the estate to the 
 several femes coverts, 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 trusts not for married women, 
 L -"so that those trusts could not subsist, unless *the legal estate was 
 in the trustees from the beginning to the end ; and he adds, that the 
 court also relied on the non-repetition of the legal estate.^) 1 
 
 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 pay- 
 ment 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.(n) 2 
 Indeed, as we shall see presently, in such a case the trustees would take 
 the fee by construction without any words of limitation, (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. Gr. in fee: it 
 
 (s) Harton v. Harton, 7 T. B. 652 ; see Hawkins v. Luscombe, 2 Sw. 391 ; [and the 
 remarks in 14 M. & W. 172.] 
 
 (t) Hawkins v. Luscombe, 2 Sw. 391. 
 
 (u) Bagsliaw v. Spencer, 1 Ves. 142 ; Keane v. Deardon, 8 Bast, 248 ; Doe d. Ca- 
 dogan v. Ewart, 7 Ad. & E. 636, 648. (x) 1 Ves. 144; and vide post. 
 
 (y) Doe d. Tomkins v. Willau, 2 B. & Aid. 84; Doe d. Keen v. Walbank, Id.*54. 
 ' [See Doe v. Cafe, 7 Excheq. 675.] 
 
 ' Harton v. ^Harton was recognized in Blagrave v. Blagrave, 4 Excheq. 570 ; and 
 in a very similar case, Brown v. Whiteway, 8 Hare, 156, was followed by Vice-Chan- 
 cellor 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 no); 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. 
 
ESTATE OP TRUSTEES OF A WILL. 359 
 
 has been held that the legal inheritance vested in the trustees, to enable 
 them to make such a conveyance.^) And a direction, that the real pro- 
 perty 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 equiva- 
 lent to a direction to convey.(a) 1 
 
 2d. In the absence of any express words of limitation, sufficient to 
 carry the legal inheritance, the estate of the trustees would be enlarged 
 and extended into such an estate as the nature and purpose of the trust 
 required. 3 
 
 Thus, where there was a devise of real estate to trustees simply (with- 
 out adding any words of limitation) in trust to sell; it has been decided, 
 that the trustees would take the fee by construction.(aa) And so where 
 the trust was to sell the whole, or a sufficient part, the construction 
 would be the same ; for, said Lord Hardwicke, as it is uncertain what 
 they may sell, no purchaser would otherwise be safe. (b) And it seems 
 that a trust to convey, (e) or lease at discretion,^) 3 would have the effect; 
 for a less estate would not suffice for those purposes. 
 
 (2) Garth v. Baldwin, 2 Ves. 646 ; Doe d. Shelley v. Bdlin, 4 Ad. & Ell. 582 ; Doe 
 d. Booth v. Field, 2 B. & Ad. 564. (a) Doe d. Eees v. Williams, 2 M. & W. 749. 
 
 (aa) Shaw v. Weigh, 1 Eq. Ca. Abr. 184; Gibson v. Lord Montfort, 1 Ves. 491 ; S. 
 C. Ambl. 95. [See Chamberlain v. Thompson, 10 Conn. 244; Watson v. Pearson, 
 2 Exch. 594.] (6) Bagshaw v. Spencer, 1 Ves. 144. 
 
 (c) Doe d. Booth v. Field, 2 B. & Ad. 556. 
 
 \d) Doe d. Keen v. Walbank, 2 B. & Ad. 554. 
 
 1 But in Smith v. Thompson, 2 Swan, 386, on a limitation of personalty to, a trustee, 
 " his heirs, executors," &c, in trust for the separate use of a married woman ; " and 
 after her death the said negroes, with their increase, if any, to be equally divided among 
 all her children," it was held that the trustee took only an estate for the life of the feme. 
 In the subsequent case of Aiken v. Smith, 1 Sneed, 304, where the limitation was to a 
 trustee and his executors, for the benefit of A. for life, " at her death to be conveyed to 
 the children of A.," it was held that the estate of the trustee ceased with the purposes 
 of the trust ; and that after the lapse of a number of years, a conveyance to the cestui 
 que trusts, as of the death of the tenant for life would be presumed/ and'the doctrine of 
 Smith v. Thompson was recognized. In these decisions, however, the court were ob- 
 viously influenced by a desire to protect minors from the effect of the Statute of Limita- 
 tions, which could only be effected by construing the limitation to the children as a 
 vested legal remainder. But independently the rule, admitted in Smith v. Thompson, 
 that personalty is not within the Statute of Uses, the authority of Doe v. Williams, 
 and other cases cited in the text, is directly adverse to the conclusions thus arrived at. 
 
 2 Fisher v. Fields, 10 Johns. B. 505 ; Rackham. v. Siddall, 1 MacN. and Gordon, 
 607 ; 2 H. & Twells, 44 ; Blagrave v. Blagrave, 4 Exch. 569 ; Deering v. Adams, 37 
 Maine, 265 ; Webster v. Cooper, 14 How. U. S. 499. 
 
 3 See Brewster v. Striker, 2 Comstock, 19. But in Doe v. Cafe, 7 Excheq. 675, 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 is not 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 towards the main- 
 tenance 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 
 
360 OF THE EXTENT AND DURATION OF THE 
 
 And where the devise is to the trustees, their executors, administra- 
 tors, 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 was 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 
 L "^ 6 \ whether the trustees would take the inheritance, or a chattel in- 
 terest for a term of years. 
 
 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 legacies, and 
 afterwards to A. for life, with remainders over ; and it was resolved, 
 that this was no freehold in the devisees, but only a term of years, 
 "though it eould not be said for any certain number of years."(#) 
 
 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 legacies; 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 payment of debts.(A) 
 
 In Hitchens v. Hitchens 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 profits of his real 
 estate ; and when debts and legacies were paid, he devised 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 
 
 («) Gibson v. Lord Montfort, 1 Ves. 491, and Ambl. 95 ; 1 Jann. Pow. Dev. 226, n.; 
 Heardson v. Williamson, 1 Keen, 33, 41. 
 
 (/) 1 Ves. 491 : [Ex parte Gadsden, 3 Rich. R. 468] ; but see Doe d. White t. 
 Simpson, 5 East, 162. 
 
 (g) Cordall's case, Cro. El. 315 ; see Manning's ease, 8 Rep. 96. 
 
 (h) Carter v. Barnadiston, 1 P. Wms. 506, 9. 
 
 (i) Hitchens v. Hitchens, 2 Vern. 404. 
 
 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 daughters 
 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. See Deermg 
 v. Adams, stated ante, p. 236, in note. 
 
ESTATE OF TRUSTEES OP A WILL. 361 
 
 to the use of A. in remainder after a devise to trustees for the payment 
 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. (k) 
 
 However, in Gibson v. Lord Montfort, a testator gave all his free- 
 hold, leasehold, and personal estate, to trustees, their executors, admi- 
 nistrators, 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 take 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. (I) His Lordship 
 seems to have attached considerable 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 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 payment of debts 
 without any words of limitation. But Lord Hardwicke in his judgment 
 observed, that the devise included both freeholds and leaseholds, and on 
 that ground he restricted the operation of the term "executors" to the 
 leaseholds, and *treated the devise of the freeholds as if it had r-^nAA-t 
 been made to the trustees and their assigns without any terms of ^ -I 
 limitation. (m) 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 empowered 
 to limit or appoint all or any part of the estate to trustees, upon trust 
 by the rents and profits thereof to raise and pay a yearly rent-charge as 
 a jointure for his wife. The tenant for life exercised this power by deed, 
 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 in fee ;{n) the same question was' then sent for the opi- 
 nion of the Court of Common Pleas, and the Judges there held that the 
 trustees took no legal estate. (0) But on the hearing of the cause before 
 
 (k) Popham v. Bampfield, 1 Vern. 19 ; ante, p. 211, n. (1) 
 
 (Z) Gibson v. Lord Montfort, 1 Ves. 485, 491 ; S. C. Ambl. 93, 5. 
 
 (m) 1 Ves. 491, Ambl. 95. («) Wykham v. Wykham, 11 East, 458. 
 
 (0) Wykham v. Wykham, 3 Taunt. 316. 
 
362 OF THE EXTENT AND DURATION OF THE 
 
 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 therefore seems to follow, that if the devise had been 
 directly to the trustees, 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 beyond 
 the interest expressly given them by the terms of the limitation. (o/) 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 inte- 
 rest, 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 
 the survivor, and the executors and administrators of the survivor, 
 certain lands, together with the arrears of rent, and a bond and judg- 
 ment 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 800Z. to certain persons, and 
 after payment of the annuities, and 800Z. he devised the estate to a 
 person for life with remainders over. There was a power for the trus- 
 tees 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 sufficient for raising the 800Z., and not 
 thefee.(s) 
 
 In Gibson v. Lord Montfort, Lord Hardwicke recognized the validity 
 of the objection, that the gift of real estate to trustees, their executors, 
 &c, was descriptive of a chattel not passing the inheritance to them; 
 l"*2451 k ut *" s *Lordship considered, that the objection had no weight, 
 in the case before him by reason of the personal estate, which 
 was included in the devise to the trustees.(i) However, it is to be re- 
 marked, 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.{u) 
 
 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 
 
 (p) Wykham v. "Wykham, 18 Ves. 395, 416. 
 
 (q) 1 Jarm. Pow. Dev. 231, n. (r) Heardson v. Williamson, 1 Keen, 33, 41. 
 
 (s) Doe d. White v. Simpson, 5 East, 162. 
 
 (<) Gibson v. Lord Montfort, 1 Ves. 491 ; S. C. Gibson v. Rogers, Ambl. 95. 
 
 («) Doe d. White v. Simpson, 5 East, 172. 
 
ESTATE OF TRUSTEES OE A WILL. 363 
 
 ■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 mort- 
 gage debts, until the whole should be fully paid off and discharged by 
 the gradual receipt of the rents and profits ; and from and after the pay- 
 ment 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 subsequent contingent remainders, and vest- 
 ing the entire fee in himself. The efficacy of this deed depended upon 
 ■whether the legal fee was or was not vested in the trustees of the will, 
 for if it were, that estate would have supported the contingent re- 
 mainders ; 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 off, the trust ceased, and the legal estate vested 
 in the plaintiff, the testator's son. (a;) 1 
 
 It may be observed here, that a limitation of real estate to trustees, 
 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 
 
 (x) Heardson v. Williamson) 1 Keen, 33. 
 
 (y) Gibson v. Lord Montfort, 1 Ves. 491 ; Heardson v. Williamson, 1 Keen, 33, 41. 
 [See Ex parte Gadsden, 3 Rich. 468.] 
 
 1 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 messuage to E. 
 and P., 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 them, his executors and administrators, in trust to permit and 
 suffer his daughter C. to receive and take the rent thereof for her life, free from the 
 control of her husband ; and after his daughter's decease, he devised the same mes- 
 suage to E. and F., their executors and administrators, 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 legacies, the testator gave, devised, and bequeathed all the rest, 
 residue, and remainder 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, control, or engagements of her present or any future husband, in manner afore- 
 said;" 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. 
 
364 OF THE EXTENT AND DURATION OF THE 
 
 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 legacies. (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 Hardwicke, in 
 Gibson v. Lord Montfort, that a chattel interest in the trustees would 
 suffice for that purpose, but for that purpose alone. (a) 
 I~*24fi1 therefore, if there be a devise to trustees without any words 
 of limitation, or d fortiori to trustees, their executors, adminis- 
 trators, and assigns in trust, out of the rents and profits to pay debts or 
 legacies; and if, from the amount or nature of the payments to be 
 made, as well as the general scope of the trust, the payment 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 authori- 
 ties, without exception, establish that the trustees will take only a term 
 of years sufficient for raising the required moneys, and no estate of in- 
 heritance 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 restricted to the 
 perception of the annual income of the estate, but are at liberty to raise 
 the required sum by sale of all or any part of the estate, then, according 
 to Lord Hardwicke's decision in Gibson v. Lord Montfort, the legal in- 
 heritance will necessarily be vested in the trustees ;(d) and this although 
 the devise be to the trustees, their executors and administrator ■*.(«) 
 
 If the case of Doe d. White v. Simpson cannot stand as an authority 
 with that of Gibson v. Lord Montfort (and it is certainly difficult 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 construction which prevail 
 in these cases ; for the tendency of the decisions is to confine and re- 
 strict, 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. 
 
 (z) Ackland v. Lutley, 9 Ad. & Ell. 879. (a) 1 Ves. 491. 
 
 (6) Cordall's case, Cro. Eliz. 315 ; Wykham v. Wykham, 18 Ves. 416 ; Heardson v. 
 Williamson, 1 Keen, 33. 
 
 (c) Carter v. Bamadiston, 1 P. Wms. 589; Hitchens v. Hitchens, 2 Vern. 404; Co. 
 Litt. 42 a. (d) Gibson v. Lord Montfort, 1 Ves. 485 ; S. C. Ambl. 93. 
 
 (e) Heardson v. Williamson, 1 Keen, 41. 
 
ESTATE OE TRUSTEES OF A WILL. 365 
 
 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 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 trustee took a term of 
 years sufficient for the purpose of raising the 800?., (a) 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(&) rendered it unnecessary to decide the point 
 in that case. The difficulty, therefore, is one for which it is r*247T 
 *very difficult to lay down any 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 limitation, 
 in trust, to pay the rents and profits to a person or persons for 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;(£) 1 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, determi- 
 nable upon the cestui que trust's obtaining that age, or dying before. (nf 
 
 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 attend- 
 ing the raising and paying of debts, or any gross sum, would not there- 
 fore arise. 
 
 However, there appears to be some discrepancy in the authorities, as 
 to whether the trustees in such a case would take a, freehold interest for 
 the life of the annuitant, or a chattel interest for a term of years deter- 
 
 (/) Cordall's case, Cro. El. 315. (g) 1 P. Wins. 509. {h) 2 Vera. 404. 
 
 (i) 5 East, 162 ; and see Ackland v. Lutley, 9 Ad. & Ell. 879. (k) 1 Keen, 33. 
 
 {I) Shaplaud v. Smith, 1 Bro. C. C. 7.5 ; Doe d. Cadogan v. Ewart, 7 Ad. & Ell. 636, 
 667. (m) Vide supra. 
 
 (m) Doe d. Player v. Nieholls, 1 B. & Cr. 336 ; Doe d. Cadogan v. Ewart, 7 Ad. & 
 Ell., 636, 667. [See Doe v. Davies, 1 Q. B. 430.] 
 
 1 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. 
 
 2 See Deering v. Adams, stated ante, p. 236, in note, where a fee determinable was 
 held to be given under somewhat similar circumstances. 
 
366 OF THE EXTENT AND DURATION OF THE 
 
 minable on his death. In Doe d. White v. Simpson,(o) it was held that 
 the trustees took a freehold estate ; but in Wykham 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.^) 
 
 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 altera- 
 tion 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 "in trust for," which had been previously employed, 
 would not have the effect 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. (q) 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 remainders, without any 
 words of limitation, would give them an estate pur 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 inten- 
 tions as to the disposition of the estate." For such a direction only 
 means, that they should have such powers as are incident to their cha- 
 racter of trustees to preserve contingent remainders. (r) 
 r*2481 *And an estate to preserve contingent remainders would not 
 in any case be so enlarged, if the effect of such a construction 
 would be to contradict, or disappoint, other dispositions in the will.(a) 
 
 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, without any 
 words of limitation, and will continue in them until devested by a legal 
 transfer or assignment.(f) 
 
 Such was the very unsatisfactory state of the law on this subject pre- 
 viously to the recent Will Act (1 Vict. c. 26). The uncertainty and 
 inconvenience of the existing doctrine called imperatively for the legis- 
 lative 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 pre- 
 sentation to a church) to a trustee or executor shall be construed to pass 
 
 (o) 5 East, 162 ; and see Jenkins v. Jenkins, Willes, 650. [p] 18 Ves. 416. 
 
 (q)-Doe d. Tomkyns v. Willan, 2 B. & Al. 84 ; Murthwaite v. Jenkinson, 2 B. & Cr. 
 357 ; see Sanford v. Irby, 3 B. & Al. 654; 1 Jarm. Pow. Dev. 230, n. 
 
 (r) Thong v. Bedford, 1 Bro. C. C. 314; see Co. Litt. 290 b, Butl. note VIII- [See 
 Webster v. Cooper, 14 How. U. S. 499 ; Beaumont v. Marq. Salisbury, 19 Jur. 458 ; 19 
 Beav. 198.] (*) Thong v. Bedford, 1 Bro. C. C. 315. 
 
 (0 See Elton v. Shephard, 1 Bro. C. C. 531 ; 2 Jarm. Pow. Dev. 631. [But see 
 Smith v. Thompson, and Aiken v. Smith, stated ante, 242, note.] 
 
ESTATE OP TRUSTEES OP A WILL. 367 
 
 the fee simple, or other the -whole estate or interest^of the testator, 
 unless a definite terra of years or an estate of freehold shall be given 
 him expressly by implication. And by the 31st section where real estate 
 shall be devised to a trustee without any express limitation of the estate, 
 and the beneficial interest shall not be given to any person for life, or if 
 given for life, the purposes of the trust may continue 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 expressly 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 latitude 
 in controlling and modifying the words, than is admitted in the con- 
 struction of deeds ; consequently, the decisions in the former case must 
 be very cautiously received as authorities in the latter.(w) 1 
 
 However, it has been decided that even in a deed a limitation to the 
 
 (m) Co. Litt. 290, b, Butl. note VIII ; see Colmore v. Tyndal, 2 Y. & J. 605. [Dins- 
 more v. Biggert, 9 Barr, 135; Comby v. McMichael, 19 Alab. 751 ; Smith v. Thomp- 
 son, 2 Swan. 389. But see Chamberlain v. Thompson, 10 Conn. 244; Nicoll v. Wal- 
 worth, 4 Denio, 385.] 
 
 1 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. 
 
 A more liberal rule has been held, however, to apply in the "case of a trust of perso- 
 nalty, in Smith v. Thompson, 2 Swan, 386. There, under a deed conveying certain 
 negro slaves to a trustee, his heirs, executors, &c, " in trust for the separate use of a 
 married woman," " and after her death' the said negroes, with their increase, if any, to 
 be equally divided among all her children." It was held that the children had a vested 
 legal remainder, and the trustee only an estate for the life of the mother. It was ad- 
 mitted by the court that if the remainder had been expressly limited to the use of the 
 children, a different construction would have been applied, inasmuch as chattel interests 
 are not within the Statute of Uses. And in the subsequent case of Aiken v. Smith, 1 
 Sneed, 304, this doctrine is recognized. These decisions would seem to be open to 
 criticism, however. See ante, p. 242, in note. 
 
 Statutory trustees, as those of an insolvent corporation, take, of course, no greater 
 or less estate, than the purposes of their trust require. Coulter v. Robertson, 24 
 Mississippi, 338. 
 
368 OF THE EXTENT AND DURATION OP THE 
 
 use of trustees y/id their heirs may be restricted to an estate fur 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 
 r*94Q1 conve y e d hy *the husband to Powell and 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 ; hut if 
 she should marry, then to the use 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, $c., 
 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 Shelley'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 restriction.^) 
 
 His Honor rested his decision in this case, partly on the circumstance 
 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 trustees to an estate for 
 the life of the wife.(g) 
 
 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 therefore 
 applies d fortiori to cases where the estate is limited simply to them and 
 their heirs, without any declaration of the use, and where they conse- 
 quently 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 covert for life, with 
 
 (x) Curtis v. Price, 12 Ves. 89. [Approved and followed in Beaumont v. Marq. 
 Salisbury,' 19 Jurist, 458 ; 19 Beav. 198.] 
 (y) 1 T. R. 433. (z) Curtis v. Price, 12 Ves. 100, 1. ■ 
 
 (a) Venables v. Morris, 1 T. R. 342 & 438. 
 
ESTATE OF TRUSTEES OP A DEED. 369 
 
 remainder to the use of two trustees and their heirs, in trust to support 
 the contingent uses and estates thereinafter limited (but without con- 
 fining 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 persons for such 
 estates, &c, as the wife should appoint.(a) 
 
 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 ob- 
 served by Lord Kenyon on another occasion, that if the wife, in exer- 
 cising her *power of appointment, had introduced any con tin- 
 gent remainders, they might all have been defeated if the uses !- -■ 
 were not executed in the trustees. (b) 
 
 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 distinction ; 
 and was alluded to as such by Sir William Grant in Curtis v. Price. (e) 
 
 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 decided, 
 that an estate in fee simple, expressly limited by deed to trustees, can 
 be cut down by mere implication into any less extensive interest. And 
 that case might be regarded as rather a strong decision, even if it had 
 arisen on a will; for there were some trusts relative 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 extrajudicial. 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 reluctance 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 
 
 (a) Venables v. Morris, 7 T. R. 342 & 438. (6) In Doe v. Hicks, 7 T. R. 437. 
 (c) 12 Ves. 100. (e) Curtis v. Price, 12 Ves. 101. 
 
 (/) 8 B. & Cr. 497. 
 
 24 
 
370 OF THE EXTENT AND DURATION OF THE 
 
 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 deed the trustees would 
 certainly be considered as taking the whole fee, though it might be other- 
 wise in a will.(gf 
 
 In Wykham v. Wykham,(^) 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 settlement, 
 after some preceding limitations, an estate was limited to the use of M. 
 for life, with remainder to the use of a trustee and his heirs, in trust to 
 preserve contingent remainders ; remainders to M.'s first, and to her 
 sons in tail male ; and then to C. for life, with remainder to the same 
 trustee and his heirs, to preserve, without confining the estate of the 
 r*9p;il trustees in' either case *to the lives of M. and 0. ; with remainder 
 to C.'s first and other sons in tail male, with remainder over in 
 fee. It will be seen that these limitations closely resembled those in the 
 case of Doe v. Hicks,(t) 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 C.'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.{T) 
 
 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 js clear that the doctrine which it establishes will be confined strictly 
 within the limits marked out by the circumstances of that case. There- 
 fore 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. 
 
 {g) Co. Litt. 290 b. Butl. ; note VIII. 
 (h) 18 Ves. 395, stated in the preceding section. 
 (i) 1 T. R. 433, stated preceding section. 
 
 (I) Colmore v. Tyndall, 2 Y. & J. 605. [See the remarks on this case in Beaumont 
 v. Marq. of Salisbury, 19 Jurist, 459 ; 19 Beav. 198.] 
 
 1 "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 covert, or to such person aa she or 
 her trustee should appoint, and to make sale of the land as convenient, 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 feme. Dinsmore 
 v. Biggert, 9 Barr, 133. 
 
ESTATE OF TRUSTEES OF A DEED. 371 
 
 As where a subsequent estate for life or years is given to the same trus- 
 tees after the limitation to them in fee^m) 1 
 
 And a subsequent limitation in fee in the same deed to the same trus- 
 tees, will not be considered so contradictory, as to confine the previous 
 limitation to them in fee to an estate for life.(w) Nor will such 'a con- 
 struction be adopted, because an estate in fee simple appointed to trus- 
 tees by a deed made in execution of a power, is inconsistent 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 con- 
 tained in a deed will not be cut down, merely because a fee in the trus- 
 tees is not necessary for the purposes of the instrument. In Wykham 
 v. Wykham, Lord Bldon, after remarking that the instrument purported 
 to be a grant in fee, and was a deed, adds, " It purports 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, difficult to maintain, that if a man does more by 
 using words, which have a legal effect, than is necessary to execute the 
 purpose he professes to execute, 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."(j») 
 
 And so, any circumstance which is merely corroborative of an inten- 
 tion that the trustees should take an estate only 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.^) 
 
 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 construc- 
 ts) Curtis v. Price, 12 Ves. 101 ; Wykham v. Wykham, 18 Ves. 422, 3 ; Colmore v. 
 Tyndall, 2 Y. & J. 605. 
 
 (n) Colmore v. Tyndall, 2 Y. & J. 605. (o) Wykham v. Wykham, 18 Ves. 423r 
 {p) 18 Ves. 420 ; see 423. (q) Wykham v. Wykham, 18 Ves. 422. 
 
 1 In the recent case of Beaumont v. The Marquis of Salisbury, 19 Jurist, 458, 19 
 Beav. 198, before the Master of the Rolls, it appeared that real estate had been limited 
 by deed to W. for life, with remainder to trustees and " their heirs'' (without saying 
 " during the life of W.''), in trust to support contingent remainders ; remainder to the 
 use of R., the wife of W., for life ; remainder, after the decease of the survivor of W. 
 and R., to the same trustees for a term of 500 years, without impeachment of waste, 
 in trust to raise portions, &e. ; with remainder to the use of J., the son, for life, with 
 remainder to the same trustees and " their heirs during the life of J.," with divers re- 
 mainders over. It was considered, that the limitation of the term for raising portions, 
 coupled with the subsequent repetition of the estate to the trustees and their heirs, for 
 the life of J., showed clearly that the intention was not to give a fee by the first limita- 
 tion, and it was therefore held to be cut down to an estate pur autre vie. " It appears 
 to me," said Sir John Romilly, in this case, " that the ease of Curtis v. Price is not 
 touched by any subsequent authority that has been cited, nor am I aware of its authority 
 having been questioned. Certainly Alexander, C. B., in the case of Colmore v. Tyn- 
 dall, calls it a strong case, but he states special reasons why the Master of the Rolls 
 arrived at that conclusion, which he seems to think, satisfactory." Id. p. 460. 
 
372 
 
 tively enlarged into a fee (as in the case of a devise by will), in conse- 
 quence 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) 1 
 
 (r) Villiers v. VilKers, 2 Atk. 72. 
 
 1 See Liptrot v. Holmes, 1 Kelley, Geo. 390, where on a trust for a feme covert, there 
 were no words of limitation to heirs, it was held the trust ended with her life. It 
 appears, however, to be now generally held in the United States, that on a convey- 
 ance to a trustee without words of inheritance, a fee will be implied, whenever the pur- 
 poses of the trust make it necessary, or cannot be properly accomplished without such 
 a construction. Fisher v. Fields, 10 Johns, 505 ; Welch v. Allen, 21 Wend. 147 ; 
 Stearns v. Palmer, 10 Mete. 32; Gould v. Lamb, 11 Id. 84; Cleveland v. Hallett, 6 
 Cush. 403 ; North v. Philbrook, 34 Maine, 537 ; Rutledge v. Smith, 1 Busbee Eq. 283; 
 Neilson v. Lagow, 12 How. U. S. 110 ; Williams v. First Presbyt. Soc. 1 Ohio St. N. S. 
 498, semble. In this last case, the question arose on a deed to certain persons as "trus- 
 tees of the Presbyterian Congregation, &c, and their successors forever," those trus- 
 tees not being at the time incorporated, and the word " successors" therefore inopera- 
 tive. It was contended, in a suit by the heirs of the original grantor to recover 
 the land from the charity, that the trustees took only a life estate. The court said, 
 after citing Fisher v. Fields, Stearns v. Palmer, and Gould v. Lamb, that on those 
 authorities they would have no difficulty in holding that a fee passed by the deed, if it 
 were not for the case of Miles v. Fisher, 10 Ohio, 1, where an opposite doctrine was 
 held, the authority of which was, however, said to be doubtful. But the decision of the 
 point was considered unnecessary, because it was ruled that the heirs of the grantor 
 would, at any rate, hold the legal estate on trust for the charity, which would not be 
 permitted to fail. In this case, the deed also contained a covenant of general war- 
 ranty to the trustees their heirs and successors in the trust, and it was thought by the 
 court that these words might operate to enlarge the habendum. But they did not think 
 themselves called upon so to decide, for they held that as the covenant showed an obvious 
 intention to convey a fee, the deed would be reformed in equity. Rutledge v. Smith, 1 
 Busbee Eq. 283 ; and the warranty being against the grantor and his heirs, 4c, it would 
 operate as an estoppel at law, so that the heirs could claim nothing whatever. 
 
 In Neilson v. Lagow, 12 How. U. S. 110 ; North v. Philbrook, 34 Maine, 537 ; and 
 Rutledge v. Smith, 1 Busbee Eq. 283, it was held, that a power to sell and convey would 
 operate to enlarge the estate of trustees by deed, without words of limitation, into a fee. 
 So in Cleveland v. Hallett, 6 Cush. 406, there was a devise to S., his heirs and assigns, 
 in trust for C, for purposes which required a fee ; S. declining to accept the trust, M. 
 was appointed in place ; and afterwards a conveyance was made to M. " as he is trustee 
 for C," (no reference being made to the will, however,) habendum, to the said M. in 
 trust, as aforesaid, and assigns, to his and their use and behoof forever ; the word heirs 
 being omitted. , It was held, that M. took a fee. In Welch v. Allen, ttt supr., it was 
 held that a patent to A. in trust, gave a fee. 
 
 The result of these decisions, though it may not be altogether reconcilable with strict 
 technical principles, since it requires a court of law to look at equitable limitations in 
 order to determine the extent of a legal estate, is beyond doubt more consistent with 
 good sense, and the tendency of the jurisprudence of this country. As appears from 
 the case of Williams v. Presbyt. Soc. above cited, moreover, the covenant of war- 
 ranty, if to the trustees and their heirs, will, in many cases, obviate, for all practical 
 purposes, the difficulty arising from the omission of the word " heirs" from the haben- 
 dum. It is true, that such a covenant cannot operate to enlarge the estate limited (1 
 Preston's Shepp. Touchst. 182 ; Co. Litt. 385, 6), but it has been construed to be an 
 estoppel or equitable rebutter, as against the grantor and his heirs, to prevent circuity 
 
OP MERGER OF THE ESTATE OF TRUSTEES. 373 
 
 There is certainly no authority for so enlarging a partial or particular 
 *estate expressly limited to them by the deed, — as where the gift r*oc<r| 
 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 regarded 
 as authorities. Although where the circumstances have prevented the 
 enlargement of the estate in a will, a fortiori it follows, that the same 
 circumstances would have a similar effect in a question arising upon a 
 deed. 
 
 III.— 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) 1 For this purpose, however, the two 
 
 (s) Wade v. Paget, 1 Bro. C. C. 364. 
 
 of action. Shaw v. Galbraith, 7 Penn. St. 112. See Rawle on Covenants, 344, &c, 
 and 2 Smith Lead. Cas. 624, 634, 5th Am. Ed. Duchess Kingston's ease. 
 
 In some of the United States, indeed, where by statute the use of express words of 
 inheritance in a deed in order to convey a fee, is made unnecessary (in New York, Mis- 
 souri, Georgia, Arkansas, Alabama, Virginia, Kentucky, and Mississippi ; see 4 Greenl. 
 Cruise Dig. 354), these questions cannot well arise. 
 
 In England, however, there appears to be still no departure from the ancient doctrines 
 of conveyancing on this subject. Thus in Doe d. Pottow v. Fricker, 6 Excheq. 510, 
 there was a tripartite indenture of marriage settlement by way of bargain and sale, 
 between the intended husband, wife, and trustees, in which there were two testatum 
 clauses. By the first of these, after reciting the consideration and purposes of the con- 
 veyance, the intended husband granted, sold, &c, unto the trustees, and their heirs, all 
 his estate, right, 4c, in premises intended to be released by the intended wife. By 
 the second clause, it was witnessed, that the intended husband, in consideration, 4c, 
 bargained, 4c, to the trustees (by name, but without words of inheritance) in trust for 
 the wife, for life remainder to the eldest son in tail male ; and then followed a recital 
 that the grantor had full power, 4 c, to sell, 4c, the estate, to the use, 4c, according to 
 the "true meaning of these presents," to the use, 4c, as the said trustees, their heirs or 
 assigns, or their counsel, should advise. It was held, that under the second testatum, 
 the trustees did not take a fee, and that the deed was therefore inoperative. 
 
 ' Cooper v. Cooper, 1 Halst. Ch. 9 ; Lewis v. Starke, 10 Sm. 4 M. 128 ; Brown v. 
 Bartee, 10 Sm. 4 M. 268; Mason v. Mason, 2 Sandf. Ch. 433 ; James v. Morey, 2 Cow. 
 246 ; James v. Johnson, 6 J. C.R. 417 ; Healey v. Alston, 25 Mississippi, 190. 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 ; Den v. Vanness, 5 Halst. (N. J.) 102. It will not be permitted to 
 affect intermediate liens. Lewis v. Starke, 10 Sm. 4 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. 
 
374 OP THE PRESUMPTION OF A 
 
 estates must be coextensive and commensurate ; or (more accurately) the 
 legal estate must be equally extensive witb or more extensive than the 
 equitable estate. For the equitable fee will not merge in a partial or 
 particular legal interest, (t) 
 
 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 de- 
 volves upon or is transferred to a person upon trust, and the legal 
 inheritance is then previously vested in the trustee. In such cases, 
 however, equity will interpose, and will preserve the equitable interests 
 from destruction ; either by decreeing possession to the cestui que trusts 
 during the period of the estate so merged, or by directing a conveyance 
 to revive the legal estate. (u) 
 
 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 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) 1 
 
 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 equity.(^) 
 And in Nurse v. Yerworth, (2) where a devisee in trust of a beneficial 
 term of years afterwards became entitled to the remainder 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 
 L J devise from the cestui que trust.(z) 
 
 IV.— OF THE PRESUMPTION OF THE RECONVEYANCE, OR SURRENDER, OF 
 THE LEGAL ESTATE BY A TRUSTEE. 
 
 In some cases, where the legal interest has been clearly vested in 
 
 (t) Phillips v. Brydges, 3 Ves. 126. [Donalds v. Plum, 8 Conn. 453 ; but see James 
 v. Morey, 2 Cow. 284.] 
 
 (m) Nurse v. Yerworth, 3 Sw. 608; Thorn v. Newman, Id. 603 ; Saunders v. Bourn- 
 ford, Pinch, 424 ; 1 Cruis. Dig. tit. 8, eh. 2, s. 47, 50 ; 6 Id. tit. 39, s. 72, 113, 4. 
 
 (x) Saunders v. Bournford, Pinch, 424. 
 
 (y) Thom v. Newman, 3 Sw. 603, and see 618 ; see Mole v. Smith, Jac. 490. 
 
 (z) Nurse v. Yerworth, 3 Sw. 608. 
 
 1 See as to the merger of charges, Johnston v. Webster, 4 De G. Macn. & G. 474; 
 19 Jur. 145 ; Morley v. Morley, 25 L. J. Ch. 1. 
 
RECONVEYANCE OR SURRENDER. 375 
 
 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. 1 
 
 {a) England v. Slade, 4 T. R. 682 ; Wilson v. Allen, 1J. & W. 611 ; Hillary v. Waller, 
 12 Ves. 239 ; Cooke v. Soltah, 2 S. & St. 154 ; Noel v. Bewley, 3 Sim. 103. 
 
 (6) Lade v. Holford, Bull. N. P. 110 ; Doe v. Syborn, 7 T. R. 2; Goodtitle v. Jones, 
 7 T. R. 47 ; Emery v. Grocock, 6 Mad. 54 ; Doe v. Hilder, 2 B. & Aid. 782 ; Townshend 
 v. Champernown, 1 Y. & J. 538. 
 
 ' See Aiken v. Smith, 1 Sneed, 304 ; Matthews v. Ward, 10 Gill & J. 443 ; Jackson 
 v. Pierce, 2 John. 226 ; Sinclair 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 dem. Erwin, 4 Wend. 59. 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 after- 
 wards 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. Jackson v. Moore, 13 John. R. 513. In Aiken v. Smith, 1 Sneed, 
 304, certain property had been granted by deed to a trustee and his executors, in trust 
 for A. for life, " and at her death to be conveyed L to her children." It was held that 
 the estate of the trustee ceased with the purposes of the trust ; and that it was to be 
 presumed after the lapse of 11 years that the trustee had conveyed at the death of the 
 tenant for life, so that the Statute of Limitations, there being an adverse possession, 
 could only begin to run against the children from that period, and, therefore, they being 
 then minors, were not barred. But in Doe d. Rees v. Williams, 2 M. & W. 749, pre- 
 cisely the same question arose, and was decided the other way, because, as was said, the 
 presumption of a reconveyance is made in such cases, only in favor of possession, never 
 against it j and this appears to be the true doctrine. In Plounoy v. Johnson, 7 B. Monr. 
 694, it was ruled that trustees who had the power to relinquish the entire estate in pro- 
 perty (slaves) to the cestui que trust at their discretion, were not to be presumed to have 
 done so from the fact that they had permitted it to remain in the possession of the latter, 
 who had paid taxes and sold one slave, but without their knowledge. See Mr. Green- 
 leafs Ed. of Cruise, vol. 1, page 412. 
 
 The doctrine of the implied surrender of trust terms is of little importance in Penn- 
 sylvania, and those States where an equitable title may be recovered on in ejectment. 
 The Court of Queen's Bench, in a recent case (Doe d. Jacobs v. Phillips, 10 Q. B. 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 set up 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 C. B. 231, when the Court of Common Pleas, dissent- 
 ing 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. c. 112, which declares (§ 1) that on the 31st Dec. 1845, 
 all satisfied 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 decla- 
 ration, which, though made to cease and determine thereby, are to continue to afford 
 
376 OF THE PRESUMPTION OP A 
 
 In Hillary v. Waller, Sir Win. 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 forever 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."(c) 
 
 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 pre- 
 sumption : 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.(d) 
 
 The nature and extent of this doctrine of presumption, as laid down 
 by Lord Mansfield in Lade v. Holford,(e) were afterwards thus recog- 
 nized and explained by Lord Kenyon, in the case of Doe v. Sybourn.(/) 
 " In all cases," said that learned Judge, " where trustees ought to convey 
 to the beneficial owner, he would leave it to the jury 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. "(g) 
 
 Hence it appears, that in every case, three circumstances are requisite 
 in order to raise the presumption of a reconveyance by a trustee. 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 presump- 
 tion must be the support of a just title. 1 
 
 And 1st. It must be the duty of the trustee to reconvey. 2 
 
 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, 
 
 (c) Hillary v. Waller, 12 Ves. 252. 
 
 (d) Keene v. Deardon, 8 East, 263 ; Hillary v. Waller, 12 Ves. 251 ; Goodson v. 
 Ellison, 3 Russ. 588 ; 1 Sugd. V. & P. 350', 470 to 510, 9th edit. [See Doe v. Lang- 
 don, 12 Q. B. 719.] (e)BullN. P. 110. (/) 7 T. B. 2. 
 
 (g) Doe v. Sybourn, 7 T. R. 3 ; see Goodtitle v. Jones, Id. 49 ; Doe v. Read, 8 T. R. 
 118 ; 1 Sugd. V. & P. 470, 9th edit. 
 
 the same protection against incumbrances, &e., 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. See on this 
 statute, Cottrel v. Hughes, 15 C. B. 532, where it was held that a satisfied term atten- 
 dant on the inheritance assigned to a bona fide purchaser before the act, could, not 
 withstanding, be set up by him in ejectment. 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 reconveyance, trustee cannot recover at law. 
 
 1 Aiken v. Smith, 1 Sneed, 304. 
 
 2 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 out- 
 standing. Beach v. Beach, 14 Verm. 28. 
 
RECONVEYANCE OR SURRENDER. 377 
 
 when *so required by the beneficial owner,(A) ( to convey the legal poKA-i 
 estate to him, or according to his direction. (i) And, therefore, 
 where the beneficial owner has for a long period continued 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 re- 
 demption to himself in fee, and subsequently dealt with the estate, as if 
 the legal fee were vested in him ; and no further notice was ever taken 
 of the legal estate conveyed to the trustee by the deed of 1712. The 
 reconveyance of the legal fee was presumed on a bill being filed in 
 1822.(ifc) 
 
 And where there is an express direction or provision in the trust in- 
 strument for a conveyance of the legal estate by the trustee at a certain 
 specified period, the duty of the trustee to make such a conveyance be- 
 comes 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 him 
 immediately on his attaining twenty-one. The son reached twenty-one 
 in September, 1788, and in October in the following year, granted a 
 lease of the property for 88 years. There was no proof of any convey- 
 ance 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 bound to do, and what 
 a court of equity would have compelled them to have done, if they had 
 refused. But it is rather to be presumed that they did their duty. And 
 as to the time, the jury may be directed to presume a surrender or con- 
 veyance 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 Thomas 
 Allen, his heirs and assigns. The trustees were admitted in ' 1747. 
 There was no entry on the rolls of a surrender by them, but in 1771 
 
 {h) Langley v. Sneyd, 1 S. & St. 45, 55. [See post, 278, &c] 
 
 (i) Carteret v. Carteret, 2 P. Wms. 134; Goodson v. Ellison, 3 Russ. 583 ; England 
 v. Slade, 4 T. R. 682 ; Angier v. Stannard, 3 M. & K. 571. 
 
 (k) Noel v. Bewley, 3 Sim. 103. 
 
 (I) Hillary v. Waller, 12 Ves. 239, 252; England v. Slade, 4 T. R. 682; Wilson v. 
 Allen, U. & W. 611, 620. 
 
 (m) England v. Slade, 4 T. R. 682 ; and see Doe v. Sybourn, 7 T. R. 2. 
 
378 OF THE PRESUMPTION OF A 
 
 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 legacies 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.(w) 
 
 r*9f;^l *And even where the direction for a conveyance by the trus- 
 *- -• tees applies to part only of the trust estate, the court will not- 
 withstanding presume a conveyance of the whole, if the general circum- 
 stances 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;^) or to raise and pay an 
 annuity or a sum of money for a portion or other purpose ;(r) 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 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.(i) 
 
 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 reconveyance, although 
 there may be no direct proof of these facts.(w) 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 settle- 
 ment had been made, and a recovery suffered, and there was a covenant 
 that the estate was free from incumbrances ; and the term did not appear 
 to have been dealt with at any time, and the parties entitled to the por- 
 tions 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.^) 
 
 (n) Wilson v. Allen, 1 J. & W. 611, 13. (o) Hillary v. Waller, 12 Ves. 239, 252. 
 
 (p) Hillary v. Waller, 12 Ves. 239, 254. 
 
 (q) Doe v. Sybourn, 7 T. R. 2 ; Cooke v. Soltau, 2 S. & S. 154 ; Ex parte Holman, 
 1 Sugd. V. & P. 509, 9th edit. ; Doe v. Hilder, 2 B. & Aid. 782. 
 
 (r) Emery v. Grocock, 6 Mad. 54; Doe v. Wright, 2 B. & Aid. 710; Wilson v. Allen, 
 1 J. & W. 611, 619. 
 
 (*) Cooke v. Soltau, 2 S. & S. 154; Hillary v. Waller, 12 Ves. 239, 252. 
 
 (t) Doe v. Sybourn, 7 T. R. 2 ; Doe v. Wright, 2 B. & Aid. 710 ; Ex parte Holman, 
 1 Sugd. V. & P. 509, 9th ed. ; Bartlett v. Downes, 3 B. & Cr. 616. 
 
 («) 12 Ves. 252. 
 
 (x) Emery v. Grocock, ubi supra ; and see Hillary v. Waller, 12 Ves. 252. 
 
RECONVEYANCE OR SURRENDER. 379 
 
 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 sup- 
 position of a direct breach of trust, which is never presumedly) 
 
 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, its 
 surrender ought never to be presumed, from mere negative circumstances, 
 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 ougbt not to surrender the term ; to do so would be to commit 
 a breach of trust."(g) 
 
 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 been 
 expressly assigned to attend the inheritance :(a) and those de- *- * 
 cisions were followed in a subsequent case in the Court of Exchequer.(J) 
 
 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,(e) as well as by Richards, L. C. B.(d) Sir E. 
 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. Champernown appears to be the only one in 
 which the authority of Doe v. Hilder has been judicially recognized, 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 him- 
 self 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. 1 
 
 (y) Keene v. Deardon, 8 East, 248, 264 ; Doe v. Staple, 2 T. R. 684. 
 (z) 1 Sugd. V. & P. 487, 9th ed., and see p. 472. 
 
 (a) Doe v. Wright, 2 B. & Aid. 710 ; Doe v. Hilder, Id. 782 ; see Bartlett v. Dowries, 
 3 B. & Cr. 616. (6) Townshend v. Champernown, 1 Y. & J. 538. 
 
 (c) Aspinall v. Kempson, 1 Sugd. V. & P. 508. 
 
 (d) Doe v. Putland, 1 Sugd. V. & P. 502, 4; Deardon v. Lord Byron, Id. 506. , 
 
 (e) Vide post, 260. 
 
 (/) 1 Sugd. V. & P. 470 to 510 ; and see Doe v. Plowman, 3 B. & Ad. 573. [Doe 
 v. Langdon, 12 Q. B. 719; Garrard v. Tuck, 8 C. B. 248; Cottrel v. Hughes, 15 C. 
 B. 532.] 
 
 1 " 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 Gar- 
 rard v. Tuck, 8 C. B. 248. 
 
380 OF THE PRESUMPTION OF A 
 
 The execution of a conveyance by a trustee will not be presumed 
 merely because such an act is sanctioned, or even peremptorily required 
 by the trust. But circumstances must also exist, from which the execu- 
 tion 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 
 titled) 
 
 However, very slight additional circumstances, when coupled with 
 great length of time, have been held sufficient to support the presump- 
 tion. 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 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 out- 
 standing, 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 Erslrine.(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 
 [-^orrr-i *might be presumed solely from 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 satisfied 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 reason- 
 ing 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 :(k) 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 
 
 {ff) Ante, p. 253 ; Keene v. Deardon, 8 Bast, 363 ; Hillary v. Waller, 12 Ves. 250; 
 Goodson v. Ellison, 3 Buss. 588. [Doe v. Langdon, 12 Q. B. 719.] 
 
 {h) Hillary v. Waller, 12 Ves. 239. 
 
 (i) See Cooke v. Soltau, 2 S. & S. 154 ; Noel v. Bewley, 3 Sim. 103 ; Hillary v. 
 Waller, 12 Ves. 252, 270. 
 
 (&) Wilson v. Allen, 1 J. & W. 611 ; see England v. Slade, 4 T. B. 682 ; Hillary v. 
 Waller, 12 Ves. 239 ; Doe v. Sybourn, 1 T. R. 2. 
 
RECONVEYANCE OR SURRENDER. 381 
 
 be answered, which requires the separation of the legal and equitable 
 estates. And in such a case the court has refused to presume a recon- 
 veyance 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 presumption. (I) 
 
 And where a term of years is vested in a trustee for a particular pur- 
 pose, 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 there- 
 fore, 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, unaccompanied by other cor- 
 roborative circumstances, (m) 
 
 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 repre- 
 sentatives ;(n) 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 effect 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 sup- 
 position that the legal estate was not outstanding in the trustee ;(q) or if 
 he make a conveyance of the property, and the conveyance deed contain 
 a covenant for quiet enjoyment, free from incumbrances :(r) all these 
 * circumstances, when joined with considerable lapse of time, r^nco-i 
 have been held suflicient to support the presumption in question. 
 
 And so, if on mesne dispositions of the estate, the title has been ex- 
 amined 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,(tf) a similar result will follow. 
 
 In these cases it is impossible to lay down any general rule as to the 
 
 (I) Goodright v. Swymmer, 1 Kenyon, 385 ; and see Goodson v. Ellison, 3 Russ. 
 583, 8 ; sed vide, Doe v. Lloyd, cited in Matthews on Presumption, 215 ; see Langley 
 v. Sneyd, 1 S. & St. 45. 
 
 (m) Cholmondeley v. Clinton, 1 Sugd. V. & P. 506, 7, 9th ed. 
 
 (ji) Hillary v. Waller, 12 Ves. 239 ; Cooke v. Soltau, 2 S. & St. 154 ; Tenny v. Jones, 
 10 Bing. 75. 
 
 (o) Noel v. Bewley, 3 Sim. 103 ; England v. Slade, 4 T. R. 682. 
 
 (p) Noel v. Bewley, 3 Sim. 114, 115. (q) Emery v. Grocock, 6 Mad. 54. 
 
 (r) Emery v. Grocock, ubi supra. 
 
 (s) Stafford v. Llewellyn, Skinn. 77 ; Doe v. Hilder, 2 B. & Aid. 782 ; Emery t. Gro- 
 cock, 6 Mad. 55 ; Ex parte Holman, 1 Sugd. V. & P. 509. 
 
 {t) Wilson v. Allen, 1J. & W. 611. 
 
382 OF THE PRESUMPTION OP A 
 
 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 circumstances, 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 pre- 
 sumption that the trustee has performed his duty by executing the con- 
 veyance, 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 Ms son immediately on his attaining 21. 
 The son attained that age in 1788. No conveyance by the trustee 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 convey- 
 ance in much less time than twenty years."(u) 
 
 Where the estate outstanding in a trustee consists of an old satisfied 
 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 inheritance. The 
 language of Lord Eldon in the House of Lords, on the appeal in Ohol- 
 mondeley v. Clinton, (x) treats the question of presuming the surrender 
 of a term as on precisely the same footing in either case.(«) However, 
 where there has once been an express direction 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 construc- 
 r*2591 t * 011 °^ * aw ' *^' 1V -^ward Sugden, in his work on Vendors and 
 Purchasers, 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 
 
 («) England v. Slade, 4 T. R. 682 ; and see Doe v. Sybourn, 1 T. E. 2. 
 (ac) Cholmondeley v. Clinton, 1 Sugd. V. & P. 506, 1, 9th edit. 
 
RECONVEYANCE OR SURRENDER. 383 
 
 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. "(t/) 
 
 In Doe v. Staple,(a) Lord Kenyon, 0. J., said that he extremely ap- 
 proved 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 stand- 
 ing 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.^) 
 However, this and other similar dicta (although doubtless 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 corroborative 
 evidence to support it, was that of Doe d. Burdett v. Wright. (a) There 
 a term was assigned in 1735 to raise an annuity, 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, where- 
 upon the seller covenanted with the purchaser to produce the deeds 
 creating and assigning the term. The surrender of the term was pre- 
 sumed by the Court of Queen'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,(5) 
 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 omis- 
 sion 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.(6) In the case of Ex parte Hol- 
 man,(e) a term of 500 years was created in 1735, and was noticed in an 
 intermediate deed dated in July, 1749. There had been three convey- 
 ances 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 devisee 
 
 (y) 1 Sugd. V. & P. 470, 9th ed. ; and see p. 472. 
 
 (z) Doe v. Staple, 2 T. R. 696 ; and see Doe v. Sybourn, 7 T. R. 2 ; Goodtitle v. 
 Jones, 7 T. R. 47 ; Doe v. Read, 8 T. R. 118. 
 (a) Doe v. Wright, 2 B. & Aid. 710. , (5) Doe v. Hilder, 2 B. & Aid. 782. 
 (c) Exparte Holman, 1 Sugd. V. & P. 509, 9th ed. 
 
384 OP THE PRESUMPTION OP A 
 
 of the grantor to defeat a grant of the stewardship of a manor to a per- 
 
 r*9fifn son **" or ^ e- ^ e term ^ a( * ^ een create< ^ ^ n 1^12, and had been 
 ^ ■* assigned to attend in 1786 ; and in 1793 there was a general 
 declaration as to all outstanding terms. The Court of King's Bench 
 held, that the surrender of this term was properly presumed in favor of 
 the grantee in 1825.(c2) 
 
 The case of Townsend v. Champernown,(e) in the Exchequer, carried 
 this doctrine to a still greater extent. In a deed made in the year 1758, 
 a term of 1000 years had been recited to have been assigned to attend. 
 The Master reported in favor of the title of a vendor, on the ground 
 that the surrender of this term must be presumed 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 — presume the term to be surrendered."(e) It is diffi- 
 cult to comprehend the meaning of the Lord Chief Baron's observation 
 as to the non-payment of interest ; but the effect of the decision, if sup- 
 ported, 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 Kich- 
 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 questioned 
 the soundness of the same decision in the most pointed terms ;{g) and 
 finally, in Aspinall v. Kempson, upon the case of Doe v. Hilder being cited, 
 his Lordship observed, that having paid considerable 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 doc- 
 trine laid down in that case.(A) 
 
 Again, Sir Edward Sugden, after an elaborate investigation of the 
 
 (d) BartlettV. Downes, 3 B. & Cr. 616. 
 
 (e) Townsend v. Champernown, 1 Y. & J. 538. 
 
 (/) Doe v. Putland, 1 Sugd. V. & P. 502; and see Deardon v. Lord Byron, cited 
 Id. 506. 
 
 (g) Townsend v. Bishop of Norwich, 1 Sugd. V. & P. 505 ; Hayes v. Bayley, Id. 506 ; 
 Cholmondeley v. Clinton, Id. 506, 7. 
 
 (h) Aspinall v. Kempson, 1 Sugd. V. & P. 508. 
 
 1 Doe v. Hilder, must be considered as overruled ; see Cottrel v. Hughes, 15 C. B. 
 532. 
 
RECONVEYANCE OR SURRENDER. 385 
 
 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 enjoy- 
 ment 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 con- 
 tinuing interest, (i) 
 
 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 the existence of r*ofi-n 
 an outstanding term will be held a sufficient reason for presuming 
 its surrender only where there have been intermediate 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 appli- 
 cation to that extent, (k) 
 
 But this foundation for the presumption wholly fails, where no inter- 
 mediate transactions have taken place affecting the property, except 
 those in which it is neither requisite nor customary to notice any exist- 
 ing terms, as in the case of 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 purchaser 
 of the inheritance and a person claiming under a prior title ; or on a 
 question of title between a vendor and purchaser.(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 Eldon 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 inherit- 
 ance.^) 
 
 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 injustice 
 attending the enforcing of such a claim, will take advantage of any cir- 
 
 (i) 1 Sugd. V. & P. 472, 9th ed. 
 
 (k) Doe v. Hilder, 2 B. & Aid. 782; Emery v. Grocock, 6 Mad. 54; Ex parte Hol- 
 man, 1 Sugd. V. & P. 509 ; Doe v. Plowman, 2 B. & Ad. 573. [Doe v. Langdon, 12 
 Q. B. 719 ; Garrard v. Tuck, 8 C. B. 247.] 
 
 (1) Doe v. Plowman, 2 B. & Ad. 573 ; 1 Sugd. V. & P. 475, 6. 
 
 (m) 1 Sugd. V. & P. 473, 4. 
 
 («) Marquis of Townsend v. Bishop of Norwich, 1 Sugd. V. & P. 505 ; another case 
 cited, Ibid. ; Hayes v. Bailey; Id. 506 ; Cholmondeley v. Clinton, Id. 507 ; 1 Sugd. V. 
 & P. 477 to 482 ; Maundrell v. Maundrell, 10 Ves. 246. 
 
 25 
 
386 OF THE PRESUMPTION OF A 
 
 cumstances, 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) However, 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, (g) 
 
 Where an old satisfied term, though not expressly assigned to attend, 
 has been recently recognized and dealt with as a subsisting interest, it 
 r*2R21 * s * c ^ ear tna * no previous lapse of time, however great, will be a 
 sufficient reason for presuming its surrender. (r)(l) 
 „ If a term of years, created to secure certain charges, 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 life. 
 
 3d. — The object of the presumption must be to prevent a just title 
 from being defeated by mere matter of form. 
 
 According to the doctrine laid down by Lord Mansfield and Lord 
 Kenyon, this is the third requisite for raising the presumption of a con- 
 veyance or surrender of a legal estate outstanding in a trustee, (t) Its 
 reasonableness and justice is obvious ; for otherwise one of the great pro- 
 tections 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. (u) 
 
 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 equit- 
 
 (0) Lade v. Holford, Bull. N. P. 110 ; Doe v. Staple, 2 T. R. 696 ; Doe v. Sybourn, 7 
 T. E. 2 ; Goodtitle v. Jones, Id. 47 ; and see Bartlett v. Downes, 3 B. & Cr. 616. 
 
 (p) Doe v. Wright, 2 B. & Aid. 710, vide post. 
 
 [q) Doe v. Plowman, 2 B. & Ad. 573. (r) Doe v. Scott, 11 East, 478. 
 
 (s) Redington v. Redington, 1 Ball. & Beat. 131. \ 
 
 (t) Lade v. Holford, Bull. N. P. 110 ; Doe v. Sybourn, 7 T. R. 2 ; Goodtitle v. Jones, 
 Id. 47. [u) See Doe v. Cook, 6 Bingh. 179 ; and Tenny v. Jones, 10 Bingh. 75. 
 
 (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 surrendered. 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 terms, as well as persons claiming under them, whatever might be its operation 
 as affecting other persons. 
 
RECONVEYANCE OK SURRENDER. 387 
 
 able estate in fee simple ;{x) or as grantee for life ;{y) or as a lessee for 
 a term of years.(y) 
 
 In the recent case of Doe v. Cook,(z) the Court of C. P. refused to 
 presume the surrender of an outstanding term in favor of a defendant, 
 "who showed no other title to the premises •which were sought to be re- 
 covered, than that of a mere naked possession. (a) 
 
 In Doe v. Wright, neither of the parties to the action had established 
 an exclusive title to the beneficial ownership, for they both claimed in 
 the same character, viz., as heir. An outstanding term was notwithstand- 
 ing presumed to be surrendered ; for if either claimant had been suffered 
 to set it up against the other, the party who availed himself of the advan- 
 tage might have turned out not to be the real heir, and thus a just title 
 might have been defeated by the mere formal defect, (b) 
 
 All the decisions, therefore, that have hitherto been mentioned, sup- 
 port 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(e) is directly at variance with the latter r*oftQi 
 branch of this proposition. In that case both the parties had L 
 an equitable interest in the property ; one representing 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 tolerably equal, or rather, as Sir 
 Edward Sugden has shown, the equity of the purchaser was the stronger 
 of the two,(d) and the purchaser then fortified his equitable title by get- 
 ting 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 purchaser'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 
 
 (x) Wilson v. Allen, U. & W. 611 ; Noel v. Bewley, 3 Sim. 103 ; Tenny v. Jonea, 
 10 Bingh. 75. [y) Bartlett v. Downes, 8 B. & Cr. 616. 
 
 (z) Doe v. Cook, 6 Bingh. 174. 
 
 (a) England v. Slade, 4 T. R. 682 ; Doe v. Sybourn, 7 T. R. 2. 
 
 (6) Doe v. Wright, 2 B. & Aid. 710. 
 
 (c) 2 B. & Aid. 782. (d) 1 Sugd. V. & P. 501, 2. (e) Vide supra. 
 
 (/) Hillary v. Waller, 12 Ves. 239 ; Emery v. Grocock, 6 Mad. 54; Ex parte Holman, 
 1 Sugd. V. & P. 509, 10 ; Cooke v. Soltau, 2 S. & St. 154 ; Townsend v. Champernown, 
 1 Y. & J. 543. 
 
388 OP THE EFFECT OF THE 
 
 of Hillary v. "Waller ;{g) 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 the trustee by a conveyance dated 140 years 
 previously : Sir Wm. Grant, M. E., overruled the objection, and decreed 
 a specific performance of the agreement against the purchaser; and this 
 decision was affirmed on appeal by Lord Erskine.(^) 
 
 Sir B. Sugden has observed that this case has not met with the appro- 
 bation of the profession ; and that it has occasioned considerable diffi- 
 culties in practice. (A) But the doctrine which it established has since 
 been recognized and acted upon in a series of cases, in which reconvey- 
 ances and surrenders of outstanding legal estates, as well in fee(«) as for 
 terms of years,(&) 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 pro- 
 priety of the principle on which those decisions have proceeded. 
 
 V.— OF THE APPLICATION OF THE STATUTES OF LIMITATION A9 REGARDS 
 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) 1 How- 
 ever, this position, though generally true, must not be admitted without 
 some qualification. 
 
 As between trustees and cestui que trusts, an express trust, constituted 
 
 r*2fi4-T *ky the act of the parties themselves, will not be 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)(iy And the law on this point is not affected by the late 
 
 (g) Hillary v. "Waller. 12 Ves. 239. 
 
 (h) 1 Sugd. V. & P. 350, 1. (t) Cooke v. Soltau, 2 S. & St. 154. 
 
 (k) Emery v. Groeock, 6 Mad. 54; Ex parte Holman, 1 Sugd. V. & P. 509; Town- 
 send v. Champemown, 1 Y. & J. 538. 
 
 (1) Sheldon v. Wildman, 2 Ch. Ca. 26 ; Hollis's case, 2 Ventr. 345. 
 
 (m) Beckford v. Wade, 17 Ves. 97 ; Hovenden v. Lord Annesley, 2 Sch. & Lef. 633 ; 
 Wedderburn v. Wedderburn, 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 expressly 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 continu- 
 ing 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 express denial of the right of 
 the former, and what amounts to an adverse possession on the part of the latter. Decouche 
 v. Savetier, 3 J. C. R. 190 ; Anstice v. Brown, 6 Paige, 448 ; Kane v. Bloodgood, 1 J. 
 
STATUTES OF LIMITATION. 389 
 
 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 
 
 C. R. 90 ; Bohannon's heirs v. Sthreshley's adm. 2 B. Monr. 438 ; Foscue v. Foscue, 2 
 Ired. Eq. 321 ; White v. White, 1 Johns. Maryl. Ch. 56 ; Young v. Mackall, 3* Id. 398; 
 Pinson v. Ivey, 1 Yerg. 296 ; Pinkston v. Brewster, 14 Alab. 315 ; Cook v. Williams, 
 
 I Green Ch. 209 ; Boone v. Chiles, 10 Pet. ITT ; Prevost v. Gratz, Q Wheat. 481 ; Oliver 
 v. Piatt, 3 How. TL S. 333 ; Zeller's lessee v. Eckert, 4 Id. 289 ; Johnson v. Humphreys,- 
 14 S. & R. 394 ; Finney v. Cochran, 1 W. & S. 118 ; Murdoch v. Hughes, T Sm. & M. 
 219; Creigh's heirs v. Henson, 10 Gratt. 231 ; Starke v. Starke, 3 Rich. 438; Presley 
 v. Davis, T Rich. Eq. 110 ; Perkins v. Cartmell, 4 Harring. 2T0 ; Varick v. Edwards, 
 
 II Paige, 289; Farnam v. Brooks, 9 Pick. 212; Smith v.' Calloway, T Blackf. 86; 
 McDonald v. Sims, 3 Kelly, 383; see Wickliffe v. City of Lexington, 11 B. Monroe, 
 161 ; Zacharias v. Zacharias, 23 Penn. St. 452. And even in cases of adverse posses- 
 sion the knowledge of, or notice to the cestui que trust is necessary. Fox v. Cash, 11 
 Penn. St. R. 20T ; Starke v. Starke, 3 Rich. 438 ; Zeller's lessee v. Eckert, 4 How. U. 
 S. 289 ; see Williams v. First Presb. Soe'y, 1 Ohio N. S. 4T8. In Stone v. Godfrey, 18 
 Jurist, 524, 5 De G. Macn. & Gord. T6, indeed, it was said by Lord Justice Knight 
 Bruce, that one who had acquired possession as a trustee could never be permitted to 
 set it up as a beneficial possession in himself, and that it was his duty, if he meant to 
 claim adversely, to give up possession of the estate, and to have then set up his claim 
 after he had redelivered possession. And see Huntly v. Huntly, 8 Ired. Bq. 250 ; but 
 see Williams v. First Presby. Soc. 1 Ohio St. N. S. 4T8. Where, however, 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. So where a trustee wrongfully pays over the trust fund to a feme covert 
 the statute begins to run against her from the moment of her becoming discovert. 
 Harrison v. Brolaskey, 20 Penn. St. 299. And on the same principle it was held in 
 Sollee v. Croft, T Rich. Eq. 34, where there had been an accounting, and a delivery of 
 the trust property by a trustee to the cestui que trust, while a minor, and a denial of any 
 further liability, shortly after the latter came of age, the statute began to run from that 
 period. Where a trustee, moreover, with the knowledge of his cestui que trust, makes 
 a conveyance apparently in derogation of his trust, and undisturbed possession is hold, 
 and improvements made, during a long period, e. g. 50 years, by the grantee and those 
 claiming under him, in which period no claim is asserted by the cestui que trust, it may 
 be presumed that he, for a sufficient consideration, directed or acquiesced in the con- 
 veyance, and the Statute of Limitations will be a bar. Williams v. First Presbyt. Soc. 
 1 Ohio St. N. S. 4T8. Where the trust, however, is merely implied 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 which 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. Angell on Limitations, ch. 16, 35, 
 and cases there cited ; 19 Am. Jurist. 389 ; Sheppards v. Turpin, 3 Gratt. 373 ; Murdock 
 v. Hughes, T Sm. & M. 219 ; Prevost v. Gratz, 6 Wheat. 481 ; Cuyler v. Bradt, 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, T Dana, 41T ; Blue v. Patterson, 1 Dev. & Batt. Eq. 45T ; Bird v. Graham, 
 
390 OP THE EFFECT OF THE 
 
 trust, until the land or rent vested in the trustee shall have been conveyed 
 by him to a purchaser for a valuable consideration ; and that it shall 
 then run only in favor of the purchaser and the parties claiming under 
 him. 1 
 
 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 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 prin- 
 ciple, as stated above, adopted in the case of Wedderburn v. Wed- 
 derburn, which came before Lord Langdale, M. B,., and was subse- 
 quently brought by appeal before Lord Cottenham.(^) So in a very 
 recent case a testator who died in 1795, devised his real estates to trus- 
 tees to sell and pay certain annuities. The trustees entered into posses- 
 sion, 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 an- 
 nuities for more than twenty years before the bill was filed. It was con- 
 tended, that the annuitants were barred by the Statute of Limitation; 
 but the Vice-Chan cellor (Sir L. Shadwell) held, that there was no ad- 
 verse possession during the time that the trustees continued in possession, 
 and his Honor granted the relief prayed by the bill. (q) 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 re- 
 ceived the rents from 1811 down to 1835 ; it was held by Lord Lang- 
 dale, M. R., that he could not plead the Statute of Limitation in answer 
 to a bill for an account filed in 1836. (r) 
 
 (») Beaumont v. Boultbee, 5 Ves. 485, Townsend v. Townsend, 1 Cox, 28; Chalmer 
 v. Bradley, 1 J. & W. 51; Atty. Gen. v. Brewers' Company, 1 Mer. 495. [See Hicks 
 v. Sallett, stated ante, 169, note, ad finem.] 
 
 (o) Thompson v. Simpson, 1 Dr. & W. 459. 
 
 {p) Wedderburn v. Wedderburn, 2 Keen, 722 ; S. C. 4 M. & Cr. 41. 
 
 lq) Wood v. Arch, 12 Sim. 472. 
 
 ()•) Mzn v. Rickets, 13 Law Journ. N. S. Chanc. 194. 
 
 1 Ired. Eq. 196; Nelson's adm. v. Cornwell, 11 Gratt. 724 (except where there is some 
 statutory limitation, as there is in some 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, 2 Id. 282; Graham v. 
 Davidson, 2 Dev. & Batt. 155 ; Tate v. Conner, 2 Dev. Eq. 224; Hudson v. Hudson, 
 3 Rand. 117 ; Hayes v. Good, 7 Leigh, 452 ; Skinner v. Skinner, 1 J. J. Marsh'. 594; 
 in Pennsylvania, 20 years, Wilkinson's Est. 1 Pars. Eq. 170. See Angell on Limita- 
 tions, ch. 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. Foscne v. Foscue, 2 Ired. Eq. 321. So 
 where a cestui que trust for life borrowed trust funds from the trustees, and gave his note 
 therefor to them, describing them as trustees, it was held that he could not set up the 
 statute. Spickernell v. Hotham, 1 Kay, 669. 
 
 1 See Young v. Lord Waterpark, 10 Jur. 1 ; 15 L. J. Ch. 63 ; 13 Sim. 204; Garrard 
 v. Tuck, 8 C. B. 247 ; and post, note to p. 266. 
 
STATUTES OF LIMITATION. 391 
 
 However, these observations apply only to cases, where'the relation of 
 trustee and cestui que trust is still subsisting. 1 For although an express 
 trust may once have been created, yet if the trustee, with the full know- 
 ledge and consent of the cestui que trust, have devested himself of that 
 character, by parting with the legal estate, and settling his accounts, 
 and obtaining a release from the person beneficially interested, the court 
 in the absence of fraud will be very reluctant 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 Limita- 
 tions. And this distinction was clearly recognized, and maintained, both 
 by the *Master of the Rolls and the Lord Chancellor, in de-p^oR/-. 
 ciding 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 trust is expressly 
 recognized, or admitted by the parties, (m) Therefore, though in strict- 
 ness 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 knowledge or being in a situation to 
 have full knowledge of his rights, has delayed for twenty years to prose- 
 cute 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.(y) Where the period of acqui- 
 escence has been longer than twenty years, the ground of defence will 
 of course be proportionably stronger, and more difficult to overcome, (z) 
 
 (s) Wedderburn v. Wedderburn, 2 Keen, 749 ; S. C. 4 M. & Cr. 52; see Portlock v. 
 Gardner, 1 Hare, 594. [See Wickliffe v. Lexington, 11 B. Monr. 161.] 
 
 (t) Breckford v. Wade, 17 Ves. 97 ; Hovenden v. Lord Annesley, 2 Sch. & Lef. 633. 
 [See ante, note, page 264.] (u) Collard v. Hare, 2 R. & M. 683. 
 
 (x) Smith v. Clay, 3 Bro. C. C. 639, n. ; Bond v. Hopkins, 1 Sch. & Lef. 429 ; Ho- 
 venden v. Lord Annesley, 2 Sch. & Lef. 636, 7 ; Medlicott v. O'Donnell, 1 Ball. & 
 Beat. 164; Cholmondeley v. Clinton, 2 J. & W. 141, 151 ; Pryce v. Byrn, cited 5 Ves. 
 681. 
 
 (y) Gregory v. Gregory, Coop. 201 ; Champion v. Rigby, 1 R. & M. 539 ; see Selsea 
 - v. Rhoads, 1 Bl. N. S. 1. 
 
 (z) Norris v. Neve, 3 Atk. 38 ; Andrew v. Wrigley, 4 Bro. C. C. 124; Bonny v. Rid- 
 gard, cited Id. 138; Pryce v. Byrn, 5 Ves. 681 V ; cited Campbell v. Walker, 5 Ves. 678, 
 82 ; Morse v. Royal, 12 Ves. 355; Ex parte Grainger, 2 Deac. & Ch. 459 ; Bonny v. 
 Ridgard, 1 Cox, 146 ; see this subject further considered, post, 525. 
 
 1 Nor will the doctrine in question be applied as to property, with regard to which, 
 that relation has never actually been, though intended to be, created. Thus on a cove- 
 nant in a marriage settlement to transfer stock belonging to the settlor, in trust for the 
 settlor for life, remainder to the intended wife and the issue of the marriage, the stock 
 never having been in fact transferred, it was held, after the lapse of the period of limi- 
 tations, that the representatives of the settlor were protected by the Statute. Spicker- 
 nell v. Hotham, 1 Kay, 669. 
 
392 OF THE EFFECT OF THE 
 
 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 acqui- 
 escence.^) Therefore, where the parties equitably entitled 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. Davoren,(&) an account of rents, and 
 profits of an estate was decreed, under peculiar circumstances of fraud 
 and imposition, after an adverse possession of fifty years.(S) And in a 
 recent case, Sir 0. Pepys, M. R., 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 books.(d) 
 r*2fifi1 *Moreover a cestui que trust will not be barred from his right 
 to relief by any length of acquiescence, unless he have an imme- 
 diate possessory title to the beneficial interest. For instance, where a 
 person was entitled to the trust of a beneficial lease in remainder after 
 the determination of a previous life estate, and the trustees suffered the 
 lease to expire in 1798, but the tenant for life did not die until 1830, 
 the cestui que trust in remainder was held entitled 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. (f) 
 
 Where the conduct of the trustee is tainted with fraud, the same doc- 
 trine 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 
 
 (a) Blennerhasset v. Day, 2 Ball. & B. 118 ; Trevelyan v. Charter, Rolls, June 2, 1835. 
 [Ante, note, p. 168, and see this subject further considered, post, Remedies for Breach 
 of Trust, p. 518.] 
 
 (b) Stackpole v. Davoren, 1 Bro. P. C. 9. 
 
 (c) Trevelyan v. Charter, Rolls, 2 June, 1835 ; [affirmed 11 CI. & F. 714.] 
 
 (d) Vernon v. Vaudry, 2 Atk. 119; Alder v. Gregory, 2 Ed. 280; Malony y. L'Es- 
 trange, 1 Beat. 406 ; Randall v. Errington, 10 Ves. 423 ; Purcell v. M'Namara, 14 
 Ves. 91 ; Pickett v. Loggan, Id. 215 ; Murray v. Palmer, 2 Sch. & Lef. 48V ; Aylward 
 v. Kearney, 2 Ball. & B. 463 ; Gordon v. Gordon, 3 Sw. 400 ; Watson v. Toone, 6 Mad. 
 153. 
 
 (e) Bennet v. Colley, 5 Sim. 181 ; 2 M. & K. 225 ; and see Thompson v. Simpson, 1 
 Dr. & W. 459, 489. 
 
 (/) March v. Russell, 3 M. & Cr. 31, 42. [But as regards strangers claiming against 
 legal estate, it is different : Williams v. Otey, 8 Humph. 563 ; see Smilie v. Biffle, 2 
 Barr, 52. See also post, 267, note.] 
 
STATUTES OP LIMITATION. 393 
 
 saving, however, of the rights of bona fide purchasers for valuable con- 
 sideration 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 relief will 
 be decreed in favor of such objects after very considerable delay.(^) And 
 on the same principle, it has been determined that trusts for charities 
 are not affected 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.(z')(l) 
 
 For the same reason that the possession of the trustee is not usually 
 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. 1 
 
 At law the cestui que trust is regarded as tenant at will to the trustee, 
 and he cannot be ejected without a previous demand of possession. 
 
 {g) Whichcote v. Lawrence, 3 Ves. 740, 52; Case in Exchequer, cited 6 Ves. 632; 
 York Buildings Company v. Mackenzie, 3 Bro. P. C. 42 ; Atty.-Gen. v. Lord Dudley, 
 Coop. 146 ; [Pinkston v. Brewster, 14 Alab. 320.] 
 
 (h) Atty.-Gen. v. Mayor of Coventry, 2 Vern. 399 ; Atty.-Gen. v. Mayor of Bristol, 2 
 J. & W. 321 ; Atty.-Gen. v. Mayor of Exeter, Jac. 448. 
 
 (i) Irish Incorporation Society v. Richards, 1 Dr. & W. 258 ; Atty.-Gen. v. Perse, 2 
 Dr. & W. 67; Atty.-Gen. v. Flint [4 Hare, 147]. Atty.-Gen. v. Magdalen Coll. 18 
 Beav. 223 ; 18 Jur. 363. 
 
 (1) The first section of 3 & 4 Will. 4, c. 27, declares, that the word "person" shall 
 extend to a body politic, corporate, or collegiate, and to a class of creditors or other 
 persons, as well as an individual. 
 
 1 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 adverse against the trustee 
 from the moment he was entitled to possession, and therefore that the statute applied 
 to the case of a term attending the inheritance. But in Young v. Lord Waterpark, 13 
 Sim. 204, 10 Jur. 1, and in Garrard v. Tuck, 8 C. B. 248, the opposite conclusion was 
 arrived at ; and this appears to be the better opinion in England. See Sugden's Con- 
 cise View, &c. 356. In the subsequent case of Melling v. Leak, 16 C. B. 652, how- 
 ever, it was said that the doctrine of Garrard v. Tuck, applied only to the case of a 
 cestui que trust in possession with the consent or acquiescence of the trustees, and so 
 far tenant at will, and not where he is only allowed to receive the rents, or otherwise 
 deal with the property in the hands of the occupying tenants, in which case he stands 
 in the relation merely of bailiff or agent to the trustees. It was therefore held, that 
 where a cestui que trust in the latter category, let a stranger into possession, who so con- 
 tinued for more than twenty years, without payment of rent or acknowledgment of title, 
 the possession was adverse, and both the trustees and cestui que trust barred by the 
 statute. 
 
 In Creigh's heirs v. Henson, 10 Gratt. 231, it was held that the possession of a gran- 
 tor after a conveyance in trust to secure a debt, with a power of sale, there being thus 
 a resulting trust to him, was that of a tenant by sufferance, and so equally that of a 
 subsequent grantee of his, and therefore that the Statute of Limitations was no bar to 
 a purchaser from the trustee in the absence of any express disclaimer. In this case 
 the deed of trust was made in 1816, the sale by the trustee in 1827, and the suit by the 
 purchaser brought in 1848. See alsoColvin v. Menefee, 11 Gratt. 93. 
 
394 OF THE EFFECT OF THE 
 
 Therefore, until this tenancy is determined, there can be no adverse 
 possession between the parties.(/c) 
 
 In a late case a cestui que trust for life, under the trusts of a settle- 
 ment, acting as the agent of the trustees, ■who had a power of sale, sold 
 the trust estate for 8440Z., and at the same time purchased another 
 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, 
 7 and then became *bankrupt, but the whole of the 8440Z. (the 
 L -* 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 
 8440Z. 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 8440?., 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 indefeasible 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 dependent on it, may be defeated and devested by 
 the disseisin of a stranger who has no notice of the trust. And the 
 Statutes of Limitation will in such a case constitute as effectual a bar as 
 if no trust estate had been interposed. 1 However, this doctrine was 
 once not entirely free from doubt. For in an early case Lord Maccles- 
 field 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 
 
 (Jc) Right v. Beard, 13 East, 210 ; Doe v. Jackson, 1 B. & Cr. 448; Doe v. Jones, 
 10 B. & Cr. 718 ; Roe v. Street, 4 Nev. & M. 42 ; 4 Bac. Abr. 198 ; Co. Litt. 54, b. 
 [Young v. Lord Waterpark, 10 Jur. 1 ; Garrard v. Tuck, 8 C. B. 248 ; Angell, Limitat, 
 ch. 35.] (I) Price v. Blakemore, 6 Beav. 507, 514. 
 
 (m) Keene v. Deardon, 8 East, 247 ; Earl of Portsmouth v. Lord Effingham, 1 Ves. 
 435 ; Harwood v. Oglander, 3 Ves. 131 ; Cholmondeley v. Clinton, 2 Mer. 360. 
 
 (n) Lawley v. Lawley, 9 Mod. 32. 
 
 1 Elmendorff v. Taylor, 10 Wheat. 152 ; Williams v. Otey, 8 Humph. 563 ; Smilie v. 
 Biffle, 2 Barr, 52; Wooldridge v. Planters' Bank, 1 Sneed, 297 ; Worthy v. Johnson, 10 
 Geo. 358 ; Long v. Cason, 4 Rich. Eq. 60 ; and in Wooldridge v. Planters' Bank, ut 
 supr., it was held that if the statute had begun to run, it would not be suspended, be- 
 cause of the death of the trustee, and a failure to appoint a successor, even in the case 
 of an infant. In the case of a separate use for a feme covert, the possession of the 
 husband consistent with the trusts of the deed, is not adverse to the trustee. Henson 
 v. Kinard, 3 Strobh. Eq. 371. 
 
STATUTES OF LIMITATION. 395 
 
 occasion, Sir J. Jekyll, M. R., laid it down as a rule, that the forbear- 
 ance of the trustees, in not doing 'what it was their office 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. Mack- 
 worth,^) that the rule, that the Statute of Limitations does not bar a 
 trust estate, holds only as between cestui que trust and trustee, not be- 
 tween 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.^) In Cholmondeley v. Clinton, Sir Wm. Grant, M. R., alluded 
 to the decision in Lawley v. Lawley without any disapprobation.(r) But 
 when that case subsequently came before Sir Thomas Plumer, M. R., 
 on further directions, 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 course of his ^judgment his Honor commented upon and ex- rsK9 p 8 -. 
 plained the case of Lawley v. Lawley, which he showed to have L -■ 
 been very incorrectly stated in the printed report. (s) The decision of 
 Sir Thomas Plumer was affirmed on appeal by the House of Lords, and 
 the doctrine as laid down above must therefore be considered as finally 
 established.^) 
 
 It seems still somewhat doubtful, how far the infancy of the cestui que 
 trusts will prevent the adverse possession of a stranger from operating 
 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 in- 
 terfered, and relieved against the effect of a fine by a stranger, and five 
 years non-claim, by which the legal title of the trustee had been barred.(w) 
 However, Lord Chancellor Parker is reported, to have said, that in favor 
 of a 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, 1 although the point might perhaps still be open to argument. 
 
 (o) Lechmere v. Earl of Carlisle, 3 P. Wins. 215. [Cowling v. Douglass, 4 Alab. 
 206.] (p) 2 Eq. Ca. Abr. 579. 
 
 (q) Hovenden v. Lord Annesley, 2 Seh. & Lef. 629, per Lord Redesdale ; Pentland 
 v. Stokes, 2 Ball. & B. 75, per Lord Manners. (r) 2 Mer. 360. 
 
 (*) Cholmondeley v. Clinton, 2 J. & W. 171, 5. [See Elmendorff v. Taylor, 10 
 Wheat. 174.] (<) 2 J. & W. 191 ; [Melling v. Leak, 16 C. B. 652.] 
 
 (it) Allen v. Sayer, 2 Vern. 368. 
 
 (x) Earl v. Countess of Huntingdon, 3 P. Wins. 310, n.; see Wych v. East India 
 Company, Id. 309 ; and see also Pentland v. Stokes, 2 Ball. & B. 75. 
 
 1 It was so ruled in Williams v. Otey, 8 Humph. 563 ; Wooldridge v. Planters' Bank, 
 1 Sneed, 297 ; Worthy v. Johnson, 10 Geo. 358 ; Long v. Cason, 4 Rich. Eq. 60. See 
 Smilie v. Biffle, 2 Barr, 52. 
 
396 OF THE INCIDENTS TO AND LEGAL 
 
 Where the trustee who has the legal right of enforcing a claim, is 
 under any disability, it would follow conversely from this doctrine, that 
 the Statutes of Limitation would not begin to run, until that disability 
 ceased. However, the point does not appear to have been ever expressly ' 
 decided, (y) 
 
 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 unsatis- 
 factory state by the authorities, and it is extremely difficult to gather 
 from them any very definite rules of general application on the point. 
 
 [*269] *CHAPTER III. 
 
 OP THE INGIDENTS TO AND LEGAL PKOPEKTIES OP THE 
 ESTATE OF TEUSTEES. 
 
 Conveyances to uses before the statute of Henry VIII, were attended 
 with this inconvenience, viz., that the estates of the feoffees to uses, 
 were subject to all their legal incumbrances.(a) But upon the establish- - 
 ment 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 trus- 
 tee's estate at law.{p) Nor will that, or any other interest, held only in 
 trust, be affected in equity by the judgment, or other debts or engage- 
 ments, or by the bankruptcy or insolvency of the trustee.(d) 1 
 
 (?/) Vide post, Part III, Div. I, Ch. III. (a) 1 Cruis. Dig. Tit. XI, c. 2, p. 7. 
 
 (6) 1 Cruis. Dig. Tit. XII, c. 4, s. 1. 
 
 (c) Casborn v. English, 2 Eq. Ca. Abr. 728 ; Noel v. Jevon, 2 Freem. 43 ; Hinton v. 
 Hinton, 2 Ves. 631 ; 1 Sugd. V. & P. 358, 9, 9th ed. 
 
 (d) Copeman v. Gallant, 1 P. Wms. 314; Finch v. Earl of Winchelsea, 1 P. Wms. 
 278 ; Bennett y. Davis, 2 P. Wms. 318 ; Scott v. Surman, Willes, 402 : Carpenter v. 
 Marnell, 3 B. & P. 40, vide post, p. 530 (Bankruptcy). 
 
 ' Lounsbury v. Purdy, 11 Barb. S. C. 490 ; Beaver v. Filson, 8 Barr, 327 ; Bush v. 
 Bush, 1 Strob. Eq. 379 ; Elliott v. Armstrong, 2 Blackf. 208 ; Williams v. Fullerton, 20 
 Verm. 346 ; Bostick v. Keizer, 4 J. J. Marsh. 599 ; Wilhelm v. Folmer, 6 Barr, 296; 
 Manley v. Hunt, 1 Ham. (Ohio) 257 ; Porter v. Bank of Rutland, 19 Verm. 410; La- 
 vender v. Lee, 14 Alab. 688. Nor will it pass under a general assignment for creditors by 
 the trustee. Ludwig v. Highley, 5 Barr, 132. And, the possession by the trustee, though 
 coupled with acts of ownership or the like, is not fraudulent as to creditors without notice 
 of the trust, so as to subject the estate to his debts, land not being within the statute of la 
 Elizabeth. Ludwig v. Highley, utsupr. Atrusteehasnotpowertoconfessjudgment,even 
 for the purchase-money : Wilhelm v. Folmer, 6 Barr, 296 ; or for contemporaneous ad- 
 vances : Cadbury v. Duval, 1 Am. L. Beg. 1 05 ; Aff 'd in Sup. Ct. of Penna. M. S. But where 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 397 
 
 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 per- 
 sonal estate vested in a trustee was forfeited to the crown or other supe- 
 rior lord, upon attainder or conviction for treason or felony. And we 
 have seen, that it was then a very doubtful question, whether the trust 
 could be enforced against the crown, or other lord, taking by forfeiture 
 or escheat.(e) However, as has been already stated, a partial remedy 
 for this inconvenience and injustice was provided by the statute 39 & 40 
 Geo. Ill, 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 peKjisonal property held in trust shall not be the 
 subject -of forfeiture 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.(/) 
 
 *The trustee, who has the legal interest in a copyhold, is re- I - ij . e)tTn -. 
 garded by the lord as the real tenant,, for the performance of the L J 
 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.(#) 
 
 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 
 
 (e) Powlett v. Att.-Gen. Hard. 467; Reeve v. Att.-Gen. 2 Atk. 223 ; Perm v. Balti- 
 more, 1 Ves. 453 ; Eales v. England, Prec. Chan. 200 ; Burgess v.Wheate, 1 Ed. 177 ; 
 S. C. 1 B. C. 123 ; Williams v. Lonsdale, 3 Ves. Jun. 752 ; Hovenden v. Lord Annesley, 
 2 Sch. & Lef. 617 ; vide supra (Preliminary Chapter), p. 49, Att.-Gen. v. Duke of Leedsj 
 2M.4K. 243. 
 
 (f) Vide supra, p. 49, and note. [And see Hughes v. Wells, 16 Jur. 927, -where it 
 was held under these acta that trust moneys misapplied, could be traced into land, as 
 against the lord claiming by escheat.] 
 
 (g) Trin. Coll. v. Brown, 1 Vern. 441 ; 2 Lord Raym. 994 ; 1 Cruis. Dig. 305 ; Earl 
 of Bath v. Abney, 1 Dick. 260 ; Carr v. Elligon, 3 Atk. 73, 77 ; Wilson v. Hoare, 2 B. 
 & Ad. 350. 
 
 the land is already subject to the lien, the trustee may confess judgment on a sci. fa. to re- 
 vive. Dickerson's Appeal, 7 Barr, 255. In Bostick v. Keizer, and Elliott v. Armstrong, ut 
 supra, an execution on a judgment against a trustee, was held to be void, even so far 
 as to prevent a merger on a purchase by the cestui que trust, at the sale. It is, however, 
 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. Nosworthy, 2 Lead. Cas. Eq. p. i, page 108 ; Heister v. Fortner; 2 
 Binn. 40 ; Jackson v. Post, 15 Wend. 588 ; Orth v. Jenning, 8 Black. 420, and other 
 cases; contra, Freeman v. Hill, I Dev. & Batt. Eq. 389 ; Bank v. Campbell, 2 Rich. Eq. 
 191 ; Johnson v. Lee, 1 Busbee Eq. 45. In Pennsylvania, accordingly, it is held as 
 to real estate : Peebles v. Reading, 8 S. & R. 484 ; and it seems, as to personalty : 
 Smith v. Stern, 17 Penn. St. 360 ; that a bona fide purchaser without notice at an exe- 
 cution, 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. 
 
OF THE INCIDENTS TO AND" LEGAL 
 
 it for his own use.(A) And the same rule has since been adopted with 
 respect to trusts. 1 
 
 However, the statute 33 Hen. VIII, c. 20, enacted, that if any per- 
 son should be attainted or convicted of high treason, the king should 
 have the benefit of any uses, &c, to which the attainted party was enti- 
 tled. And it has been observed by Lord Hale, that this statute applies 
 to cases of trust since the Statute of Uses, and therefore, upon an at- 
 tainder for high treason of the cestui que trust of an inheritance, the 
 equity or trust was forfeited, though possibly the land itself was not for- 
 feited.^') 
 
 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,(£) where the legal estate in lands held of the crown 
 was vested in Sir George Sands, as a trustee for a person who was at- 
 tainted 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. (&) 
 
 Upon the same principle, in the case of Burgess v. Wheate, which was 
 elaborately argued before Lord Keeper Henley, assisted by Lord Mans- 
 field 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 inheritance 
 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 dis- 
 charged from the trust.(Z) This decision was made in 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 subsequent case of Middleton v. 
 Spicer.(m) But it has been recently recognized and acted upon by the 
 Vice-Chancellor of England, in the late case of Taylor v. Haygarth,(»i) 
 which must be considered as having finally established the law on this 
 
 Qi) Brook. Abr. Tit. Feoff, al Use, pi. 34 ; per Sir Thomas Clarke, M. R., in Burgess 
 v. Wheate, 1 Ed. 177, 199. (i) 1 Hale, P. C. 248. 
 
 (A) Att.-Gen. v. Sands, 1 Hale, P. C. 249. 
 (0 Burgess v. Wheate, 1 Black. 123 ; S. C. 1 Ed. 177. 
 im) 1 Bro. C. C. 204; see Fawcet v. Lowther, 2 Ves. 300. 
 (re) 8 Jurist, 135 ; 14 Sim. 8. 
 
 1 This proposition can hardly be considered as applicable under the Statutes of Dis- 
 tribution 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 Gr. & J. 443; Dar- 
 rah v. McNair, 1 Ashm. 236; 4 Kent's Comm. 425; 1 Greenl. Cruis. Dig. 448; see 
 however, McCaw v. Galbraith, 7 Rich. L. 74. 
 
PROPERTIES OP THE ESTATE OF TRUSTEES. 399 
 
 subject.(o)(l) *However, in such a case, if the trustee has not r;( . w 
 already the legal possession, he has no equity to compel the lord L J 
 hy escheat to invest him with it — as, for instance, by granting admission 
 to a copyhold upon the cestui que trust dying -without heirs.(p) 1 
 
 The principle of the decision in Burgess v. Wheate was, that the legal 
 estate being vested in the trustee, the land could 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,(<7) Lord Thurlow refused to 
 extend the doctrine of Burgess v. Wheate to a trustee of a leasehold 
 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, 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 exe- 
 cutors. There being no next of kin, the executors filed a bill, claiming 
 
 (0) See Henchman v. Att.-Gen. 3 M. & K. 485 ; [Taylor v. Haygarth, 14 Sim. 8 ; 8 
 Jurist, 135 ; Rittson v. Stordy, 19 Jurist, 771 ; McCaw v. Galbraith, 7 Rich. L. 74.] 
 
 (p) Williams v. Lord Lonsdale, 3 Ves. 752 ; but see King v. Coggan, 6 East, 431 ; 
 and 1 Shriv. Cop. 4G2. 
 
 (g) 1 Bro. C. C. 201 ; and see Walker v. Deane, 2 Ves. Jun. 170. 
 
 (1) 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 mortgagee 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. 
 
 1 In a recent case in England, Onslow v. 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 premises in trust for L. S., 
 her heirs and assigns, for her and their own use and benefit. L. S., who was illegiti- 
 mate, and died without issue, by her will devised these premises among others to trus- 
 tees 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 offering 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 directed, 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. 
 
 Whatever may be the law with regard to the escheat of trust estates, it has been re- 
 cently held in England, that on a devise in trust to convey to an alien, the crown has 
 no claim, nor can the trustee hold for his own benefit, but that there is a resulting trust 
 for the heirs at law of the testator. Rittson v. Stordy, 19 Jurist, 771. But in a late 
 case in South Carolina, on a trust to convey to an alien as soon as he should become 
 naturalized, while it was equally determined that the trustee had no beneficial interest, 
 it was held, that, on office found, the State would be entitled to the rents and profits till 
 the cestui que trust became capable of taking ; and the doctrine that trust estates are 
 forfeitable, was asserted. McCaw v. Galbraith, 7 Rich. L. 74. 
 
400 OP THE INCIDENTS TO AND LEGAL 
 
 the residue for their own benefit. But Lord Thurlow observed, thatthe 
 executors, having legacies bequeathed, and being clearly trustees, could 
 not by any possibility take any beneficial interest, and he therefore 
 decreed in favor of the crown.(r) 1 And the principle of this decision 
 was subsequently recognized by Lord Loughborough, C, in the case of 
 Barclay v. Russell,(s) and has since been followed in Taylor v. Hay- 
 garth.^) 
 
 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 bona vacantia.{u) 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. (z) 
 
 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. 3 
 
 In general the right to the possession of the title-deeds of property 
 belongs to the person, in whom the legal estate is vested,(«/) although 
 he may only have an estate for life.(z) Therefore, where the legal iti- 
 terest in a *settled estate is given to the trustees either by deed 
 L J or will, the right to the possession of the title-deeds during the 
 continuance of that interest follows as a necessary consequence, and 
 they may maintain an action at law for the purpose 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 to be delivered to the trustees on a 
 
 (r) Middleton v. Spicer, 1 Bro. C. C. 201 ; see Walker v. Deane, 2 Ves. Jun. 170. 
 
 (s) 3 Ves. 424, 430 ;, and see Henchman v. Att.-Gen. 3 M. & K. 485. 
 
 It) 8 Jurist, 132 ; [14 Sim. 8 ; and in Powell v. Merrett, 22 L. J. Ch. 408; 1 Sm. & 
 Giff. 381 ; Cradock v. Owen, 2 Id. 241 ; Bishop v. Curtis, 17 Jurist, 23.] 
 
 (u) Taylor v. Haygarth, 8 Jurist, 132 ; 14 Sim. 8. [See note to page 53.] 
 
 (x) Taylor v. Haygarth, 8 Jurist, 132 : 14 Sim. 8. [Cradock v. Owen, 2 Sm. & Giff. 
 241 ; stated ante, 123, note.] 
 
 (y) Strode v. Blackburne, 3 Ves. 225 ; Harrington v. Price, 3 B. & Ad. 170. 
 
 («) Ivie v. Ivie, 1 Atk. 431 ; Ford v. Peering, 1 Ves. Jun. 76 ; Webb v. Lord Lyming- 
 ton, 8 Ves. 322, n. 
 
 (a) Doe v. Passingham, 6 B. & C. 305 ; Barclay v. Collett, 4 Bing. N. C. 650 ; see 
 Denton v. Denton, 8 Jurist, 388 ; 7 Beav. 388 ; Powell v. Knox, 16 Alab. 368. 
 
 ' In Darrah v. McNair, 1 Ashmead, 240, it was held, that where there are no next of 
 kin, the executor holds in trust for the State, as ultimus hxres. See ante, p. 123, and 
 notes. 
 
 2 Bishop v. Curtis, 17 Jurist, 23. 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 401 
 
 petition for that purpose, when the object, for which they were deposited, 
 has been satisfied. (6) 1 
 
 However, in a late case in the Rolls, trustees, who had acquiesced for 
 four years in the possession of the title-deeds and estates 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 them 
 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.(ci) However, this lia- 
 bility 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 per- 
 son as tenant for life under a settlement, he is entitled to the possession 
 of the title-deeds; and the remainder-man, whether claiming 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.(/) s 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 sus- 
 picion, that he actually intended to make an improper use of the deeds. (Ji) 
 (6) Duneombe v. Mayer, 8 Ves. 320. 
 
 (c) Denton v. Denton, 8 Jurist, 388 ; 7 Beav. 388 ; vide post, Trustees of Freeholds. 
 \d) Evans v. Bicknell, 6 Ves. 174; Meux v. Bell, 1 Hare, 82, 98. 
 (e) 6 Ves. 190 ; see Knye v. Moore, 1 S. & St. 65. 
 
 (/) Ford v. Peering, 1 Ves. Jun. 76 ; Duneombe v. Mayer, 8 Ves. 320 ; "Webb v. 
 Lymington, lb. 522, n. ; Churchill v. Small, lb.; Bowles v. Stewart, 1 Sch. & Lef. 223; 
 Knott v. Wise, Id., cited Webb v. Webb, 1 Dick. 298. 
 
 (g) Strode v. Blackburne, 3 Ves. 222; Walwyn v. Lee, 9 Ves. 24; post, 513. 
 (h) See Strode v. Blackburne, 3 Ves. 223 ; sed vide- Hicks v. Hicks, 2 Dick. 650. 
 
 1 Foster v. Crabb, 16 Jur. 835, 12 C. B. 136, 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 posses- 
 sion of the deeds in the trustee ; 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. 
 
 2 But a person in vested remainder may file a bill against the tenant for life, for the 
 sole purpose of production and inspection of the title-deeds ; and the burden of proof 
 that such production is required for an improper purpose is on the party resisting. 
 This right exists, however, only wherethe title of the party claiming production is clear 
 and free from reasonable cause of litigation. Davis v. Earl Dysart, 1 9 Jurist, 743. M. R. 
 
 26 
 
402 OF THE INCIDENTS TO AND LEGAL 
 
 In like manner, where the trust property consists of personal 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.(z') 
 
 Where the legal estate is vested in a person merely as a dry trustee 
 for the person who is entitled to the absolute beneficial interest, we 
 have already seen that it is the duty of the trustee to dispose of and 
 convey *the estate according to the direction of the cestui que 
 L -I 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 possession and management of the 
 trust estate as against the Equitable tenant for life, has occasionally 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 discharge. 
 
 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 offer to bring into court a suffi- 
 cient sum to secure the payment of the annual charges. (A) 1 
 
 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 possession 
 and control of the estate, with a view to her personal protection in case 
 of her marriage. (Z) And if the trustees are themselves the parties bene- 
 ficially 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 management of the estate.(w) 
 
 However, it will be otherwise, where it is plain from the expressions 
 in the will, that the testator did not intend that the property should re- 
 main under the personal management of the trustees ;{n) . or (in the ab- 
 sence of any such indication of the intention), if the personal possession 
 or occupation of the property by the tenant for life be beneficial or 
 requisite for its due enjoyment — as in the case of a family residence.(fl) 
 
 (i) Jones v. Jones, 3 Bro. C. C. 80 ; see Poole v. Pass, 1 Beav. 600. 
 
 (k) Tidd v. Lister, 5 Mad. 429 ; see Naylor v. Arnitt, 1 E. & M. 501. [Post, p. 384.] 
 
 (1) Per Sir J. Leach, V. C. 5 Mad. 432. [Post, p. 384, &c. and notes.] 
 
 (m) Tidd v. Lister, 5 Mad. 432. (n) 5 Mad. 433. (o) 5 Mad. 432, 3. 
 
 1 A payment to a cestui que trust for life will only protect to the extent to which the 
 cestui que trust wpuld have been entitled to receive from the trustee, had it been made 
 to him. Smith v. Brown, 5 Rich. Eq. 291. 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 403 
 
 And where the tenant for life takes a legal estate of freehold, subject 
 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 re- 
 strained 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 pretence of any arrears, or irregularity 
 in payment of the annuities by the tenant for life, which had been made, 
 and possession of the estate kept by him, for four years with the acqui 
 escence of the trustees. (g-) 
 
 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 into possession of 
 the estate, and to give notice to the tenants to pay the rents to them.(r) 
 *And though the arrears may afterwards be paid, the trustees 
 can only be compelled to give up their possession upon such [*2'4] 
 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 cha- 
 ritable purposes, but those purposes are not clearly defined or ascer- 
 tained, the court will not suffer the fund to be paid over into the hands 
 of the trustees, although there may not be the slightest imputation 
 against their characters, but it will direct a scheme for its application. (t) 
 
 A court of law in general recognizes only the legal owner of property ; 
 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. 1 Therefore, in 
 
 (p) Blake v. Bunbury, 1 Ves. Jun. 194, 514; see Tidd v. Lister, 5 Mad. 432; Den- 
 ton v. Denton, 8 Jurist, 388 ; 7 Beav. 388. 
 
 (q) Denton v. Denton, 8 Jurist, 388 ; 7 Beav. 388. 
 
 (r) Jenkins v. Milford, 1 J. & W. 629. (s) Ibid. 
 
 It) Wellbeloved v. Jones, 1 S. & St. 40. 
 
 1 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, 14 
 Verm. 28; Wright v. Douglass, 3 Barb. S. C. 559; Moore v. Burnett, 1 1 Ohio, 334; 
 except where the trust is terminated by operation of law: Nicoll v. Walworth, 4 Denio, 
 385 ; or there is a presumption of a reconveyance 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 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. 
 Johnsfon, 1 W. & S. 56 ; School Dir. v. Dunkleberger, 6 Barr, 29 ; or by the trustee: 
 Hunt v. Crawford, 3 Pa. R. 426. The trustee may bring trespass qu. cl.fr. : Walker v. 
 
404 OF THE INCIDENTS TO AND LEGAL 
 
 an ejectment for the recovery of land, a demise must be laid in the name 
 of the trustee, in whom the legal estate is outstanding, 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 covenantee, or other person with whom 
 the engagement was originally made, is in general the only person who 
 can sue and recover upon the contract at law.(a;) Moreover, in an action 
 by a trustee, the defendant cannot set off an equal or greater debt due 
 to him from the cestui que trust, although at one time a contrary 
 
 (u) Goodtitle v. Jones, 7 T. R. 47. (x) Wake v. Tinkler, 16 East, 36. 
 
 Fawcett, 7 Ired. 44 ; as may the cestui que trust, if in actual possession : Cox v. Walker, 
 26 Maine, 504 ; but it has been held that merely nominal trustees, as those of an in- 
 corporated 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. k R. 
 251 ; Guphill v. Isbell, 1 Bail. 230, S. C. 8 Rich. L. 463 ; Cobson v. Blenton, 3 Hayw. 
 152; Thompson v. Ford, 7 Ired. 418; Poage v. Bell, 8 Leigh, 604; Schley v. Lyons, 
 6 Geo. 530 ; though in the possession of the cestui que trust : Wynn v. Lee, 5 Geo. 236; 
 see Jones v. Cole, 2 Bail. 330 (so, though the legal title is not in the trustee, but 
 the cestui que trust, owing to a defect in a decree of the court, by which he was consti- 
 tuted, the possession of the cestui que trust being his : Rogers v. White, 1 Sneed, 69) ; 
 of detinue: Chambers v. Mauldin, 4 Alab. 477 ; Baker v. Washington, 5 Stew. & Port. 
 142 ; Parsons v. Boyd, 20 Alab. 112 ; Stoker v. Yelby, 11 Alab, 327 ; Jones v. Strong, 
 6 Ired. 367 ; Murphy v. Moore, 4 Ired. Bq. 118 ; Newman v. Montgomery, 5 How. 
 Miss. 742 ; and of replevin : Daniel v. Daniel, 6 B. Monr. 230 ; Presley v. Stribling, 
 24 Mississippi, 527. The action in all these cases would lie equally against the cestui que 
 trust : Beach v. Beach, 14 Verm. 28 ; Guphill v. Isbell, 8 Rich. L. 463 ; Gunn v. Bar- 
 row, 17 Alab. 743 ; Presley v. Stribling, 24 Mississippi, 527 ; who is not permitted at 
 law to deny the title of the trustee (White v. Albertson, 3 Dev. 241) as against a 
 stranger, unless there be some stipulation in the deed entitling the cestui que trust to 
 possession. Though it is a general rule, the action of assumpsit being equitable in its 
 nature, that on a promise 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 predecessors. 
 Davant v. Guerard, 1 Spear, 242 ; Ingersoll v. Cooper, 5 Blackf. 426 ; see Binney v. 
 Plumly, 5 Verm. 500. A tender must be made to the trustee. Chahoon v. Hollenback, 
 16 S. & R. 425. But notice to a trustee before his appointment will not affect his 
 cestui que trust. Lessee of Henry v. Morgan, 2 Binn. 497. A cestui que trust of per- 
 sonalty cannot interpose a claim, under the Alabama statute, to try the right of pro- 
 perty. King v. Hill, 20 Alab. 133. Trustees must sue jointly at law. Brinckerhoff 
 v. 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 admistra- 
 tor, 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, I 113. But in general, all actions must be now commenced in the name of 
 the party really interested. Id. \ 111. The Civil Code of Ohio of 1853, \ 25, 27, con- 
 tains similar provisions. 
 
PROPERTIES OF THE ESTATE OF TRUSTEES. 405 
 
 doctrine seems to have prevailed. (y)(l) 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 nominee of the bene- 
 ficial owner,(a) even though the latter be an infant only six months old. (b) 
 
 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 testamen- 
 tary 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, it seems that in such a case 
 the trustee ought to *attend to the wishes of the guardian, r*07fn 
 or even of the infant cestui que trust, in making the appoint- 
 ment.^) 
 
 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. (d) 
 
 In case of the bankruptcy of any person indebted to the trust estate, 
 
 (y) Tucker v. Tucker, 4 B. & Ad. 745 ; overruling Bottomley v. Brooke, and Rudge 
 v. Birch, cited 1 T. R. 621, 2. [Campbell v. Hamilton, 4 Wash. C. C. R. 93 ; Beale 
 v. Coon, 2 Watts, 183 ; Porter v. Morris, 2 Harr, 509 ; Woolf v. Bate, 9 M. Monr. 
 211 ; see Wells v. Chapman, 4 Sandf. Ch. 312.] 
 
 (2) Annesley v. Simeon, 4 Mad. 390. [See Roden v. Murphy, 10 Alab. 804; In- 
 surance Co.v. Smith, 11 Penn. St. R. 120.] 
 
 (a) Barrett v. Glubb, 2 Bl. 1052; Arthington v. Coverley, 2Bq. Abr. 518; Boteler v. 
 Allington, 2 Atk. 458; Earl of Albemarle v. Rogers, 2 Ves. Jun. 477; 3 Cruis. Dig. 
 Tit. 21, ch. 1, s. 6 ; Att.-Gen. v. Porster, 10 Ves. 335, 8 ; Att.-Gen. v. Newcombe, 14 
 Ves. 1, 7. 
 
 (b) Arthington v. Coverley, 2 Eq. Ab. 518. (c) Mott v. Buxton, 7 Ves. 201. 
 (<2) Re Saddler, 1 Mad. 581. 
 
 (1) If a trustee, being the nominal plaintiff, fraudulently release 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. Leagh v. Leagh, 
 1 B. & P. 447; Baberman v. Radenius, 7 T. R. 670, 6 ; Paine v. 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. Mauldin, 11 Alab. 978. See also Chisholm v. 
 Newton, 1 Alab. 371 ; 11 Johns. R. 47 ; Welch v. Mandeville, 1 Wheal, 233 ; McCullum 
 v. Coxe, 1 Dall. 139 ; Parker v. Kelly, 10 Sm. & M. 184 ; Blin v. Pierce, 20 Ver- 
 mont, 25.] 
 
406 OF THE INCIDENTS TO AND LEGAL 
 
 the trustee must prove the debt, for he is in general the party to receive 
 the dividends. However, the cestui que trust, if not under disability, 
 should join in the proof, (e) And so in the case of an assignment of a 
 bond or other chose in action, although the court of bankruptcy recog- 
 nizes 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.(^) 
 
 The right to sign a bankrupt's certificate follows the right to prove ;(h) 
 and therefore a trustee may sign the certificate of a bankrupt debtor to 
 the estate : although one of several trustees cannot do^ so, unless author- 
 ized by his colleagues.(i') 
 
 It was said by Lord Northington, in the case of Burgess v. Wheate 
 that the right of voting for coroners, sheriffs, 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 pur- 
 pose.^) 1 
 
 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 pro- 
 viding that he should be able to expend 40s. per annum. 
 
 But the statute of 7 & 8 Will. Ill, c. 25, s. 7, expressly provides, 
 that no trustee or mortgagee shall be entitled to vote in an election for a 
 
 («) Ex Parte Green, 2 D. & Ch. 116 ; Ex parte Dubis, 1 Cox, 310; Archb. Bkrpt. 
 Law 155, 6. 
 
 (/) Ex parte Dickenson, 2 D. & Ch. 520 ; Archbold Bkrpt. Law, 303, 308, 156. 
 (g) Vide post, Bankruptcy of Trustees, p. 530. (h) Re Lawrence, 1 M. & A. 453. 
 (i) Ex parte Rigby, 2 Rose, 224 ; and S. C. 19 Ves. 463. 
 (k) In Burgess v. Wheate, 1 Ed. 251. [See Lee v. Hutchinson, 8 C. B. 16.] 
 
 1 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, provided, that "all 
 freemen (except free negroes, &c.) who have been inhabitants of any one district within 
 the State, twelve months immediately preceding the day of the 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 submitted to the Supreme Court, questions as to the respective rights of the par- 
 ties 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, how- 
 ever, 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 Barker, 6 Wend. 509, it was held that a trustee of stock in aa iusumnce 
 company, was entitled to vote at an election for directors. 
 
PROPERTIES OF THE ESTATE OP TRUSTEES. 407 
 
 member of Parliament by reason of the trust estate or mortgage, 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 implica- 
 tion to give them the right of voting when in possession of the estate 
 or of the income arising from it. (I) 
 
 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 his own use. And the 18 Geo. II, c. 18, s. 5, also required 
 as the qualification for a voter the possession of the property to his own 
 use. * And the words "to your own use," were inserted in the r^onn-i 
 form of the oath to be taken by the freeholders. 
 
 These enactments appear to have entirely excluded the claim of trus- 
 tees to vote in respect of the trust estate in any case. But the late 
 Reform Act (2 Will. IV, c. 45, s. 23) re-enacts the provisions of the 7th 
 section of 7 & 8 Will. Ill, 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 or receipt of the rents and profits ; 
 without adding the words "to their own use," which were introduced 
 into the acts of 10 Ann. and 18 Geo. II ; and this if it had not subse- 
 quently 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 notwithstand- 
 ing 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 speci- 
 fied in- the act. 
 
 Therefore the provisions of the 26th section appear completely to 
 negative the right of a trustee to exercise the elective franchise, although 
 he may be in actual possession of the trust estate, and notwithstanding 
 any implication arising from the 23d section. And this opinion seems 
 to be supported not only by the sound principles of construction, as ap- 
 plicable 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. 
 
 (I) Koger's Law of Elections, 126. 
 
408 INCIDENTS TO THE ESTATE OP TRUSTEES. 
 
 The rule is of course different, where the trustee has a beneficial in- 
 terest in the trust estate to the amount in value fixed by the act as the 
 minimum of qualification according to the nature of the property; 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 free- 
 hold,^) has been transferred by the statute 58 Geo. Ill, 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 enjoyment of 
 certain privileges ; as in the case of members of Parliament ;{n) or jus- 
 tices of the peace ;(o) or other similar offices ; or (previously to the altera- 
 tion of the game laws by the recent statute), (p) with respect to the 
 right of shooting game ;{q) in all these cases, though a beneficial enjoy- 
 ment 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 
 l"*2771 e( l u i ta ^ e 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 satisfied 
 (as for the payment of debts, which had long since been discharged), 
 has not a sufficient interest in the estate to entitle him to redeem the 
 mortgage, (r) 1 
 
 A mere dry trustee, who is made a party defendant to a suit in 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 respect from an 
 executor or administrator, whose evidence cannot be received in a suit 
 respecting the estate. (t) Indeed at law the testimony of a mere trustee 
 is inadmissible, (w) 2 
 
 {m) Burgess v. Wheate, 1 Ed. 251. 
 
 (?i) 1 & 2 Vict. c. 48, s. 2, which expressly requires that the property giving the quali- 
 fication, shall belong to the party " for his own use and benefit." 
 
 (o) 5 Geo. II, c. 18 ; 18 Geo. II, c. 20. (p) 1 & 2 Will. IV, c. 32, s. 6. 
 
 {q) 22 & 23 Car. II, c. 25; 5 Ann. c. 14; 9 Ann. c. 25 ; 13 Geo. Ill, c. 80; 58 Geo. 
 Ill, c. 75. (r) James v. Biou, 2 S. & St. 600. 
 
 («) Croft v. Pike, 3 P. Wins. 182; Mann v. Ward, 2 Atk. 229 ; Potherby v. Pate, 3 
 Atk. 604. But it seems that a trustee plaintiff cannot be a witness, v. Fitzgerald, 
 
 9 Mod. 330 ; Phillips v. Duke of Bucks, 1 Vern. 230. 
 
 (<) Goss v. Tracy, 1 P. Wms. 290 ; Croft v. Pike, 3 P. Wms. 182 ; Fotherby v. Pate, 
 3 Atk. 604. (u) Mann v. Ward, 2 Atk. 229. 
 
 1 The general rule, however, is otherwise : Upham v. Brooks, 2 Story, 629 ; Dexter 
 v. Arnold, 1 Sumn. Ill ; Grant v. Duane, 9 Johns. R. 591. See Kellogg v. Conner, 
 
 10 Paige, 311. 
 
 2 In equity, a trustee may in general be a witness : Neville v. Demeritt, 1 Green 
 Ch, 321 ; Harvey v. Alexander, 1 Rand. 219; Taylor v. Moore, 2 Rand. 563; Trustees 
 of Watertown v. Cowen, 4 Paige, 510 ; Hawkins v. Hawkins, 2 Car. Law Bep. 627. See 
 
DISPOSITION OF THE ESTATE OF TRUSTEES. 409 
 
 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 ces- 
 tui que trust will also be recognized at law, for the purpose of supporting 
 an insurance effected by him.(s) 
 
 *CHAPTER IV- [*278] 
 
 OF THE DISPOSITION OF THEIR ESTATE BY TRUSTEES.* 
 
 I. — Where the Disposition is made II. — Where it is made by Wild 
 by Deed, or Act inter vitos [283]. 
 
 [278J. 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. 1 In equity their legal powers are re- 
 garded as under the control and subservient to the interest 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 alto- 
 gether distinct from a conveyance or disposition by a trustee made under 
 a power conferred upon him by the instrument creating the trust. The 
 
 (a) Frank v. Mainwaring, 2 Beav. 126. See Smith v. Duke of Chandos, Barn. 416. 
 [Wilson v. Wilson, 1 Dessaus. 230.] 
 
 (y) Anon. 3 Ves. 515 ; v. Tolland, 8 Ves. 72 ; Sykes v. Hastings, 11 Ves. 363 ; 
 
 Sutton v. Jones, 15 Ves. 584 ; but see Tait v. Jenkins, 1 N. C. C. 492 ; vide post, Dis- 
 abilities of Trustees, p. 535. 
 
 (z) Ex parte Yallop, 15 Ves. 67. [1 Phillips Ins. 107. See Swift v. Mutual Ins. Co. 
 18 Verm. 305, and note.] 
 
 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. 
 
 ' 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 ; Shortz v. Unangst, 3 
 W. & S. 55. But it does not pass by a general assignment for creditors, though with 
 
410 OF THE DISPOSITION OF 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 tine of the first duties of a trustee to execute such 
 conveyances of the legal estate as the cestui que trusts shall direct.(J) 
 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, (e) And where the refusal proceeds 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.^) 
 
 However, although the title of the cestui que trust to require a con- 
 veyance from the trustee be quite clear in the opinion of the court, yet 
 if the trustee in refusing act bona fide, and under the advice of his coun- 
 sel, he will 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 respect- 
 ing the costs.(e) 
 
 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 objec- 
 tion, and decreed an assignment of the term according to the prayer of 
 thebill.(/) 
 
 If the title of the cestui que trust be at all doub.tful, 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. (g) However, where the plaintiff's title, though not 
 
 (a) Post, Powers of Sale, p. 471. 
 
 (6) 1 Cruis. Dig. tit. 12, ch. 4, s. 6 ; Boteler v. Allington, 1 Bro. C. C. 73. 
 
 (c) Willis v. Hiscox, 4 M. & Cr. 197 ; Jones v. Lewis, 1 Cox, 199 ; Lyse v. Kingdom, 
 1 Coll. 184; Penfold v. Bouch [4 Hare, 271]. Vide post, Costs. 
 
 (d) Watts v. Turner, 1 E. 4 M. 634; vide post, Costs, p. 551. 
 
 (e) Knight v. Martin, 1 R. & M. 70 ; Angier v. Stannard, 3 M. & K. 566 ; vide post, 
 Costs, p. 551. 
 
 (/) Poole v. Pass, 1 Beav. 600. See Campbell v. Home, 1 N. C. C. 664. 
 
 (g) Poole v. Pass, 1 Beav. 600; see Holford v. Phipps, 3 Beav. 434; Goodson v. 
 Ellison, 3 Russ. 593, 6 ; Whitmarsh v. Robertson, 1 N.C.C. 715 ; and see post, chapter 
 " Costs," p. 551. 
 
 an agreement for a release. Ludwig v. Highley, 5 Barr, 132. In New York, under 
 the Revised Statutes, where the trust is expressed in the instrument by which it is created, 
 every sale, conveyance, or other act by the trustee in contravention of the trust, is abso- 
 lutely void ; and it has been held that in such case even a previous sanction of the court 
 would not help it. Cruger v. Jones, 18 Barb. 468. 
 
ESTATE OP TRUSTEES BY DEED. 411 
 
 capable of absolute proof, is clear beyond all reasonable doubt, the 
 decree will be made against the recusant trustee, with costs.(^) 
 
 The cestui que trust must have an immediate and absolute equitable 
 interest in the trust estate ; otherwise he will not be entitled to require 
 a conveyance of the legal estate 1 from the trustee. 1 Thus, if an estate is 
 vested in trusteeSj in the first place to pay several annuities, the party 
 beneficially entitled subject to those annuities, cannot, during their con- 
 tinuance, compel the trustees to convey to him, unless the annuitants 
 give their consent.(i) 
 
 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 case 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 remain- 
 der-men, and the continuance of the legal estate in the trustees be requi- 
 site for these purposes, it would clearly be a breach of trust in them to 
 devest themselves of it at the request of the tenant for life;(&) and an 
 equitable tenant for life of settled property, can rarely take such an un- 
 qualified beneficial interest, as will not be obnoxious to some objection 
 of this nature. If the trust property consist of money or stock in the 
 funds, the security and protection of the estates in remainder, obviously 
 requires the trustee 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 con- 
 vey to him the fee simple, where he is entitled only in tail.(Z) 
 
 Where the parties in whom the absolute beneficial interest in the pro- 
 perty was vested have disposed of the whole of their equitable estate to 
 a purchaser, the purchaser is entitled to require a conveyance of the legal 
 estate from the trustees, without the consent of the vendors (the previous 
 cestui que trusts).(m) Although it is otherwise where a part only 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 •- -I 
 
 (h) Lyse v. Kingdom, 1 Coll. 184. 
 
 (i) Carteret v. Carteret, 2 P. Wins. 134. 
 
 (k) See Tidd v. Lister, 5 Mad. 429. [Battle v. Petway, 5 Ired. 576 ; Thompson v. 
 McDonald, 2 Dev. & Batt. Eq. 478.] 
 
 (I) Carteret v. Carteret, 2 P. Wms. 134; Boteler v. Allington, 1 Bro. C. C. 73; 1 
 Cruis. Dig. tit. 12, eh. 4, s. 9 ; see Pearson v. Lane, 17 Ves. 105, 6. 
 
 (m) Goodson v. Ellison, 3 Russ. 583 ; see Holford v. Phipps, 3 Beav. 434. 
 
 (n) 3 Russ. 593, 4. 
 
 1 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 annu- 
 ally 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. 
 
412 OF THE DISPOSITION OF THE 
 
 a conveyance from the old trustees. (0) 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 &ale,(p) or to pay 
 annuities, and make an allotment or division of the estate among the 
 testator's children,^) it has been decided" that the trustee of the resettle- 
 ment is entitled to require a conveyance of the legal estate from the old 
 trustee, without the concurrence of the parties beneficially interested. M 
 
 But if the old trustee be required to do any act beyond the execution 
 of a simple conveyance ; or if the nature of the'trust 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 declining to devest him- 
 self of the legal estate, unless the persons beneficially interested be joined 
 as parties to the deed, in order to testify their concurrence in the trans- 
 action ; and for this purpose it is of course requisite that they should be 
 sui juris.ls) 
 
 The title of the purchaser or assignee of the equitable estate must be 
 established beyond doubt, or the trustees will be justified in refusing to 
 transfer the legal estate without the concurrence of the original 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 Lordship* subsequently decided that the trustees in that case 
 had a right to have the conveyance settled in the Master's office.(i) 
 
 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 fart 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 conveyances as you think proper ?"(w) 
 
 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 Mm. 
 In this respect he is like a mortgagee. (a;) 
 
 (0) Penfold v. Bouch [4 Hare, 271]. 
 
 (p) Angier v. Stannard, 3 M. & K. 566. (q) Poole v. Pass, 1 Beav. 600. 
 
 (r) Angier v. Stannard, 3 M. & K. 566 ; Poole v. Pass, 1 Beav. 600. 
 
 (a) 3 M. & K. 571 ; 1 Beav. 604. 
 
 (t) Goodson v. Ellison, 3 Russ. 593, 6 ; sed vide Lyse v. Kingdom, 1 Coll. 184 
 
 (w) 3 Russ. 594. ( K ) p er Lord Eldon, 3 Russ. 594. 
 
ESTATE OP TKUSTEBS BY DEED. 413 
 
 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 rsK981 -, 
 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.(g) 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 E. Sugden's Act (1 Will. IV, c. 60), for the appoint- 
 ment 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.(J) 
 
 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 in- 
 strument; and the certificate of the Master's having settled a convey- 
 ance under such a reference may be excepted to by any party who is 
 dissatisfied with it.(c) 
 
 If the 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 himself, or any 
 subsequent purchaser from him ; for in that case they would be held 
 personally responsible to the purchaser or incumbrancer, 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)(l) 1 However, in a case where trustees of a charity 
 
 , {y) Carteret v. Carteret, 2 P. Wms. 134. 
 ' (z) Holford v. Phipps, 3 Beav. 434 ; S. C. 4 Beav. 475. 
 
 (a) Warburton v. Vaughan, 4 Y. & C. 247; Prendergast v. Eyre, 1 LI. & Gr. 11; 
 Robinson v. Wood, 5 Beav. 246. (6) Robinson v. Wood, 5 Beav. 246. 
 
 (c) Wakeman v. Duchess of Rutland, 3 Ves. 504 ; 2 Dan. Ch. Pr. 900. 
 
 (d) Baldwin v. Billingsley, 2 Vern. 539 ; Cothay v. Sydenham, 2 Bro. C. C. 391 ; 
 Dearie v. Hall, 3 Russ. 1, aec. 12 ; Forster v. Blackburne, 1 M. & K. 297 ; Hodgson v. 
 Hodgson, 2 Keen, 704; 1 Sugd. V. & P. 12, 520, 9th ed.; Ex parte Knott, 11 Ves. 
 613. (e) 4 Cruis. Dig. tit. 32, ch. 26, s. 87. 
 
 (1) It is now settled, that trustees need be under no scruples as to the propriety 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 of the forms used by con- 
 veyancers. However, this apprehension is altogether unfounded, and there is no doubt 
 but that this word would have no such effect, and even if it had, any express covenant 
 
 1 Ennis v. Leach, 1 Ired. Eq. 416; Hoare v. Harris, 11 Illinois, 24; Grantland v. 
 Wight, 5 Munford, 295 ; see Sumner v. Williams, 8 Mass. 162. In Dwinel v. Veazie, 
 36 Maine, 509, however, it was decided that a trustee when required to convey, is bound 
 to insert in the conveyance a covenant of warranty against himself and persons claim- 
 
414 OF THE DISPOSITION OF THE 
 
 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 
 
 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 conveyance from a trustee. Co. Litt. 384 a, u. 1 ; 4 Cruis. Dig. tit. 32, 
 ch. 25, s. 19. The recent act, 1 & 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.] 
 
 ing under him. 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. Bnnis 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. ; Duvall v. Craig, 2 Wheat. 56. Thus executors with a power of sale are per- 
 sonally liable on a covenant that "they, executors, &c, do forever warrant and defend, 
 &c." Godley v. Taylor, 3 Devereux, 178. In Phillips v. Everard, 5 Sim. 102, the 
 plaintiff agreed with the defendant's testator to grant to the latter, on the expiration of 
 an existing lease, a new lease, subject to the same covenants as were contained in the 
 existing lease. Among those covenants was a, covenant against assignment of the 
 lease, not extending to the lessee's executors or administrators. The testator died 
 before the time arrived for granting the new lease, and Sir L. Shadwell, V. Ch., decreed 
 specific performance of the agreement, the form of the lease to be settled by the Mas- 
 ter. Before the bill was filed the plaintiff offered to permit the covenants which were 
 to be entered into by the executors, to be so qualified as that they might be' no further 
 liable therein than they would have been on the covenants which ought to have been 
 entered into by their testator in case a proper lease had been made by him in his life- 
 time. It appears from the report of the case, that the parties subsequently agreed upon 
 the form of the lease, and did not go before the Master. In the subsequent case of 
 Stephens v. Hotham, 19 Jurist, 842, 1 Kay & Johns. 571, the testator had entered into 
 an agreement for a building lease of copyhold land, and as the customs did not allow 
 of leases beyond 21 years, a lease was taken for that period, with an agreement that the 
 lessor should at the expiration of the term procure a license for a further lease to the 
 builder, his executors, &c, and that the builder, his executors, &c, should accept such 
 lease and execute a counterpart. The builder entered into possession and died, leaving 
 the defendants his executors. The lessor procured a license to demise, and tendered a 
 counterpart of the new lease to the defendants for them to execute, which they declined 
 to do. Oh a bill for specific performance, Wood, V. Ch., on the authority of Phillips 
 >. Everard, ubi supr., but against the inclination of his own opinion, decreed specific 
 performance and execution of the counterpart by the executors, observing that great 
 care would be required in framing the lease so as to avoid fixing the executors with a 
 personal liability to pay the rents, &c, especially on the reddendum ; that the covenants 
 must be modified to meet this. The Vice-Chancellor remarked, also, that it was singu- 
 lar, that though Sir E. Sugden was counsel in the case of Phillips v. Everard, it is not 
 mentioned in his treatise on Vendors, nor cited on this point in any text-book ; but that 
 he did not feel at liberty, whatever his own opinion might be, to overrule it. On the 
 other hand, in Worley v. Prampton, 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, 
 
ESTATE OP TRUSTEES BY DEED. 415 
 
 lessee for quiet enjoyment ; the court decreed the instrument to be can- 
 celled in toto, and would not suffer the personal 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 que 
 trust *in a contract of sale, and personally agreed to exonerate [-#909-1 
 the estate sold from any incumbrances. There turned out to be 
 considerable incumbrances, and it did not appear, whether the purchase- 
 money would be sufficient to discharge them. The court refused to en- 
 force 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 preju- 
 dice 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 consideration, yet if he purchased 
 
 (/) Atty.-Gen. v. Morgan, 2 Russ. 306. (g) Wedgewood v. Adams, 6 Beav. 600. 
 
 (h) 1 Cruis. Dig. tit. 12, eh. 4, s. 16 ; ante, p. 172. 
 
 1 
 
 and for a further term of twenty-one years at the expiration of the second term. The 
 copyholder died before execution of the lease, having devised the premises to a trus- 
 tee. It was held by Sir J. Wigram, 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 renewal of the 
 lease at the expiration of that term, and that he could only be required 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. S. P. Copper Mining Co. v. Beach, 13 Beav. 478. And so in Hodges 
 v. Blagrave, 18 Beav. 404, it was held that under a covenant by a testator for perpetual 
 renewal, trustees are not bound to enter into a covenant to renew, but the original cove- 
 nant, together with the decision of the Court of the right of the lessee to a perpetual 
 renewal, should be recited in the lease granted by the trustees, and the trustees should 
 purport to demise in obedience thereto. See Page v. Brown, 3 Beav. 36. See 1 the 
 remarks on these conflicting cases (except Hodges v. Blagrave), by a writer in the 
 Jurist, of Dec. 22, 1855 (vol. 19, p. ii, 500), who conceives that the executor might be 
 compelled to enter into covenants so framed as not to render him, or his heirs or exe- 
 cutors, liable for arrears of rent, or breaches of covenant accrued or committed after 
 he or they had assigned the term, beyond the value of the personal estate of the testa- 
 tor in his hands not applicable to other debts having priority, &c, thus placing- him in 
 substantially the same position as if the testator had himself entered into the covenant. 
 See further, the cases on this subject, collected and discussed in Mr. Rawle's valuable 
 treatise on Covenants for Title, page 419. 
 
 In a recent case in the House of Lords, a purchaser of property held, under renewable 
 leases, under circumstances which were considered to affect him with constructive 
 notice of the title of another, and thus to render him a constructive trustee, was held 
 entitled to be indemnified against the covenants in the leases. Mill v. Hill, 3 House 
 Lds. Cas. 828. 
 
416 OF THE DISPOSITION OF THE 
 
 with notice of the trust, his conscience will be affected with the same 
 equity as the trustee, from whom he pivchased.(i) , 
 
 But if the trustee convey the legal estate to a purchaser for valuable 
 consideration without notice of the trust, the title of the purchaser will 
 he good both at law and in equity ; for he has equal 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.(&) This, 
 however, is a subject which will be reserved more conveniently for future 
 consideration. (I) 
 
 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 per- 
 formance of the engagement, if it amount to a breach of trust, or be 
 made by mistake, or for inadequate consideration ; nor will any differ- 
 ence be made in this respect in favor of a bona fide purchaser.(m) 
 
 It has already been seen, that an unauthorized disposition of the trust 
 estate to another person will not exonerate the trustee from the respon- 
 sibilities of the trust ;(n) but if the cestui que trust commence any pro- 
 ceedings 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 persons beneficially entitled, their trus- 
 tees 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 
 reinvest 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. 
 
 rtnnon *II.— OF THE DISPOSITION OF THE ESTATE OF TRUSTEES BY 
 [* 283 ] WILL. 
 
 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 
 
 (i) Mead v. Lord Orrery, 3 Atk. 238 ; Earle Brook v. Bulkely, 2 Ves. 498; Taylorv. 
 Stibbert, 2 Ves. jun. 437 ; Adair v. Shaw, 1 Sch. & Lef. 262 ; Croften v. Ormsby, 2 Sch. 
 & Lef. 583 ; ante, p. 164. 
 
 {k) Millard's case, 2 Freem. 43 ; Finch v. Earl of Winchelsea, 1 P. Wms. 278, 9 ; 1 
 Cruis. Dig. Tit. 12, ch. 4, s. 12. 
 
 {1) Post, Pt. Ill, Div. I, Ch. Ill, p. 510. 
 
 (m) Bridger v. Reid, 1 J. & W. 74 ; Ord v. Noel, 5 Mad. 438 ; Wood v. Richardson, 
 4 Beav. 174; Adams v. Broke, 1 N. C. C. 617 ; Thompson v. Blackstone, 6 Beav.470; 
 Et vide post, p. 509, and p. 477. 
 
 (ra) Ante, p. 175 ; [Drane v. Gunter, 19 Alab. 731.] 
 
 (o) Burt v. Dennett, 2 Bro. C. C. 225. 
 
ESTATE OF TRUSTEES BY DEED. 417 
 
 rules and restrictions imposed by the law upon testamentary dispositions 
 of real or personal estate. 
 
 It i3 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 which 
 the devised lands are subjected. (jp)(l) x 
 
 (p) Lord Braybroke v. Inskip, 8 Ves. 417, 432; 2 Jarm. Pow. Dev. 146 to 157 ; 6 
 Cruis. Dig. tit. 38, ch. 10, s. 140, 2; Co. Litt. 205, a. n. 1 (6th) ; Lindsell v. Thacker, 
 12 Sim. 178 ; Doe d. Eeade v. Beade, 8 T. E. 118 ; Hawkins v. Obeen, 2 Ves. 559 ; Ex 
 parte Shaw, 8 Sim. 159. 
 
 (1) Prom the observations of the Vice-Chancellor of England in the case of Cooke 
 v. Crawford, 13 Sim. 91, which has been very recently reported, the general 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 cases to make that devise, and it might be considered an improper 
 neglect in him to suffer the estate to descend to an infant heir, and thus to occasion 
 embarrassment and expense to the cestui que trust in dealing with the property. See 
 Midland Counties Bail way Company v. Westeombe, 11 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 although 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 substantial distinction between 
 a delegation of the trust by act inter vivos and by a devise. It has been already ob- 
 served, in cemmenting 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 argu- 
 ment ; but until the power of a trustee to devise the trust has been actually 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 improper, 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 limitation to the surviving trus- 
 tee and his heirs, omitting the word assigns, and it was held not to authonize 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 express a marked disapprobation of the 
 doctrine of the foregoing cases, and indicated very clearly the inconveniences which 
 
 1 Jackson v. De Lancy, 13 John. B. 537 ; Heath v. Knapp, 4 Barr, 228 ; Hughes v. 
 Caldwell, 11 Leigh, 342 ; Ballard v. Carter, 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, even 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 sufficient to prevent the trust estate pass- 
 ing ; Heath v. Knapp, ut supra. In Pennsylvania, a mortgage will pass by a bequest 
 of " personal estate." Asay v. Hoover, 5 Barr, 35. 
 i 27 
 
418 OP THE DISPOSITION OF THE 
 
 Thus, in an early case it was laid down, that if a man had but a trust 
 of lands in D., it would pass by a devise of all his lands in D.(q) And 
 
 (q) Sir Thomas Lyttleton's case, 2 Ventr. 351. 
 
 would ensue ou its adoption. He was also clearly of opinion that there was no breach 
 of trust in not permitting the trust estate to descend. In Mortimer v. Ireland, 6 Hare, 
 196, a testator 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 wish, that 
 A. would execute the trust with fidelity. There was no power of appointment 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 on 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. Ocklestou 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; and 
 in Macdonald v. Walker, 14 Beav. 556 ; the same point arose, as to the effect of a 
 devise by the survivor of trustees, to whom and " the survivor, his heirs, executors, or 
 administrators," a power of sale was given; and it was held, in each case, that the title 
 derived on a sale bythe devisee, was too doubtful to force on a purchaser. In the latter 
 case, however, the Master of the Rolls seems very distinctly to disagree to the ruling 
 in Cooke v. Crawford. That case is also reviewed and strongly disapproved in 2 
 Jarm. on Wills, 716. See also 1 Greenl. Cruise, 376, note; and the observations of 
 Wood, V. Ch., in Lane v. Debenham, 17 Jurist, 1005. On the whole, it may be doubted, 
 perhaps, whether the case would be now followed as an authority in England. In a 
 recent case in England, however, Re Burtt's estate, 1 Drewry, 319, before V. Ch. Kin- 
 dersley, 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, ou 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., as executors of B., were capable 
 of executing the trusts. 
 
 .Where the word " assigns" is expressly added to the limitation to the trustee, there 
 can be no doubt on the question, except as to trusts or powers purely discretionary, 
 which of course would be gone, in any view. See Lane v. Debenham, 17 Jurist, 1005. 
 In Saloway v. Strawbridge, 1 Kay & Johns. 371 ; 24 L. J. Ch. 393 ; aff'd, 19 Jurist, 
 1194, a mortgage contained a power of sale to be exercised on default, &c, by the 
 mortgagee, his heirs, executors, administrators, and assigns. The mortgagee assigned 
 the debt, and conveyed the estate to an assignee who died. The heir of the assignee 
 then conveyed the estate to a trustee for the administrator. It was held, that the 
 administrator and trustee together could make a good title under the power. 
 
 In New York and Michigan, on the death of a trustee, the trust does not vest in his 
 representatives, but Js 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.] 
 
ESTATE OF TRUSTEES BY DEED. 419 
 
 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 her heirs.(r) 
 The subsequent case of Ex parte Sergison,(s) 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 personal, and of what nature 
 or kind soever, or wheresoever, not thereinbefore specifically devised." 
 However, from the circumstances of the case, this opinion was not there 
 acted upon.(«) 
 
 So far the cases have been in favor of the trust estate passing by a 
 general devise, but in Strode v. Russell,(£) 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 1 
 when *the will was made, did not pass by a general devise of " all r#oQ4-| 
 lands, tenements, and hereditaments."^) And in Casborne v. 
 Scarfe,(w) the same doctrine was laid down by Lord Hardwicke.(w) 
 
 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. 
 Vowles,(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. "(a) 
 
 This opinion of Lord Thurlow not being required for the decision of 
 the case was clearly extra-judicial ; but in Attorney-General v. Buller,(y) 
 it was expressly decided by Lord Rosslyn, C, that a general 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 interest 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 inten- 
 tion 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,(2) 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, Gr. 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 mortgagee in fee. 
 
 (r) Marlow v. Smith, 2 P. Wins. 198. (s) Ex parte Sergison, 4 Ves. 147. 
 
 (t) Strode v. Russell, 2 Vern. 625. (u) Casborne v. Scarfe, 1 Atk. 605. 
 
 {x) Pickering v. Vowles, 1 Bro. C. C. 198. (y) 5 Ves. 339. (z) 6 Ves. 577. 
 
420 OF THE DISPOSITION OF THE 
 
 In this conflicting state of the authorities, the case of Lord Braybroke 
 v. Inskip(a) arose, in which the doctrine, as stated at the beginning of 
 this section, was finally established by Lord Bldon, 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, G. A., her heirs 
 and assigns forever. 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 covert. 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 sub- 
 sequent occasion, that Lord Rossyln himself had altered his opinion with 
 respect to that case.(S) His Lordship also observed, with reference to 
 his own previous decision in Ex parte Brettell, that, having been brought 
 K on upon a petition, it had not perhaps been so attentively con- 
 
 [*285] 
 
 sidered as the importance of the point required ; although that 
 
 decision was not intended to infringe upon the general rule as stated 
 above, inasmuch as it proceeded upon the circumstance of there being 
 sufficient 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 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 prevent his trust 
 estates from passing.(cZ) 
 
 But the operation of a general devise in passing trust estates may be 
 controlled by the intention of the testator. If there be no indication of 
 a contrary intention the words will be suffered to have their legal opera- 
 tion, 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 dispose only of the estates to 
 which he was beneficially entitled, the devise will not be suffered to have 
 any more extensive operation. (e) 
 
 Thus where the expressions of a gift, coupled with the relative situa- 
 tion of the parties, show that the testator intended to give only what the 
 
 (a) 8 Ves. 417. (6) Lord Braybroke v. Inskip, 8 Ves! 435, 7. (c) 8 Ves. 437. 
 
 (d) Sir Thomas Lyttleton's case, 2 Ventr. 351 ; 2 Jarm. Pow. Dev. 147. 
 
 (e) Lord Braybroke v. Inskip, 8 Ves. 436 ; Doe d. Reade v. Reade, 8 T. R. 118 ; Wall 
 v. Bright, U. & W. 498 ; 2 Jarm. Pow. Dev. 146, et seq. 
 
ESTATE OF TRUSTEES BY DEED. 421 
 
 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 any- 
 thing upon the expression, that it was given " to the use and behoof" of 
 the party. (g) And in a very recent case it was held by Sir L. Shad- 
 well, V. C, that a general gift by a testator, of all his property whatso- 
 ever and wheresoever, to his wife, for her absolute use forever, passed 
 an estate vested in the testator as a trustee. (A) 
 
 On the same principle, where a general devise of real estate is for 
 purposes applicable only to the testator's absolute property, and incon- 
 sistent with the beneficial title of another person, it will be held not to 
 operate upon mere trust estates. 1 
 
 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 residuary 
 devise to the beneficial estate of the testator.(&) 3 
 
 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 property 
 
 (/) Ex parte Brettell, 6 Ves. 577. (g) 8 Ves. 434, 5. 
 
 (h) Lindsell v. Thacker, 12 Sim. 178. 
 
 (i) Winn v. Lyttleton, 1 Vern. 4 ; Duke of Leeds v. Munday, 3 Ves. 348. [Rackham 
 v. Siddall, 16 Sim. 297 ; 12 Jur. 640 ; 1 Macn. & G. 607.] 
 
 (k) Duke of Leeds v. Munday, 3 Ves. 348 ; Doe d. Reade v. Reade, 8 T. R. 118 ; 
 Silvester v. Jarman, 10 Price, 78. 
 
 1 But a general power of disposal given to the devisee will not alter the rule. Heath 
 v. Knapp, 4 Barr, 228. 
 
 * In an article in a recent number of the Jurist, for December 29th, 1855 (vol. 19, 
 part ii, 509), the writer contends that this doctrine only applies where the charge appears, 
 from the will itself, to be not less extensive than the devise, and that in all the cases in 
 which this doctrine was asserted, except Re Horsfall, McCl. & Y. 292, the charge and 
 the devise were shown to be co-extensive by being incorporated in one clause ; and Re 
 Horsfall was thought, for reasons there given, not to be an adverse authority on the 
 point, or, at any rate, not consistent with principle. It was therefore argued that where 
 a testator, after directing, in the first place, that all his debts, funeral, and testamentary 
 expenses should be paid, disposes of his personal estate, and then makes a general 
 devise of his real estates, trust estates will pass. In the cases in the United States, in 
 which trust estates have been held to pass under a general devise, cited ante, 283, in 
 note, no notice appears to have been taken of the general charge of debts implied by, 
 law in this country, as affecting the rule ; which, indeed, it could not well do. For the 
 question is one of the intention of the testator only, — an express charge showing that in 
 the general devise he considered himself to be dealing with his own property exclusively, 
 — and not of the effect of the charge itself. 
 
422 OF THE DISPOSITION OF THE 
 
 *which was not vested in the testator for his own benefit.(Z) But 
 L -I 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 has contracted to sell an estate, and died before the convey- 
 ance was executed, having devised all his real and personal estate to 
 trustees, in trust to sell, Sir Thomas Plumer, M. R., decided, that the 
 devise passed the estate which had been contracted to be sold, on the 
 ground that the beneficial interest was not so entirely out of the testator 
 as to preclude the possibility of its becoming the subject of a sale by his 
 trustees in any event, (m) 
 
 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 con- 
 trary 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 probably be a question, 
 whether a similar disposition would pass trust estates ; the argumentum 
 ab inconvenienti is certainly strongly against suffering the number of 
 trustees to be thus needlessly multiplied, 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. (t) 
 
 It was held in a recent case by Lord Langdale, M. R., 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 remainders.(w) 
 
 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 trus- 
 tee :{x) but according to the principle established by Rose v. Bartlett,(y) 
 a similar devise would not have operated upon leaseholds for years, un- 
 less there were no other estate for the devise to take effect upon ; or there 
 
 (I) Ex parte Morgan, 10 Ves. 101 ; Ex parte Marshall, 9 Sim. 555 ; Wall v. Bright, 
 1 J. & W. 493. [Merritt v. Loan Co. 2 Edw. Ch. 547.] 
 
 (to) Wall v. Bright, 1J. & W. 494. 
 
 (n) Atty.-Gen. v. Vigor, 8 Ves. 373; Thompson v. Grant, 4 Mad. 438; Galliersv. 
 Moss, 9 B. & Gr. 267 ; Ee Horsfall, 1 M'Clel. & Y. 292 ; but see Mather v. Thomas, 10 
 Bing. 44. (o) Cited 1 Atk. 605, Sand. n. (p) 2 Jarm. Pow. Dev. 153. 
 
 (q) Ex parte Whiteaere, Rolls, July, 1807 ; 1 Sand. Us. 285 ; 2 Jarm. Pow. Dev 152. 
 
 (?■) Vide supra, p. 181. (s) 1 Atk. 605. (i) 2 Jarm. Power. Dev. 153, »• 
 
 (u) Greenwood v. Wakeford, 1 Beav. 576. 
 
 (x) 2 Jarm. Pow. Dev. 122, 4 ; see Weigall v. Brome, 6 Sim. 99. (y) Cro. Car. 293 
 
ESTATE OF TRUSTEES BY DEED. 423 
 
 were otherwise a clear intention on the part of the testator, that they 
 should pass.(a) But the 26th sect, of that act provides for the point 
 *in question with regard to wills made since 1st of January, 1838, r*oo7-i 
 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 free- 
 hold estates of the testator, unless a contrary intention shall appear by 
 the will. 
 
 Where there is a general or residuary devise of bequest of leaseholds 
 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 inte- 
 rest.^) 
 
 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 effectually 
 as the testator himself. But powers vested personally in the original 
 trustee, will not pass to his devisee, unless they be expressly limited to 
 the trustee and his assigns by the instrument creating the trust. There- 
 fore, where a discretionary power of disposition was given by will to two 
 trustees, and the survivor of them, and the heirs, executors, and admi- 
 nistrators 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 exer- 
 cising the power.(^) 
 
 The devisee of a trust estate may doubtless dissent from and disclaim 
 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) 
 
 (z) 2 Jarm. Pow. Dev. 127, et seq. and sec. 154. The later cases on this point, are 
 Hobson v. Blackburne, 1 M. & K. 511 ; Goodman v. Edwards, 2 M. & K. 759 ; "Weigall 
 v. Broome, 6 Sim, 99 ; Arkell v. Fletcher, 10 Sim. 299. 
 
 (a) 2 Jarm. Pow. Dev. 154. (6) Walter v. Maunde, 19 Ves. 424. 
 
 (c) Cole v. Wade, 16 Ves. 27; see Bradford v. Belfield, 2 Sim. 264; 1 Sugd. Pow. 
 148, 6th ed.; Cooke v. Crawford, 11 Law Journ. N. S. Chanc. 406; 13 Sim. 91. 
 [Hughes v. Caldwell, 11 Leigh, 342 ; but see ante, p. 283, in note.] 
 
 (d) Bradford v. Belfield, 2 Sim. 264; Cooke v. Crawford, ubi supra. [See remarks 
 in 2 Sugd. Powers, 466, 7th ed.] 
 
 (e) 1 Jarm. Pow. Dev. 429 ; ante, Pt. I, Div. IV, Chap. II, Sect. 1. 
 
424 OF THE DISPOSITION OF THE 
 
 III.— OF THE DISPOSITION OF THE ESTATE OF TRUSTEES WHO ARE 
 UNDER ANY LEGAL DISABILITY. 
 
 At common law trustees who labor under any legal disability, can dis- 
 pose 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 according to the provisions of that 
 act.(/y 
 
 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 con- 
 ■- J veyance 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. 2 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. Ill, c. 90, 
 provided a similar remedy for the incapacity of trustees of stock. And 
 these several statutes were finally repealed, 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,(5) or any duties to perform. (e) They extended only to mere 
 dry trustees.(eZ) 3 
 
 (/) See Ex parte Maire, 3 Atk. 479 ; Radcliffe v. Bccles, 1 Keen, 130. 
 (&) Hawkins v. Obeen, 2 Ves. 559 ; Ex parte Sergison, 4 Ves. 147. 
 (c) Ex parte Tutin, 3 V. & B. 149 ; Ex parte Chasteney, Jac. 56 ; Ex parte Ander- 
 son, 5 Ves. 243. (&) v. Handcock, 17 Ves. 384. 
 
 1 So her husband must join in the deed, as in other cases. Palmer v. Oakley, 2 
 Dougl. 433. See, however, Insurance Co. v. Bay, 4 Comst. 9. In Pennsylvania, the 
 court will compel a, feme covert trustee by descent, conveying under decree, to acknow- 
 ledge that she executed the deed voluntarily, in order to give validity to the convey- 
 ance. 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 Corolina, 2 Coop. Stat. 546 ; Thompson v. Dulles, 5 
 Rich. Eq. 370, and was formerly so in New York. Livingston v. Livingston, 2 J. C. 
 R. 541. 
 
 3 In Thompson v. Dulles, 5 Rich. Eq. 370, however, it was held, that it is not every 
 interest that will put an infant trustee beyond the operation of the Statute of Anne. 
 Therefore, where co-heirs had made an informal division of their ancestor's estate, and 
 a plantation fell to the exclusive share of C, but no conveyances were made, and W\, one 
 of the co-heirs, died leaving an infant child his sole heir, the latter was compelled to 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 425 
 
 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) Although 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 has been determined by a 
 decree.(^) 
 
 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 presently be con- 
 sidered in detail, enables the court to direct a conveyance of trust pro- 
 perty to be made by infant trustees, or by the committees of lunatic 
 trustees, or (if the lunatic has not been so found by inquisition), by any 
 person to be appointed by the Lord Chancellor for that purpose. 
 
 Again, there are many cases 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,(z) 
 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 in 
 place *of the actual trustee, in the same manner as in the case 
 of an infant or lunatic trustee. — 1st, Where the existing trustee ■- J 
 is out of the jurisdiction. — 2d, Where it is not known who was the sur- 
 vivor of several trustees. — 3d, Where it is uncertain whether the trustee 
 
 (e) Ex parte Lewis, 1 Ves. 298 ; Ex parte Gillam, 2 Ves. Jun. 587. But the act 1 
 Geo. IV, c. 114, extended that of 4 Geo. II, to lunatics, who were not so found by in- 
 quisition. (/) Simms v. Naylor, 4 Ves. 360 ; West v. Ayles, T. & E. 330. 
 
 (g) Goodwin v. Lister, 3 P. Wins. 387 ; Ex parte Currie, 1 J. & W. 642 ; King v. 
 Turner, 2 Sim. 549 ; Ex parte Vernon, 2 P. Wms. 549 ; Dew v. Clarke, 4 Russ. 511 ; 
 Re Moody, Taml. 4. (h) See Hawkins v. Obeen, 2 Ves. 559. 
 
 (i) 36 Geo. Ill, c. 90 ; 6 Geo. IV, c. 74. 
 
 convey. It was also held that a conveyance by an infant heir under the decree of the 
 court was good, until the decree was reversed, and the conveyance avoided. 
 
 In Butler v. Merchants Ins. Co. 14 Alab. 777, it was held that where a company on 
 whose books a number of shares of stock stood in the name of an infant, permitted the 
 guardian to transfer it to one who was in fact cestui que trust, the infant being a mere 
 dry trustee, it would be supported against the infant, though done without authority, as 
 it was merely what the court would have done on a bill of interpleader filed by the 
 company. 
 
426 OF THE DISPOSITION OF THE 
 
 last known is alive or dead. — 4th, Where it is not known who is his heir 
 (in the case of real estate) — and 5th, Where the existing trustee refuses 
 to convey or transfer when duly required. — Lastly, The subsequent act 
 4 & 5 Will. IV, c. 23, extends the provisions of 1 Will. IV, c. 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 construction of 
 those provisions. 
 
 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 provi- 
 sions.^) 
 
 The 3d, 4th, and 5th sections of the act provide for the lunacy of 
 trustees, or mortgagees of land or stock, and empower the Lord Chan- 
 cellor 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 Chancellor may think 
 proper to appoint for that purpose. 1 
 
 By the interpretation clause contained in the 2d section, the provi- 
 sions relating to a lunatic are declared to extend to any idiot or person 
 of unsound mind or incapable of managing his affairs. And by the ex- 
 press terms of the act, it applies to a trustee who is of unsound mind, 
 although not actually found a lunatic on inquisition. (Z) But mere in- 
 firmity or weakness of intellect will not be sufficient to bring a trustee 
 within the act.(m) 
 
 It was held on one occasion by the present Vice-Chancellor of Eng- 
 land, that the Vice-Chancellor had jurisdiction to direct the preliminary 
 reference to the Master to inquire, whether a lunatic trustee was a trustee 
 within the act, although his jurisdiction ceased at that point.(m) How- 
 ever, it was afterwards decided by the Lords Commissioners, that the 
 V. C. had no power to make even that preliminary order, but that every 
 order in the matter of a lunatic must proceed from the Lord Chancellor, 
 or other person to whom the jurisdiction 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. (q) 
 
 (k) Price v. Dewhurst, 8 Sim. 617. (1) See Re Welch, 3 M. & Cr. 292. 
 
 (m) Ee Wakeford, 1 Jones & Lat. 2. (re) Anon. 5 Sim. 322. 
 
 (o) Re Shorrocks, 1 M. & Cr. 31. (p) Re Prideux, 2 M. & Cr. 640. 
 (q) Re Walker, Cr. & Ph. 147. 
 
 1 On a petition under these sections, the court never interferes in the administration 
 of the trusts, but merely substitutes a trustee in place of the lunatic. In re Ward, 2 
 Mac. & G. 73. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 427 
 
 The 6th and 7th sections of the act provide for the infancy of trustees 
 of land.(l) 1 The 6th section enables infant trustees to convey the land 
 by *the direction of the Court of Chancery. 2 And the 7th sec- poQOl 
 tion 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 existing law by taking 
 out letters of administration durante minore ostate. 
 
 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 act.(£) 
 
 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 ; 3 and a decree direct- 
 ing such a sale, and declaring that the infant should be a trustee 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. (u) 
 
 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.(a;) 
 
 The infant heir of a trustee of a dry legal estate, from whom a con- 
 veyance 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 sufficient grounds, he will be 
 deprived of his costs.(y) 
 
 (r) The Court of Great Sessions in Wales, and of the County Palatine of Chester, 
 have since been abolished. 
 
 (s) Ee Gathorne, 8 Sim. 342 ; see Prendergast v. Eyre, Ca. Temp. Sugd. 11 ; Ex 
 parte Griffin, V. C. 13th April, 1837 ; Re Kent, 9 Sim. 501 ; S. C. Cook's Ch. Orders, 
 2d ed. 133; Ex parte Ommaney, 10 Sim. 298. [See the form of the order, in In re 
 Halliday, 1 Drury, 3.] {t) Walters v. Jackson, 12 Sim. 278. 
 
 (u) Calvert v,. Godfrey, 6 Beav. 97. (x) Prendergast v. Eyre, Ca. Temp. Sugd. 11. 
 
 (y) Re Bradbourne, 12 Law Journ. N. S. Chanc. 353. 
 
 (1) By the interpretation clause contained in the 2d section, the provisions relating 
 to land are declared to extend to any manor, messuage, tenement, hereditament, or real 
 property, of whatever tenure, and to property of every description transferable other- 
 wise than in books kept by any company or society, or any share thereof or interest 
 therein. 
 
 1 See on these sections, In re Barry, 2 Jones & Lat. 1 ; In re Halliday, 1 Drury, 3 ; 
 Cullum v. Upton, 14 Jur. 187 ; 19 L. J. Ch. 276. 
 
 2 A conveyance by an infant trustee passes only such estate as the infant if of full 
 age might pass ; Oldfield v. Cobbett, 8 Beavan, 292. 
 
 8 See, however, post, Trustees for Infants, p. 396, and notes. 
 
428 OE THE DISPOSITION OP THE 
 
 The 8th, 9th, and 10th sections of the act provide for the cases of 
 trustees being out of jurisdiction, or not being known, or their refusal 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 uncertain (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 Jcnown 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 require it, in every such case it 
 shall be lawful for the Court of Chancery to direct any person, whom 
 the court may think proper to appoint for that purpose, to convey the 
 land. 
 
 The 9th section contains similar provisions respecting the 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, 
 r*oqi"i n °t being *known, is omitted in the 9th section. The reason of 
 L this omission being, that it is open to the parties to continue the 
 
 legal representation in competent persons, by taking out administration 
 to the old trustees. (z) 
 
 The 10th section also contains similar provisions respecting trustees 
 of stock,(V) with the same omission as the 9th section, and with the ex- 
 ception, 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 omission 
 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, (a) or was out of the juris- 
 
 (z) See Re Anderson, LI. & G. 27. 
 
 (a) Re Goddard, 1 M. & K. 25 ; Re Stanley, 5 Sim. 320. 
 
 (I) The interpretation clause declares, that the provisions respecting stock shall ex- 
 tend 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. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 429 
 
 diction, (b) 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 act.(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 mortgagee 
 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. E,., in Ex parte Whitton,(e) that mortgagees and the heirs of mort- 
 gagees were within the act of 1 Will. IV, as explained by the 2d section 
 of 4 $■ 5 Will. IV, c. 23. And this decision 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 circumstances which 
 are provided for by the 8th section of 1 Will. IV, c. 60, and the 2d sec- 
 tion 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 be 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 r*oqo-| 
 any other case than those provided 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 in- 
 tended to repeal the previous acts, and, therefore, that the jurisdiction 
 of the court still remains with regard to infant and lunatic 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 deprived the court of 
 the jurisdiction in those cases. (g) 
 
 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 meaning of the 
 act.(A) 
 
 Where two or more persons are jointly seised of an estate as trustees, 
 and one of them absconds, or cannot be found, the case does not come 
 within the 8th section of the act, for the trustee who cannot be found, is 
 
 (6) Re Dearden, 3 M. & K. 508. (c) Ex parte Payne, 6 Sim. 645. 
 
 (d) Prendergast v. Eyre, Ca. Temp. Sugd. 11. 
 
 (e) 1 Keen. 278; sed vide Green v. Holden, 1 Beav. 207. 
 
 (/) Re Stanley, 7 Sim. 170 ; Re Wilson, 8 Sim. 393 ; Re Williams, 9 Sim. 426 ; Re 
 Thompson, 12 Sim. 392. 
 
 (g) Re Gathorne, 8 Sim. 392. (A) Hutchinson v. Stephens, 5 Sim. 498. 
 
430 OF THE DISPOSITION OF THE 
 
 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.(a) 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 trus- 
 tee after every exertion cannot be found, where the inability to discover 
 him is the foundation of the application. (&) 
 
 In order to found an application to the court to direct a conveyance 
 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 trustees, who have been 
 duly appointed, either under a power, or by the decree of the court. {I) 
 
 An order of the court to a trustee to transfer stock cannot be treated 
 as the request of the person 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 purpose 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 bill have been once filed to obtain the conveyance 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 
 L -I within the 16th and 17th sections of the act, which will be pre- 
 sently considered, — the court has no jurisdiction to direct a conveyance 
 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 application 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 
 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 subsequent petition to 
 
 (i) Moore v. Vinter, 12 Sim. 161. 
 
 (k) Moore v. Vinter, ubi supra; De Crespigny v. Kitson, 12 Sim. 163, cited. 
 {!) See Eider v. Kidder, 13 Ves. 123 ; Mansfield v. Magnay, 2 Moll. 153; Robinson 
 v. Wood, 5 Beav. 246 ; Ex parte Foley, 8 Sim. 395. 
 
 (m) Madge v. Riley, 3 Y. & Coll. 425. {n) Burr v. Mason, 2 S. & St. 11. 
 
ESTATE OP TRUSTEES UNDER DISABILITY. 431 
 
 obtain the order for a conveyance is unnecessary, (o) although the prac- 
 tice in that respect was formerly different. (jo) 
 
 And so where the person to make the conyeyance or transfer in place 
 of the trustee is pointed out by the 2>2d 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 jurisdiction, his co-executor was at 
 once ordered to transfer the trust stock without any reference to the 
 Master. (q) 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 com- 
 mittee of a lunatic trustee. 
 
 But where the person to make the conveyance or transfer in the place 
 of the trustree 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 conveyance in the place 
 of the trustee. (s) 
 
 An order for a conveyance has been made on motion after a decree. 
 But such a motion must be on notice ; or made with the consent of all 
 parties, (t) 
 
 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 interest), 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 practice, which will presently 
 be considered. (u) 
 
 By the 11th section the court is also enabled to act upon petition in 
 *the lunacy or matter. And that section directs, that the peti- r*9q4.-i 
 tioner shall be the person or some or one of the persons bene- 
 ficially entitled to the land, stock, or dividends, to be conveyed, trans- 
 ferred, or received ; except where a conveyance to a new trustee is re- 
 quired, when the petition may be presented by the new trustee, or any 
 
 (o) Walton v. Merry, 6 Sim. 328 ; Miller v. Knight, 1 Keen, 129 ; Broom v. Broom, 
 3 M. & K. 433; Neve v. Bine, 1 Keen, 129, n.; Hanson v. Lake, 2 N. C. C. 328. 
 
 (p) Pellowes v. Till, 5 Sim. 319 ; Prytharch v. Havard, 6 Sim. 9. 
 
 (q) Parker v. Barney, 1 Beav. 492. 
 
 (r) See Cockell v. Pugh, 6 Beav. 293, sec. 294; Re Law, 4 Beav. 509, 512. 
 
 (*) See Fellowes v. Till, 5 Sim. 319 ; Beale v. Ridge, 4 Y. & C. 248, cited. 
 
 (t) Callaghan v. Bgan, 1 Dr. & Walsh, 187. 
 
 (u) Parker v. Barney, 1 Beav. 492 ; Robinson v. Wood, 5 Beav. 246 ; Cockell v. Pugh, 
 6 Beav. 293 ; King v. Leach, 2 Hare, 57 ; Walters v. Jackson, 12 Sim. 278. 
 
432 OF THE DISPOSITION OF THE 
 
 of the trustees, being duly appointed under a power, or by the Court of 
 Chancery. (1) 
 
 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 jurisdiction. 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 peti- 
 tion.^) 
 
 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 convert 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 purchase- 
 money, are the proper parties to present this petition. In Robinson v. 
 Wood,(e) the petition was presented by the purchaser, 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 plain- 
 tiffs in a cause, who were equitable mortgagees of the estate, which had 
 been decreed to be sold. His Honor said, that it was impossible th& 
 defendant could be treated as a trustee for the purchaser within the act. 
 
 (x) Eveline v. Foster, 8 Ves. 96 ; Baynes v. Baynes, 9 Ves. 462 ; Vide anon. 1 Y; & 
 Coll. 75. (y) Re Law, 4 Beav. 509. 
 
 (z) Re Fowler, 2 Russ. 449 ; and see 4 Beav. 510, 611. 
 
 (a) Re King, 10 Sim. 605, 607. 
 
 (6) Prendergast v. Eyre, Ca. Temp. Sugd. 11; Robinson v. Wood, 5 Beav. 246; 
 King v. Leach, 2 Hare, 57 ; see Beale v. Ridge, 4 Y. & C. 248, cited ; et vide post. 
 
 (c) 5 Beav. 246 ; et vide Calvert v. 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. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 433 
 
 The act provided, that it should not extend to the case of a vendor ex- 
 cept *in the particular circumstances provided for,(d) and those r+oq^n 
 circumstances did not occur in that case. However, his Honor 
 added, that he thought the effect of the decree was, to make the defen- 
 dant a trustee not for the purchaser, but for the plaintiffs in the cause, 
 and that the defendant 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 Robinsoa v. Wood, was not brought to the 
 notice of the court in this last case, but as the point in question was ex- 
 pressly 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 neces- 
 sary 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 affidavit. (/) And where a 
 petition for the transfer of stock is presented on the refusal of the exe- 
 cutors 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. (A) 
 
 As a general rule, the court will not make any order for conveyance 
 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. 
 
 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 refer- 
 ence will be confined to those facts only, as to which the court cannot 
 feel satisfied without a reference. (&) 
 
 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 
 
 (d) Sect. 18, vide post. (e) King v. Leach, 2 Hare, 57. 
 
 (/) Ex parte Winter, 5 Buss. 284; Moore v. Vinter, 12 Sim. 161 ; De Crespigny v. 
 Kitson, Id. 163, cited. (g) Ex parte Winter, ubi supra. 
 
 (h) Ex parte Hughes, 1 Jones & Lat. 32. 
 
 (i) 3 New!. Prac. 242, 3d ed. ; 1 Turn. Prac. 405 ; Seton on Decrees, 252. 
 (k) Per Lord Langdale, M. R., in Cockell v. Pugh, 6 Beav. 294. 
 
 28 
 
434 OF THE DISPOSITION OF THE 
 
 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 pro- 
 ceedings ; and the order for the conveyance or transfer will, consequently, 
 be made at once, without any previous reference. (I) 
 
 And in very clear cases, even on a simple petition without any pre- 
 vious *suit, the court has dispensed with the usual preliminary 
 L -"reference; and where a conveyance is sought from an infant, it 
 will itself examine the proposed conveyance for the purpose of making 
 an immediate order for him to execute it. (to) In a late case, where the 
 surviving trustee of a settlement refused to execute a conveyance to new 
 trustees, the V. C. on petition appointed a person named in the peti- 
 tion 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, referring 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 Rolls 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 mat- 
 ter 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 op- 
 pose the petition without sufficient grounds, he will be deprived of his 
 costs, [q) 
 
 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 excepted 
 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) 
 
 (I) Parker v. Burney, 1 Beav. 492 ; Robinson v. Wood, 5 Beav. 246 ; King v. Leach, 
 2 Hare, 57 ; and see Pellowes v. Till, 5 Sim. 319 ; Prytkarch v. Havard, 6 Sim. 9 ; Wal- 
 ters v. Jackson, 12 Sim. 278. 
 
 (m) Re Trapp, 13 Law. Journ. N. S. Chanc. 168 ; 8 Jur. 347 ; Re Piatt, Ibid, cited. 
 
 (ri) Ex parte Foley, 8 Sim. 395. 
 
 (o) Ex parte Shick, 5 Sim. 281 ; et vide Re Trapp, ubi supra. 
 
 (p) Att.-Gen. v. Arran, 1 J. & W. 229 ; Neal v. Dell, Vice-Chancellor Bruce, 9 Ju- 
 rist, 99. (q) Re Bradbourne, 12 Law Journ. N. S. Chanc. 353. 
 
 (?■) Ex parte Burton, 1 Dick. 395 ; Price v. Shaw, 2 Dick. 732 ; Ex parte Swann,Ib. 
 749 ; Seton, Decrees, 253. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 435 
 
 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 effectual as if executed by the trustee. Hence 
 it will not have any greater effect, 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 Recoveries Act.(i) 
 
 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 petition ; but the conveyance may be prepared, as if it r-*9q 7 -i 
 were to be executed by the trustee himself, and the person ap- " 
 pointed by the court may then execute it, and it should be expressed in 
 the attestation clause that he had executed it in the place of the trustee, 
 in pursuance of the order made on the petition. (u) 
 
 In the case in which this decision was made, the conveyance had ac- 
 tually been prepared and tendered to the recusant trustee for execution 
 by him, and its subsequent execution by the person substituted by the 
 court in the manner suggested by the V. 0. obviated the expense of pre- 
 paring 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 from the length of time since 
 the creation of the trust the title of the person requiring the conveyance 
 may appear to require investigation, or where the court under any other 
 circumstances may not chose 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 they claimed directly by 
 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 with- 
 out issue, his Honor refused to make any order on the petition, observing, 
 
 (*) RePurdon, 1 Dr. & War. 500. 
 
 [t) See Ex parte Maire, 3 Atk. 749 ; Ex parte Johnson, lb. 559 ; and see Radcliffe 
 v. Eccles, 1 Keen, 130; Penny v. Pretor, 9 Sim. 135. 
 («) Ex parte Foley, 3 Sim. 395. 
 
436 OF THE DISPOSITION OF THE 
 
 " that it could not have been the intention of the legislature to give au- 
 thority to determine facts of that important nature upon an ex parte pro- 
 ceeding ; and that he could not act upon the Master's report in such a 
 case. "(a) And this decision was approved of on a rehearing by Lord 
 Brougham, Chancellor.(^) 
 
 However, this decision did not meet with the approbation of Lord 
 Lyndhurst,(z) and in a subsequent case, where a petition for a convey- 
 ance had been presented by persons who were entitled to equitable in- 
 terests in remainder after the determination of an estate tail, his Lord- 
 ship considered that the case before him came within the discretionary 
 power given to the court by the 12th section, and he directed 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 questions 
 arise, or the title of the parties requiring the conveyance is not reason- 
 ably certain and clear, the court can act only in a suit regularly in- 
 stituted.^) 
 
 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 
 ~*them apart for the purposes of the trust, is clearly a trustee 
 L -l 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 a,ct,(d) 
 if they have not renounced.(e) And a person who is named 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 com- 
 pelled 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 mortgage- 
 money belonging to infants into court. 
 
 (x) Ex parte Merry, 1 M. & K. 677. (i/) 1 M. & K. 679. (z) 2 M. & K. 626. 
 (a) Re De Clifford Estates, 2 M. & K. 624 ; and see Ex parte Dover, 5 Sim. 500. 
 (6) See Re Nicholls, Ca. Temp. Sugd. 17 ; Re Walker, Cr. & Ph. 147. 
 
 (c) Ex parte Dover, 5 Sim. 500. 
 
 (d) Ex parte Winter, 5 Russ. 284 ; Ex parte Hagger, 1 Beav. 98 ; Re Needham, 1 
 Jones & Lat. 34. (e) 5 Russ. 286. 
 
 (/) Cockell v. Pugh, 6 Beav. 293. (g) Re Beech, 4 Mad. 128. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 437 
 
 The 15th section extends the operation of the act to trustees having 
 a beneficial interest,(A) or having any duty as trustee to perform ; 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 transfer 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 con- 
 structive 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 simi- 
 lar trustee for the real purchaser, after a decree shall be obtained declar- 
 ing 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 vendor, except where therein- 
 before expressly provided. 
 
 It will be seen that the cases of constructive trust, which are expressly 
 *provided for by the 16th and 17th sections, are those arising r:( . gQcn 
 upon an incomplete contract for the sale of an estate, and upon ■- -• 
 a purchase by one person in the name of another. Such cases are there- 
 fore 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 purpose of giving the court any 
 summary jurisdiction to act upon petition. For it can very rarely happen 
 that a mere constructive trustee, against whom a conveyance is sought, 
 does not claim some beneficial interest in the estate. And in that case, 
 the court is expressly disabled 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 pro- 
 vided for by the 16th or 17th sections, would be very doubtful in its 
 results, and the adoption of such a course could rarely, if ever, be advised. 
 
 As constructive trusts are expressly provided for by these sections, 
 
 (h) See Ex parte Bjley, 3 Hare, 614. 
 
 (i) See the observations of Sir Christopher Pepys, M. E., in Ee Dearden, 3 M. & K. 
 508, 512; and see Turner v. Edgell, 1 Keen, 502, 505. 
 
438 OF THE DISPOSITION OF THE 
 
 the 8th and other preceding sections cannot be considered to include 
 trusts of that description.(&) 
 
 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. Therefore, 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 pur- 
 chaser under the decree, or for the persons beneficially 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,(n) and of Sir James Wigram, V. C, in King v. Leach,(o) have 
 been also already considered. 
 
 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 covert trustee, or mortgagee, where his concurrence is neces- 
 sary 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 
 r*30ftl * trustee f° r sa ^ e °f rea l estate had absconded, and had not been 
 heard of up to the hearing of the cause, the Vice- Chancellor of 
 England decreed a sale, and that the husband should be declared 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.(g') 
 
 By the 21st section, the provisions of the act are extended to petitions 
 in cases of charity and friendly societies. 
 
 The 22d section, which confers on the court the power of appointing 
 new trustees on petition in certain cases, has been considered at large in 
 a previous chapter. (?•) 
 
 (Jc) Ibid. (I) Turner v. Edgell, 1 Keen, 502. 
 
 (m) Prendergast v. Eyre, Ca. Temp. Sugd. 11; Robinson v. Wood, 5 Beav. 246 J t 
 King v. Leach, 2 Hare, 57 ; see Beale v. Ridge, 4 Y. & Coll. 248, cited ; "Warburton v. 
 Vaughan, 4 Y. & Coll. 247. 
 
 (n) 5 Beav. 246 ; and see Calvert v. Godfrey, 6 Beav. 97, 102. (o) 2 Hare, 57. 
 
 (p) Calvert v. Godfrey, 6 Beav. 97. (y) Moore v. Vinten, 12 Sim. 161. 
 
 (r) Ante, Pt. I, Div. Ill, Ch. II. 
 
ESTATE OF TRUSTEES UNDER DISABILITY. 439 
 
 The 23d section, which extends the power of appointing new trustees 
 to cases of chanties, 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.(t) 
 
 The 25th section empowers the court to direct the costs and expenses 
 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. (u) And 
 according to the present practice, an infant trustee or heir of a mort- 
 gagee, who is ordered to convey under the act, either on suit or petition, 
 is unquestionably entitled to his costs and expenses occasioned by the 
 proceedings.^) 
 
 However, the costs must have been reasonably incurred, and nothing 
 will be allowed which is not necessary. For instance, a brief to counsel 
 to consent for the infant, will be disallowed ; for no attention can be 
 paid by the court to such a consent. («/) 
 
 The rule is the same with regard to lunatic trustees :(z) and according 
 to the present practice, there can be little doubt but that the same rule 
 also applies to lunatic mortgagees. {a) ■ Although a distinction has been 
 held to exist between lunatic trustees and mortgagees, the latter having 
 been held not to be entitled to their costs of a petition to obtain a con- 
 veyance.^) 
 
 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. (d) Although even in that case he will pxori-n 
 not be made to fay 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 
 
 (s) Ibid, (t) Post, 545. [Suits against Trustees.] (u) Ex parte Cant. 10 Ves. 554. 
 
 (x) Ex parte Omnianey, 10 Sim. 298 ; Prytharch v. Havard, 6 Sim. 9 ; Midland Coun- 
 ties Railway Company v. Westcomb, 11 Sim. 57; Hanson v. Lake, 2 N. C. C. 328 ; see 
 Re Marrow, Cr. & Ph. 142, 145. (y) Ex parte Cant, 10 Ves. 554. 
 
 (z) Ex parte Tutin, 3 V. & B. 149 ; Ex parte Pearse, T. & R. 325, 7 ; overruling Ex 
 parte Bridges, Coop. 290. (a) Re Marrow, Cr. & Ph. 142. 
 
 (6) Ex parte Richards, 2 J. & W. 264; and 2 Collinson on Lunacy, 761. 
 
 (c) King v. Leach, 2 Hare, 57, 59. 
 
 (d) Robinson v. Wood, 5 Beav. 246 ; vide supra, p. 278, et post, p. 551. 
 
 (e) Robinson v. Wood, ubi supra. 
 
440 OF THE DISPOSITION OP THE 
 
 a conveyance under the act without sufficient reason, as, for instance, 
 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 performance 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. C. 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 de- 
 vising it to a trustee to convey to the purchaser. (A)(1) However, this 
 reasoning will not apply where only a very short interval has elapsed 
 between the contract of sale and 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. (?) For 
 that purpose, the administrator of the intestate must appear and consent 
 to be bound by the decree. (k) 
 
 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 convey- 
 ance of the legal estate, we have seen that it is an unsettled point, 
 whether the petition should be presented by the purchaser, or the per- 
 sons having an interest in the application of the pur chase-money. (I) The 
 liability to the costs of the petition is equally unsettled. 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 peti- 
 tioner 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. (n) In that case it appears 
 that the purchase-money was insufficient to pay the petitioner's mort- 
 gage debt and the costs of the suit in full. 
 
 Where an improper or irregular order has been made upon an applica- 
 tion 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, 
 
 (/) Re Bradbourne, 12 Law Journ. N. S. Chanc. 353. 
 
 (g) Prytharch v. Havard, 6 Sim. 9 ; Midland Counties Railway Company v. West- 
 comb, 11 Sim. 57. (h) 11 Sim. 58. 
 (i) Hanson v. Lake, 2 N. C. C. 328. (7c) Ibid. (Z) Vide supra. 
 (to) 5 Beav. 246. [n) 2 Hare, 57, 59. 
 
 (0) Re King, 10 Sim. 605 ; see Calvert v. Godfrey, 6 Beav. 97. 
 
 (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 conveyance 
 itself -will fall upon the purchaser according to the general rule. 11 Sim. 57. [See as 
 to this, Lewis v. Baird, 3 McLean, 67 ; Tiernan v. Roland, 15 Penn. St. R. 440.] 
 
ESTATE OP TRUSTEES UNDER DISABILITY. 441 
 
 *that the court may dismiss a petition, which it has no jurisdic- 
 tion to entertain, -with costs, (p) L J 
 By the 26th section of the act, the powers given to the Lord Chan- 
 cellor of Cheat Britain sitting in lunacy, are extended to all lands and 
 stock in the British dominions, except Scotland and Ireland. 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 Scot- 
 land. The effect of the 27th, 28th, 30th and 31st sections, is to extend 
 the powers of the act to the Court of Exchequer, and to the Lords Com- 
 missioners 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 Chancery 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. (q) This construction is expressly 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 be 
 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 secretary, 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 convey- 
 ancers) 
 
 The 33d section provides for the indemnity of the bank and other 
 companies and their officers in acting under the act. 
 
 * CHAPTER V. [*303] 
 
 OF THE LEGAL DEVOLUTION OP THE ESTATE OF TRUSTEES. 
 
 Where more trustees than one are appointed, the trust property is 
 almost invariably limited to them as joint-tenants ; and even if the terms 
 
 (p) Re Isaac, 4 M. & Cr. 11. 
 
 lq) Evelyn v. Forster, 8 Ves. 96 ; Ex parte Prosser, 2 Bro. C. C. 325 ; Ex parte 
 Anderson, 5 Ves. 240 ; Ex parte Bosanquet, Id. 242, cited; Ex parte Fenelito, Id. ; Ex 
 parte Osborn, Id. 
 
 (r) Price v. Dewhurst, 8 Sim. 617. (s) See King v. Leach, 2 Hare, 59. 
 
442 OE THE LEGAL DEVOLUTION OP 
 
 of the gift rendered this at all doubtful, the court for the sake of con- 
 venience would doubtless endeavor, if possible, to affix this construction 
 to it. 
 
 Therefore upon the death of one of the original trustees the whole 
 estate, whether real or personal, devolves upon the survivors, and so on 
 continually to the last survivor. 1 
 
 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) 1 
 
 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 discretionary 
 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 admi- 
 
 (a) It has been already seen, that the title of the crown, or other superior lord, to 
 take by escheat on the death of a trustee without heirs, is now excluded, ante, p. 50, 
 and Ch. Ill, p. 269 of this Division. 
 
 1 Shortz v. Unangst, 3 W. & S. 45 ; Stewart v. Pettus, 10 Missouri, 755 ; Moses v. 
 Murgatroyd, 1 John. Ch. B. 119; De Peyster v. Ferrers, 11 Paige, 13; Richeson t. 
 Ryan, 15 Illinois, 13 ; Shook v. Shook, 19 Barb. 653 ; Gray v. Lynch, 8 Gill, 404 ; Powell 
 v. Knox, 16 Alab. 364; Maudlin v. Armistead, 14 Id. 702. Even though survivorship 
 be abolished by statute : Parsons v. Boyd, 20 Alab. 112 ; Shortz v. Unangst, ut supra. 
 In New York, Michigan, and Wisconsin, 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 of realty descends to the heir at common law, and not to the statutory 
 heirs. Jenks' lessee v. Backhouse, 1 Binn. 91. The surviving executor or trustee has 
 a right to exclusive possession of the property of the estate. Where he is insolvent, or 
 there are other circumstances which render him unfit to act, relief can only be had by 
 the cestui que trust; the executor of his co-trustee has no right to interfere by application 
 for security or renewal. Shook v. Shook, 19 Barb. 653. As to rights of action in a sur- 
 viving trustee, the rule is that he may sue at law in his own name where the cause of 
 action accrued after the death of his co-trustee, as in the case of rent : Wheatley v. 
 Boyd, 7 Exch. 20; Richeson v. Ryan, 15 Illinois, 13 ; whether he can go on alone iu 
 the execution of all the powers and duties of the trust, or not; that question not being 
 determinable at law : Richeson v. Ryan ; but if the cause of action accrued before the 
 death, he must sue in his capacity of survivor. Wheatley v. Boyd. Where the action 
 is already brought, it is of course to be continued by the survivor alone : Nichols v. 
 Campbell, 10 Gratt. 561 ; and in case of his death also, or where it is a suit as sur- 
 vivor, his executor is to be substituted. Powell v. Knox, 16 Alab. 364 ; Maudlin v. Arm- 
 istead, 14 Id. 702. 
 
 In most of the United States, the common law rule that the executor of an executor 
 succeeds him in the trust, is abolished, and it devolves on the administrator cum testa- 
 mento armexo. See in Pennsylvania, Act of 1832, (S 19, Purd. Dig. 1853, 189, and the sta- 
 tutes of other States cited in Williams on Personal Property, 2d Am. Ed. 364, note ; but 
 otherwise in New Jersey, North and South Carolina, Ibid.; and see post, 471, &c., notes, 
 as to powers vested in executors. 
 
 The husband of a feme covert trustee of personalty, takes the property on her death 
 as her administrator, but holds it, of course, on the original trusts. Keister v. Howe, 
 3 Porter, Ind. 268. 
 
THE ESTATE OE TRUSTEES. 443 
 
 nistrator, as the case may be, 'will not be competent to execute such 
 powers, unless authorized to do so by the trust instrument. (b) 
 
 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 ; arid in that case, if the disclaiming party be the 
 last surviving trustee, the legal estate, according to its quality, will de- 
 volve upon the heir or the personal representative of the deceased trus- 
 tee.^) 1 
 
 If the original trustee have accepted the trust in his lifetime, it is con- 
 ceived that it is no longer competent for his heir or personal representa- 
 tive 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.^) But where the trust has not been accepted 
 by the original trustee, there seems to be no reason, why a disclaimer 
 may not properly be made by his heir or representative; although the 
 point does not appear to have been ever expressly decided. (e) 
 
 *Upon the marriage of a female trustee the legal interest in r* 004-1 
 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 him absolutely 
 by the fact of marriage, unless it be otherwise expressly* 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 survivorship. Where the trust pro- 
 perty is real estate of inheritance, the husband will take either an estate 
 by curtesy, if he have had inheritable issue, or otherwise a bare estate 
 during the life of his wife jointly with her. 2 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 com- 
 
 (6) Mansell v. Mansell, Wilm. 36 ; Peyton v. Beang, 2 P. Wms. 626 ; Townsend v. 
 Wilson, 1 B. & Aid. 608 ; Dyer, 117, PI. 32 ; see Sharp v. Sharp, 2 B. & Aid. 405 ; 
 Cole v. Wade, 16 Ves. 27 ; Hall v. Dewes, Jao. 189 ; Bradford v. Belfield, 2 Sim. 264; 
 1 Sugd. Power, 148, 152, 6th ed. ; and see Cooke v. Crawford, 11 Law Journ. N. S., 
 Chanc. 406 ; 13 Sim. 91, and post, 489. [Powers.] 
 
 (c) Stacey v. Elph, 1 M. & K. 199 ; ante, Pt. I, Div. IV, Ch. I, Sect. I. 
 
 (d) Ante, Pt. I, Div. IV, Ch. II, Sect. I. 
 
 (e) Goodson v. Ellisson, 3 Buss. 583, 7 ; ante, Pt. I, Div. IV, Ch. II, Sect. I, [p. 219, 
 222, and notes.] s 
 
 (/) Moore v. Vinten, 10 Law Journ. N. S. Chanc. 345; 12 Sim. 161 ; S. C. p. 300, 
 preceding chapter. 
 
 1 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. 
 
 2 In Chew v. Comm. of South wark, 5 Rawle, 160, it was held that a mere naked sei- 
 sin 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. 
 
444 £F THE LEGAL DEVOLUTION, ETC. 
 
 mitted by his wife,(<7) it must follow as a necessary consequence that she 
 cannot act in the administration of the trust without her concurrence or 
 consent. 1 
 
 The same principle which prevents a surviving trustee or the devisee 
 or heir of a sole trustee from exercising discretionary powers, which are 
 given only to the original trustee personally, will also apply d 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 feme 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 personal 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 bank- 
 ruptcy, and the bankrupt will therefore retain his character of trustee, 
 until another twappointed 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 annexed 
 to it, will devolve upon those who accept the office. (i) 
 
 (g) See Palmer v. Wakefield, 3 Beav. 227. [Even before marriage, so far as assets; 
 Moone v. Henderson, 4 Desaus. 459. See Redwood v. Riddick, 4 Munf. 222 ; Ferguson 
 v. Collins, 3 Eng. Ark. 241.] 
 
 (h) Ante, Ch. Ill, and post, p. 530, Bankruptcy. [Bunoe v. Vandergrift, 8 Paige, 
 37.] (i) Ante, Pt. I, Div. IV, Ch. II, Sect. 3, p. 225. 
 
 ' Carrol v. Connett, 2 J. J. Marsh. 195 ; Elliott v. Lewis, 3 Edw. Ch. 40. 
 
*PART III. [* 305 ] 
 
 OF THE DISCHAKGE 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. Or THE NECESSITY FOR THE CON- II. Of THE LIABILITY OF ONE TrUS- 
 CURRENCE OF ALL THE TRUSTEES TEE FOR THE ACTS OF THE OTHERS 
 
 [305]. [309]. 
 
 I.— WHERE THE CONCURRENCE OF ALL THE TRUSTEES IS REQUISITE IN 
 ACTS FOR THE ADMINISTRATION OP THE TRUST. 
 
 Trustees have all equal power, interest, and authority, with respect 
 to the trust estate. — As a general rule, therefore, they cannot act sepa- 
 rately, but they must all join in any sale, lease, or other disposition of 
 the trust property, and also in receipts for money, payable to them in 
 respect of their office, (a) 1 And in this respect they differ materially 
 
 (a) Crewe v. Dicken, 4 Ves. 97 ; Fellows v. Mitchell, 1 P. Wms. 83 ; S. C. 2 Vera. 
 516; Churchill v. Lady Hobson, Id. 241; Leigh v. Barry, 3 Atk. 584; Belchier v. 
 Parsons, Ambl. 219 ; Chambers v. Minchin, 7 Ves. 198 ; Ex parte Rigby, 19 Ves. 463 ; 
 2 Fonbl. Eq. B. 2, ch. 7, sec. 5 ; 1 Cruis. Dig. tit. 12, ch. 4, sec. 39. [Webb v. Ledsam, 
 19 Jur. 775.] 
 
 1 Vandever's Appeal, 8 W. & S. 405 ; Latrobe v. Tiernan, 2 Mary. Ch. Dee. 480 ; 
 Ridgeley v. Johnson, 11 Barb. S. C. 527 ; Sinclair v. 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 neces- 
 sity, in which the concurrence of a co-trustee would be presumed. In Ridgeley v. 
 Johnson, 1 1 Barb. S. C. 527, it Was held that where a deed is 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 lime of execution. But a payment by a mortgagor to one of 
 two trustees, assignees of the original mortgagee, is good. Bowers v. Seeger, 8 W. & S. 
 
446 WHERE THE CONCURRENCE OF ALL 
 
 from executors, who have a joint and entire authority, and any one of 
 whom may effectually bind, or dispose of, the assets by his own indivi- 
 dual act. (J) 
 
 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 principle, one 
 trustee alone could not have signed the certificate of a bankrupt in re- 
 spect of debt due to him and his co-trustee,(c2) according to the Bank- 
 r*3flfTl ru P t *^ aw previously to the recent act.(e) 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 " qui facit per alium facit per 
 *e" applies ; and any act of the agent alone, which does not exceed his 
 authority, will be binding on the others, (g) 
 
 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.(A) 
 
 And so the possession or seisin of one or more of several joint trus- 
 tees operates as the possession of the others. And the Statutes of Limi- 
 tation will not begin to run against the cestui que trusts as long as one 
 of the trustees is in possession.^') 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 ownership. The 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 per- 
 son other than the persons entitled to the other shares, such possession shall 
 
 (5) Toucbst. 484 ; Bac. Abr. (Exors.) C. 1 ; Wentw. Off. Ex. 206, 14th ed. ; 2 Wms. 
 Exors. 620. [See post, 309, note.] (c) Rudd v. Tucker, Cro. Eliz. 803. 
 
 (d) Ex parte Rigby, 19 Ves. 463. [See Vandever's Appeal, 8 "W. & S. 405.] 
 
 (e) 5 & 6 Vict. c. 122, see s. 39. (/) Right d. Fisher v. Cuthell, 5 East, 491. 
 (g) Ex parte Rigby, 19 Ves. 343 ; and see Goodtitle d. King v. Woodward, 3 B. & 
 
 Aid. 689; Handbury v. Kirkland, 3 Sim. 265; 1 East, 568; 1 B. & Aid. 85. [See Sin- 
 clair v. Jackson, 8 Cow. 543.] 
 
 Qi) 1 Inst. 49, b. ; Id. 192, a. ; 6 Mod. 44 ; 2 Cruis. Dig. tit. 18, ch. 1, s. 60, 1. 
 
 (i) Att.-Gen. v. Flint, Vice-Chancellor Wigram [4 Hare, 147]. 
 
 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. Jack- 
 son, 8 Cowen, 544. 
 
THE TRUSTEES IS REQUISITE. 447 
 
 not be the possession of the other joint-tenants. This enactment, there- 
 fore, 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 ;(&) but 
 part payment made by one will revive the remedy against them all.(Z) 
 
 It has been decided, that notice of a charge or incumbrance on the 
 trust estate, given to one of several co-trustees, is sufficient to perfect the 
 equitable title of the incumbrancer, (m) And it is immaterial, that the 
 incumbrancer is himself the trustee, who thus receives the notice for his 
 own benefit.(»i) However, the effect of such a notice only continues as 
 long as the party to whom it is given continues to hold the office of 
 trustee ; and after his death or retirement, a subsequent incumbrancer 
 *may gain a preference by giving notice to the then existing 
 trustees ; if in the meantime they have received no notice of the L J 
 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 received 
 notice personally liable to the incumbrancer for any subsequent disposi- 
 tion of the trust estate by them ; and it appears difficult to contend suc- 
 cessfully, that a notice so limited should have such an operation. It is, 
 therefore, for many reasons, advisable that notice of an equitable incum- 
 brance, &c, should in every case be given to all the trustees. 
 
 A trustee who has disclaimed or renounced — or upon the same prin- 
 ciple, one who has been duly discharged under the power contained 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 per- 
 formed by the particular trustees by name ; for a gift to several indivi- 
 duals 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 office. (q) 
 
 (k) See 9 Geo. IV, c. 14, s. 1 ; Chitty, Contr. 640, 50. 
 
 (Z) Whiteeomb v. Whiting, Dougl. 652; Burleigh v. Stott, 8 B. & Cr. 36 ; Pease v. 
 Hurst, 10 B. & Cr. 122 ; Perham v. Raynall, 2 Bingh. 306. 
 
 (to) Smith v. Smith, 2 Cr. & Mees. 232 ; Meux v. Bell, 1 Hare, 73 ; and see Re 
 Raikes, 4 D. & Ch. 412 ; Ex parte Vauxhall Bridge Company, 1 Gl. & J. 106 ; Duncan 
 v. Chamberlaine, 11 Sim. 123. [But see Martin v. Sedgwick, 9 Beav. 333 ; Holt v. 
 Dewell, 4 Hare, 446.] 
 
 (n) Smith v. Smith, 2 Cr. & Mees. 232 ; see Re Raikes, 4 D. & Ch. 412 ; Duncan v. 
 Chamberlaine, 11 Sim. 123. 
 
 (o) Timson v. Ramsbottom, 2 Keen, 35 ; Meux v. Bell, 1 Hare, 97. 
 
 (p) Flanders v. Clark, '1 Ves. 9 ; Smith v. Wheeler, 1 Ventr. 128 ; Hawkins v. Kemp, 
 3 Bast, 410; Adams v. Taunton, 5 Mad. 435; Worthington v. Evans, 1 S. & St. 165. 
 [See ante, 226, post, 473. In Worthington v. Evans, the trustee had never acted.] 
 
 (q) Adams v. Taunton, 5 Mad. 435, 8. 
 
448 WHERE THE CONCURRENCE OF ALL 
 
 But a trustee, who lias once acted in or accepted the trust, and has not 
 been properly discharged from it, must join with the other trustees in 
 the receipts to purchasers or other persons, requiring a discharge 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 
 a necessary party to a receipt to a purchaser.(s) 
 
 Where, however, a mere discretionary power, or one simply collateral, 
 has been given to several persons expressly by 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.(tf) But it is otherwise where the power is not strictly per- 
 sonal, but is annexed to the office of trustee. (w) 
 
 In ordinary cases of private trust there does not appear to be any 
 established rule, according to which the decision or opinion of the ma- 
 jority in number of the trustees would be binding on the dissentient 
 minority. The principle that all co-trustees have equal power and au- 
 thority 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 sufficient reason, would be compelled to act by the court, 
 whose decree would also visit the offending trustees with the costs occa- 
 sioned by their conduct.(a;) But where the act is a matter of pure per- 
 sonal *discretion, we shall see presently, that the court cannot 
 L J in general interfere to control a trustee 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 discretionary act.(«/) The proof of 
 fraudulent or improper conduct would of course give the court juris- 
 diction.^) 
 
 However, in cases of charitable and public trusts, where the number 
 of trustees is usually greater, the decisions of the majority will be bind- 
 ing on the rest ; for otherwise, it would be in the power of one dissenting 
 
 {r) 2 Sugd. V. & P. 50, 9th ed. ; the case of Hardwick v. Mynd, 1 Anstr. 109, is of 
 a contrary tendency, sed quaere ? and see Lord Braybroke v. Inskip, 8 Ves. 417. 
 
 (s) Crewe v. Dicken, 4 Ves. 97 ; Small v. Marwood, 9 B. & Or. 307. 
 
 (t) See 1 Sugd. Pow. 138 ; et post, Chap. [Powers p. 471, 485.] 
 
 (u) Worthington v. Evans, 1 S. & St. 165 ; Clarke v. Parker, 19 Ves. 19. 
 
 (x) Vide post, p. 545, [Suits against Trustees] and [Costs] p. 551. 
 
 (y) Clarke v. Parker, 19 Ves. 1 ; overruling Harvey v. Haston, 1 Atk. 375 ; vide post, 
 485 [Discretionary Powers] ; the court will sometimes act in such a case, see Tomlin 
 v. Hatfield, 12 Sim. 167. ' (z) Ibid. 
 
THE TRUSTEES IS REQUISITE. 449 
 
 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 majqrity 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 present the person 
 whom the majority approve of, those trustees, who voted for an unsuc- 
 cessful candidate, must join in the presentation of the one chosen by the 
 majority.(6) 
 
 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 taxation 
 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. 1 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. (#) 
 Although it would be different, if the tenants had received notice not to 
 pay their rents except upon the receipt of all the trustees'. 
 
 Where an account at a banker's is open 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 
 
 (a) Att.-Gen. v. Scott, 1 Ves. 413; Wilson v. Dennison, Ambl. 82; Wilkinson v. 
 Malin, 2 Tyr. 544; Att.-Gen. Shearman, 5 Beav. 104; Att.-Gen. v. Cuming, 2 N. C. C. 
 139. (b) Att.-Gen. v. Cuming, 2 N. C. C. 139. 
 
 (c) Ex parte Smith, 1 Deac. 385, and M. & A. 586 ; Ex parte Phillips, 2 Deac. 334. 
 
 (d) Hazard v. Lane, 3 Mer. 285 ; see Lockhart v. Hardy, 4 Beav. 224. 
 
 (e) Williams v. Nixon, 2 Beav. 472. 
 
 (/") See Williams v. Nixon, 2 Beav. 472. [But see note, ante, p. 174.] 
 (g) Townley v. Sherborne, Bridg. 35. 
 
 (h) See next sect, and Walker v. Symonds, 3 Sw. 1, 58 ; Clough v. Bond, 3 M. & Cr. 
 490. 
 
 See Husband v. Davis; 10 C. B. 645. In Webb v. Ledsam, 19 Jurist, 775, 1 Kay 
 & John. 385, a case in equity, it was held that the receipt of interest by one trustee dis- 
 charged the debtor; but that payment of the principal of a mortgage by deposit of 
 deeds, the mortgage being a breach of trust of which the mortgagor was cognizant, to 
 one trustee, did not relieve the mortgagor, though the trustee receiving restored the 
 deeds at the time. 
 
 29 
 
450 OF THE LIABILITY OF ONE TRUSTEE 
 
 signature of all the trustees. Where there are several trustees, however, 
 r*9nQl *k' s *might he regarded as a matter of extreme and over caution 
 which would moreover 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. 
 
 II.— OF THE LIABILITY OF A TRUSTEE FOR THE ACTS OF 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 misappropriate, 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. 1 
 
 1 The liability of cotrustees 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, en- 
 abled one or more to accomplish some known object in violation of the trust." The 
 rule in these word's was adopted and acted on in Taylor v. Roberts, 3 Alab. 86 ; State 
 v. Guilford, 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. MeKim, 3 Gill, 366; Slell'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 facie evidence of the receipt of the money 
 by all, is open to explanation ; and those only into whose actual possession or control 
 the money has come, will be held responsible 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. Rep. 419 ; Deaderick v. Cantrell, 10 Yerg. 264; 
 Kip v. Deniston, 4 Johns. Rep. 23. In Monell v. Monell, 5 J. C. R. 283, it was ruled, 
 however, that this presumption from joinder in receipts could not be rebutted by the 
 defendant's answer alone : accord, Maccubbin v. Cromwell, 7 G. & J. 15V ; and its 
 effect was treated as more conclusive than other cases, and the subsequent decision of 
 Manahan v. Gibbons, 19 Johns. 427, seem to warrant. (See American Note to Town- 
 ley v. Sherborne, 2 Lead. Ca. Eq. pt. ii, p. 307, 1st ed.) With regard to executors 
 whose concurrence in acts relating to the estate is not necessary, a different rule exists; 
 and it 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 ; Clarke v. Jenkins, 
 3 Rich. Eq. 318 ; Jones' Appeal, 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, and that 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. I 
 Rawle, 155 ; accord. But see Ducommun's App. 17 Penn. St. 270, where the settle- 
 
FOR THE ACTS OF THE OTHERS. 451 
 
 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 or wasted 
 
 merit and confirmation of a joint account by executors was held conclusive of joint lia- 
 bility, notwithstanding a memorandum in the account, that each was only to be account- 
 able for a proportion of the balance shown. Wherever it is necessary and convenient 
 for the purposes of the trust, that a part or all of the business thereof should be com- 
 mitted to the charge of one or more of the co-trustees, the others not cognizant of or con- 
 curring in any way, in a misapplication of the fund, will not be held liable. Jones' App. 
 8 W. & S. 147 ; State v. Guilford, 15 Ohio, 593 ; Deaderick v. Cantrell, 10 Yerg. 264 ; but 
 see contra, Maccubbin 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 em- 
 barrassment, 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, 1 H. 
 & G. 11 ; State v. Guilford, 15 Ohio, 593; Pirn v. Downing, 11 S. & R. 71 ; though 
 mere slight suspicions are not sufficient to require the non-acting trustees to interfere. 
 Jones' App. 8 W. & S. 147. And in all such cases, if the non-acting trustee becomes 
 aware of any fact endangering the trust fund, apart from the conduct of his colleagues, 
 he must communicate it to his co-trustees, or make application to the court. If he 
 attempt to protect the estate on his own account, he will make himself personally liable 
 for any loss. Wayman v. Jones, 4 Maryl. Ch. 506. A trustee who has actually received 
 money or securities, and pays or assigns them to his colleague without necessity, becomes 
 thereby responsible. Mumford v. Murray, 6 J. C. R. 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. 155 ; Ringgold v. Ringgold, 1 
 Harr. & Gill, 11 ; Graham v. Austin, 2 Gratt. 273. So even in the case of executors who 
 are, as has been observed, prima facie responsible only for their own acts. Mesick v. 
 Mesick, 7 Barb. S. C. 120 ; Edmonds v. Crenshaw, 14 Pet. 166 ; Worth v. McAden, 1 Dev. 
 & Batt. Eq. 199 ; Johnson v. 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 perfectly agreed. From Spencer v. Spencer, 11 Paige, 299; Maecubbin v. 
 Cromwell, 7 Gill & Johns. 157 ; Ringgold v. Ringgold, 1 Harr. & Gill, 11 ; Deaderick 
 v. Cantrell, 10 Yerg. 263; Wallis v. Thornton, 2 Brockenb. 434; Hauser v. 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 v. Deniston, 4 Johns. R. 
 23, it was held that the receipt in a deed by two trustees for the purchase-money would 
 not make the one who did not receive liable; and see Jones' App. 8 W. & S. 147 ; Am. 
 Notes to Townley v. Sherborne, 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 the non-acting trustee ceases. Glenn v. McKim, 3 Gill, 366. Where 
 a trustee has renounced, it is & fortiori necessary to show that the fund has ever been 
 in his hands. Clagett v. Hall, 9 Gill & Johns. 80. In Deaderick v. Cantrel], 10 Yerg. 
 264, followed in Thomas v. Scruggs, Id. 400, in Tennessee, a distinction is taken between 
 discretionary and directory trusts, as to the nature of the joint liability above considered. 
 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 necessary to charge a co-trustee 
 to show some act by which it was obtained by him, or some act of commission, amount- 
 ing 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 
 
452 OF THE LIABILITY OF ONE TRUSTEE 
 
 by the co-trustee, the non-acting trustee will be decreed personally to 
 make good the loss ; for it was his duty to have interfered 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. (/c) 
 
 In Booth v. Booth,(7) a testator bequeathed his personal estate to his 
 partner and to B. in trust, to invest for the benefit of his wife and chil- 
 dren. 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 knowledge and acquiescence, 
 retained the testator's money in the trade for several years, instead of in- 
 vesting 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. B., that both 
 the trustees were equally responsible for the loss. (7) 
 
 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 ascertained 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 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.(w) And in another 
 case, where one of two trustees retained a sum of trust money in his 
 
 (i) Williams v. Nixon, 2 Beav. 475. (7c) Williams v. Nixon, lb. 
 
 (I) Booth v. Booth, 1 Beav. 125. 
 
 (m) Lincoln v. Wright, 4 Beav. 427 ; and see James v. Frearson, 1 N. C. C. 370; 
 Fulton v. Gilmour, Rolls, 15th February, 1845, MS. [On another point, 8 Beav. 159; 
 see Estate of Evans, 2 Ashm. 470 ; Pim v. Downing, 11 S. & R. 71.] 
 
 (») Boardman v. Mosman, 1 Bro. C. C. 68. 
 
 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. But in a subsequent case 
 in the same State, it was held that even in the case of a discretionary trust, a trustee 
 who " identifies himself with it by sales and settlements, and by receipt of fees for ser- 
 vices rendered," is responsible if he permits his associate to misapply the trust fund. 
 McMurray v. Montgomery, 2 Swan, 374. The distinction established by these last 
 decisions, however, is obviously a very artificial one, for almost every trust blends in a 
 greater or less proportion both the characteristics which they thus discriminate ; and 
 the question always is, how far a joinder in acts which are expressly directed, or which 
 from their nature are necessary to be done by all, renders the non-acting trustees further 
 responsible for the abuse of a discretion which may be, and by the agreement of the 
 trustees is, exercised by one. In all cases of this nature, however, there is no liability 
 of one joint trustee for the mere misfeasance or nonfeasance of another, 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. Sherborne, 
 2 Lead. Ca. Eq. pt. ii, page 306 ; Story's Eq. g 1280, &c. 
 
FOE, THE ACTS OF THE OTHERS. 453 
 
 *possession, but the other joined in a false representation to ^ e r*o-f(n 
 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 the trustees to obtain every information from 
 their co-trustee as to the situation and disposition of the trust property : 
 and if they neglect this precaution, they will become answerable 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 general rule, be held 
 responsible for all the consequences ; for by his conduct 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 exclusively ;(q) or 
 if they pay, or make over, the trust funds or property in a similar man- 
 ner ;(»■) or execute a joint power of attorney ;(s) or join in signing a draft 
 or order ;{t) enabling one or more of their co-trustees exclusively to re- 
 ceive and deal with the property; or suffer the trust fund to be invested 
 in bills payable to one or more of their number ;(ti) or to be paid into a 
 bank to the account of two of them, to the exclusion of a third ;(.r) 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 committed. In 
 Clough v. Bond,(#) it was observed by Lord Cottenham, " When the loss 
 
 (o) Bate v. Scales, 12 Ves. 402. (p) Walker v. Symonds, 3 Sw. 58. 
 
 (q) Sadler v. Hobbs, 2 Bro. C. C. 114; Scurfield v. Hawes, 3 Bro. C. C. 90; Cham- 
 bers v. Minchin, 7 Ves. 198 ; Shipbrook v. Hinchinbrook, 11 Ves. 252 ; Brice v. Stokes, 
 Id. 319 ; Underwood v. Stevens, 1 Mer. 713 ; Hanbury v. Kirkland, 3 Sim. 265 ; Brad- 
 well v. Catchpole, 3 Sw. 78, n. ; Clough v. Bond, 3 M. & Cr. 496 ; Williams v. Nixon, 2 
 Beav. 472 ; Broadhurst v. Balguy, 1 N. C. C. 16 ; Curtis v. Mason, 12 Law Journ. N. 
 S. Chanc. 442. 
 
 (r) Keble v. Thompson, 3 Bro. C. C. Ill ; French v. Hobson, 9 Ves. 103 ; Ship- 
 brook v. Hinchinbrook, 11 Ves. 252; Joy v. Campbell, 1 Sch. & Lef. 341 ; Moses v. 
 Levi, 3 Y. & Coll. 359, 367 ; Clough v. Bond, 3 M. & Cr. 497 ; Langford v. Gascoyne, 
 11 Ves. 333. 
 
 (s) Harrison v. Graham, 1 P. Wms. 241, n. ; Hanbury v. Kirkland, 3 Sim. 265 ; Hew- 
 ett v. Poster, 6 Beav. 259. 
 
 [t) Sadler v. Hobbs, 2 Bro. C. C. 114; Broadhurst v. Balguy. 1 N. C. C. 16. 
 
 (u) Walker v. Symonds, 3 Sw. 1, 58. (sc) Clough v. Bond, 3 M. & Cr. 490. 
 
 (y) 3 M. & Cr. 497. 
 
454 OF THE LIABILITY OF ONE TRUSTEE 
 
 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 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." 
 
 r*mn *^hus in an early case,(g) a legacy of 600Z. 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 testator's executors, the 
 other two trustees joined in the receipt. 400Z. was paid at different 
 times by R., by the direction of the other trustees, 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 reason- 
 able thing, R. being the only trustee who lived in London, where the 
 money was paid.(s) 
 
 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 trustees, 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 
 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 delivery 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 subsequent 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 1200J. to his co-executor, who resided in the country, for the purpose 
 of discharging the testator's debts, which were owing to persons in his 
 
 (z) Att,-Gen. v. Randell, 2 Bq. Cas. Abr. 742; 1 Bac. Abr. 184, 6th ed. 
 (a) Bridgman, 35. (6) 2 Gl. & J. 114. 
 
FOR THE ACTS OP THE OTHERS. 455 
 
 immediate neighborhood ; and the co-executor died insolvent, having only 
 applied 787?. in payment of the debts ; the -whole sum of 1200Z. was 
 allowed to the other executor in his accounts, as the payment was requi- 
 site in the ordinary management of executors.(c) 
 
 So in a recent case before Lord Langdale, M. B,., two executors and 
 trustees were directed to pay certain annuities out of the dividends 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 mis- 
 apply the/ dividends, though this was unknown to his co-trustee. The 
 acting trustee became bankrupt, being largely indebted to ihe trust 
 estate for the dividends misapplied by him. And it was held the non- 
 acting trustee *was not answerable for the breach of trust com- 
 mitted by his colleague. (d) The question appears to have been L J 
 treated as one affecting executors, although the duties of paying the 
 annuities and investing the surplus would seem to have clothed the par- 
 ties 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 acquiescence on the part of the non-acting exe- 
 cutor. But it is conceived that the necessity, or at any rate the conve- 
 nience of the arrangement, according to which the dividends were suf- 
 fered to be received by the trustee, who acted and was on the spot, would 
 be quite sufficient to support the decision, upon the principle now under 
 discussion. In the same case the non-aGting trustee had joined in the 
 sale of a sum of 4507. stock, the proceeds of which were received by the 
 acting trustee alone, and the one who did not act was held clearly re- 
 sponsible 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 purchase-money, 
 but one of them only received the money, and afterwards became bank- 
 rupt, 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 received 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 particu- 
 lar 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 
 
 (c) Bacon v. Bacon, 5 Ves. 331 ; and see Hovey v. Blakeman, 4 Ves. 596. 
 
 (d) Williams v. Nixon, 2 Beav. 472. (e) Williams v. Nixon, 2 Beav. 472, 477. 
 (/) Terrell v. Matthews, 11 Law Journ. N. S. Chanc. 31. 
 
456 OF THE LIABILITY OF ONE TRUSTEE 
 
 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 investment, which 
 is in immediate contemplation. (h) 
 
 Where the trust funds are received by one trustee only, and that 
 receipt is justified by the circumstances, the other trustee 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 rh signing the receipts.(i)(l) 
 
 And in this respect there is a material distinction between trustee/ 
 and executors : for it is not in general necessary for all the executors to 
 join in *receipts, and if they do so, they will be chargeable for 
 L -I the money, although they did not receive it.(fc) 1 And hence it 
 may occasionally be important to determine, where an executor has as- 
 sumed the character of a trustee. (t) The reason of this distinction is, 
 that executors are not bound to join in the act. Therefore the distinc- 
 tion does not apply, where the concurrence 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.(w) 
 
 (g) Curtis v. Mason, 12 Law Journ. N. S. Chanc. 442 ; see Ex parte Griffin, 2 Gl. & 
 J. 114. 
 
 (h) Broadburst v. Balguy, N. C. C. 16, 28; Hanbury v. Kirkland, 3 Sim. 265. 
 
 (i) Aply v. Brewer, Pree. Ch. 173; Harden v. Parsons, 1 Ed. 147; Fellows v. 
 Mitchell, 1 P. Wins. 81 ; Churchill v. Hodson, Id. 241 ; Att.-Gen v. Randell, 7 Bac. 
 Abr. 184 ; Murrell v. Cox, 2 Vern. 570 ; Leigh v. Barry, 3 Atk. 584 ; Ex parte Bel- 
 ehier, Ambl. 219 ; Sadler v. Hobbs, 2 Bro. C. C. 117 ; Terrell v. Mathews, 11 Law 
 Jonrn. N. S. Chanc. 31. 
 
 (k) Sadler v. Hobbs, 2 Bro. C. C. 114; Scurfield v. Hawes, 3 Bro. C. C. 90; Cham- 
 bers v. Minchin, 7 Ves. 198 ; Brice v. Stokes, 11 Ves. 324 ; Joy v. Campbell, 1 Sen. & 
 Lef. 341 ; Doyle v. Blake, 2 Seh. & Lef. 242 ; Moses v. Levi, 2 Y. & Coll. 359, 367; 
 Terrell v. Mathews, 11 Law Jour. N. S. Chanc. 31. 
 
 (I) See Chambers v. Minchin, 7 Ves. 199. 
 
 (to) Terrell v. Mathews, ubi supra ; Hovey v. Blakeman, 4 Ves. 608 ; Chambers v. 
 Minchin, 7 Ves. 197. 
 
 (n) Chambers v. Minchin, 7 Ves. 186 ; Brice v. Stokes, 11 Ves. 324; sed vide Scur- 
 field v. Hawes, 3 Bro. C. C. 90 ; Harden v. Parsons, 1 Ed. 147. [Monell v. Monell, 5 
 J. C. R. 294.] 
 
 (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 narrowed to a very 
 small compass, but those decisions could not safely be depended upon as authorities at 
 the present day. 
 
 1 Ante, note to page 305. 
 
'FOR THE ACTS OF THE OTHERS. 457 
 
 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 keeping 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-trus- 
 tee, 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 in- 
 quire 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 invest- 
 ment ;(q) or of being paid over to the party beneficially interested ;(r) 
 has been held liable for the loss occasioned by the subsequent failure of 
 the co-trustee without applying the money to those purposes. 
 
 And although the circumstances may be such as at the time to justify 
 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 ascer- 
 tain, that they are duly applied by the co-trustee to the required pur- 
 pose : 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 investment, un- 
 less an immediate beneficial investment was in actual contemplation at 
 the *time. For if no such investment was contemplated, the pay- [-#014.-1 
 ment to the co-trustee was unnecessary, and therefore a breach 
 of trust, (t) 
 
 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, (u) 
 
 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 
 
 (0) Fellows v. Mitchell, 1 P. Wins. 90. 
 
 (p) Shipbrook v. Hinchinbrook, 11 Ves. 252 ; Underwood v. Stevens, 1 Mer. 713 ; 
 Hewett v. Forster, 6 Beav. 259. 
 
 (g) Hanbury v. Kirkland, 3 Sim. 265 ; Broadhurst v. Balguy, 1 N. C. C. 16. 
 
 (r) Curtis v. Mason, 12 Law Journ. N. S. Chanc. 442. 
 
 (s) Curtis v. Mason, ubi supra; and see Bone v. Cooke, 1 M'Clel. 168 ; Gregory v. 
 Gregory, 2 Y. & C. 313 ; Scurfield v. Hawes, 3 Bro. C. C. 91. 
 
 (t) Brice v. Stokes, 11 Ves. 319; Broadhurst v. Balguy, 1 N. C. C. 16. 
 
 (u) Gill v. Att.-Gen. Hard. 314; see Fulton v. Gilmour, Rolls, 15 February, 1845, 
 MS. 
 
458 OF THE LIABILITY OF ONE TRUSTEE 
 
 an estate, the others will not be answerable for any act done by the party 
 so intrusted in the 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 truitees shall be answerable 
 for only a moiety of the trust fund, the court will consider the division 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 re- 
 spect of the share committed to him.(«/) 
 
 If co-trustees expressly bind themselves to be answerable for the acts 
 of each other, the court will not relieve them from the consequences of 
 such an arrangement.^) 
 
 It is the duty of one trustee to protect the trust estate from any mis- 
 feasance by his co-trustee, upon being made aware of the intended 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 application in the manner required 
 by the trust.(S) 
 
 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 na- 
 ture discussed in this section, (c) 1 Indeed such a clause appears 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 ;(d) 
 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 colleagues, 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 assets of the 
 P3151 defaulting trustee are varied or affected by that 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 authorizes the other trustees to 
 
 (x) Davis v. Spurling, 1 E. & M. 64. (y) Birls v. Betty, 6 Mad. 90. 
 
 (a) Leigh v. Barry, 3 Atk. 583. (a) In Re Chertsey Market, 6 Price, 279. 
 
 (6) E. Powlet v. Herbert, 1 Ves. Jim. 297 ; Franco v. Franco, 3 Ves. 75 ; see Walker 
 v. Symonds, 3 Sw. 71. 
 
 (c) Mucklow v. Fuller, Jac. 198 ; Williams v. Nixon, 2 Beav. 472. 
 
 (d) Leigh v. Barry, 3 Atk. 584; see Dawson v. Clark, 18 Ves. 254. 
 
 (e) Underwood v. Stevens, 1 Mer. 712 ; Hanbury v. Kirkland, 3 Sim. 265 ; Williams 
 v. Nixon, 2 Beav. 472; Mucklow v. Fuller, Jac. 198. 
 
 (/) Lincoln v. Wright, 4 Beav. 427 ; Brice v. Stokes, 11 Ves. 319. 
 
 1 With regard to the effect of the Trustee indemnity clause, see post, 528. 
 
FOR THE ACTS OP THE OTHERS. 459 
 
 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 defaulting 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. (h) 
 
 It is almost unnecessary to add, that where a trustee is so far implicated 
 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 occasioned, 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 liable for a breach 
 of trust, may be sued alone by the cestui que trust, will be the subject 
 of consideration in a future chapter. (k) 
 
 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 II. [*316] 
 
 OF THE POWERS AND DUTIES OP TRUSTEES AS BETWEEN 
 THEM AND THE CESTUI QUE TRUSTS. 
 
 I. Of Trustees of a Dormant Es- Clothed with Active Du- 
 
 TATE [316]. TIES [328]. 
 
 II. Of Trustees of an Estate III. Of Trustees of 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. 1 And 3d, 
 Trustees of terms of years, attendant on the inheritance. 2 
 
 (g) Walker v. Symonds, 1 Sw. 1. {h) Walker v. Symonds, 1 Sw. 1, 73. 
 
 (i) 1 Sw. 1, 77 ; Lincoln v. Wright, 4 Beav. 427. (k) Post, p. 543. 
 
 (Z) Wilson v. Goodman [4 Hare, 54]; see Ex parte Shakeshaft, 3 Bro. C. C. 198 ; 
 Knatchbul v. Fearnhead, 3 M. & Cr. 124. 
 ' i Post, 317. 2 Post, 324. 
 
460 OF TRUSTEES OF A DRY LEGAL ESTATE. 
 
 I. — OF 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 reconveyance 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 bene- 
 ficial estate, or interest, which is afterwards determined or satisfied. It 
 was at one time not unusual for 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. 105, no dower attached upon a mere equitable estate of inheri- 
 tance. 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 re- 
 strained by injunction from using his legal powers otherwise than for the 
 benefit of the cestui que trust.(b) It has been seen, that the dutiess of 
 l"*S17T *^ e *t rustee are principally threefold, 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 com- 
 ply 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 recognized by 
 courts of law in actions by a trustee as the nominal plaintiff; and if the 
 
 (a) Goodtitle v. Jones, 7 T. B. 47; Wake v. Tinkler, 16 East, 36. [See ante, p. 2T4, 
 note.] 
 
 (6) Balls v. Strutt, 1 Hare, 146. (c) 1 Cruis. Dig. tit. 12, ch. 4, sect. 6. 
 
 (<0 Ante, Pt. II, Ch. IV, Sect. 1. 
 
OP TRUSTEES TO PRESERVE, ETC. 461 
 
 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, cannot 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 action, until he 
 had given him security for costs. (g) 
 
 In case of the disability of the cestui que trust by reason of infancy, 
 or mental incapacity, a dry trustee does not acquire any further 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 prejudice 
 the cestui que trust.(i) To tbis, however, there is one exception ; 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) 
 
 A mere dry trustee, such as one to preserve contingent remainders, is 
 not incapacitated from dealing with the cestui que trust for the purchase 
 of the trust estate. (I) 
 
 II. — OE TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. 1 
 
 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 contingent re- 
 mainders, previously to the recent act, 7 & 8 Vict. c. 76, might have been 
 defeated *before coming into existence, by the forfeiture or r*9iQn 
 alienation of the tenant for life.(w) 
 
 The inconvenience and injustice which was thus occasioned, led to the 
 invention of the estate of trustees to preserve contingent remainders. 
 An estate was limited to trustees and their heirs during the life of the 
 tenant for-life, in trust to support the contingent remainders after limited 
 from being defeated or destroyed. If, therefore, the estate of the tenant 
 
 (e) Manning v. Cox, 7 Moore, 617 ; Barker v. Richardson, 1 Y. & J. 362 ; Chit. Contr. 
 
 605. [Ante, 274, note (1).] 
 
 (/) Tucker v. Tucker, 4 B. & Ad. 745. [Ante, p. 274, note y.] 
 
 (g) Annesley v. Simeon, 4 Mad. 390. [See Tna. Co. v. Smith, 11 Penn. St. R. 12.] 
 
 (h) Puriam v. Sanders, 7 Bac. Abr. [Uses and Trusts, B.] ; Witter v. Witter, 3 P. 
 
 Wms, 100. 
 
 (t) 7 Bac. Abr. [Uses and Trusts, B.] ; 1 Cruis. Dig. Tit. 12, Ch. 4, Sect. 11. 
 
 (k) Millard's case, 2 Freem. 43 ; see Bovey v. Smith, 1 Vera. 149 ; and see ante, p. 
 
 164; post, 510 [and notes]. 
 
 (I) Parkes v. White, 11 Ves. 226. [See ante, note (1), to page 158.] 
 
 (m) Archer's case, 1 Rep. 66 ; Chudleigh's case, Id. 120 ; Pearne, Cont. Rem. 290, 
 
 7th edit. ; 2 Bl. Comm. 171, 2 ; 1 Mad. Ch. Pr. 618, 3d ed. ; Story Eq. Jur. <S 991. 
 
 1 See Vanderheyden v. Crandall, 2 Denio, 9. 
 
462 OF TRUSTEES TO PRESERVE 
 
 for life were determined otherwise than by his death, the estate of the 
 trustees would then take effect in possession, so as to support and pre- 
 serve the remainders depending in contingency.(w) 1 
 
 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 
 affirmed on appeal by the House of Lords with the unanimous concur- 
 rence 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.(^) 
 
 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 trustees 
 are appointed to preserve contingent remainders limited to unborn «ons, 
 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 existence^ to the extent of 
 the full value of the estate ;(q) and a volunteer taking under such a con- 
 veyance, or a purchaser with notice, will be bound by the -trust, and will 
 be decreed to execute a reconveyance.(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 trustees 
 in favor of persons claiming under an ultimate contingent limitation, 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.(f) There by a marriage settlement lands were limited to 
 trustees in trust for the husband for ninety-nine years, if he should so 
 
 (») Garth v. Cotton, 3 Atk. 753 ; S. C. 1 Dick. 183 ; Smith d. Dormer v. Parkhurst, 
 3 Atk. 135 ; S. C. Willes, 327 ; 2 Bl. Comm. 171, 2 ; 2 Cruis. Dig. Tit. 16, Ch. 7, Sect. 
 1 ; Co. Litt. 290, b. Butl. notes, IV, V, 4; 1 Mad. Ch. Pr. 619. 
 
 (o) 3 Atk. 135; S. C. Willes, 327; see 3 Atk. 537; Fearne. Cont. Pern. 217; Co. 
 Litt. 265 a, n. 2, and 337, b, n. 2. (p) Ante, Pt. II,' Ch. II, Sect. 1. 
 
 (q) Pye v. Gorge, 1 P. Wins. 128 ; Mansell v. Mansell, 2 P. Wms. 678 ; 7 Bac. Abr. 
 [Uses and Trusts, F.] ;■ Moody v. Walters, 16 Ves. 302 ; Biscoe v. Perkins, 1 V. & B. 
 491 ; Garth v. Cotton, 3 Atk. 754. 
 
 (r) 1 P. Wms. 128 ; 2 P. Wms. 681 ; 3 Atk. 754, 5. 
 
 (s) Pye v. George, 1 P. Wms. 128 ; Mansell v. Mansell, 2 P. Wms. 681 ; Symance v. 
 Tatham, 1 Atk. 614. (t) 1 Eq. Ca. Abr. 385. 
 
 1 In some of the United States, as Georgia, South Carolina, Delaware, New York, 
 Illinois, Kentucky, the necessity of trustees to support contingent remainders in the 
 case of posthumous children, is done away with by statute : 2 Greenleaf's Cruise, note 
 to p. 315. In Indiana, Mississippi, and (except as to estates tail) in Maine, Massachu- 
 setts, and New York, no alienation by tenant for life in general will affect dependent 
 estates. Id. 299, note. In Pennsylvania, however, a contingent remainder will be 
 destroyed by a common recovery suffered by the tenant for life. Dunwoodie v. Beed, 
 3 S. & E. 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. 463 
 
 long live, remainder to trustees during his life to preserve contingent 
 remainders, remainder to the first and other sons of the marriage in tail, 
 with an ultimate remainder to the right heirs of the husband ; there was 
 no issue of the marriage, and *the hushand and wife, and the pq-icn 
 trustees to preserve, joined in resettling the estate hy fine and J 
 
 conveyance to other uses. The husband and wife died without issue, and 
 a bill was filed by the heir at law of the husband to enforce his claim 
 under the limitation in the first settlement, and to set aside the subse- 
 quent 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 purchasers 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 
 of 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 trus- 
 tees, and their concurrence would consequently be requisite to give 
 validity to any fine or recovery for barring the subsequent 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 resettlement 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 
 
 »°-(y) 
 
 If the new settlement of the estate be beneficial to the family gene- 
 rally, 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 circum- 
 stances 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.^) Indeed, these considerations have on more than 
 one occasion induced the court to decree the trustees to join in executing 
 a resettlement. (a) 
 
 (m) Tipping v. Piggott, 1 Eq. Ca. Abr. 385 ; S. C. 2 Cruis. Dig. Tit. 16, Ch. 6, Sect. 
 9; and see Moody v. Walters, 16 Ves. 312, 13. 
 
 (x) Else v. Osborne, 1 P. Wins. 387 ; Moody v. Walters, 16 Ves. 283 ; Biscoe v. Per- 
 kins, 1 V. & B. 485. 
 
 (y) Townsend v. Lawton, 2 P. Wms. 379 ; Symance v. Tatham, 1 Atk. 613 ; Wood- 
 house v. Hoskins, 3 Atk. 22 ; Barnard v. Large, 1 Bro. C. C. 534; Ambl. 773. 
 
 (z) Moody v. Walters, 16 Ves. 283, 311 ; Biscoe v. Perkins, 1 V. & B. 485, 492. 
 
 (a) Piatt v. Spring, 2 Vern. 303 ; Frewin v. Charlton, 1 Eq. Ca. Abr. 386 ; Winning- 
 ton v. Foley, 1 P. Wms. 536. 
 
464 OP TRUSTEES TO PRESERVE 
 
 In the case of Else v. Osborne,(6) it was laid down without any quali- 
 fication, by Lord Cowper, that " if the eldest son joins in a feoffment, 
 where the remainder in tail is limited to the eldest son, it prevents any 
 breach of trust in the trustees." In that case the remainder was limited 
 to the heirs of the body 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 
 r*qom a ^ rea( ^y *seen, it was distinctly stated by Lord Cowper, that 
 •- -1 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 
 arrangement ; indeed it appears from a statement in the note to the re- 
 port,, 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. [d) 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 be decreed to execute such a con- 
 veyance.^) 
 
 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 incon- 
 venient 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 con- 
 curs, 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 body, it was decided by 
 Lord Gowper, 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 non 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 father, and the bill was filed by the 
 second son to set aside the feoffment as a breach of trust ; but Lord 
 Cowper, though he admitted that there had been a breach of trust, re- 
 
 (6) 1 P. Wms. 387 ; and see "Woodhouse v. Hoskins, 3 Atk. 24. 
 (c) Else v. Osborn, 1 P. Wms. 387. (d) 16 Ves. 305. 
 
 (e) Biscoe v. Perkins, 1 V. & B. 491, 2 ; and see Lord Hardwicke's observations in 
 Woodhouse v. Hoskins, 3 Atk. 24. (/) 1 V. & B. 491. 
 
CONTINGENT REMAINDERS. 465 
 
 fused 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 remainders 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 remainder is laboring under any 
 other legal incapacity to convey. 
 
 If the tenant for life under a will with remainder to another person 
 in tail be also made trustee to preserve contingent remainders 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 already r^oo-i-i 
 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 compelled 
 the trustee 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 the trustees to join in defeating 
 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., 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 their bills, 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 hesita- 
 tion, upon the authority of a precedent which was produced, decreed the 
 trustees to join in the conveyance, on being indemnified. In this case 
 
 (</) Else v. Osborn, 1 P. Wins. 387. 
 
 (h) Moody v. Walters, 16 Ves. 302 ; Biscoe v. Perkins, 1 V. & B. 491. 
 
 (i) Osbrey v. Bury, 1 Ball. & B. 58. (k) 1 P. Wms. 358. 
 
 (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 esse; and if he 
 were not expressly made the trustee to preserve those remainders, he would not be 
 restrained by a court of equity, from exercising his legal powers though to the disap- 
 pointment of the settlement. But there can be little doubt but that he would be pre- 
 vented by the court from availing himself of his legal powers for his own benefit in direct 
 contravention of the express trust. 
 
 30 
 
466 OF TRUSTEES TO PRESERVE 
 
 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 directed 
 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 mortgagee threatened to fore- 
 close, 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 property, 
 so as to continue it in the family, or so as to rectify an omission 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.(m) 
 
 It was stated by Mr. Vernon, in Winnington v. Foley, (w) that there 
 was a later case, where the trustee had joined with the first remainder- 
 man in tail in suffering a recovery against the consent of his father, the 
 tenant for life, and it has 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) 
 
 T*3221 * Where there are no circumstances rendering the execution of 
 the new conveyance by the trustees either necessary or advan- 
 tageous to the estate, the court has repeatedly refused to compel them 
 to join in destroying the remainders over. It has been said, that trus- 
 tees 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 settlement 
 to the husband and wife for their lives, with remainder to trustees to 
 preserve, with remainder to their first and other sons in tail ; and there 
 was no issue of the marriage after twelve years ; the husband and wife 
 filed a bill to compel the trustees to join in a sale for the payment of the 
 debts, but the Lord Keeper refused to make the decree. (q) 
 
 In this case it will be observed that no person entitled in remainder 
 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 barring the remainders 
 over; though the object of the new conveyance was to resettle the estate 
 
 (I) Piatt v. Sprigg, 2 Vern. 303. 
 
 (m) Frewin v. Charlton, 1 Bq. Ca. Abr. 386 ; "Winnington v. Foley, 1 P. Wms. 536. 
 (n) 1 P. Wms. 537. (o) 16 Ves. 305, 6. 
 
 (p) Woodhouse v. Hoskins, 1 Atk. 24; Barnard v. Large, 1 Bro. C. C. 535 j S. C. 
 Ambl. 775 ; Biscoe v. Perkins, 1 V. & B. 492. 
 
 {q) Davies v. "Weld, 1 Vern. 181 ; S. C. 1 Eq. Ca. Abr. 386. 
 
CONTINGENT REMAINDERS. 467 
 
 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 dis- 
 position by the tenant for life and the remainderman in tail, where that 
 sale or disposition is totally at variance with, and destructive of, the pur- 
 poses contemplated by the original settlement, (s) 
 
 Upon the whole, the authorities leave the question, as to the propriety 
 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 ad- 
 mitted, it was beyond his abilities to determine from the different cases 
 on the subject. (t) 
 
 However, it is equally clear from the decisions, that there may be 
 cases where the trustees may join without any breach of trust, although 
 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.(w) 
 
 But the trustees, even in such a case, will be perfectly justified in re- 
 fusing 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,(#) 
 *" That it would be a dangerous experiment for trustees in any r*QOQ-| 
 case to destroy remainders, which they were appointed by the 
 settlement to preserve, "(y) 
 
 It may be observed, that previously to the Fines and Recoveries Act,(s) 
 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 remainders over without any co-opera- 
 tion 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 
 
 • (r) Barnard v. Large, 1 Bro. C. C. 534; S. C. Ambl. 113. 
 
 (s) Townsend v. Lawton, 2 P. "Wms. 379; Symance v. Tatham, 1 Atk. 613; Wood- 
 house v. Hoskins, 3 Atk. 22. (t) In Biscoe v. Perkins, 1 V. & B. 491, 2. 
 (m) Lord Lansdown's case, cited by Lord Eldon, 16 Ves. 310. (x) 1 P. Wms. 128. 
 \y) Moody v. Walters, 16 Ves. 310, 11 ; Biscoe v. Perkins, 1 V. & B. 491. 
 (z) 3 & 4 Will. IV, c. 74. 
 
468 OF TRUSTEES OP 
 
 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 con- 
 currence 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 set- 
 tlement : 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 re- 
 mainder 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.(J) 
 
 It is the duty of .trustees to preserve contingent remainders to protect 
 the estate from injury committed by the tenant for life.(e) 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 timber.(^) 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 timber.(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 remainder- 
 man comes into esse.(f) 
 
 If the trustees consent to the commission of the waste, and bind them- 
 selves not to sue for an injunction, they will be personally liable for the 
 value. (g) But this liability will noff exist, if they have not acted in the 
 trust, or have no notice of the waste. (h) 
 
 r*S^4T *^" n ^ e case °^ co pyholds, the lord's estate will suffice to sup- 
 port the contingent remainders, without any express appointment 
 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 altera- 
 tion in the law affecting contingent remainders. The 8th section enacts, 
 
 (a) 3 & 4 Will. IV, c. 74. 
 
 (6) Davies v. Weld, 1 Vern. 181 ; Pye v. Gorge, 1 P. Wms. 128 ; Mansell v. Mansell, 
 2 P. Wms. 678 ; Moody v. Waller, 16 Ves. 302. 
 
 (c) Barnard v. Large, 1 Bro. C. C. 535 ; Ambl. 774. 
 
 (d) Stansfield v. Habergham, 10 Ves. 282 ; Garth v. Cotton, 1 Dick. 183 ; 1 Ves. 524, 
 46 ; 3 Atk. 751 ; 1 Mad. Ch. Pr. 622. (e) 10 Ves. 278. 
 
 (/) Garth v. Cotton, 3 Atk. 754. (g) Ibid. 
 
 (A) Ibid. (i) Stansfield v. Habergham, 10 Ves. 282. 
 
ATTENDANT TEEMS OP TEARS. 469 
 
 that after that act comes into operation (from the 31st of December, 
 1844), no estate in land shall be created by way of contingent remain- 
 der, 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 executory estate of the same 
 nature and having the same properties as an executory devise : and con- 
 tingent 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. 1 
 
 The effect of this enactment is to do away with the necessity of crea- 
 ting trustees for the preservation of contingent remainders for the fu- 
 ture ; as well as to remove the probability of any question arising here- 
 after, as to the duties or powers of the trustees already created for that 
 purpose. It is to be observed, that the 13th section 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 OP ATTENDANT TERMS OF YEARS. 
 
 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 particular 
 purpose, and there is no proviso for its cesser or determination, upon the 
 satisfaction of the trusts, the term, upon the accomplishment of the par- 
 ticular 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;) 3 
 
 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 inheritance 
 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, 
 
 (7c) Willoughby v. Willoughby, 1 T. R. 765 ; S. C. Ambl. 282 ; Best v. Stamford, 1 
 Salk. 154; S. C. 1 P. Wins. 374; Prec. Chan. 252 ; 2 Vern. 520 ; Wynch v. Packing- 
 ton, 2 Eq. Ca. Abr. 507 ; S. C. 1 Bro. C. C. 90, cited ; Hayter v. Rod, 1 P. Wms. 373 ; 
 Maundrell v. Maundrell, 10 Ves. 259 ; 2 Fonbl. Eq. B. 2, Oh. 4, Sect. 4, 5 ; Co. Litt. 
 290, b. Butt, note, XV. 
 
 (1) Cholmondeley v. Clinton, 1 Sugd. V. & P. 506, 7, 9th ed. ; 1 Cruis. Dig. tit. 12, 
 ch. 3, sect. 9 ; 1 Sugd. V. & P. 521, &c, 9th ed. 
 
 1 This act is repealed by the 8 & 9 Viet. c. 106, sect. 1, so far as it destroyed contin- 
 gent remainders. 
 
 2 These terms are now abolished in England; see ante, p. 253, and notes. 
 
470 OF TRUSTEES OF 
 
 r*ooc-i *then the term will in equity become attendant on the inheritance, 
 L 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 per- 
 sons 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 inheritance, 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 inheri- 
 tance.^) 
 
 And the law is the same, where the termor for years, subsequently to 
 his will, contracts to purchase the inheritance, and dies before convey- 
 ance. The residuary legatees in that case will have no claim to the 
 legal term, which will in equity belong to the heir, as attendant 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 de- 
 vise the estate to persons for life with remainders over ; it was held, that 
 there was no resulting trust of the term, but that it attended the in- 
 heritance.^) 
 
 So, where a term is carved out of the inheritance for any particular 
 purpose, when that purpose is satisfied, the term becomes attendant on 
 the inheritance without any express declaration : and this is in accord- 
 ance 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 pecuniary charge 
 for a wife or children — or to carry out any other temporary arrange- 
 ment.^) 
 
 (m) Capel v. Girdler, 9 Ves. 510 ; Kelly v. Power, 2 Ball. & B. 253. 
 
 (n) Tiffin v. Tiffin, 1 Vern. 1 ; S. C. 2 Eq. Ca. Abr. 241 ; 2 Chan. Ca. 55. 
 
 (o) Langton's Case, 2 Chan. Ca. 156 ; Dowse v. Percival, 1 Vern. 104. 
 
 (p) Witchurch v. Witchurch, 2 P. "Wins. 236 ; Goodright v. Shales, 2 Wils. 239. 
 
 (g), Capel v. Girdler, 9 Ves. 509 ; and see Cooke v. Cooke, 2 Atk. 67. 
 
 (r) Sidney v. Miller, Coop. 206; and 19 Ves. 352; Anon. 2 Ventr. 359; see Brown 
 v. Jones, 1 Atk. 191. 
 
 (s) Francis Max. p. 21, 22 ; 2 Fonbl. Eq. B. 2, Ch. 4, Sect. 4, 5 ; 1 Cruis. Dig. Tit. 
 12, Ch. 3, Sect. 10 ; Co. Litt. 290, b. Butl. note, XV. 
 
 (t) Bodmin v. Vandebendy, 2 Chan. Ca. 172; Gore v. Black, 2 Vern. 139, cited; 
 Best v. Stampford, Prec. Chan. 252 ; S. C. 2 Vern. 520 ; Maundrell v. Maundrell, 10 
 Ves. 270. 
 
ATTENDANT TERMS OF YEARS. 47 L 
 
 Therefore, where the owner of the inheritance, though only a tenant 
 in tail,(w) pays off a charge, secured by a term of years, it will be pre- 
 sumed, 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 discharged by a tenant for 
 life,(?/) *or tenant in tail in remainder.(s) Although if the r ^ Q 9 ftl 
 tenant for life, or tenant for any other partial estate, pay off •- J 
 the charge, and afterwards acquire the inheritance, the charge, although 
 kept on foot up to that time, will then merge, and the term become 
 attendant.(a) 1 
 
 If there be any intermediate legal estate and beneficial interest be- 
 tween 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 days, instead of as- 
 signing over the entire interest, the derivative term was held not to be 
 attendant.(S) 
 
 A term may be prevented from becoming attendant, although the bene- 
 ficial title to it becomes vested in the owner of the inheritance, if in 
 creating it there was an obvious intention that it should be separated 
 from the inheritance, and held in gross. (c) And so a term, having be- 
 come attendant, may be disannexed, and turned into a term in gross, 
 by the act of the owner of the inheritance. (d) 
 
 Terms attendant on the inheritance are considered as absolutely an- 
 nexed 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 origi- 
 nal 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 
 
 (u) Jones v. Morgan, 1 Bro. C. C. 206 : St. Paul v. Lord Dudley and Ward, 15 
 Ves. 173 ; Astley v. Milles, 1 Sim. 298 ; Lord Selsea v. Lord Lake, 1 Beav. 146. 
 
 (x) Ibid. 
 
 (y) Wyndham v. Earl of Bgermont, Ambl. 753 ; Countess v. Earl of Shrewsbury, 1 
 Ves. Jun. 227. (z) Wigsell v. Wigsell, 2 S. & St. 364. 
 
 (a) Astley v. Milles, 1 Sim. 298 ; Lord Selsea v. Lord Lake, 1 Beav. 146. 
 
 (b) Scott v. Fenhouillet, 1 Bro. C. C. 69. 
 
 (c) Hayter v. Rodd, 1 P. Wms. 362 ; see Nourse v. Yerworth, 3 Sw. 612. 
 
 (d) Per Lord Hardwicke in Willoughby v. Willoughby, 1 T. R. 763 ; S. C. Ambl. 
 283 ; Duke of Norfolk's case, 3 Chan. Ca. 46. 
 
 («) Willoughby v. Willoughby, 1 T. R. 763 ; Ambl. 282 ; Maundrell v. Maundrell, 7 
 Ves. 567, and 10 Ves. 246 ; Co. Litt. 290, b. Butl. note, XV; 2'Fonbl. Eq. B. 2, Ch. 
 4, Sect. 4, 5 ; 1 Mad. Chan. Prac. 636, 3d ed. ; Earl of Buckinghamshire v. Hobart, 3 
 Sw. 201. 
 
 1 See on this subject Johnston v. Webster, 24 L. J. Ch. 305 ; 4 De Gr. Macn. & G. 
 474 ; Morley v. Morley, 25 L. J. Ch. 1. 
 
472 OP TRUSTEES OF 
 
 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 property 
 can be tried only in his name.(^) And hence arises the security 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 assign- 
 ment of an attendant term, which has not been expressly assigned 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 required assignment, 
 L -I and for that purpose to require the deduction of his title from 
 the person for whose benefit the term was last assigned to attend. And 
 in the absence of such proof, the trustee would unquestionably be justi- 
 fied in refusing to make the assignment, except under the sanction of 
 the court.(i) 
 
 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 suffer 
 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 re- 
 strained by injunction from permitting his name to be used for such a 
 purpose.(A) 
 
 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 :(l) and if the refusal be unreasonable or pro- 
 ceed from any improper motive, the decree would be made against the 
 trustee with costs. (m) 
 
 A court of equity will not suffer the trustee of an attendant term to 
 
 (/) 1 Sugd. V. & P. 519, 520, 9th ed. (g) Ante, p. 274, and note. 
 
 (h) Co. Litt. 290, b. .Butt, note, XV; 2 Ponbl. Eq. B. 2, Ch.4, Sect. 4; 1 Mad. Chan. 
 Prac. 636. 
 
 (i) Ante, Pt. II, Ch. IV, Sect. 1 ; and see Goodson v. Ellison, 3 Russ. 583. 
 
 (k) Ex parte Knott, 11 Ves. 613 ; 1 Sugd. V. & P. 520, 9th ed. 
 
 (1) Mole v. Smith, Jac. 490. 
 
 (to) Willis v. Hiscox, 4 M. & Cr. 197 ; vide ante, page 271, &c, and post [Costs], 
 p. 551. 
 
EXECUTORY TRUSTS. 473 
 
 use Lis 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 injustice, and will 
 presume the surrender of the term.(w) 
 
 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.(jp) And in like manner, if 
 an attendant term become vested in the wife of the owner of the inherit- 
 ance, 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. (q) 
 
 A trustee of a term, who is required to assign it, is unquestionably en- 
 titled to satisfy himself as to the right of the party requiring the assign- 
 ment, by taking legal advice, and the costs and expenses thus incurred 
 must be defrayed by the persons by whom the assignment is required. 
 
 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 ad- 
 ministration will be requisite to enable his representative to transfer the 
 term.(r) 
 
 *II.— OP TRUSTEES OF AN ESTATE CLOTHED WITH ACTIVE ,. „„„„ 
 DUTIES. [*328] 
 
 I. Of Trustees of Executory Trusts IX. Of Trustees oe Freeholds [428]. 
 
 [328]. X. Of Trustees of Copyholds [429]. 
 
 II. Of Trustees for the Payment of XI. Of Trustees of Leaseholds [432], 
 
 Debts [336]. XII. Of Trustees of Advottsons and 
 
 III. Of Trustees for the Payment of Presentations to Benefices 
 
 Legacies [359]. [439]. 
 
 IV. Of Trustees for Raising Portions XIII. Of Trustees of Stock or Shares 
 
 [364]. [445]. 
 
 V. Of Investment by Trustees [368]. XIV. Of Trustees of Choses in Action 
 
 VI. Of Trustees for Tenant for Life [446]. 
 
 [384]. XV. Of Trustees for Charitable or 
 
 VII. Of Trustees for Infants [395]. Public Purposes [449], 
 VIII. Of Trustees for Married Women 
 
 [405]. 
 
 I. — OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 Where directions are given, for the execution of some future convey- 
 ance or settlement of trust property, but the particular limitations are 
 not fully or accurately specified, this is an executory trust, and in carry- 
 ing such a trust into execution, regard must be had to the general inten- 
 
 (re) Lade v. Holford, Bull. N. P. 110 ; Doe v. Staple, 2 T. R. 696 ; Doe v. Syborn, 
 1 T. R. 2 ; Goodtitle v. Jones, Id. 47 ; Bartlett v. Dowries, 3 B. & Cr. 616. 
 (o) Ante, p. 253, and notes. (p) Thorn v. Newman, 3 Sw. 603. 
 
 (q) Mole v. Smith, Jac. 490. 
 (r) 3 Sugd. V. & P. 14, 10th ed.; Crossley v. Archdeacon of Salisbury, 3 Hag. 201. 
 
474 OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 tion, rather than to the technical import of any particular expressions 
 used. (a) 
 
 The distinction between trusts executed and executory, though ques- 
 tioned by Lord Hardwicke in an early case,(§) has been long firmly esta- 
 blished as one of the settled doctrines of the court. 1 And this doctrine 
 applies equally, whether the executory trust be created by marriage 
 articles, or by. will or voluntary settlement. (c) 
 
 But a material distinction has been recognized 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 io 
 provide for the issue. (d) Therefore, unless the contrary clearly appear, 
 equity presumes, that it could not have been the intention 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 executed 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 the heirs of his body, which, accord- 
 L -■ ing to the rule in Shelley's case, would give him an estate in 
 tail.(e)(l) 2 
 
 (a) 7 Bac. Abr. [Uses and Trusts, R.] ; Fearne, Cont. Rem. 124, et seq.; 1 Ponbl. 
 Eq. Tr. B. 1, Ch. 6, Sect. 8, n. (*); 2 Jarm. Pow. Dev. 441 to 445. 
 
 (6) 2 Atk. 142 ; S. C. 1 Ves. 142, 152 ; Bagshaw v. Spencer. 
 
 (c) Earl of Stamford v. Hobart, 1 Bro. P. C. 288 ; Papillon v. Voice, 2 P. Wms. 474; 
 Leonard v. Earl of Sussex, 2 Vern. 527 ; Countess of Lincoln v. Duke of Newcastle, 
 12 Ves. 227 ; Blackburn v. Stables, 2 V. & B. 269 ; Jervoise v. Duke of Northumber- 
 land, 1 J. & W. 571-4; Rochfort v. Fitzmaurice, 2 Dr. & W. 1, 20, 1. 
 
 (<f) Blackburn v. Stables, 2 V. & B. 369 ; Jervoise v. Duke of Northumberland, 1 J. 
 & W. 574. 
 
 (e) Trevor v. Trevor, 1 Eq. Ca. Abr. 387 ; S. C. 1 P. "Wms. 622 ; 1 Bro. P. C. 122 ; 
 Jones v. Laughton, 1 Eq. Ca. Abr. 392 ; Nandick v. Wilkes, Id. 393 ; Casaek v. Casack, 
 1 Bro. P. C. 470 ; Dodd v. Dodd, Ambl. 274. 
 
 (1) In the late case of Rochfort v. Fitzmaurice, it was laid down by Sir E. Sugden, 
 Lord Chancellor of Ireland, that there is no difference between executory trusts created 
 by will, and those created by voluntary settlements. Indeed his Lordship in that case 
 denied the distinction between a will and marriage articles in this respect. See Roch- 
 fort v. Fitzmaurice, 2 Dr. & W. 19, 20. 
 
 1 Dennison v. Goehring, 7 Barr, 177 ; 4 Kent Comm. 218, &c. ; notes to Lord Gle- 
 norchy v. Bosville, 1 Lead. Cas. Eq. 1 ; Wood v. Burnham, 6 Paige, 518 ; 26 Wend. 19; 
 Home v. Lyeth, 4 H. & J. 434 ; Garner v. Garner, 1 Desaus. 444 ; Porter v. Doby, 2 
 Rich. Eq. 49 ; Loving v. Hunter, 8 Yerg. 31 ; Edmonson v. Dyson, 2 Kelly, 307 ; Wiley 
 v. Smith, 3 Id. 559 ; Lessee of Findlay v. Riddle, 3 Binn. 152 ; see Imlay v. Hunting- 
 ton, 20 Conn. 162 ; Neves v. Scott, 9 How. U. S. 211; Berry v. Williamson, 11 B. 
 Monr. 251 ; Egertonv. Earl Brownlow, 4 House Lds. Cases, 1. Land was conveyed to a 
 trustee, to be by him laid off in lots, 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 remainder to their heirs, and the trust was held executory. Berry 
 v. Williamson, 11 B. Monroe, 251. 
 2 Garner v. Garner, 1 Desaus. 444; Berry v. Williamson, 11 B. Monroe, 251. See 
 
OF TRUSTEES OE EXECUTORY TRUSTS. 475 
 
 Although a settlement may have actually been executed in pursuance 
 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 marriage, by directing a 
 limitation in strict settlement. (/) However, in one case, Lord Cowper 
 refused to alter a settlement of this description, on the ground apparently, 
 that it had been accepted by the parties.(^) And if the settlement itself, 
 as well as the articles, be made previously to the marriage, and the settle- 
 ment does not refer to the articles, the court will not make any altera- 
 tion in the settlement ; for it will be presumed to have been made in 
 consequence of a new agreement -, 1 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 themselves. (i) And if by the articles 
 the wife is to take an estate tail, ex provisione viri, or a power of aliena- 
 tion is given to the husband and wife jointly ; such limitations, being 
 
 (/) West v. Errissey, 2 P. Wins. 349 ; Roberts v. Kingsley, 1 Ves. 238 ; Honor v. 
 Honor, 1 P. Wms. 128; 2 Vern. 658 ; see Powell v. Price, 2 P. Wms. 535. [Bold v. 
 Hutchinson, 20 Jurist, 97 ; see Neve v. Scott, 9 How. U. S. 196.] 
 
 (g) Burton v. Hastings, 1 Eq. Cas. Abr. 393 ; S. C. Gilb. Eq. Rep. 113. 
 
 (h) Legg v. Gold wire, Cas. Temp. Talb. 20 [overruled, see note below]. 
 
 (i) Chambers v. Chambers, Pitzgibb. 127 ; S. C. 2 Eq. Ca. Abr. 35 ; Howell v. Howell, 
 2 Ves. 358. 
 
 Imlay v. Huntington, 20 Conn. 146. But where, by marriage contract, executed 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 forever ; and if she should die without such heirs, or having such heirs, they should 
 die before they arrive at mature age, then to her brothers by her mother's side, their 
 heirs and assigns, forever ;" it was held that the settlement was executed, not executory, 
 and that the rule in Shelley's case applied : Carroll v. Renick, 7 Sm. & M. 799. And 
 see also Neves v. Scott, 9 How. U. S. 196 ; and, generally, the notes to 1 Lead. Cas. 
 Eq. 1. 
 
 1 But in Bold v. Hutchinson, 20 Jurist, 97, before the Chancellor, the doctrines of the 
 court on this subject were held to be that where a settlement, made before, as well as 
 after, marriage, purports to be made in pursuance of marriage articles, but is not in 
 conformity therewith, the settlement will be corrected by the articles, without further 
 evidence ; and that where the settlement does not state that it is made pursuant to 
 articles, if it be clearly shown by parol evidence that it was intended to be made in pur- 
 suance of the articles, and that there has been a mistake, the court will rectify the settle- 
 ment. The doctrine of Legg v. Goldwire, stated in the text, was said to be substantially 
 departed from by the later authorities. See also Rogers v. Earl, 1 Dick. 294, stated more 
 fully, 1 Sugd. Vendors, 264, 10th ed. 
 
476 OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 consistent with the probable intention of the parties, will not be varied 
 by the court in directing the execution of the settlement, (k) 
 
 However, in executory trusts created by will, all parties claim equally 
 as volunteers under the bounty of the testator. In these cases, there- 
 fore, 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.(Z) 
 
 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 arti- 
 cles, and a trust by will, in which last case, he said that where the testator 
 r*3301 ex P resses *hi s intent to give an estate tail, a court of equity 
 ought not to abridge his bounty.(m) 
 
 In Blackburn v. Stables, (w) 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 plain- 
 tiff (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 conveyance in tail male.(w) 
 
 So in Britton v. Twining,(o) a testator, after directing 20,000?. in the 
 three per cents " to be firmly fixed, and there to remain" during 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 manner 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 body, and so on 
 in succession to the heir at law, male or female. But let it be noticed, 
 that the principal 20,000Z. 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 pri- 
 vate gentleman." Sir Wm. Grant, M. R., said, he did not conceive that 
 
 (k) Whately v. Kemp, cited 2 Ves. 358 ; Green v. Ekins, 2 Atk. 473, 477 ; Highway 
 v. Banner, 1 Bro. C. C. 584; see Streatfield v. Streatfield, Cas. Temp. Talb. 176; Honor 
 v. Honor, 1 P. Wms. 123. 
 
 (I) 2 Jarm. Pow. Dev. 442, et seq.; 1 Fonbl. Tr. Eq. B. 1, ch. 6, sect. 8, n. (s) ; 2 
 Story Eq. Jur. \ 974, &c; Blackburn v. Stables, 2 V. & B. 370. 
 
 (m) Seale v. Seale, Prec. Chan. 421 ; S. C. 1 P. Wms. 290 ; and see Legatt v. Sewell, 
 1 Eq. Ca. Abr. 395 ; Sweetapple v. Bindon, 2 Vern. 536 ; Blackburn v. Stables, 2 V.& 
 B. 367 ; Synge v. Hales, 2 Ball & B. 499, 508 ; Britton v. Twining, 3 Mer. 176 ; Marshall 
 v. Bousefield, 2 Mad. 166; Lord Deerhurst v. Duke of St. Albans, 5 Mad. 260. 
 
 (») Blackburn v. Stables, 2 V. & B. 367. (o) 3 Mer. 176. 
 
OF TRUSTEES OF EXECUTORY TRUSTS. 477 
 
 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, notwithstand- 
 ing 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 by 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 grandchil- 
 dren living at his decease, and he declared, that the shares and propor- 
 tions of the male and female grandchildren and their respective issues, 
 should be in such proportions as his wife should appoint. The wife ap- 
 pointed 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 remainder to his issue in strict settlement. 
 But Sir Thomas Plumer, *V. C, though he admitted that the trust 
 was executory, held, that there was no sufficient indication of the L J 
 testator's intention in the will to enable the court to control the limitation 
 to the grandson in tail, and overruled the objection ; thereby compelling 
 a purchaser to take a title founded on a recovery suffered by the grand- 
 son ~W.(q) 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 divested of that circumstance, 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 by able counsel,(s) and the word used was "issue" and 
 not "heirs" or "heir" of the body,(£) both which circumstances have 
 been relied upon in other cases as favorable to the introduction of uses 
 in strict settlement. Lord Eldon's judgment in the subsequent case of 
 Jervoise v. The Duke of Northumberland,^) 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 
 
 (p) Britton v. Twining, 3 Mer. 176 ; and see Countess of Lincoln v. Duke of New- 
 castle, 12 Ves. 218. (g) Marshall v. Bousfield, 2 Mad. 166. 
 
 (r) 2 Jarm. Pow. Dev. 450. 
 
 '(*) White v. Carter, 2 Ed. 366 ; S. C. Ambl. 670; Bastard v. Proby, 2 Cox, 6. 
 
 \t) Meure v. Meure, 2 Atk. 266 ; Blackburn v. Stables, 2 V. & B. 371 ; see Stonor 
 V. Curwen, 5 Sim. 264, 272 ; Knight v. Ellis, 2 Bro. C. C. 570. 
 
 (w) 1 J. & W. 559. (x) See 2 Jarm. Pow. Dev. 450. 
 
478 OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 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, (y) 1 
 
 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 life.(2) 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 without impeachment of 
 waste ;{a) or a limitation to trustees to preserve contingent remainders ;(b) 
 or a direction, that the estate shall be 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 
 operation 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 
 r*qq9"i preserve Contingent remainders,(/) and also limitations in cross 
 ^ remainder between two families.(^) 
 
 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 direct- 
 ing its execution will follow that construction, which it conceives to be 
 
 (y) 2 Jarm. Pow. Dev. 442, et seq. ; 2 Story Eq. Jur. I 974, &c. 
 
 (z) Meure v. Meure, 2 Atk. 266 ; Blackburn v. Stables, 2 V. & B. 370. 
 
 (a) Papillon v. Voice, 2 P. Wms. 471 ; Lord Glenorchy v. Bosville, Cas. Temp. Talb. 
 3 ; Bagsbaw v. Spencer, 1 Ves. 153. 
 
 (6) Papillon v. Voice, 2 P. Wms. 471 ; Bagshaw v. Spencer, 1 Ves. 153. 
 
 (c) White v. Carter, 2 Ed. 366 ; Ambl. 670 ; Bastard v. Proby, 2 Cox, 6 ; Rochfort v. 
 Fitzmaurice, 2 Dr. & W. 1. (d) Leonard v. Earl of Sussex, 2 Vern. 525. 
 
 (e) Meure v. Meure, 2 Atk. 266 ; Blackburn v. Stables, 2 V. & B. 371 ; Stonor v. 
 Curwen, 5 Sim. 272. 
 
 (/) Baskerville v. Baskerville, 2 Atk. 279 ; see Harrison v. Naylor, 2 Cox, 248; 3 
 Bro. C. C. 108. (g) Home v. Burton, Coop. 257. \ 
 
 ' In Turner v. Sargent, 22 Law Times, E. 129, a testator directed a settlement to be 
 made of real and personal property on bis daughter, a married woman, for life, "to the 
 exclusion of her present or any future husband — and be secured for the benefit of her 
 children if more than one, equally, after her death ; so that the issue of any such child, 
 dying in my daughter's lifetime, may take his or her parent's share : and in default of 
 such children, or other issue, then to my son absolutely." It was held by the Master of 
 the Bolls, that the trust for separate use should be framed " without power of anticipa- 
 tion ;" that as to " the children or issue," the trust must be for the children, equally, 
 after the death of the parent ; with cross limitations over, in the event of any child 
 dying in the lifetime of the parent leaving no issue who should survive the parent, in 
 favor of the other children, or issue of deceased children, surviving the parent ; and 
 that, no directions as to the powers to be inserted, were contained in the will ; powers 
 of leasing, sale and exchange, and provisions for maintenance and advancement, and 
 for the appointment of new trustees, were to be inserted as usual and necessary powers. 
 
OF TRUSTEES OF EXECUTORY TRUSTS. 479 
 
 most agreeable to the intention ; for although the same construction must 
 be put upon the words whether the trust be executed or executory, yet 
 that is only where the words, which declare the executory 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 for her separate 
 use during Tier 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, remainder 
 in default of such issue to the nephew.(A) 
 
 In all the cases that have been hitherto considered, there was a direc- 
 tion to the trustees in the will to settle or convey the estate ; but a dis- 
 tinction 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. Taylor, the testator devised lands to 
 A. for life without impeachment of waste, remainder to trustees to pre- 
 serve, remainder to the heirs of the body of A., and bequeathed per- 
 sonal estate to be laid out in land, which should remain, continue, and 
 be, to the same uses as the land before devised. Lord Northington ob- 
 served, 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 accordingly held, that A- was tenant in tail of the lands 
 to be purchased, (i) But some doubt has been entertained in the profes- 
 sion 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 plain- 
 tiff 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 notwithstanding modified by the court, 
 to an estate for life. 
 
 This at once leads to the observation, that it is only where something 
 
 (h) Stonor v. Curwen, 5 Sim. 264, 268. 
 
 (i) Austin v. Taylor, Ambl. 376 ; S. C. 1 Ed. 361. 
 
 (k) Ambl. 378 ; see Lord Eldon's remarks in Green v. Stephens, 17 Ves. 76 ; and in 
 Jervoise v. Duke of Northumberland, 1 J. & W. 572 ; 2 Jarm. Pow. Dev. 445, 6 ; but 
 see note 1, Ed. 369. (0 Meure v. Meure, 2 Atk. 265. 
 
480 OS TRUSTEES OF EXECUTORY TRUSTS. 
 
 r*qqo-| *is left incomplete and executory by the creator of the 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 instrument itself, that 
 will be an executed trust ; and it must be carried into execution as strictly 
 and literally, as if it were a limitation- of the legal interest.(wi) 
 
 For instance, in Bale v. Coleman7(*$f a testator devised lands to trus- 
 tees 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 heirs male of Ms 
 body. It was held by Lord Harcourt, Lord Keeper, reversing 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 declared 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 devised, although his estate in the 
 lands to be purchased and settled was restricted to one for life.(^)(l) 
 
 A direction, that property invested in the funds shall be " secured" 
 for the benefit of the legatee, will not be construed into an executory di- 
 rection, so as to enable the court to modify the bequest, which in its 
 terms gives the legatee the absolute interest, (q) 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 addition of the 
 testator's motive or intention, — as, for example, a declaration that the 
 property should go and be held w,ith 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 " pur- 
 chased, "(s) or "settled,"^) or " conveyed, "(u) by the trustees that is 
 
 (m) Jervoise v. Duke of Northumberland, 1 J. & W. 570, 1 ; 1 Ponbl. Eq. B. 1, ch. 
 6, sect. 7 ; Fearne, Cont. Rem. 7th ed. 133 to 148. 
 
 (ra) 1 P. Wins. 142 ; S. C. 2 Vern. 670. (o) 2 P. "Wms. 477. 
 
 (^>) And see Jones v. Morgan, 1 Bro. C. C. 206 ; Wright v. Pearson, Ambl. 358; 
 Garth v. Baldwin, 2 Ves. 646; Deerhurst v. Duke of St. Albans, 5 Mod. 232,277; 
 Douglass v. Congreve, 1 Beav. 59, 71. 
 
 (q) Britton v. Twining, 3 Mer. 176, 182. 
 
 (r) Lord Deerhurst v. Duke of St. Albans, 5 Mad. 232, 277 ; S. C. on appeal, sub 
 worn.; Tollemache v. Earl of Coventry, 2 CI. & Fin. 611, and 8 Bligh, N. S. 547. 
 
 (s) Papillon v. Voice, 2 P. Wms. 471 ; Meure v. Meure, 2 Atk. 265 ; White v. Car- 
 ter, 2 Ed. 366. 
 
 (t) Leonard v. Earl of Sussex, 2 Vern. 525 ; Stonorv. Curwen, 5 Sim. 264; Burrell 
 v. Crutchley, 15 Ves. 552. 
 
 (u) Lord Grlenorchy v. Bosville, Ca. Tern. Talb. 3 ; Humberston v. Humberston, 2 
 Vern. 737. [Edmondson v. Dyson, 2 Kelly, 307 ; Tallman v. Wood, 26 Wend. 9; 6 
 Paige, 513.] 
 
 (1) It is extremely difficult to reconcile Lord Hardwicke's decision in Bagshawv. 
 Spencer, 1 Ves. 142, with the principle of these cases. See Fearne, Cont. Bern. 133 to 
 148; Jervoise v. Duke of Northumberland, 1 J. & W. 572. 
 
OF TRUSTEES OP EXECUTORY TRUSTS. 481 
 
 clearly an executory trust, 1 and so, it seems, is a devise to a person " to 
 he entailed upon his male heirs. "(x) 
 
 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 testa- 
 tor's intentions as far as possible, and the duty of the trustees in such a 
 case is to make as strict a settlement as the law will allow. 3 Therefore, 
 where there *was a devise to a corporation, in trust to convey to r*oo4"i 
 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 
 
 (a) Jervoise v. Duke of Northumberland, 1 J. & W. 559, 72. 
 
 1 In Egerton v. Earl Brownlow, 4 House Lords Cases, 1 ; 23 L. J. Ch. 348, a case of 
 very high importance, and discussed with extraordinary learning and ability on all 
 hands, the subject of executory trusts was incidentally involved. There a testator 
 devised all his real estates to trustees and their heirs in trust " by such conveyances as 
 shall be deemed expedient, or counsel shall advise, to convey and assure, settle and 
 limit," the estates "to the several uses upon the trusts, &c, and with, under, and subject 
 to the powers, provisos, limitations, and declarations hereinafter by my will declared, 
 and directed, concerning the same." Then followed a series of limitations, trusts, con- 
 ditions, and provisos, among which was a provision for the determination of an estate 
 limited in tail male, in case the first taker should not within a certain time obtain a par- 
 ticular title of peerage, which provision was decided by the House of Lords to be a con- 
 dition subsequent, and void as against public policy. The portion of the will contain- 
 ing these limitations was all drawn out in the appropriate technical phraseology, with 
 the greatest care, and the minutest accuracy, insomuch that Lord St. Leonards observed 
 that he defied "any real property lawyer to go through this will, and draw a settlement 
 from it so as to alter a single 'word." That distinguished equity Judge accordingly, in 
 his opinion in the case, stated himself to be "clearly of opinion, and as strongly as a 
 man can be upon any point," that there was no executory trust created, but that the 
 trust was to be treated "in all respects as if it had been a series of limitations of the 
 legal estate." He further said with respect to the general doctrine, that " a court of 
 equity considers an executory trust as distinguished from a trust executing itself, and 
 distinguishes the two in this manner, — Has the testator been what is called, and very 
 properly called, his own conveyancer ? Has he left it to the court to make out, from 
 general expressions, what his intention is, or has he so defined that intention, that you 
 have nothing to do, but to take that which he has given to you, and to convert them 
 into legal estates?" 4 H. L. Cas. 210. On this point, Lord Lyndhurstand Lord Broug- 
 ham do not expressly touch, in their opinions, but they discuss the questions arising on 
 the limitations upon the basis of their being purely legal. Lord Truro, on the other 
 hand, said in passing that it was beyond dispute that this was the case of a trust execu- 
 tory in the proper sense of the word, and in this, the Chancellor, p. 59, and Baron Alder- 
 son, p. 103, the only one of the Judges whose opinions bears on the question, apparently 
 agree. 
 
 2 See Trevor v. Trevor, 13 Sim. 108 ; 1 H. Lds. Cas. 239 ; White v. Briggs, 15 Sim. 
 17 ; Boydell v. Golightly, 14 Id. 346 ; Tennent v. Tennent, Drury, 161; Boswell v. Dil- 
 lon, Id. 291; Lewis on Perpetuities, 574, and Suppl. 173. Upon the doctrine of Cy- 
 pres, as applied to perpetuities in general, so as to effectuate the intention of the testator 
 as near as possible — as in the case of limitations to the issue of unborn children of a 
 tenant for life as purchases, by giving an estate in tail to the children, — see Lewis on 
 Perp. 426 ; Suppl. 97, 146 ; Vanderplank v. King, 3 Hare, 5 ; Monypenny v. Dering, 
 7 Id. 566 ; 2 De G. Macn. & G. 145 ; 16 M. & W. 418. 
 
 31 
 
482 OF TRUSTEES OF EXECUTORY TRUSTS. 
 
 B. for life, and his sons and their sons for their lives in the same man- 
 ner, 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 he directed that all sons already born should take 
 estates for life, with limitation to the unborn sons in tail.(y) 
 
 So it frequently happens that a testator, in creating an executory 
 trust, makes ^use of expressions, which of themselves have no strict tech- 
 nical operation, and which must therefore receive some definite construc- 
 tion, 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 possession 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 of his 
 family as far as possible.(2) 
 
 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 ap- 
 pointment by deed or will. He made his will, in which there was the 
 following expression: "all my landed estate to be attached 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 settlement, 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 pur- 
 chased with the timber money and personal estate, to be settled accord- 
 ingly. 
 
 In the recent case of Bankes v. Le Despencer,(6) the same principles 
 of construction were applied to an executory trust created by deed. 
 
 (2/) Humberston v. Humberston, 2 Vern. 737 ; S. C. 1 P. Wms. 332 ; Prec. Ch.455. 
 
 (2) Woolniore v. Burrows, 1 Sim. 512. 
 
 [a) 3 Beav. 180, n.; S. C. stated, 10 Sim. 592; [and see Rowland v. Morgan, 13 
 Jur. 23.] 
 
 (6) Bankes v. Le Despencer, 10 Sim. 576 ; [11 Sim. 508 ;] see Countess of Lincoln, 
 v. Duke of Newcastle, 12 Ves. 218; Deerhurst v. Duke of St. Albans, 5 Mad. 232; 
 Jervoise v. Duke of Northumberland, 1 J. & W. 569; Blackburn v. Stables, 2 V. & B. 
 367. [Rowland v. Morgan, 13 Jur. 23.] 
 
OE TRUSTEES OF EXECUTORY TRUSTS. 483 
 
 There, Thomas, Lord Le Despencer, by deed conveyed real estates to 
 trustees, in trust, after the death of himself and his eldest son, to settle 
 the estates to the use of such persons for such estates and in such man- 
 ner that the same should, so far as the law would permit, be strictly 
 settled, so as to go along with the dignity of Le Despencer, so long as 
 the person ^possessed of the same dignity should be a lineal r^oqc-i 
 descendant of the settlor. It was held by Sir L. Shadwell, V. 
 C, that this was a case in which it was the duty 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, (b) 
 
 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 recommendation. Thus 
 in Knight v. Knight,(e) 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 his successors 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 enforced as a trust against the de- 
 visee.^) 
 
 There is no doubt, but that personal estate may be made the subject 
 of an executory trust, which will be carried into execution in the same 
 manner and to the same extent as that of real estate. (d) 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 creation 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 direction that the property 
 is to be "settled" or "secured" will not prevent the application of this 
 doctrine.(e) 1 
 
 (6) Bankes v. Le Despencer, 10 Sim. 576 ; [see the form of settlement finally ap- 
 proved in this case, 11 Sim. 508;] see Countess of Lincoln v. Duke of Newcastle, 12 
 Ves. 218; Deerhurst v. Duke of St. Albans, 5 Mad. 232 ; Jervoise v. Duke of Nor- 
 thumberland, 1 J. & W. 559 ; Blackburn v. Stables, 2 V. & B. 367. 
 
 (c) Knight v. Knight, 3 Beav. 148, 177. [Aff'd, 11 CI. & F. 513.] 
 
 (d) Stonor v. Curwen, 5 Sim. 264. 
 
 (e) Lord Chatham v. Tothill, 7 Bro. P. C. 453 ; Countess of Lincoln v. Duke of New- 
 castle, 12 Ves. 218; Britton v. Twining, 3 Mer. 176; Deerhurst v. Duke of St. Albans, 
 5 Mad. 232. [Rowland v. Morgan, 13 Jur. 23.] 
 
 1 Int he recent case of Bowland v. Morgan, 13 Jur. 23; 2 Phillips, 763, the Earl of 
 Abergavenny had bequeathed to his son Viscount Neville, and his heirs, Earls of Aber- 
 gavenny, certain chattels, consisting of plate, jewels, and other ornamental articles, to be 
 held as heirlooms, 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 heirlooms in his will, certain other articles of the same description, 
 deposited in a particular locality, should be considered as heirlooms, and he gave the 
 same to his executors as heirlooms in his family, and directed an inventory to be made 
 
484 OF TRUSTEES FOR THE PAYMENT OF 
 
 In conclusion of this subject, it may be stated generally for the guid- 
 ance of trustees, that where an executory trust arises on marriage 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 him- 
 self distinctly and accurately specified the limitations which are to be in- 
 serted, trustees could seldom or ever be advised to take upon themselves 
 the responsibility of putting a construction on the directions of the testa- 
 tor, 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 him- 
 self to make a particular provision for his wife and children, it will not 
 be competent for the trustees of their own authority to accept any other 
 provision in lieu of that contemplated by the articles ; although they 
 r*Q will be justified in instituting a suit, for the purpose of hring- 
 L -■ ing the propriety of such a substitution before the court.(/) 
 
 II. — OF TRUSTEES FOR THE PAYMENT OF DEBTS. 
 
 1st. Where the Trust is created by Deed — 2d. Where bt a Devise for 
 Payment of Debts. 
 
 1st. Of Trustees for the Payment of Debts, where the Trust is created by Deed. 
 
 A conveyance or assignment of real or personal estate to trustees, in 
 trust, for the payment of the debts of the grantor, is of very frequent 
 occurrence, and such a trust may either be limited to the payment 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 
 
 (/) Cooke v. Fryer, Vice-Chancellor Wigram, 19th November, 1844, MS. 
 {a) Page v. Broom, 4 Russ. 6. [See Cooper v. Whitney, 3 Hill, 95.] 
 
 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 accordance with the text, that the chattels had become the absolute property 
 of Viscount Nevillle 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 Hardwicke, 
 in Gower v. Grosvenor, 3 Barn. 54 ; 5 Madd. 337 ; and Trafford v. Trafiford, 3 Atk. 
 347 ; and that, though these last decisions were overruled in Foley v. Burnell, 1 Bro. 
 C. C. 274; 4 Br. P. C. 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 Row- 
 land 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, therefore, ever arise in the United States, it may per- 
 haps be still considered an open one. See 2 Kent's Comm. 253, &c. j 4 Id. 279. 
 
DEBTS UNDER A DEED. 485 
 
 schedule annexed to it.(J) 1 Or the trust may be extended 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 ;(<#) 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,(#) 
 or according to a certain composition or proportion fixed by the deed. (A) 2 
 
 (6) Walwyn v. Coutts, 3 Mer. "707 ; S. C. 3 Sim. 14; Garrard v. Lord Lauderdale, 3 
 Sim. 1 ; Purefoy v. Purefoy, 1 Vern. 28 ; Shirley v. Earl Ferrers, 1 Bro. 0. C. 41 ; 
 Hamilton v. Houghton, 2 Bligh, 169 ; Boazman v. Johnston, 3 Sim. 377. 
 
 (c) Barwell v. Parker, 2 Ves. 364 ; Acton v. Woodgate, 2 M. & K. 492 ; Hinde v. 
 Blake, 3 Beav. 234; Carr v. Countess of Burlington, 1 P.Wms. 228. 
 
 (d) Duneh v. Kent, 1 Vern. 260 ; Spottiswoode v. Stockdale, Coop. 102 ; Garrard v. 
 Lord Lauderdale, 3 Sim. 1 ; Ex parte Richardson, 14 Ves. 184. 
 
 (e) Carr v. Countess of Burlington, 1 P. Wms. 228 ; Acton v. Woodgate, 2 M. & K. 
 492 ; Hamilton v. Houghton, 2 Bligh, 169. 
 
 (/) Purefoy v. Purefoy, 1 Vern. 28; Walwyn v. Coutts, 3 Mer. 707 ; 3 Sim. 14; 
 Garrard v. Lauderdale, 3 Sim. 1. 
 
 (g) Carr v. Countess of Burlington, 1 P. Wms. 228 ; Acton v. Woodgate, 2 M. & K. 
 492 ; Hamilton v. Houghton, 2 Bligh, 169. 
 
 (h) Stephenson v. Hayward, Prec. Ch. 310 ; Constantein v. Bleache, 1 Cox, 287 ; 
 Tatlock v. Smith, 6 Bingh. 339. 
 
 1 But in Manufacturers and Mechanics Bank v. Bank of Pennsylvania, 1 W. & S. 
 335, it was held that a mortgage, limited to a trustee, with power to sell for the pay- 
 ment 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. 
 
 2 Assignments for the benefit of creditors, though containing preferences, are in gene- 
 ral held valid in the United States, where not interfering with the policy of a bankrupt 
 law or other statutory regulation. Brashear v. West, 7 Pet. 609 ; Lippincott v. Barker, 
 2 Binn. 174; Wilkes v. Ferris, 5 John. R. 335; Rankin v. Lodor, 21 Alab. 380 ; 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 Hamp- 
 shire, and Connecticut, preferences are abolished, and the trust enures to the benefit of 
 all the creditors. 1 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 resulting trust for the grantor: Grover 
 v. Wakeman, 11 Wend. 187; Goodrich v. Downs, 6 Hill's N. Y. 438; Robins v. 
 Embry, 1 Sm. & M. Ch. 208 ; Atkinson v. Jordan, 5 Ohio, 293 ; Hafner v. Irwin, 1 
 Ired. Law, 490 ; Brown v. Knox, 6 Mis. 302 ; Pearson v. Crosby, 23 Maine, 261 ; 1 
 Am. Lead. Cases, 95 ; Ingraham v. Wheeler, 6 Conn. 277; Howell v. Edgar, 3 Scamm. 
 417; Swearingen v. Slicer, 5 Miss. 241; The Watchman, Ware,. 232; 1 Am. Lead. 
 Cases, 95 ; see Goddard v. Hapgood, 25 Verm. 351 ; Green v. Trieber, 3 Maryl. 13 ; 
 so, where preferences are given : Grover v. Wakeman, Robins v. Embry, 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 j 
 Skipwith's Exr. v. Cunningham, 8 Leigh, 272 ; Le Prince v. Guillemot, 1 Rich. Eq. 
 187 ; Brashear v. West, 7 Pet. 609 ; Halsey v. Whitney, 4 Mason, 207 ; Borden v. 
 Sumner, 4 Pick. 265 ; Green v. Trieber, 3 Maryl. 1 1 ; 1 Am. Lead. Cases, 84. In Penn- 
 sylvania, 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 terms pass 
 
486 OF 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) and bind- 
 
 (1) A conveyance by deed for the payment of debts generally was not within the 
 Statute of Fraudulent Devises (3 W. & M. c. 14), although the rights of specialty 
 creditors might thus be prejudiced in favor of those by simple contract. Parslowv. 
 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 application of the rece'nt 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 within the statute, 13 Eliz. c. 5, for 
 avoiding alienations of property made in fraud of creditors. Estwich v. Cailland, 5 T. 
 R. 424 ; Meux v. Howell, 4 East, 9. [Wilt v. Franklin, 1 Binn. 514 ; and cases cited in 
 note to Thomas v. Jenks, 1 Am. Lead. Cases, 80.] 
 
 Although such a conveyance will be void under that statute, if it be attended by 
 fraudulent circumstances, as where the conveying party remains in 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 re- 
 tained by the assignor, though a strong circumstance of evidence of fraud, may be 
 rebutted, and the assignment supported. Eastwood v. Brown, 1 R. & M. 312 ; Hoff- 
 man v. Pitt, 5 Esp. 25 ; Benton v. Thornhill, 7 Taunt. 149 ; Manton v. Moore, 7 T. R. 
 70. [In New York, retention of possession by the assignor of property assigned for 
 the benefit of creditors, makes 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. Wil- 
 liams, 1 Carter, 405. In other States, however, it is not in itself fraudulent, where befo^ 
 the time 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. Cov- 
 ington, 2 B. Monr. 357 ; Ravisies v. Alston, 5 Alab. 297 ; Barker v. Hall, 13 N. H. 
 298 ; Darwin v. Handley, 3 Yerg. 502 ; Dewey v. Littlejohn, 2 Ired. Eq. 495 ; Hardy 
 v. Skinner, 9 Ired. Law, 191 ; Shackelford v. P. & M. Bank, 22 Alab. 238; see Lock- 
 hart v. Wyatt, 10 Alab. '231. In Connecticut, under the statute of 1828, where its 
 requisitions have been complied 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. Tuller, 14 Conn. 530 ; Strong v. Carrier, 17 Conn. 329. Other- 
 wise, if such provisions have not been complied with : Peck v. Whiting, 21 Conn. 206. 
 So, in Pennsylvania, under the Act of 1836. Fitler v. Maitland, 5 W..& S. 307 ; Dal- 
 lam v. Fitler, 6 Id. 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 preference ; 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 property 
 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. 
 all the debtor's property, or by which any benefit is stipulated to him, renders the whole 
 fraudulent and yoid. Seaving v. Brinkerhoff, 5 J. C. R. 329 ; Skipwith v. Cunningham, 
 8 Leigh, 272; Thomas v. Jenks, 5 Rawle, 221 ; Hennessy v. Western Bank, 6 Watts 
 & Serg. 301 ; Green v. Trieber, 3 Maryl. 11 ; Sangston v. Gaither, Id. 41. 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 express statutes regulating the subject, which it would be impossible 
 to give in detail here. 
 
DEBTS UNDER A DEED. 487 
 
 ing *on all the parties ;{i) and the court will interfere by injunc- r* 007-1 
 tion to restrain the commission of any act by ■which the arrange- 
 ment 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) 1 
 
 However, it has been decided, that where there is a voluntary convey- 
 ance 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 execu- 
 tion, 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 trustees. (m) 2 
 
 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 trus- 
 tees to the creditors of the creation of such a trust, would defeat 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 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 posses- 
 sion of the property ; and Lord Langdale, M. R., in overruling the de- 
 murrer 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 creditors 
 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 binding in equity, (q) 
 
 (i) Small v. Marwood, 9 B. & Cr. 300. 
 
 (A;) Ex parte Sadler, 15 Vea. 52; Mackenzie v. Mackenzie, 16 Ves. 372; Spottis- 
 woode v. Stockdale, Coop. 102. 
 
 (1) Stephenson v. Hayward, Prec. Chan. 310. [Le Prince v. Guillemot, 1 Rich. Eq. 
 220.] 
 
 (m) Walwyn v. Coutts, 3 Mer. 707 ; 3 Sim. 14 ; Page v. Broom, 4 Buss. 6 ; Garrard 
 v. Lauderdale, 3 Sim. 1 ; S. C. 2 R. & M. 451 : Acton v. Woodgate, 2 M. & K. 492 ; 
 see Bill v. Cureton, 2 M. & K. 511. (n)2 M. & K. 495. 
 
 (0) 3 Sim. 13. (p) Hinde v. Blake, 3 Beav. 234. 
 
 (q) Spottiswoode v. Stockdale, Coop. 102 ; and see Dunch v. Kent, 1 Vern. 260. 
 
 1 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. Guillemot, 1 Rich. Eq. 
 220 ; Bank of U. S. v. Comm. 17 Penn. St. R. 400 ; Trotter v. Williamson, 6 Monr. 39 ; 
 see Rice v. Catlin, 14 Pick. 231 ; New England Bank v. Lewis, 8 Pick. 113. 
 
 2 But see ante, note to page 83. 
 
488 OF TRUSTEES FOR THE PAYMENT OF 
 
 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 proviso, 
 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 become parties 
 to it, it seems that even in equity no creditor who has not executed the 
 r*WRl *d e ?d, will have any right to enforce its provisions.(s) 1 How- 
 ever, in a late case in Ireland it was held, by Sir E. Sugden, L. C, 
 that it is not absolutely necessary that every creditor seeking the benefit 
 of a trust deed made by the debtor, should actually subscribe the deed f 
 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 inconsistent with its provisions, it will deprive him of 
 all advantage under it.(t) 
 
 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 
 
 (»■) Small v. Marwood, 9 B. & Cr. 360 ; see Good v. Cheesman, 2 B. & Ad. 328. 
 (s) Garrard v. Lord Lauderdale, 3 Sim. 13 ; see Balfour v. Welland, 16 Ves. 151, 157. 
 (t) Field v. Lord Donoughmore, 1 Dr. & Warren, 227. 
 
 * The doctrine of the American cases on this subject appears to be that -where a trust 
 is created for the benefit of third persons without their knowledge, they may, as soon as 
 they have notice of it, affirm 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. Cas. 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 Lauderdale, 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 conform- 
 able to the French law. Toullier, Droit Civil, liv. 3, c. 2, n. 150. In the case of an 
 assignment 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. Mar- 
 bury, 11 Wheaton, 97 ; Gray v. Hill, 10 Serg. & Rawle, 436 ; Halsey v. Whitney, 4 
 Mason, 206. The assent of absent persons to an assignment 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, 244; De Forest v. Bacon, 2 Conn. Rep. 
 633 — T. [Rankin v. Lodor, 21 Alab. 380 ; unless where its object be to postpone 
 the payment of the debts when the assent of all is necessary : Ibid. See ante, p. 83, 
 and note ; and Burrill on Assignments, p. 280, 306.] 
 
 2 See also Simmonds v. Palles, 2 Jones & Lat. 489 ; Griffits v. Ricketts, 7 Hare, 307 ; 
 Harland v. Binks, 15 Q. B. 713 ; Seggers v. Evans, 19 Jur. 951 ; 24 L. J. Q. B. 705; 
 Nicholson v. Tuton, 19 Jurist, 1201. But in Forbes v. Lemond, 4 De G. Macn. & G. 
 298, while the principle of these decisions was admitted, it was held, that the creditor 
 must have put himself in the same situation with regard to the debtor, as though he had 
 actually executed the deed, in order to be considered as having acceded to a composi- 
 tion. 
 
DEBTS UNDER A DEED. 489 
 
 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 ftecution of the trust ; and the decree ought to 
 direct an account and payment of all the debts ; and a decree for the pay- 
 ment of the plaintiff's debt only is erroneous.^) 1 
 
 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 decree taken 
 in their absence cannot be sustained. (y) But the heir of the grantor 
 need not be made a party to the suit, unless he be entitled to the surplus ; 
 though it is otherwise with regard to a trust created by will.(s) 
 
 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 trus- 
 tees are bound to follow the directions of the deed ; and if by the terms 
 of the trust any particular debts are to have preference or priority, they 
 
 (m) Atherton v. Worth, 1 Dick, 375. (a:) Hamilton v. Houghton, 2 Bligh, 169, 187. 
 (y) Hamilton v. Houghton, ubi supra ; but see Eouth v. Kinder, 3 Sw. 14-4, n. 
 (z) Harris v. Ingledew, 3 P. Wms. 93. 
 
 (a) Carr v. Countess of Burlington, 1 P. Wms. 229 ; Boazman v. Johnston, 3 Sim. 
 381, 2. 
 
 1 McDougald v. Dougherty, 11 Geo. 570 ; Wakeman v. Grover, 4 Paige, 24 ; Russell 
 v. Lasher, 4 Barb. S. C. 233; Bryant 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. 57. So where the bill is for impeach- 
 ing 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. Atkin- 
 son v. Jordan, Wright, 247. So in New York, under the Revised Statutes. Corning 
 v. White, 2 Paige, 567 ; Burrall 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 according to their legal rank. 
 Gracey v. Davis, 3 Strobh. Eq. 58 ; Austen v. Bell, 20 John. 442 ; McDermutt v. Strong, 
 4 J. C. R. 687 ; McMeekin v. Edmonds, 1 -Hill's Eq. 293. But this depends upon dili- 
 gence at law; equity will, otherwise, distribute the assets pari passu; Cod wise v. Gels- 
 ton, 10 Johns. R. 519 ; and, therefore, a creditor obtaining judgment after the assigned 
 property has been sold, has no priority on the fund. Le Prince v. Guillemott, 1 Rich- 
 ardson's Eq. 220 ; Gracey v. Davis, ut supr. Where a bill had been filed by the repre- 
 sentatives 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 plaintiff that the creditor had been satisfied, 
 it was held that the trustee could not set up the defence of want of proper parties. 
 Mumford v. Murray, 6 J. C. R. 1. Where the assignment expressly 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. An- 
 drews, 21 Pickering, 532. 
 
490 OF TRUSTEES FOR THE PAYMENT OF 
 
 p^qqq-i 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 thei* 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) 1 However, if no preference be g^Ven by the deed to any 
 one debt, and a fortiori if there be an express direction, that all the 
 debts are to be paid equally, the trust fund must be applied pari passu, 
 in or towards the discharge of all the debts without distinction, as well 
 those by simple contract, as by specialty.(d) 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 by its provisions. 2 
 
 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. con- 
 
 (&) See Garrard v. Lauderdale, 3 Sim. 1 ; Douglas v. Allen, 2 Dr. & W. 213. [As 
 to preferences in assignments, see Notes to Thomas v. Jenks, 1 Am. Lead. Cas. Eq. 
 89.] 
 
 (c) Pearce v. Slocombe, 3 Y. & C. 84. 
 
 (d) Carr v. Burlington, 1 P. Wms. 228 ; Boazman v. Johnston, 3 Sim. 377, 882 ; see 
 Anon. 3 Ch. Ca. 54 ; Child v. Stephens, 1 Vera. 102 ; Wolestoncroft v. Long, 1 Ch. Ca. 
 32 ; Hamilton v. Houghton, ubi supra. 
 
 1 The general rule with regard to assignments by partners 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. In Jackson v. Giornell, 1 Sandf. Ch. 348, it was held that a general assign- 
 ment of his separate property made by an insolvent partner, which preferred firm cre- 
 ditors 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 v. Schoonmaker, 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 separate or joint creditors, at the pleasure of the partners, ex- 
 cept where the separate estate of one was applied to pay the separate debts of the other. 
 In the case of a limited partnership, it is provided by the statute, that any preference 
 whatever, will avoid the assignment. See Mills v. Argall, 6 Paige, 577. But an express 
 provision in an assignment by an ordinary partnership, which does not in substancego 
 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 assignment, 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 he had 
 real estate. Hennessy v. Western Bank, 6 W. & S. 300. A general assignment by 
 one partner will not pass any control over the partnership effects. Moddewell v. Kee- 
 ver, 8 W. & S. 63. So an assignment in general terms by the only general partner in a 
 limited partnership, of all his property, will not pass the firm assets. Merritt v. Wilson, 
 29 Maine, 58. 
 
 2 Codwise v. Gelston, 10 John. 517 ; Hays v. Heidleberg, 9 Barr, 203. But in gene- 
 ral, a creditor who has received a benefit under an assignment, cannot afterwards im- 
 peach it, but must comply with its provisions. Adlum v. Yard, 1 Rawle, 163 ; Pratt v. 
 Adams, 7 Paige, 615 ; Burrows v. Jennings, 7 Mis. 424 ; Jewett v. Woodward, 1 Bdw. 
 Ch. 195; Lanahan v. Latrobe, 7 Maryl. 268. 
 
DEBTS UNDER A DEED. 491 
 
 veyed lands to trustees in trust, after his death, to pay the debts mentioned 
 in the schedule to the deed annexed, amounting in all to 6400L, and A. 
 contracted debts subsequently to the execution 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, marshal 
 his assets as between the creditors ; although some of them may have 
 another fund to resort to, in addition to that created 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 prefer- 
 ence of one debt before another. After the Earl's death his bond credi- 
 tors 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 bene- 
 fit 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 debt shall have preference, applied 
 only to their satisfaction out of the trust term.(/) 
 
 This decision was questioned by Lord Hardwicke on two occasions ;{g) 
 but the modern case of Boazman v. Johnston,(A) 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 been decided on the autho- r^o^Q-i 
 rity of that case. There a husband and wife assigned a bene- 
 ficial lease, their joint property, to trustees, to sell and pay certain debts 
 of the husband, some of which were secured by his bonds, and others by 
 mortgages of his estates, and at the same time the husband by another 
 deed conveyed those mortgaged estates, in trust, after the death of him- 
 self and his wife, to be sold for the benefit of their children. Upon the 
 death of their parents the children instituted a suit to have the trusts of 
 these deeds carried into execution. By the decree the beneficial lease 
 was ordered to be sold, but the proceeds of the sale proved to be insuffi- 
 cient 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, 
 
 (e) Purefoy v. Purefoy, 1 Vern. 28 ; and see Loddington v. Kime, 3 Lev. 433 ; [Pratt 
 v. Adams, 7 Paige, 615 ; see Stoddart v." Allen, 1 Rawle, 258.] 
 (/) Carr v. Countess of Burlington, 1 P. Wms. 228. 
 (g) Barwell v. Parker, 2 Ves. 364; Lloyd v. Williams, 2 Atk. 110. 
 (/*) 3 Sim. 377. 
 
492 OF TRUSTEES FOR THE PAYMENT OF 
 
 whether the bond creditors had not a right to throw the mortgagees 
 upon the estates comprised in the mortgages, at any rate to the extent 
 of the deficiency of the proceeds of the leasehold to pay the bond debts 
 in full ; but it was held by the Vice-Chancellor, that the bond creditors 
 were not entitled to more than was given by the trust deed, and conse- 
 quently 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.(a) 
 
 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 ; l 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.(A) 
 
 Where, by the terms of the trust deed, no creditors are to be paid 
 tinder its provisions, until their claims have been investigated and allowed 
 by the trustees, a creditor can claim no benefit under the deed, and can- 
 not apply to the court to enforce its performance, until he has submitted 
 his debt to the trustees for their investigation, or 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 reject or 
 allow the claims of all lawful creditors, the court cannot on the applica- 
 tion of any creditor interfere with them in the exercise of that discre- 
 tion.^) However, the court will be reluctant 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 negative the existence of such 
 a power. (w) s 
 
 (i) Boazman v. Johnston, 3 Sim. 382. 
 
 (k) Dunch v. Kent, 1 Vera. 260; and see Spottiswoode v. Stockdale, Coop. 102. 
 (Z) Wain v. E. of Bgmont, 3 M. & K. 445. (m) 3 M. & K. 448. 
 
 (n) See 3 M. & K. 448 ; and Nunn v. Wilsmore, 8 T. R. 521. 
 
 1 Tennant v. Stoney, 1 Rich. Eq. 222 ; Hosack v. Rogers, 6 Paige, 415 ; see De Caters 
 v. Le Ray de Chaumont, 2 Paige, 490 ; Nicholson v. Tuton, 19 Jurist, 1201 ; see Watson 
 v. Knight, 19 Beav. 369 ; but contra, Phoenix Bank v. Sullivan, 9 Pick. 410 j Pierpont 
 v. Graham, 4 Wash. C. C. 232 ; Stoddart v. Allen, 1 Rawle, 258 ; Dedham Bank v. 
 Richards, 2 Metcalf, 105. 
 
 2 The preference of a fictitious debt renders an assignment void. Irwin v. Keen, 3 
 Whart. 347 ; Webb v. Daggett, 2 Barb. S. C. 10. A general provision for the payment 
 of debts in an assignment, will not include debts founded on a usurious consideration. 
 Pratt v. Adams, 1 Page, 617 ; Beach v. Fulton Bank, 3 Wend. 584. Where, however, 
 such debts are specifically provided for, it was held, in Green v. Morse, 4 Barb. S. C. 
 332, and Pratt v.. Adams, 1 Paige, 641, that the assignees cannot refuse to pay them. 
 But in Morse v. 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 assign- 
 ment, 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 
 
DEBTS UNDER A DEED. 493 
 
 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 repre- 
 sented to have declared, that by the creation of the trust term for the 
 *payment of debts the simple contract debts became as debts due r*Q4.-n 
 by mortgage, and consequently 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 Hard- 
 wicke, although dissenting 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 payment 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 
 will make these, though simple contract debts, carry interest."^ 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 trust by deed for 
 the payment of debts, though scheduled, will not make them bear inte- 
 rest, 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 
 with all arrears of interest up to the time of payment. 1 But in the case 
 
 (o) 1 P. Wms. 229 ; and see Bottomley v. Fairfax, 1 P. Wins. 334 ; Maxwell v. 
 Wettenhall, 2 P. Wms. 27 ; Lloyd v. Williams, 2 Atk. 111. (p) 2 Ves. 364. 
 
 (q) Stewart v. Noble, Vern. & Scriv. 528 ; and see Creuze v. Hunter, 2 Ves. Jun. 157; 
 4 Bro. C. C. 316 ; Tait v. Northwick, 4 Ves. 618. 
 
 (r) Shirley v. B. Ferrers, 1 Bro. C. C. 41 ; Hamilton v. Houghton, 2 Bligh, 169. 
 
 (*) Hamilton v. Houghton, 2 Bligh, 18T ; and see Tait v. Lord Northwick, 4 Ves. 
 618. 
 
 (t) See Hamilton v. Houghton, 2 Bligh, 184 ; Bath v. Bradford, 2 Ves. 588 ; Stewart 
 v. Noble, Vern. & Scriv. 536. 
 
 trustees : Pratt v. Adams, see Green v. Morse, ut supr. ; though this was doubted in 
 the latter case. In an opinion of Chancellor Kent, printed in 6 Hump. 532, it was said 
 by that 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 does not 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. 
 
 1 In Bryant v. Russell, 23 Pick. 508, it was held that in an assignment 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 Pieseh's Estate, March, 1853, 
 the Supreme Court of Pennsylvania ruled, that where certain notes were preferred in an 
 assignment, the preference extended to principal only, and not to interest. But see 
 Winslow v. Ancrum, 1 McCord Ch. 100. As to insolvent assignments, see Matter of 
 Murray, 6 Paige, 204; Pritchett v. Newbold, Saxton, 571. 
 
494 OF TRUSTEES FOR THE PAYMENT OF - 
 
 of bond debts, the creditors will not be entitled to receive more for prin- 
 cipal and interest than the amount of the penalty secured.(w) 
 
 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 respective debts at four per 
 cent., as interest was actually made from their fund. (a;) 
 
 It is settled, that a general devise or charge by will for the payment 
 of debts out of real estate, will prevent the Statute of Limitations from 
 running against such debts as are not barred at the time when the will 
 comes into operation, viz., the death of the testator ;(«/)* although a debt 
 upon which the Statute of Limitations has already taken effect at the 
 time of the testator's death, will not be revived by such a direction.(z) 
 
 The principles of these decisions is, that the Statute of Limitations 
 does not run against a trust, and it applies equally to a trust created by 
 deed for the payment of debts, and whether the property subjected to 
 trust consists of real or personal estate. Upon principle, therefore, it 
 may unquestionably be laid down (although the point does not appear to 
 have been directly decided), that a trust, created by deed for the pay- 
 ment of debts generally, will prevent the operation of the Statute of 
 Limitations upon all debts, which are not barred at the time of the exe- 
 r* 34.91 cut ' on °f the *deed; although such a trust will not revive any 
 *- ■* debt, the right to recover which may have been previously lost 
 by the effluxion of time. (a) 3 
 
 An assignment or conveyance in trust for the payment of debts usually 
 specifies the mode of raising the money for the purposes of the trust, 
 by directing the sale or mortgage of the property by the trustees for 
 that purpose. However, in the absence of any such express 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 
 
 (w) Anon. 1 Salk. 154; Burke v. Jones, 2 V. & B. 284; Hughes v. Wynne, Hi 
 K. 20. (a) Pearce v. Sloeombe, 3 Y. & Coll. 84. 
 
 (y) Fergus v. Gore, 1 Sch. & Lef. 10? ; Hargreaves v. Mitchell, 6 Mad. 326 ; . Hughes 
 v. Wynne, T. & R. 307 ; Crallan v. Oughton, 3 Beav. 1. [But see Story Eq. \ 154, n.] 
 
 (2) Burke v. Jones, 2 V. & B. 275. 
 
 (a) See Burke v. Jones, 2 V. & B. 281, 2. 
 
 1 See post, p. 356, note. 
 
 1 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 assignment (Christy 
 v. Plemington, 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 debt may be 
 barred at law, the creditors may nevertheless enforce the trust deed in equity. Gary 
 v. May, 16 Ohio, 66. 
 
DEBTS UNDER A DEED. 495 
 
 of the parties is to be pursued, as much as in cases of wills.(J) 1 Thus 
 on one occasion it was held, that a conveyance of lands to the use of 
 trustees and their heirs, until they had raised by sales and -profits suffi- 
 cient to pay the scheduled debts, authorized a mortgage by the trus- 
 tees.^) 
 
 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,(<2) or to see to the applica- 
 tion of the purchase-money ; and in case of any misappropriation of the 
 trust fund, the creditors must seek their remedy against the trustees.(e)(l) 2 
 
 (6) Sheldon v. Dormer, 2 Vern. 310 ; and see Ivy v. Gilbert, 2 P. Wms. 13 ; Mills 
 v. Banks, 3 P. Wms. 1 ; Shrewsbury v. Shrewsbury, 1 Ves. Jun. 234 ; see Allen v. 
 Backhouse, 2 V. & B. 65 ; "Wilson v. Halliley, 1 R. & M. 590; 1 Sugd. Pow. 116, et 
 seq. 6th ed.; et vide post, next section. 
 
 (c) Spalding v. Shalmer, 1 Vern. 301 ; and see Ball v. Harris, 8 Sim. 485. [See 
 Stroughill v. Anstey, 1 De G. Mac. & G. 635.] 
 
 (d) Johnson v. Kennett, 3 M. & K. 631 ; Shaw v. Borrer, 1 Keen, 559 ; Eland v. 
 Eland, 4 M. & Cr. 428; Forbes v. Peacock, 11 Sim. 152, 160. [See Doe v. Hughes, 
 6 Excheq. 223.] Page v. Adam, 4 Beav. 269 ; vide post, [p. 342, 363, 5,06, and note.] 
 
 (e) Shaw v. Borrer, 1 Keen, 559; Culpepper v. Aston, 2 Ch. Ca. 115; Anon. Salk. 
 153; Dunch v. Kent, 1 Vern. 260; Jenkins v. Hiles, 6 Ves. 654, n.; Williamson v. 
 Curtis, 3 Bro. C. C. 96 ; Doran v. Wiltshire, 3 Sw. 699, 701 ; 2 Sugd. V. & P. 32, et 
 seq. 9th ed.; Jones v. Price, 11 Sim. 558; Glyn v. Locke, 3 Dr. & W. 11. 
 
 (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 trastees ; for the 
 
 1 A power to sell and convey is necessarily implied on » conveyance for the payment 
 of debts, Williams v. Otey, 8 Humph. 563 ; Goodrich v. Proctor, 1 Gray, 567. In a 
 deed of trust for payment of debts, a power to sell can only be exercised under the cir- 
 cumstances 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. Mundy v. Vawter, 
 3 Grattan, 518. In Linton v. 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. Hawkins, 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 v. Crook- 
 shank, 1 Whart. Dig. 6th ed. Debtor and Creditor, pi. 370 ; see post, 355, and 371, and 
 notes. 
 
 In Planck v. Schermerhorn, 3 Barb. Ch. 644 ; it was held that a clause in an assign- 
 ment empowering the assignee to mortgage or lease the assigned estate, is void as to 
 creditors. 
 
 2 Williams v. Otey, 8 Humph. 568 ; Garnett v. Macon, 2 Brocken. 185 ; 6 Call. 308 ; 
 
496 OF TRUSTEES FOR THE PAYMENT OF 
 
 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 mentioned 
 in the deed,(/) or of the debts specified in the schedule.(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 the power of giving dis- 
 charges 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 Wra. Grant on general 
 r*34R1 g roun< ^ s expressed *his strong disapprobation of the doctrine, 
 that a purchaser was bound to see to the application of the 
 money, because the debts were scheduled. (i) 
 
 So an express clause, giving the trustees power to give receipts, and 
 declaring that the purchaser shall not be bound to see to the application 
 
 (/) Doran v. Wiltshire, 3 Sw. 701 ; Elliot v. Merriman, Barn. 78 ; and 1 Keen, 573 ; 
 stated, S. C. 2 Atk. 41. 
 
 (g) Spalding v. Shalmer, 1 Vern. 301 ; Lloyd v. Baldwin, 1 Ves. 173. 
 
 (h) Balfour v. Welland, 17 Ves. 151 ; and see Doran v. Wiltshire, 3 Sw. 699. [See 
 Dalzell v. Crawford, 1 Pars. Eq. 57.] (i) 16 Ves. 156. 
 
 decree reduced it to as much certainty as a schedule of the debts : Lloyd v. Balwin, 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. 386 r 
 Coombs v. Jordan, 3 Bland. 284.] 
 
 Grant v. Hook, 13 S. & R. 259 ; Brueh v. Lantz, 2 Rawle, 392 ; Hannum v. Spear, 1 
 Yeates, 553 ; 2 Dall. 291 ; Cadbury v. Duval, 10 Barr, 267 ; Dalzell v. Crawford, 1 
 Pars. Eq. 57 ; Hauser v. Shore, 5 Ired. Eq. 357 ; Gardner v. Gardner, 13 Pick. 393; 
 Goodrich v. Proctor, 1 Gray, 567; Sims v. Lively, 14 B. Monr. 433; Robinson v. 
 Lowater, 17 Beavan, 601; 5 De G. Macn. & G. 277; see Lining v. Peyton, 2 Desaus. 
 378; Redheimer v. Pyron, 1 Spear's Eq. 141 ; Lock v. Lomas, 21 Law J. Chanc. 503. 
 When, however, the trust i3 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. ; Duffy v. Calvert, 6 Gill. 
 487 ; Wormley v. Wormley, 8 Wheat. 422 ; though see the remarks of the American 
 editor in notes to Elliott v. Merryman, 1 Lead. Cas. Eq. 75, as to devises for payment 
 of debts. If there be collusion, 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 ; Garnett v. Macon, ut supr. ; see Redheimer v. 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 application of 
 the purchase-money, where the power to sell has been properly exercised, will not affect 
 the purchaser's title at law : D'Oyley v. Loveland, 1 Strobh. Law. 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 v. Pyron, 1 
 Spear's Eq. 141 ; Rutledge v. Smith,' 1 Busbee Eq. 283 ; notes to Elliott v. Merryman, 
 ut supr. ; see Stroughill'v. Anstey, 1 De G. Macn. & G. 635 ; see also post, 363, and note; 
 and as to purchasers from executors, of personalty, ante, 166, and note. 
 
DEBTS UNDER A DEED. 497 
 
 of the money, would clearly exonerate him from that liability even with 
 regard to scheduled debts. (A)(1) ' 
 
 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. (I) 
 
 It was laid down on one occasion by Lord El don, that if the purchase 
 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 applica- 
 tion of the money, though the trust were for the payment of debts gene- 
 rally.^) And this follows from the principle discussed in a preceding 
 chapter, as to the effect of an unauthorized conveyance of the trust estate 
 by a trustee. (n) 
 
 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 execution of 
 the trust.(o) However, in such a case the trustees have no power, analo- 
 gous to that of executors, of preferring their own debts, but they must 
 apply the trust fund in discharge of all the debts equally without dis- 
 tinction,^) unless indeed by the terms of the deed itself a' priority is 
 given to their own or any other debt.(^) 1 
 
 (k) Binks v. Lord Rokeby, 2 Mad. 227, 339 ; and see Roper v. Halifax, 2 Sugd. Pow. 
 501, App. 3 ; Jones v. Price, 11 Sim. 557. 
 
 (1) Culpepper v. Aston, 2 Ch. Ca. 115 ; Spalding v. Shalmer, 1 Vera. 301. [See post, 
 480, and note.] (m) Braybroke v. Inskip, 1 Ves. 417. (?i) Ante, p. 175. 
 
 (0) See Balfour v. Welland, 16 Ves. 151 ; Boazman v. Johnston, 3 Sim. 377 ; Acton 
 v. "Woodgate, 2 M. & K. 492 ; [Siggers v. Evans, stated, ante, 83, note.] 
 
 (p) Boazman v. Johnston, 3 Sim. 382 ; Anon. 2 Ch. Ca. 54 ; Child v. Stephens, 1 
 Eq. Ca. Abr. 141 ; S. C. 1 Vern. 102 ; see 65, n. (2) [post, 359]. 
 (g) Garrard v. Lord Lauderdale, 3 Sim. 1. 
 
 (1) The recent act (7 & 8 Vict. c. 76) has made a material alteration in the law re- 
 specting the liability of purchasers paying money to trustees. The 10th section of that 
 act provides, " That the bona 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 pur- 
 pose, shall effectually discharge the person paying the same from seeing to the applica- 
 tion or being answerable for the misapplication 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 remainders) to any estate, right, or interest created before the 
 1st of January, 1845. But see this subject further considered, post, Ch. Ill, of this 
 Division. [The Act of the 7 & 8 Vict. c. 76, above stated, was repealed by the 8 & 9 
 Viet c. 106, g 1.] 
 
 1 Harrison v. Mock, 10 Alab. 185 ; Miles v. Bacon, 4 J. J. Marsh. 468. And the fact 
 that the trustee is a bona fide creditor, ignorant of any intended fraud, will not prevent 
 the court from declaring an assignment, designed to delay other creditors, void. Rath- 
 bun v. Platner, 18 Barb. 272. 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 op- 
 posed to his cestui que trust, or principal, did not apply to the case of a bona fide 
 creditor who became so prior to the assumption of his fiduciary character ; and, there- 
 fore, that such a trustee might purchase a judgment against his cestui que trust. 
 
 32 
 
498 OP TRUSTEES FOR THE PAYMENT OP 
 
 A trust deed for the payment of debts is favorably regarded in equity, 
 and it will be supported, if possible, notwithstanding any technical infor- 
 mality which may invalidate it at law.(r) For instance, where a party, 
 with power of leasing in possession, granted a lease to commence in fu- 
 turo, 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 pay- 
 ing 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 
 r*344T tne * trustee >(*) *>ut, on the principle that has just been stated, 
 L J 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. Ill, c. 98), which restricts the period for which the income of pro- 
 perty may be accumulated. 
 
 If there be any residue of the trust estate after payment of the debts, 
 the surplus will remain vested in the trustee for the benefit of the gran- 
 tor.^) 1 
 
 Trustees of a creditor's deed have no power to compromise suits 
 respecting the estate without an express authority, which must be either 
 contained in the deed, or conferred upon them at a meeting of the cre- 
 ditors. 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;) 2 
 
 (r) See Duneh v. Kent, 1 Vern. 260 ; Spottiswoode v. Stockdale, Coop. 102. [But 
 see in the United States, notes to Thomas v. Jenks, 1 Am. Lead. Cases, 78, &c] 
 (s) Pollard v. Greenville, 1 Ch. Ca. 10. 
 
 (/) Lord Paget's Case, 1 Leon. 194; 4 Cruis. Dig. tit. 32, ch. 9, s. 25, 6. 
 (u) 3 P. "Wins. 251, n. (A.) ; Poole v. Pass, 1 Beav. 600. 
 (x) Shepherd v. Towgood, 1 T. & R. 379, 390. 
 
 1 Dubose v. Dubose, 7 Alab. 235 ; Hall v. Denison, 17 Verm. 311 ; Rahn v. McElrafh, 
 6 Watts, 151. As to whether an express reservation of the surplus will avoid an as- 
 signment, 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. Bucknam, 2 Pairf. 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. Morton, 8 Dana, 247; Wright v. Henderson, 7 
 How. Miss. 539. 
 
 2 A power given to the assignees to compound with creditors makes an assignment 
 void. Wakeman 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. ffi 
 M. Ch. 207 ; Bellows v. Patridge, 19 Barb. 176, see Meacham v. Sternes, 9 Paige, 398. 
 Trustees in general have no power to sell on credit; Swoyer's Appeal, 5 Ban, 379; 
 Nicholson v. Leavitt, 2 Selden,-510'; Estate of Davis, 5 Wharton, 530 ; and a provision 
 in an assignment authorizing them to do so would invalidate it. Nicholson v. Leavitt; 
 Kellogg v.Slauson, 1 Kernan, 305; Am. Exch. Bank v. Inloes, 7 Maryl. 380; contra 
 
DEBTS UNDER A WILL. 499 
 
 And the trustees will not be justified in committing the entire man- 
 agement of the property to an agent, although they are empowered 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 accounts and vouchers are 
 in the possession of the agent, who had gone abroad. («/) 
 
 2d. Of 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 adminis- 
 tration of his executors. (s) This doctrine was denied 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 ;(b) and the doctrine, as thus finally decided, has been 
 recognized and acted upon in subsequent cases. (e) It is therefore now 
 . conclusively established, that a trust by will for the payment of the tes- 
 tator's debts out of his personal estate has no legal operation. 2 
 
 (y) Turner v. Comey, 5 Beav. 515. (a) Jones v. Scott, 1 R. & M. 255, 261. 
 
 (a) Ibid. 267. (6) Jones v. Scott, 4 CI. & Pin. 398. 
 
 (c) Freake v. Cranefeldt, 4 M. & Cr. 499 ; Evans v. Tweedy, 1 Beav. 55. 
 
 Hopkins v. Ray, 1 Metcalf, 79 ; Abercrombie v. Bradford, 16 Alab. 560 ; Shackelford 
 v. P. & M. Bank, 22 Id. 238. So of any other provision tending to delay creditors. 
 Notes to Thomas v. Jenks, 1 Am. Lead. Cas. 89. Thus a clause empowering the trus- 
 tees to mortgage or lease the assigned estate, Planck v. Schermerhoru, 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 objec- 
 tionable, whether expressly stipulated or not ; Hennessey v. "Western Bank, 6 W. & S. 
 300 ; Pearson v. Rockhill, 4 B. Monr. 296 ; Kelly v. Lank, 7 B. Monr. 220 ; and though 
 such agent be the assignor of the estate : Pitler v. Maitland, 5 W. & S. 307 ; Pearson 
 v. Rockhill, 4 B. Monr. 296; Shattuck v. Hexman, 1 Metcalf, 10; Planters' Bank v. 
 Clarke, 7 Alab. 765 ; Janes v. Whitbread, 15 Jur. 612 ; 11 C. B. 406 ; see Coates v. 
 Williams, 7 Excheq. 208; though an express provision in the assignment binding the 
 trustees thus to employ the assignor is now generally held to be fraudulent. See cases 
 cited in Judge Sharswood's note to 1 1 C. B. 429, 73 Eng. C. L. R. In Connecticut it 
 is held under the Statute of 1837 that the appointment of the assignor as agent, with- 
 out the assent of the Probate Judge, and before inventory filed, renders the assignment 
 fraudulent. Peck v. Whiting, 21 Conn. 206. The assignees may, if seems, convey by 
 attorney. Blight v. Schenck, 10 Barr, 285. 
 
 2 See Carrington' v. Manning, 13 Alab. 628 ; Lewis v. Bacon, 3 Henn. & M. 106 ; 
 Hines v. Spruill, 2 Dev. & Batt. Eq. 93 ; Cornish v. Wilson, 6 Gill, 318 ; Agnew v. Fet- 
 terman, 4 Barr, 62. As in most of the United States, real estate is assets for the pay- 
 ment of debts, many of the principles stated in the text are less applicable than in Eng- 
 land. Ibid. Hoover v. Hoover, 5 Barr, 357; Walker, Est., 3 Rawle, 241; Mr. Sumner's 
 note to Kidney v. Cousmaker, 1 Ves. Jun. 436 ; and see the remarks on the act of Will. 
 IV, in Collis v. Robins, 11 Jur. 364, 1 De 6. & S. 139. But trusts for the payment of 
 debts created by will, have been, recognized in various cases (see Gardner v. Gardner, 
 3 Mas. 178), and given a special effect. Thus, a sale by the trustee under such dr- 
 
500 OP TRUSTEES FOR THE PAYMENT OF 
 
 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 descrip- 
 tion 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."(i) 
 
 At common law the real estate of a deceased person were not liable 
 to the. payment of his simple contract debts, unless made so liable by 
 |- # - .r-\ his *will. This rule of law was partially altered in the case of 
 L traders by the statute of 47 Geo. Ill, c. 74, which 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 effect 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) 1 And as the 
 statute 3 & 4 Will. IV, c. 104, does not alter the operation of a devise 
 or charge for the payment of debts, the decisions upon the effect of ex- 
 pressions 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 continuing down to the present time, that 
 a general introductory or prefatory direction by a testator for the pay- 
 ment 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 ;(g) or if a similar payment be directed (without expressing 
 
 (d) See Charlton v. Wright, 12 Sim. 274 [and Oollis v. Robbins, 11 Jur. 364, 1 De 
 GexandSm, 139]. 
 
 (e) 2 Jarm. Pow. Dev. 644, et seq. ; [2 Jarm. Wills, Perkins' Ed. $ 512, &e.;] 1 
 Rop. Legs. 573, et seq. ; 6 Cruis. Dig. tit. 31, ch. 16, s. 7, et seq. [See Moores v. 
 Whittle, 22 Law J. Chanc. 207.] 
 
 (/) See Lord Cottenham's observations in Mirehouse v. Scaife, 2 M. & Cr. 708, as 
 corrected in Ball v. Harris, 4 M. & Or. 269. 
 
 (gr) Bowdler.v. Smith, Preo. Ch. 264; Torth v. Vernon, Prec. Ch. 430; S. C. 1 Vern, 
 
 cumstances, will discharge the land in Pennsylvania from the statutory lien of the tes- 
 tator's debts. Cadbury v. Duval, 10 Barr, 267. So, such a trust will prevent the lien of 
 judgments from expiring for want of revival. Baldy v. Brady, 15 Penn. St. Rep.'lll j 
 Alexander v. McMurry, 8 Watts, 504; see ante, note 2 to page 341. But in Bullv. 
 Bull, 8 B. Monr. 332, it was held that, under the act of 1839, of Kentucky, providing 
 for the ratable payment of 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. 
 
 1 Story's Eq. \ 1245, &c. But see Carrington v. Manning, 13 Alab. 628; Hines v. 
 Spruill, 2 Dev. & Batt. Eq. 93 ; Seaver v. Lewis, 14 Mass. 83. 
 
DEBTS UNDER A WILL. 501 
 
 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 being first deducted ;"(i) or 
 " being first satisfied ;"(k) or " after payment of his debts," &c. ;(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) 1 
 
 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.(w) 
 
 Thus in Thomas v. Britnell,(o) a testator first ordered all his debts 
 *and funeral charges to be honorably paid immediately after his 
 decease. In a subsequent clause he devised particular premises, "- ^ 
 enumerating them, and excepting H. and R., to trustees, in the first 
 place to pay and discharge his debts, funeral expenses, and legacies ; he 
 then directed, that H. and It. should in the first place be for payment 
 of the legacies mentioned in his will. Sir John Strange, M. R., said, 
 
 708; Beachcroft v. Beachcroft, 2 Vera. 690 ; Hatton v. Nicholl, Ca. Temp. Talb. 110 ; 
 Strangor v. Tryon, 2 Vern. 709, n. ; Leigh v. Earl of Warrington, 1 Bro. P. C. 511 ; 
 Earl of Godolphin v. Penneck, 2 Ves. 271 ; Coombes v. Gibson, 1 Bro. C. C. 273 ; 
 Kentish v. Kentish, 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. Peltham, T. & R. 
 418 ; Mirehouse v. Scaife, 2 M. & Cr. 695 ; Price v. North, 1 Phill. 85 ; Shaw v. Borrer, 
 1 Keen, 559, 573 ; Ball v. Harris, 8 Sim. 485, and 4 M. & Cr. 266. [Poindexter v. 
 Green, 6 Leigh, 504; see Story's Eq. \ 1245, &e.] 
 
 (h) Jones v. Williams, 1 Coll. 156 ; Clifford v. Lewis. 6 Mad. 33, 38; Pinch v. Hatters- 
 ley, 3 Russ. 345, n. ; Walker v. Hardwick, 1 M. & K. 396, 402 ; Graves v. Graves, 8 
 Sim. 43, 55, 6 ; overruling 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 v. Trent, 
 Gilmer, 174; Sands v. Champlin, 1 Story R. 376.] 
 
 (i) Newman v. Johnson, 1 Vern. 45. [Story's Equity, § 1245, &c] 
 
 (k) Harris v. Ingledew, 3 P. Wms. 91. [Darrington v. Borland, 3 Port. 9.] 
 
 (I) Tompkins v. Tompkins, Prec. Ch. 397 ; Smallcross v. Pinden, 3 Ves. 739 ; Withers 
 v. Kennedy, 2 M. & K 607 ; see Batson v. Lindegreen, 2 Bro. C. C. 94 ; Clarke v. 
 Sewell, 3 Atk. 100; Kidney v. Coussmaker, 1 Ves. Jun. 440; Bridgman'V. Dove, 3 
 Atk. 201 ; King v. 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 ; Penwick v. Chapman, 
 9 Peters, 461 ; Peter v. Beverly, 10 Peters, 562; Hudgin v. Hudgin, 6 Gratt. 320 ; Dunn 
 v. Keeling, 2 Dev. 285; Moores v. Whittle, 22 Law J, Chanc. 207; Carter v. Balfour, 
 19 Alab. 816.] 
 
 (to) Harding v. Grady, 1 Dr. & W. 430. 
 
 (») Palmer v. Graves, 1 Keen, 550 ; Price v. North, 1 Phill. 86, 7. 
 
 (o) Thomas v. Britnell, 2 Ves. 313. [See Bank U. S. v. Beverly, 1 How. U. S. 134.] 
 
 ' Where real and personal estates are blended, the former is equally chargeable with 
 the latter. Adams v. Brackett, 5 Metcalf, 280; Hassanclever v. Tucker, 2 Binn. 525 ; 
 Ford v. Gaithur, 2 Rich. Eq. 270. See post, 354, note. 
 
502 OF TRUSTEES FOE THE PAYMENT OP 
 
 that though on the first part the court might take the whole real estate 
 to be charged with debts, yet as the testator 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 pay- 
 ment of debts : and he accordingly 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 convenient 
 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 to the 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. (q) 
 
 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, subse- 
 quently charged a particular portion of the rents and profits with a 
 similar payment, and Lord Langdale, M. R., considered, that the gene- 
 ral 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) is in one of its points to 
 a similar effect. But in the later case of Graves v. Graves,(i) 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 pro- 
 ceeds 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. (t) In this case 
 the Vice-Chancellor appears to have founded his judgment principally 
 upon the anxious desire of the testator, appearing upon the whole will, 
 that all his debts should be paid : although it seems somewhat 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. Williams,(to) before 
 V. C. Knight Bruce, a testator began his will by a general direction 
 
 (p) 2 M. & K. 600. [See Lewis v. Bacon, 3 Henn. & M. 89; Adams v. Brackett, 5 
 Metcalf, 280 ; but see Trent v. Trent, Gilmer Va. Cas. 174.] 
 (q) Douce v. Torrington, 2 M. & K. 600. 
 
 (r) Palmer v. Graves, 1 Keen, 545 ; sed vide, 1 Phill. 87. (*) 1 Keen, 206. 
 
 (t) Graves v. Graves, 8 Sim. 43. («) Jones v. Williams, 8 Jur. 373 ; 1 Coll. 156. 
 
DEBTS UNDER A WILL. 503 
 
 for the payment of his debts, in words which, according to the general 
 rule, amounted to a charge of the debts on the realty ; there was a sub- 
 sequent devise of a particular estate to his wife, in trust to sell r-^oAf-y 
 and apply the proceeds in further aid and discharge of his debts. ■- -■ 
 His Honor held that there was not a sufficient expression of an inten- 
 tion to do away with the preliminary general charge of debts, and that 
 the whole real estate consequently remained so charged.(w) 
 
 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 gene- 
 ral charge. (a;) 
 
 Upon the same principle, where the general direction for the payment 
 of debts is, that they shall be paid by the testator's executors, or by Ms 
 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 pre- 
 sumed, that the payment is to be made exclusively out of the fund, which 
 by law devolves upon the executors by virtue of their appointment.(y) 
 
 Where, however, the executors are also devisees of the real estate, a 
 general direction that all debts shall be paid by them, though describing 
 them as executors, will create a charge upon the realty.(s) 1 And it is 
 immaterial that the real estate is first devised by name to the individuals 
 who afterwards are appointed executors, and are directed 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 intention 
 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 be paid by his executrix 
 
 (w) Jones v. Williams, 8 Jur. 373 ; 1 Coll. 156. (x) grice v. North, 1 Phill. 35. 
 
 (y) Brigden v. Lander, 3 Russ. 343, n.; Keeling v. Brown, 5 Ves. 359; Powell v. 
 Robins, 7 Ves. 209 ; Willan v. Lancaster, 3 Buss. 108 ; Warren v. Davies, 2 M. & K. 
 49 ; Wasse v. Hesslington, 3 M. & K. 499, 500 ; 2 Jarm. Pow. Dev. 654. [See Ford 
 v. Gaithur, 2 Rich. Eq. 270.] 
 
 (z) Aubrey v. Middleton, 2 Eq. Ca. Abr. 497 ; Pinch v. Hattersley, 3 Russ. 345, note; 
 Henvell v. Whitaker, 3 Russ. 343 ; Dover v. Gregory, 10 Sim. 393. [See Gallimere v. 
 Gill, 2 Sm. & Giff. 158 ; 23 L. J. Ch. 604.] 
 
 (a) Cloudsley v. Pelham, 1 Vern. 411 ; Barker v. Duke of Devonshire, 3 Mer. 310. 
 
 (b) Symons v. James, 2 N. C. C. 311. (c) Keeling v. Brown, 5 Ves. 359. 
 
 1 But in Agnew v. Petterman, 4 Barr, 56, where a testator directed his debts to be 
 paid, and then devised all his estate to his wife, and appointed her executrix, it was 
 held that no trust for debts was created which would take them out of the Statute of 
 Limitations. 
 
504 OF TRUSTEES FOR THE PAYMENT OF 
 
 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,(<2) a testator 
 after directing payment of all his debts and legacies, &c, by his exe- 
 cutors 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.(d) 
 
 *And in Wasse v. Hesslington, (e) there was a similar general 
 L J direction for the payment of debts, &c, by. the executors after 
 named, and the testator then proceeded to make some specific devises of 
 his real estates, under which Gr. P., one of the two persons afterwards 
 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. H. the other executor, and the 
 residuary real and personal estate was given absolutely 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 executors, 
 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 consistent with the intention 
 that the debts should be paid thereout, it will be liable to the debts : as 
 where the trust was " by sale or mortgage to pay whatsoever the testator 
 should thereafter by will or codicil direct."(^) 
 
 Where a testator directs his real estate 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 
 estate will be liable to the payment of the debts. (h) 
 
 It is to be observed, that although the trust for the payment of debts 
 out of real estate has thus frequently been controlled and rebutted, in 
 
 (c) Keeling v. Brown, 5 Ves. 359. {d) Warren v. Davies, 2 M. & K. 49. 
 
 (e) Wasse v. Hesslington, 3 M. & K. 495 ; and see Symons v. James, 2 N. C. C. 301, 
 310. 
 
 (/) Powell v. Robins, 7 Ves. 209 ; Wasse v. Hesslington, 3 M. & K. 496. 
 
 (g) Barker v. Duke of Devonshire, 3 Mer. 310. 
 
 (h) Kidney v. Coussmaker, 1 Ves. Jun. 436 ; S. C. 7 Bro. P. C. 573 ; 2 Ves. Jun. 
 267 ; 12 Ves. 136. [See Robards v. Wortham, 2 Dev. Eq. 173.] 
 
DEBTS UNDER A WILL. 505 
 
 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 express 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 with 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 devised all his real 
 estate to trustees to receive the two first years' profits for the payment of 
 Ms 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 by the subsequent directions, 
 but it was *held by Lord Hardwicke, that the general charge r* 040-1 
 still subsisted, and that he could not make any other construe- 
 tion.(A) And the decision of the Master of the Rolls, in Coxe v. Bas- 
 sett,(Z) is to the same effect. However, in these cases the particular 
 estate pointed out by the testator, 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 provision is made 
 by the will.(w) 1 
 
 (i) Bailey v. Ekins, 7 Ves. 323. (k) Ellison v. Airey, 2 Ves. 568. 
 
 (I) 3 Ves. Jun. 155. (to) Coxe v. Bassett, 3 Ves. 161. 
 
 (n) Kidney v. Coussmaker, 12 Ves. 136, 154. 
 
 (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 pay- 
 ment 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.] 
 
 1 The actual decision in Kidney v. Coussmaker, 12 Ves. 136, was approved by Gib- 
 son, C. J., in Adlum v. Yard, 1 Rawle, 163. But the principle, in the broad terms 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, was thereby estopped from afterwards impeaching it. But in 
 the subsequent case of Hays v. Heidelberg, 9 Barr, 207, it was said that Judge Gib- 
 son concurred with the majority of the court, in saying that Adlum v. Yard, pushed 
 " the doctrine of election by creditors 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 for fraud in fact. See also Codwise v. Gelston, 10 John. 
 507, and the able note to Aldrich v. Cooper, 2 Lead. Cas. Eq. pt. i. 230, &c, 1st edi- 
 tion. 
 
506 OP TRUSTEES FOR THE PAYMENT OF 
 
 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, (q) 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) 
 
 So we have already seen, that a devise to trustees for the payment of 
 debts will give them an estate in fee simple without any words of limita- 
 tion, as being necessary for the discharge 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, (t) 
 
 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, (u) 
 
 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 ob- 
 served 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 lands subject 
 to the payment of his debts, as the simple contract creditors will in that 
 case be entitled to be paid pari passu with the bond and other specialty 
 r*350"| creditors.(y) *And for the same reason, notwithstanding the 
 L J act 3 & 4 Will. IV, c. 104, it may still be frequently of impor- 
 tance to determine whether a will operates as a devise or charge for the 
 payment of debts. (z) For that act, as has been already seen, does not 
 affect lands devised or charged for the payment of debts ; consequently 
 
 (o) Drake v. Robinson, 1 P. Wms. 443 ; Harris v. Ingledew, 3 P. Wms. 96 ; Hasle- 
 wood v. Pope, Id. 323; Ithell v. Beane, 1 Ves. Sen. 265 ; Lindropp v. Bborall, 3 Bro. 
 C. C. 189 ; Kidney v. Coussmaker, 12 Ves. 136, 156 ; Noel v. Weston, 2 V. & B. 2«9. 
 
 ( p) Challis v. Casborn, Pree. Ch. 408 ; and see Haslewood v. Pope, 3 P. Wms. 322. 
 (q) Drake v. Robinson, 1 P. Wms. 443; Kidney v. Coussmaker, 12 Ves. 156; 
 Holmesiv. Coghill, Id. 216. 
 
 (r) Godolphin v. Penneck, 2 Ves. 271; Coombes v. Gibson, 1 Bro. C. 0.273; Ken- 
 tish v. Kentish, 3 Bro. C. C. 257 ; Ronalds v. Peltham, T. & R. 418. 
 
 (s) Dover v. Gregory, 10 Sim. 393 ; ante, p. 243, et seq. 
 
 (t) Ante, ubi supra. (u) Noel v. Weston, 2 V. & B. 273, 4. 
 
 (x) Earl of Bath v. Earl of Bradford, 2 Ves. 590 ; Lingard v. Earl of Derby, 1 Bro. 
 C. C. 312 ; Howse v. Chapman, 4 Ves. 550 ; Miller v. Horton, Coop. 45 ; Bailey v. Ekins, 
 7 Ves. 323 ; Marshall v. M'Avary, 3 Dr. & W. 235. 
 
 (y) 1 Ponbl. Eq. Tr. B. 1, Ch. 4, s. 14, n. (i). [See Cummins v. Cummins, 3 J. & 
 Lat. 90.] 
 
 (z) See Price v. North, 1 Phill. 58. 
 
DEBTS UNDER A WILL. 507 
 
 lands so devised, will, as heretofore, be administered as equitable assets, 
 and will be applicable in discharge of all debts equally without distinc- 
 tion., 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 anything. 
 
 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 clearly the intention of 
 the testator, not only to onerate the realty, but also to exonerate the per- 
 sonalty from its legal liability.(a) 1 
 
 Thus it is settled, that a charge of debts upon the real estate generally, 
 whether created by a general preliminary direction for their payment,(&) 
 as by an express charge, (e) is prima facie merely auxiliary to the per- 
 sonal 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 purpose ;(/) 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 
 
 (a) 2 Jarm. Pow. Dev. 681, et seq. ; 1 Rob. Legs. 3d ed. 595, et seq. [As to the 
 effect of the stat. of Will. IV, on this rule, see Collis v. Robins, 11 Jur. 364; 1 De G. 
 & Sm. 139.] 
 
 (6) Hartley v.Hurle, 5 Ves. 540 ; "Walker v. Hardwick, 1 M. & K. 396. 
 
 (c) Dolman v. Smith, Pree. Ch. 456 ; Samwell v. Wake, 1 Bro. C. C. 144 ; Tower v. 
 Lord Rous, 18 Ves. 132 ; Aldridge v. Lord Wallseourt, 1 Ball & P. 312. [Keysey's 
 case, 9 S. & R. 72; Stevens v. Gregg, 10 G. & J. 143 ; Garnett v. Macon, 6 Call, 308 ; 
 Robards v. Wortham, 2 Dev. Eq. 173; Palmer v. Armstrong, Id. 268; Hoes v. Van 
 Hoesen, 1 Comst. 123.] 
 
 (d) Brummel v. Prothero, 3 Ves. 111. 
 
 (e) Haslewood v. Pope, 3 P. Wms. 324; Lord Inchiquin v. French, Ambl. 33; S. C. 
 1 Cox, 2; Tait v. Lord Northwiek, 4 Ves. 816 ; Brydges v. Phillips, 6 Ves. 570 ; Han- 
 cox v. Abbey, 11 Ves. 186 ; Noke v. Darby, 1 Bro. P. C. 506. [See Hoes v. Van Hoe- 
 sen, 1 Comstock, 120.] 
 
 (/) Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; Tower v. Lord Rous, 18 Ves. 
 132. 
 
 (g) Watson v. Brickwood, 9 Ves. 447; See Rhodes v. Rudge,.l Sim. 79. 
 
 1 Lupton v. Lupton, 2 J. C. R. 614 ; Ruston v. Ruston, 2 Yeates, 54 ; 2 Dall. 245 ; 
 Kelsey v. Western, 2 Comstock, 500; Hancock v. Minot, 8 Pick. 29 ; Walker's Est., 3 
 Rawle, 229 ; Martin v. Fry, 17 S. & R. 426 ; Waring v. Waring, 2 Bland, 673; Wyse 
 v. Smith, 4 G. & J. 296 ; Hays v. Jackson, 6 Mass. 149 ; Marsh v. Marsh, 10 B. Monr. 
 360 ; Foster v. Crenshaw, 3 Munf. 514; Kirkpatrick v. Rogers, 7 Ired. Eq. 44; Buck- 
 ley v. Buckley, 11 Barb. S. C. 77 ; Mitchell v. Mitchell, 3 Maryl. Ch. 71 ; Elliott v. Car- 
 ter, 9 Gratt. 549 ; and cases collected in Mr. Perkins's notes to 2 Jarmyn on Wills, 545, 
 and in the notes to Ancaster v. Mayer, 1 Lead. Cas. Eq. 450 ; Aldrich v. Cooper, 2 
 Lead. Cas. Eq. pt. i, 215; and Silk v. Prime, Id. 252, where the subjects of this section 
 are fully discussed. 
 
508 OP TRUSTEES FOE THE PAYMENT OF 
 
 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 other parts 
 of the realty, must first be resorted to for the discharge of the defi- 
 ciency. (A;) 
 
 So it is settled, that the personalty will not necessarily be exonerated, 
 though the land be charged with funeral and testamentary expenses, as 
 well as with debts, notwithstanding the apparent improbability, that the 
 testator should mean to create an auxiliary fund for the payment of 
 r#qc-i-i expenses *which must be satisfied before 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 
 afforded 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.(w) And in several cases both before and since that 
 of Burton v. Knowlton, the personal estate has been held to be primarily 
 liable notwithstanding 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 different persons.(p) And 
 although a charge of funeral or testamentary expenses, when supported 
 by additional circumstances, will materially assist the court to the con- 
 clusion that the testator meant to exempt his personal estate,^) yet it 
 must now be considered as settled that such a direction will not of itself 
 be sufficient to support that inference. (r) 
 
 And so a direction for the payment of all the testator's debts out of 
 
 (h) Gray v. Minnethorpe, 3 Ves. 103; Coxe v. Bassett, 3 Ves. 155 ; M'Leland v. 
 Shaw, 2 Sell. & Lef. 538 ; French v. Chichester, 2 Vera. 568 ; Colville v. Middleton, 3 
 Beav. 570. [But see Pinckney v. Pinckney, 2 Rich. Eq. 218.] 
 
 (i) Bridgman v. Dove, 3 Atk. 201 ; Mead v. Hide, 2 Vera. 120; Watson v. Brickwood, 
 9 Ves. 447. [But see M'Fait's Appeal, 8 Barr, 290.] 
 
 (k) Colville v. Middleton, 3 Beav. 570. 
 
 (I) 3 Ves. 108. (m) 4 Ves. 823. (n) 1 Mer. 229. 
 
 (o) Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; Dolman v. Smith, Prec. Ch. 456; 
 Stephenson v. Heathcote, 1 Ed. 37 ; M'Leland v. Shaw, 12 Seh. & Lef. 538; Walker v. 
 Hardwick, 1 M. & K*. 396. 
 
 (p) French v. Chichester, 2 Vern. 568 ; 3 Bro. P. C. 16 ; Lovel v. Lancaster, Id. 
 183 ; Gray v. Minnethorpe, 3 Ves. 103 ; Aldridge v. Lord Wallscourt. 1 Ball & B. 312; 
 Stapleton v. Stapleton, 2 Ball & B. 523 ; Hartley v. Hurle, 5 Ves. 540. 
 
 (q) See Kynaston v. Kynaston, 1 Bro. C. C. 457, n. ; Williams v. Bishop of Landaff, 
 1 Cox, 254; Gaskell v. Gough, 3 Ves. Ill, cited; Tower v. Lord Rous, 18 Ves. 159; 
 Bootle v. Blundell, 1 Mer. 239 ; Greene v. Greene, 4 Mad. 148; Mitchell v. Mitchell, 5 
 Mad. 69 ; Driver v. Ferrand, 1 R. & M. 681, 685; Blount v. Hipkins, 7 Sim. 43. 
 
 (r) See 2 Jarm. Pow. Dev. 688. [Paterson v. Scott, 1 De G. Mac. & G. 531; Ouse- 
 ley v. Anstruther, 10 Beav. 413.] 
 
DEBTS UNDER A WILL. 509 
 
 his real estate,(s) or that they may be fully paid,(i) will not he sufficient 
 to exempt the personalty. 
 
 And although the personal estate may be expressly subject to certain 
 particular charges, as to the payment of " legacies, "(w) or of "funeral 
 expenses and simple contract debts;"(:c) 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 which the personalty is not expressly 
 subjected. 
 
 So, although the testator direct that the real estate shall be charge- 
 able with a particular specified debt, the personalty will notwithstanding 
 be liable in the first place to the payment. The mere circumstance of 
 the testator having provided an additional fund for the payment of that 
 debt, will not of itself exempt the personalty from its liability, (y) Sir 
 Wm. Grant, indeed, in his judgment in Hancox v. Abbey,(g) makes a 
 distinction between the effect of a general and a particular charge in 
 this respect, but those observations, so far as regards the general prin- 
 ciple, have been *overruled by the subsequent decisions, and r*9c$n 
 especially by that of Lord Cottenham in the recent case of J 
 
 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 operate 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 effect, not only where the trustees of the 
 real fund and the executors have been different persons,(6) (which is 
 doubtless a strong circumstance in favor of the exemption of the per- 
 sonalty),^) but also where the same persons have been trustees and exe- 
 
 (s) Brummel v. Prothero, 3 Ves. Ill ; Gray v. Minnethorpe, 3 Ves. -103 ; Hartley v. 
 Hurle, 5 Ves. 540 ; Walker v. Hardwick, 1 M. & K. 396. 
 
 (t) Hartley v. Hurle, 5 Ves. 540 ; Stephenson v. Heathcote, 1 Ed. 37 ; see 1 Mer. 
 224. X^ 
 
 (u) Brydges v. Phillips, 6 Ves. 567. 
 
 (x) Watson v. Brickwood, 9 Ves. 447. [See Paterson v. Scott, 1 De G. Mac. & G. 
 531.] 
 
 {y) Noel v. Lord Henly, 7 Pri. 241 ; S. C. 1 Dan. 211 ; Bickjiam v. Cruttwell, 3 M. 
 & Cr. 763. [Collis v. Robins, 1 De Gex & Sm. 131 ; Paterson v. Scott, 1 De G. Mac. 
 & G. 531.] (z) 11 Ves. 179, 186. 
 
 (a) 3 M. & Cr. 770. [See also Collis v. Robins, 1 De G. & Sm. 131 ; Quennell v. 
 Turner, 20 Law J. Chanc. 237 ; Paterson v. Seott, 1 De G. Mac. & G. 531.] 
 
 (6) Kynaston v. Kynaston, 1 Bro. C. C. 457, n. ; Holliday v. Bowman, Id. 145, cited ; 
 Bamfield.v. Wyndham, Prec. Ch. 101 ; Greene v. Greene, 4 Mad. 148, 156 ; Blount v. 
 Hipkins, 7 Sim. 43. 
 
 (c) See Stephenson v. Heathcote, 1 Ed. 38 ; Burton v. Knowlton, 3 Ves. 108 ; Duke 
 of Ancaster v. Mayer, as stated by Lord Eldon, 1 Mer. 223, 4; M'Leland v. Shaw, 2 
 Sch. & Lef. 546, 7. 
 
510 OF TRUSTEES FOR THE PAYMENT OF 
 
 cutors;(d!) 1 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 which 
 it has been held, that such a bequest will not exonerate the personal 
 estate, even though the trustees and' the executors were different per- 
 sons ;(g) and those decisions are d fortiori authorities against the exone- 
 ration of the personalty, where the trustees and executors are the same 
 persons.Qi) It certainly appears to be scarcely consistent 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 operation to the bequest which it 
 would not otherwise have : although it may be admitted that such ex- 
 pressions, when supported by other circumstances, 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 exe- 
 cutor (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 exonerate the 
 personalty, whatever might be the effect of a specific gift of the per- 
 sonalty to an indi vidua] . (i) And where there was a general 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, but no trust was declared of the personal estate, the personalty 
 was held to be primarily liable to the payment of the debts.(&) 
 r*qcq-i *So it is also settled, that a general residuary bequest of the 
 personal estate,(Z) or of all the personal estate not otherwise dis- 
 
 {d) Stapleton' v. Colville, Forrest, 202; Mitchell v. Mitchell, 5 Mad. 69; Walker v. 
 Jackson, 2 Atk. 624; Driver v. Ferrand, 1 R. & M. 671, 685. 
 
 (e) In Tower v. Lord Rous, 18 Ves. 138, 9. [See 17 Jur. 13.] 
 
 (/) In Bootle v. Blimdell, 1 Mer. 228. 
 
 (g) Harewood v. Child, Forr. 204, stated ; Haslewood v. Pope, 3 P. Wins. 324 ; French 
 v. Chichester, 2 Vern. 568, and 1 Bro. P. C. 16; Watson v. Brickwood, 9 Ves. 447; 
 Brummel v. Prothero, 3 Ves. Ill; Aldridge v. Lord Wallscourt, 1 Ball "& B. 312; 
 Lovell v. Lancaster, 2 Vern. 183 ; Cutler v. Coxeter, Id. 302 ; Bromhall v. Wilbraham, 
 Forr. 274; Lucy v. Bromley, Fitzgibb. 41. 
 
 (h) See Duke of Ancaster v. Mayer, 1 Bro. C. C. 454. 
 
 (i) Gray v. Minnethorpe, 3 Ves. 106 ; Stapleton v. Stapleton, 2 Ball & B. 523 ; Lord 
 Grey v. Lady Grey, 1 Ch. Ca. 296 ; Meade v. Hide, 2 Vern. 120 ; S. C. Prec. Ch. 2. 
 
 (k) Rhodes v. Rudge, 1 Sim. 79 ; and see Dolman v. Weston, 1 Dick. 26. 
 
 (I) Samwell v. Wake, 1 Bro. C. C. 144; Walker v. Hardwick, 1 M. & K. 397, 8; see 
 Duke of Ancaster v. Mayer, 1 Bro. C. C. 466 ; White v. White, 2 Vern. 43. 
 
 1 So, where a testator made a residuary devise of real and personal estate to his wife 
 absolutely, charged with debts, and appointed her executrix, and she afterwards dis- 
 posed by will of the whole personal estate in legacies, but left the real estate undisposed 
 of, it was held, that the latter was first to be applied to the payment of the husband's 
 debts. 
 
DEBTS UNDER A WILL. 511 
 
 posed of,(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 to the lia- 
 bility of the personal estate ;{n) 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,(^?) 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 primarily 
 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 ex- 
 empted from the payment of debts and legacies, without express words.(q) 
 And it has been a subject of regret to several great Judges, that this 
 original rule was ever departed from.(r) 
 
 However, it has been long settled that express words are not neces- 
 sary, but that the personal estate will be exonerated, if the intention 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.(tf) 1 
 
 (m) Dolman v. Smith, Prec. Ch. 456 ; French v. Chichester, 2 Vern. 568 ; Hartley 
 v. Hurle, 5 Ves.. 540 ; Watson v. Brickwood, 9 Ves. 447 ; Noke v. Darby, 1 Bro: P. C. 
 506. 
 
 (n) Tait v. Lord Northwick, 4 Ves. 816 ; Brydges v. Phillips, 6 Ves. 567 ; Tower v. 
 Lord Rous, 18 Ves. 132 ; Stephenson v. Heathcote, 1 Ed. 38. 
 
 (o) See Bootle v. Blundell, 1 Mer. 236, 7. 
 
 (p) Adams v. Meyrick, 1 Eq. Ca. Abr. 271 ; 2 Atk. 626, n. ; Wainwright v. Bend- 
 lowes, 2 Vern. 718 ; Prec. Ch. 451 ; Bicknell v. Page, 2 Atk. 79 ; Anderton v. Cook, 1 
 Bro. C. C. 457, cited; Walker v. Jackson, 2 Atk. 624; Hayford v. Benlons, Prec. Ch. 
 451 ; S. C. Ambl. 581. 
 
 (q) Fereges v. Kobinson, Bunb. 301 ; Popham v. Bamfield, 9 Ves. 453, stated ; Howell 
 v. Price, Prec. Ch. 477 ; and see Haslewood v. Pope, 3 P. Wms. 325 ; Phipps v. Annes- 
 ley, 2 Atk. 58. 
 
 (r) See Duke of Ancaster v. Mayer, 1 Bro. C. C. 462 ; Watson v. Brickwood, 9 Ves. 
 453 ; Gittins v. Steele, 1 Sw. 28. 
 
 (s) Bootle v. Blundell, 1 Mer. 193, and cases cited; Lamphier v. Despard, 2 Dr. &' 
 W. 63. {t) Ibid. ; and see Gittins v. Steele, 1 Sw. 28. > ■ 
 
 1 See Walker's case, 3 Rawle, 229 ; Marsh v. Marsh, 10 B. Monr. 363 ; Ruston v. 
 Ruston, 2 Dall. 243 ; Robards v. Wortham, 2 Dev. Eq. 173 ; McFait's Appeal, 8 Barr, 
 290 ; Hoes v. Van Hoesen, 1 Comstock, 122 ; Notes to Ancaster v. Mayer, 1 Lead. 
 Cas. Eq. 450 ; and see Plenty v. West, 17 Jur. 9. 
 
512 OF TRUSTEES FOR THE PAYMENT OF 
 
 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."(«) 
 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 relaxation 
 r-^or^-i of the original rule, according to which express words were 
 requisite, the implication was raised upon very slight and 
 equivocal expressions, such as a mere residuary disposition of the per- 
 sonal 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 will.(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 ;(z) although 
 it is very far from being conclusive evidence for that purpose. (a) But 
 with this single exception it seems scarcely possible to extract any gene- 
 ral 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, (b) It will be sufficient for our present purpose to re- 
 mark, that the perusal of those cases, with the long series of counter- 
 decisions, renders it sufficiently apparent, that no trustee of real estate 
 devised for the payment of debts could be advised to apply the real fund 
 in exoneration of the personalty, where there is no express direction for 
 that purpose in the will, except under the immediate direction of the 
 court. 
 
 It may be observed, that where the expressions used warrant such a 
 
 (u) 1 Swants. 28. 
 
 (x) Waise v. Whitfield, 8 Vin. Abr. 437, pi. 1-9 ; Adams v. Meyrick, 1 Eq. Cas. Abr. 
 271 ; Wainwright v. Bendlowes, 2 Vern. 718 ; Bicknell v. Page, 2 Atk. 79 ; Walker v. 
 Jackson, 2 Atk. 624 ; Anderton v. Cooke, 1 Bro. C. C. 457, cited; Kynaston v. Kynas- 
 ton, lb. note; Gaskill v. Hough, 3 Ves. 110, cited. 
 
 (y) Brummel v. Prothero, 3 Ves. 110 ; Hartley v. Hurle, 5 Ves. 540; Milnes v. 
 Slater, 8 Ves. 305 ; Stapleton v. Stapleton, 2 Ball & B. 523. 
 
 (z) Stephenson v. Heathcote, 1 Ed. 38 ; D. of Ancaster v. Mayer, 1 Bro. C. C. 454; 
 Burton v. Knowlton, 3 Ves. 108 ; Gray v. Minnethorpe, 3 Ves. 103 ; Bootlev. Blundell, 
 1 Mer. 227 ; Brydges v. Phillips, 6 Ves. 572. [Plenty v. West, 17 Jur. 9.] 
 
 (a) See Bootlev. Blundell, 1 Mer. 227. 
 
 (&) Stapleton v. Colville, Porr. 202 ; Att.-Gen. v. Barkham, Id. 206, cited ; Kynaston 
 v. Kynaston, 1 Bro. C. C. 457, u. ; Holliday v. Bowman, Id. 145, cited ; Williams v. 
 Bp. of Llandaff, 1 Cox, 254 ; Webb v. Jones, 2 Cox, 245 ; S. C. 2 Bro. C. C. 60; Han- 
 cox v. Abbey, 11 Ves. 179 ; Burton v. Knowlton, 3 Ves. 107 ; Bootle v. Blundell, 1 
 Mer, 193; Greene v. Greene, 4 Mad. 148 ; Mitchell v. Mitchell, 5 Mad. 69; Driver v. 
 Perrand, 1 R. & M. 681 ; Clutterbuck v. Clutterbuck, 1 M. & K. 15 ; Blount v. Hipkins, 
 7 Sim. 43 ; Lamphier v. Despard, 2 Dr. & W. 59. [Plenty v. West, 17 Jur. 9.] 
 
DEBTS UNDER A WILL. 513 
 
 construction, the debts may be payable rateably out of the real and per- 
 sonal estate.(d) 1 
 
 It is now settled (although at one time the practice seems to have been 
 otherwise), (e) that parol or extrinsic evidence is inadmissible for the pur- 
 pose of showing the testator's intention to exonerate his personal 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 remains to 
 consider the powers and duties of the trustee as to the raising of the re- 
 quisite 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 r*occ-| 
 arise as to their power of making an effectual disposition of the 
 estate, either by way of absolute sale or mortgage, for the purposes of 
 
 (d) Boughton v. James, [1 Coll. 26 ; reversed on appeal, Boughton v. Boughton, 1 
 H. L. Cas. 406 : see note below] ; see Stacker v. Harbin, 3 Beav. 479. 
 
 (e) Bamfield v. Wyndham, Prec. Ch. 101 ; Gainsborough v. Gainsborough, 2 Vern. 
 252 ; Stapleton v. Colville, Forr. 202, see 208 ; Kynaston v. Kynaston, 1 Bro. C. C. 
 457, n. 
 
 (/*) Inchiquin v. French, Ambl. 40, and 1 Cox, 9 ; Stephenson v. Heathcote, 1 Ed. 
 39, 43 ; Brummel v. Prothero, 3 Ves. 113 ; Bootle v. Blundell, 1 Mer. 220 ; Aldridge v. 
 Lord Wallscourt, 1 Ball & B. 312, 15 ; Parker v. Fearnley, 2 S. & St. 593. 
 
 1 See Cryder's Appeal, 11 Penn. St. B. 72 ; Loomis's Appeal, 10 Barr, 387. 
 
 Where real and personal estate are thrown into a common mass, and expressly sub- 
 jected to a joint charge, or where there is a power of sale over real estate, and the pro- 
 ceeds, together with the personalty, are constituted a joint fund for the purposes of the 
 charge, both contribute ratably. Elliott v. Carter, 9 Gratt. 541 ; Cradock v. Owen, 
 2 Sm. & Giff. 241 ; Bobinson v. Governors, &c, 10 Hare, 19 ; Adams v. Brackett, 5 
 Metcalf, 282 ; Tatlock v. Jenkins, 1 Kay, 654 ; Simmons v. Bose, 20 Jurist, 73 ; Atkins 
 v. Kron, 2 Ired. Eq. 423 ; see McCampbell v. McCampbell, 5 Litt. 99 ; Ford v. Gaithur, 
 2 Rich. Eq. 270 ; but contra, Hoye v. Brewer, 3 Gill & John. 153. A declaration that 
 the proceeds of the realty shall be deemed part of the personal estate, in connection 
 with a joint charge, will, indeed, be sufficient. Simmons v. Bose, 20 Jurist; 73 (Chan- 
 cellor). But it appears now settled in England, that an express charge of debts and 
 legacies on the real and personal estate, or a devise of real and personal estate to trus- 
 tees for the payment of, or subject to a joint charge, will not, of itself, prevent the per- 
 sonal estate being the primary fund. Boughton v. Boughton, 1 House Lds. Cases, 406 ; 
 followed in Tidd v. Lister, 3 De G. Macn. & G. 857 ; Tench v. Cheese, 24 L. J. Ch. 
 717 ; 19 Jurist, 689, App. Ct. ; Simmons v. Rose, 20 Jurist, 73. The decision in Bough- 
 ton v. Boughton, however, did not meet the approval of Sir E. Sugden (Law of Pro- 
 perty, &c, 436); nor of L. J. Knight Bruce (in Tench v. Cheese, ut supr.)^ and in 
 Robinson v. Governors, 10 Hare, 19, was said not to affect the rule where the realty and 
 personalty are thrown into a common mass. 
 
 Where, however, a joint fund is thus created for the payment of debts and legacies, 
 and there is a devastavit of the personal estate, or the real estate is devised away by 
 a codicil, the charge is not proportionably abated, but is to be raised out of the remain- 
 ing estate. Tatlock v. Jenkins, 1 Kay, 654. 
 
 33 
 
514 OF TRUSTEES FOR THE PAYMENT 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,^) 1 unless indeed it be the clear intention of the testator in direct- 
 ing the sale, that his real estate should be absolutely converted ; for in 
 that case a mortgage will not be a proper execution of the trust, as the 
 testator's intention would thus be frustrated. (A) 
 
 But although there may be no specific direction for the sale of the 
 estate, but only a trust to raise,(«) or to pay the debts ;{k) or a devise 
 subject to or charged with debts ;(l)(l) or the debts and legacies being 
 
 (g) Mills v. Banks, 3 P. Wms. 9 ; Ball v. Harris, 8 Sim. 485 ; S. C. 4 M. & Cr. 
 264, 268. {h) Haldenby v. Spofforth, 1 Beav. 390 ; 1 Sugd. Pow. 538, 6th edition. 
 
 (i) Wareham v. Brown, 2 Vern. 154 ; Bateman v. Bateman, 1 Atk. 421. 
 
 (7c) E. of Bath v. B. of Bradford, 2 Ves. 590 ; Ball v. Harris, 8 Sim. 485 ; 4 M. & Cr. 
 266 ; Barker v. D. of Devonshire, 3 Mer. 310 ; Shaw v. Borrer, 1 Keen, 559 ; Forbes v. 
 Peacock, 11 Sim. 152. [See the remarks on Forbes v. Peacock, in Doe v. Hughes, 
 6 Exch. 222; Stroughill v. Anstey, 1 De G. Mac. & G. 635.] 
 
 (1) Elliot v. Meryman, 2 Atk. 41, and Barn. 78, stated; 1 Keen, 573; Walker v. 
 Smallwood, Ambl. 676 ; Bailey v. Ekins, 7 Ves. 323 ; Dalton v. Hewen, 6 Mad. 9; In- 
 chiquin v. French, Ambl. 38 ; 1 Cox, 1. [Doe v. Hughes, 6 Exch. 231 ; 20 Law J. 
 Exch. 148.] 
 
 (1) A distinction appears to have been taken at one time between the effect 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 trustees to sell the property for the discharge of the debts. Anon. 
 
 1 It has been said that a power of sale implies a power to mortgage. Lancaster v. 
 Dolan, 1 Rawle, 231; Gordon v. Preston, 1 Watts, 385; Williams v. Woodward, 2 
 Wend. 492. But in Bloomer v. Waldron, 3 Hill, 368, this was denied as a general pro- 
 position ; 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 collect a sum from issues and profits, be some 
 pressing exigency apparent on the face of the will or power." Oowen, J. Accord, Fire 
 Ins. Co. v. Bay, 4 Comst. 9 ; Cumming v. Williamson, 1 Sandf. Ch. 17. In Stroughill 
 v. Anstey, 1 De Gex, Mac. & G. 635, this subject was very fully discussed by the Chan- 
 cellor (Lord St, Leonards), and the distinction was taken between a devise to trustees 
 upon trusts for certain persons, subject to debts, <fcc, and a devise to trustees, charged 
 with debts, &e., 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 Orford 
 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 de- 
 cision there, to have been, " first, that the property was leasehold, and, therefore, the 
 trust for conversion, &c, . . . was more material than it would have been if the pro- 
 perty 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 necessary 
 or proper for a due administration of the trust ;" and he argues, that, notwithstanding 
 ■ Stroughill v. Anstey, in the case of freeholds of inheritance charged with debts and 
 legacies, and subjected to an imperative trust for conversion, the trustees would he 
 authorized to mortgage, if the money were needed at once, and a sale at the particular 
 time would be disadvantageous and inexpedient. 
 
DEBTS UNDER A WILL. 515 
 
 first deducted ;(m) — in all these cases the trustees may properly raise 
 the required amount by sale or mortgage, without waiting for a decree. 1 
 
 (m) Lewman v. Johnson, 1 Vern. 45. 
 
 Mosely, 96 ; and see Newell v. Ward, Nels. 38, and Freemoult v. Dedire, 1 P. "Wms. 
 430. This distinction, however, has been long since overturned. 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, 21 Law J. Chanc. 15, 255 ; but see Doe v. 
 Hughes, 20 Law J. Exch. 148 ; 6 Exch. 222. See note below.] 
 
 1 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 accomplished 
 without turning the estate into money, such power will be authorized. Going v. 
 Emery, 16 Pick. 107; Putnam Free School v. Fisher, 30 Maine, 527. In Coonrod v. 
 Coonrod, 6 Ohio, 114, 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 out 
 of the profits therefrom arising, to support and maintain, &c, a sale to raise the sum 
 was authorized. Tn Mather' v. Norton, 16 Jurist, 309; 21 Law J. Chanc. 15, a testa- 
 tor, by his will, appointed, A., B. and C. to be his executors in trust to dispose of 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 execu- 
 tors, 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 exe- 
 cutors 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-Chancellor (Parker) re- 
 marked : " 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 away or descended, 
 will not authorize a sale by the executor. 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 ; 20 Law J. Exch. 148, where the point was expressly decided ; see the remarks in 
 this case, on the dictum in Forbes v. Peacock, 12 Sim. 541. . 
 
 This question as to whether, where there is a charge of debts express or implied on 
 real estate, but no devise in trust for the purpose, nor express power of sale, the execu- 
 tor, not having the legal estate, can nevertheless sell for the satisfaction of the charge 
 and convey «■ good title to the purchaser, has been the occasion of some discussion 
 recently in England. In Robinson v. Lowater, 17 Beav. 601 ; 23 L. J. Ch. 641, there 
 was a devise of Whiteacre, the legal estate in which was outstanding in trustees, to 
 the testator's son R. for life, with contingent remainders, and then a further devise of 
 Blackacre and the testator's residuary real and personal estate to the same R. in fee, 
 subject to a particular mortgage debt, the mortgage itself being on other real estate 
 devised away, and to the payment of the testator's other debts, &c, but if Blackacre 
 and the personal estate should not be sufficient, &c, then the testator charged White- 
 acre with the deficiency, and he appointed R. his sole executor. R. subsequently, on an 
 allegation that the assets were insufficient to pay the charge, sold Whiteacre, but never 
 applied the purchase-money. On a bill filed some thirty years afterwards by the owners 
 of the mortgaged property, who had paid the interest in the meantime, to have the 
 mortgage debt raised out of Whiteacre, it was held by the Master of the Rolls, that 
 the will gave an implied power to sell to R., and that the purchaser was not bound to 
 see to the application of the purchase-money. Any distinction between an express 
 
516 OF TRUSTEES FOR THE PAYMENT OF 
 
 For such a disposition of the estate is necessary to the due execution of 
 the trust. And in the case of a will, a sale, if intended, will be sup- 
 ported, however obscurely the intention may be expressed.(n) 
 
 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 restrain 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, notwithstanding a very 
 similar direction. (p) And a distinction has been taken where the trust 
 
 (n) Warnford v. Thompson, 3 Ves. 513 ; 1 Sugd. Pow. 538. [Williams v. Otey, 8 
 Humph. 563.] 
 
 (o) Ridout v. E. of Plymouth, 2 Atk. 105 ; Carter v. Barnadiston, 1 P. Wins. 518; 
 Lingard v. E. of Derby, 1 Bro. C. C. 311. [Mundy v. Vawter, 3 Gratt. 578; but see 
 Schermerhorne v. Schermerhorne, 6 J. C. R. 73 ; Conkling v. Washington University, 
 2 Maryl. Ch. Dee. 505.] 
 
 (p) Berry v. Askham, 2 Vern. 26. 
 
 trust for the payment and a charge of debts in the former respect, was denied. The 
 case of Doe v. Hughes, 6 Exch. 223, above cited, was commented upon, and was said 
 to be " difficult to reconcile with the numerous authorities to be found on this subject 
 in Chancery," among which were cited Ball v. Harris, 4 Myl. & Cr. 264; Forbes v. 
 Peacock, 12 Sim. 541 ; and Gosling v. Carter, 1 Coll. 644, in which there is a dictum 
 of V. Ch. Knight Bruce, to the same general effect. The decision in Robinson v. Lo- 
 water was affirmed on appeal (23 L. J. Ch. 645 ; 5 De G. Macn. & G. 277). L. J. 
 Knight Bruce did not give the reasons of his decision ; but L. J. Turner puts the case 
 on the ground that it was the intention of the testator that a fund should be raised to 
 pay the debts ; that as there was a life estate in the contingent remainders in White- 
 acre, it was clear that it could not have been intended that the devisees thereof should 
 raise the money, and as the executor was the person who was to apply the fund if 
 raised, " therefore," the Lord Justice said, " upon the whole scope of this will, inde- 
 pendently of, and without reference to the cases decided on this subject, that in this 
 case at least," the executor must be considered as being invested with all the powers 
 necessary to raise it. Nothing, however, was said upon the general question. Iu the 
 subsequent case of Wrigley v. Sykes, 20 Jurist, 78, a testator made an express charge 
 of debts, &c, upon all his real and personal estate. He then devised all his real estate 
 to trustees other than his executors, for a term of 500 years, and subject to that term 
 to his sons as tenants in common in fee ; the trusts of the term being to raise by sale 
 or mortgage of the shares of the devisees, their proportions of the debts, &c, chargeable 
 thereon, and unpaid by them, with a direction that the receipts of the trustees should 
 be a good discharge, &c. It was held by the Master of the Rolls, following his decision 
 in Robinson v. Lowater, that the executors had a power of sale over the real estate, 
 and that the creation of the trust term, which he considered intended only for the par- 
 pose of rectifying any inequality which might arise from a sale for debts after the 
 division of the estate, and thus to have a distinct and specified object, did not supersede 
 that power. , 
 
 The doctrines thus advanced have been vigorously attacked in a recent number of 
 the Jurist, vol. 20, pt. ii, p. 68, by a writer of ability (apparently Mr. Williams, author 
 of the treatises on Real and Personal Property), who states them to be at variance 
 with the opinion of " some of the most eminent practitioners at the Conveyancing 
 Bar," among whom appears to be Mr. Hayes. On the other hand, they have been sup- 
 ported by Mr. Clayton, "a learned -conveyancer of long standing." Elements of Convey. 
 p. 110, cited in Jurist, ut supra. 
 
DEBTS UNDER A WILL. 517 
 
 is to raise by annual rents and profits, in which case alone it has been 
 held that a sale is not authorized.^) 
 
 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.(r) 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,(<) although 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 deficiency of the person- 
 alty.^) If, however, the real estate be devised 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 defi- 
 ciency 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 dis- 
 charge of the debts, has been already considered, and for this purpose 
 it is immaterial whether the trust be created by deed or will.(y)(l) s 
 
 Where an express power of sale is conferred on the trustees for the 
 
 (g) Anon. 1 Vera. 104 ; and see this subject further considered, post [Trustees for 
 Raising Portions, p. 364] . 
 
 (r) Powle v. Green, 1 Ch. Ca. 262. [See the remarks on this case in 2 Spence's Eq. 
 Jur. 368, note (b), and see Gosling v. Carter, 1 Coll. 651.] 
 
 (s) Haslewood v. Pope, 3 P. Wms. 323. 
 
 (t) Langley v. E. of Oxford, Ambl. 797; Co. Litt. 290, b. Butl. note XIV; 2 Sugd. 
 V. & P. 47. [See, however, 14 Mass. 496 ; and post, 478, note.] 
 
 (u) Dike v. Ricks, Cro. Car. 335 ; Culpepper v. Aston, 2 Ch. Ca. 221 ; 2 Sugd. Pow. 
 497, 6th edition ; 2 Sugd. V. & P. 48, 9th edition. [See Minott v. Prescott, 14 Mass. 
 496.] (x) Birch v. Glover, 4 Mad. 376. 
 
 (y) Ante, PI. I, of this Section ; see Shaw v. Borrer, 1 Keen, 559 ; and post, Chap. 
 Ill, of this Division, p. 363. 
 
 (1) It may be remarked, that after a bill filed by creditors for the administration 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. Smallwood, Ambl. 676 ; vide post, p. 548 [Effect 
 of Suits by or against Trustees] . 
 
 1 Story, Eq. PI. \\ 163, 172, 176, 205. But see, now, the Rules in Equity of the 
 Supreme Court of U. S. (XLIX, L), and Pennsylvania (XL VII, VIII). 
 
 2 See ante, page 342, note; and post, 363, note. A purchaser will not be bound 
 to see to the application of the purchase-money of an estate charged by will with a 
 mortgage debt, in exoneration of the mortgaged estate, where the testator mentions the 
 mortgage debt, and without giving it any priority, charges the estate with that and all 
 his other debts. Robinson v. Lowater, 17 Beav. 601 ; 5 De G. Macn. & G. 277 ; see 
 this ease stated more fully in note to preceding page. 
 
 As to the liability of purchasers from executors of personalty, see ante, 166, note ; 
 and 11 Jur. pt. ii, 110, 124. 
 
518 OF TRUSTEES FOR THE PAYMENT OF 
 
 purpose of raising the funds requisite for paying the debts, they are 
 usually authorized to sell either by public auction or private contract. 
 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 dis- 
 position by private contract will be equally proper.(s) 1 The decisions 
 already alluded to, which establish the validity of a mortgage in lieu of 
 an absolute sale, are impliedly authorities 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 suffered 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 in the schedule," and he 
 afterwards contracted fres h debts ; the lands were held to be liable only 
 to the debts mentioned in the will.(c) 
 
 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 Limita- 
 tions from running against such debts as are not barred by effluxion of 
 time at the death of the testator. (d) 2 It appears to have been once con- 
 
 (z) Vide post [Powers of Sale], 480. (a) Wilkins v. Pry, 1 Mer. 244, 268. 
 
 (6) Brudenell v. Boughton, 2 Atk. 274 ; Sheddon v. Goodrich, 8 Ves. 481 ; Bridgman 
 v. Dove, 2 Atk. 201. (c) Loddington v. Kime, 3 Lev. 433. 
 
 (d) Ante, PI. I, of this Section [341] ; Fergus v. Gore, 1 Sch. & Lef. 107; Har- 
 greaves v. Mitchell, 6 Mad. 326 ; Hughes v. Wynne, T. & R. 307 ; Crallan v. Oughton, 
 3 Beav. 1. [But see Story Eq. (j 154, note.] 
 
 1 See post, 480, and notes. 
 
 2 With regard to personal estate, the statutes of various of the States have 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. 
 And see Agnew v. Fetterman, 4 Barr, 56 ; Man v. Warner, 4 Whart. 455 ; Carrington v. 
 Manning, 13 Alab. 611 ; Hall v. Bumstead, 20 Pickering, 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 text is not regarded with favor. Ibid. ; Smith v. Porter, 1 Binn. 209 j Hines v. 
 Spruill, 2 Dev. & Batt. Eq. 93. But the general principle was recognized in Lewis v. 
 Bacon, 3 Henn. & M. 89 ; Man v. Warner, 4 Wharton, 477 ; Agnew v. Fetterman, 4 
 Barr, 56 ; Roosevelt v. Mark, 6 John. C. R. 266 ; Rogers v. Rogers, 3 Wend. 503. A 
 devise in trust for the payment of debts will prevent the lien of a judgment from ex- 
 piring by lapse of time. Baldy v. Brady, 15 Penn. St. R. Ill ; Alexander v. M'Murry, 
 8 Watts, 504. 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 
 
DEBTS UNDER A WILL. 519 
 
 sidered that a debt which had been actually hatred by the statute, would 
 be revived by a general devise or charge for payment of debts. (e) But 
 this *doctrine has been long since exploded; and it is now r*o£i7-i 
 settled that such a trust will only have the limited operation 
 already stated. (/)' It has been seen, that a trust by will for the pay- 
 ment of debts out of personal estate, has no legal operation. Such a 
 trust, therefore, cannot prevent the operation of the statute on any 
 debt.(^) _ 
 
 If an infant borrow money, and apply it in the purchase of necessa- 
 ries, 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 recog- 
 nized 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 incum- 
 brance on the devised or descended estate is not the testator's debt in 
 the contemplation of law, unless it has been expressly and personally 
 adopted by him ; and therefore it will not come within the operation of 
 
 (e) Anon. 1 Salk. 154; Andrews v. Brown, Prec. Ch. 385; Gofton v. Mill, 2 Vern. 
 141 ; Vaughan v. Guy, Mose. 245. 
 
 (/) Burke v. Jones, 2 V. & B. 275 ; Piggott v. Jefferson, 12 Sim. 26 [ante, p. 341]. 
 
 (g) Jones v. Scott-, 4 CI. & Fin. 398 ; Preake v. Cranefeldt, 3 M. & Cr. 499 ; Evans v. 
 Tweedie, 1 Beav. 55 [ante, p. 344, note, and see note below.] 
 
 (h) Marlow v. Pitfield, 1 P. Wms. 559. 
 
 must be a clear express trust for the payment of the debts, in such case : Agnew v. 
 Petterman, 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, it was held that no trust was created which took debts out of the statute. 
 Agnew v. Fetterman. 
 
 1 Pratt v. Northam, 5 Mass. 113 ; Agnew v. Petterman, 4 Barr, 56 ; Roosevelt v. 
 Mark, 6 John. C. R. 266 ; Walker v. Campbell, 1 Hawks, 304 ; Smith v. Porter, 1 Binn. 
 209; Carrington v. Manning, 13 Alab. 611 ; Murray v. Mechanics' Bank, 4 Edw. Ch. 
 567 ; Rogers v. Rogers, 3 Wend. 503 ; Spencer v. Spencer, 4 Maryl. Ch. 465 ; but see 
 Lewis v. Bacon, 3 Henn. & M. 89. But it has been held to be different where the 
 debt is due by the trustee, he being the only person who could put in the plea of the 
 statute : Spencer v. Spencer, ut supra. 
 
 In a recent case in England, a father died indebted to various persons, and his son, 
 who was not in any way responsible for these debts, after promising frequently to pay 
 them, out of respect for his father's memory, made his will, in which he said, " I hereby 
 charge all my just debts, and also all the debts of my late father, which shall remain 
 unpaid at the time of my death," upon all his real estate. At the son's death, all the 
 father's debts were barred by the statute. It was held, that all the father's debts which 
 had not been barred by the statute at his death, were duly charged on the son's estate. 
 O'Conner v. Haslam, 5 House Lds. Cases, 170. 
 
 In the case of a devise for the payment of debts, the trustee may, by his acknow- 
 ledgment, extend the period of limitation of a debt : Lord St. John v. Boughton, 9 Sim. 
 219; Toft v. Stephenson, 21 L. J. Ch. 129 ; and this applies as well to a substituted 
 trustee, as to those named in the will. Toft v. Stephenson, ut supra. 
 
520 OF TRUSTEES FOR THE PAYMENT OF 
 
 the trust, (i) The same rule also applies to a certain extent, where the 
 testator has purchased an estate, subject to a mortgage or other incum- 
 brance ;(k) unless indeed an express personal contract was entered into 
 by the testator, by which he rendered himself personally liable for the 
 debt.(Z) 1 Again, the trust for payment of debts will extend only to 
 
 (i) Lawson v. Lawson, 3 Bro. P. C. 424 ; Lawson v. Hudson, 1 Bro. C. C. 58 ; Hamil- 
 ton v. Woley, 2 Ves. Jun. 62 ; Earl of Tankerville v. Fawcett, 2 Bro. C. C. 57. [See 
 notes to Ancaster v. Mayer, I Lead. Cas. Bq. 453, and cases cited ; contra in New 
 York, Rev. St. 749. And now in England by the 17 and 18 Vict. c. 115.] 
 
 (k) Woods v. Huntingford, 3 Ves. 128 ; Cornish v. Shaw, 1 Ch. Ca. 271 ; Pockley v. 
 Pockley, 1 Vern. 36 ; Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; [1 Lead. Cas. Eq. 
 455, and American notes; and see Mansell's Est., 1 Pars. Eq. 367.] 
 
 (I) Earl of Oxford v. Eodney, 14 Ves. 417 ; 2 Jarm. Pow. Dev. 675, 6. 
 
 1 The law on this subject appears to be settled in the United States generally, on the 
 same basis as in England. Where the mortgage has been created by the decedent, his 
 personal estate is the primary fund, the real estate being treated as collateral security, 
 and if the debt is made out of the latter, the heir or devisee is entitled to contribution 
 or exoneration. On the other hand, if the mortgage be not a personal debt of the 
 decedent, but he has taken the land by descent or purchase, subject to the charge, his 
 personal estate is not liable ; and even if there have been an express covenant with the 
 mortgagor to pay the debt, this will only make the personal assets an auxiliary fund; 
 though if the contract be with the mortgagee (so as to produce a novation, qu.), it is 
 otherwise. Cumberland v. Codrington, 3 Johns. Ch." 257 ; Keyzey's case, 9 S. & Bawle, 
 73 ; Walker's case, 3 Bawle, 229 ; Garnett v. Macon, 6 Call, 308 ; Stevens v. Gregg, 
 10 Gill & J. 143 ; Hoes v. Van Hoesen, 1 Comst. R. 120 ; Kelsey v. Western, 2 Comst. 
 R. 500 ; Bank U. S. v. Beverly, 1 How. U. S. 134 ; Matter of Hemicup, 3 Paige, 305 ; 
 Stuart v. Carson, 1 Desaus. 500 ; Dunlap v. Dunlap, 4 Id. 305 ; McDowell v. Lawless, 
 6 Monr. 141 ; Mason's Est., 1 Pars. Eq. 129 ; Mansell's Est., Id. 369 ; Mitchell v. 
 Mitchell, 3 Maryl. Ch. 73 ; see note to Duke of Ancaster v. Mayer, 1 Lead. Cas. Eq. 1st 
 Am. Ed. 455 ; Hoff's App., 24 Penn. St. 200. The fact that the decedent had been also 
 entitled to the personal estate of the mortgagor, as where he was both his heir or devisee, 
 and executor or residuary legatee, will not affect the consequence of the mortgage not 
 being his (the decedent's) personal debt, and his heir or devisee cannot claim to have the 
 mortgage discharged out of the personal estate: Scott v. Beecher, 5 Madd. 96; Lord Cla- 
 rendon v. Barham, 1 N. C. C. 688 ; Lord Ilchester v. Lord Carnarvon, 1 Beav. 209 ; Bond 
 v. England, 24 L. J. Ch. 671 ; though the contrary was decided in an early case, Lord 
 Belvedere v. Rochfort, 5 Bro. P. C. 299 ; and the decision in Clarendon v. Barham was 
 reluctantly made. In Bond v. England, ut supra, however, where the mortgagor had died 
 intestate, leaving his father as heir and sole next of kin, and the latter shortly died, also 
 intestate, without taking out administration on his son, so that there was no actual union 
 of the title to the realty to the right to the personalty, and the principal part of the 
 assets consisted in leaseholds, it was held by Vice-Ch. Wood, that the mortgage was to be 
 paid out of the personalty of the son in exoneration of the real estate. Where the dece- 
 dent has conveyed the mortgaged estate in his lifetime, especially if he did so subject 
 to the mortgage, it is to be inferred, in the first instance, that he intended to exonerate 
 his personal estate : Jenkinson v. Harcourt, 23 L. J. Ch. 787 ; 1 Kay, 688 ; Vandeleur v. 
 Vandeleur, 3 CI. & Fin. 82 ; and the same rule has been applied to the case of one 
 who makes a voluntary settlement of real estate with a general power of appointment 
 by deed or will, and in default of appointment in trust for himself for life with remainders, 
 and who exercises that power by the creation of a mortgage ; in which case it was held 
 that the mortgaged real estate was the primary fund, though the mortgagor by his will 
 
DEBTS UNDER A WILL. 521 
 
 such debts as are actually due and payable at the time of the testator's 
 death. For instance, where a testator had convenanted 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 actu- 
 ally come within a general trust for the payment of debts, (m) 
 
 And it &eems, that debts not arising by contract, but by a misfea- 
 sance — as for an escape or breach of trust, 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 in- 
 dicate a contrary intention, (o) 
 
 With regard to the order of payment of debts under a trust created 
 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 equitable 
 assets, 1 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.(jo) On this point, however, a distinction 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 entitled to a preference. (q) But this r^oco-i 
 doctrine has been long since overruled, and it is now clearly 
 settled that there is no difference between the operation of a devise and 
 a charge; and in either case the fund so created will be equitable 
 
 (m) Wathen v. Smith, 4 Mad. 325. {Contra, M'Fait's Appeal, 8 Barr, 290.] 
 (n) Lord Hollis v. Lady Carr, 1 Vera. 431. (o) Harding v. Gray, 1 Dr. & W. 430. 
 (p) Wooleston croft v. Long, 1 Ch. Ca. 32; Haslewood v. Pope, 3 P. Wms. 323. 
 [q) Freemoult v. Dedire, 1 P. Wms. 430 ; see Plunket v. Penson, 2 Atk. 293. 
 
 recited and confirmed the settlement, and charged his residuary personal estate with the 
 payment of his debts. Jenkinson v. Harcourt, ut supra. 
 
 In New York, by statute, the general rule on this subject has been changed, and in 
 all cases the mortgage debt is made to fall primarily on the land: 1 Rev. St. 749; 
 see Rogers v. Rogers, 1 Paige, 188 ; Cogswell v. Cogswell, 2 Edw. Ch. 231 ; though 
 where the real and personal estate are thrown in one fund, and devoted to the same 
 general purposes, the mortgage may be paid out of the personalty, if it be a good in- 
 vestment. Hepburn v. Hepburn, 2 Bradf. Sur. 74. In England, also, by the recent 
 statute of 17 & 18 Vict. c. 115, the heir or devisee can no longer claim the payment of 
 a mortgage out of the personal estate ; the rights of creditors, however, being saved. 
 
 The doctrine above stated is, moreover, confined to mortgages, and charges of that 
 nature, and does not, for instance, apply in favor of the legatee of leasehold property 
 liable for dilapidations during the lifetime of the testator ; the former must discharge 
 those himself, and cannot throw them on the residuary legatee. Hickling v. Boyer, 3 
 Macn. & Gord. 635. 
 
 1 As to the 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 ; Backhouse v. Patton, 5 Peters, 160 ; Speed's Exr. v. Nelson's 
 Exr. 8 B. Monr. 499, and other cases there cited, and Adams Eq. 3d Am. ed. 254, note. 
 
522 OF TRUSTEES FOR THE PAYMENT OF 
 
 assets.(r) It has been already 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 executor, it was 
 considered that the lands so devised then became legal assets in the 
 hands of the executor, and that the debts were therefore to be paid ac- 
 cording to their legal priorities. (t) 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 creditors, in 
 favor of those by simple contract. 1 And if the specialty creditors, avail- 
 ing 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 creditors 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 dis- 
 charge 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, (y) And where the debts 
 are charged generally on the real estate, and a certain 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,(2) whether it was acquired 
 
 (r) Hargrave v. Tindal, 1 Bro. C. C. 136, n. ; Batson v. Lindegreen, 2 Bro. C. C. 94; 
 Bailey v. Ekins, 7 Ves. 322 ; Shepherd v. Lutwidge, 8 Ves. 26 ; Inchiquin v. French, 1 
 Cox, 1 ; Price v. North, 1 Phill. 85. 
 
 (s) Supra, 344, and see Charlton v. "Wright, 12 Sim. 274. 
 
 (t) Walker v. Meager, 2 P. Wms. 550 ; Girling v. Lee, 1 Vern. 63 ; Hawker v. Buck- 
 land, 2 Vern. 106 ; Greaves v. Powell, Id. 248; Clutterback v. Smith, Prec. Ch. 127; 
 Bickham v. Freeman, Id. 136 ; Hixton v. Witham, 1 Ch. Ca. 248. 
 
 (u) Lewin v. Oakley, 2 Atk. 50 ; Silk v. Prime, 1 Bro. C. C. 138, n.; Newton v. 
 Bennet, Id. 134. 
 
 (x) Haslewood v. Pope, 3 P. Wms. 323. [See Chapman v. Esgar, 1 Sm. & Giff. 
 575 ; Cornish v. Wilson, 6 Gill, 303 ; Purdy v. Doyle, 1 Paige, 558 ; Wilder v. Keeler, 
 3 Id. 165.] 
 
 (y) Powis v. Corbet, 3 Atk. 556 ; 3 Ves. 116, n. ; Tweedale v. Coventry, 1 Bro. C. 
 C. 260 ; Donne v. Lewis, 2 Bro. C. C. 257 ; Coxe v. Basset, 3 Ves. 155 ; Colville v. 
 Middleton, 3 Beav. 570 ; Milnes v. Slater, 8 Ves. 295. [Hoover v. Hoover, 5 Penn. 
 St. 351 ; Robards v. Wortham, 2 Dev. Eq. 173 ; Hays v. Jackson, 6 Mass. 149.] 
 
 (z) Davies v. Topp, 2 Bro. C. C. 259, n. ; Wride v. Clark, Id. 261, n. ; Manning v. 
 Spooner, 3 Ves. 117 ; Barnwell v. Cawdor, 3 Mad. 457. [Hoover v. Hoover; Robards 
 v. Wortham, ut supr. ; Brooks v. . Dent, 1 Maryl. Ch. 523 ; Elliott v. Carter, 9 Gratt. 
 549 ; Warley v. Warley, 1 Bail. Eq. 397.] 
 
 1 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. 
 
DEBTS UNDER A WILL. 523 
 
 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 un- 
 diminished to the devisee. Where lands are devised subject to debts, the 
 whole of the devised estates will be liable to contribute equally towards 
 their payment ; and it is immaterial, whether the devise be specific, or 
 contained in a general and residuary clause ; for every devise of land is 
 in its nature specific. (6) 
 
 *A devisee in trust to pay debts, though himself a creditor of r*QKQ"i 
 the testator, cannot give any preference to his own claim, but 
 must come in pari passu with the other creditors. (e) 1 
 
 A trust by will for the payment of debts will not make simple con- 
 tract debts bear interest.(d) 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 direc- 
 tion may be held to apply, it will be held to be confined to them.(^) 
 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 sur- 
 plus 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 pay- 
 ment 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.(«) 
 
 In this respect, however, an important distinction has been established 
 
 (a) Milnes v. Slater, 8 Ves. 295. [Livingston v. Newkirk, 3 Johns. Ch. 312; Comm. 
 v. Shelby, 13 S. & R. 348.] 
 
 (6) Manning v. Spooner, 3 Ves. 117 ; Harmood v. Oglander, 8 Ves. 125 ; Milnes v. 
 Slater, 8 Ves. 303 ; see Spong v. Spong, 1 Y. & J. 300. 
 
 (c) Child v. Stephens, 1 Eq. Ca. Abr. 141 ; S. C. 1 Vern. 102 ; Anon. 2 Ch. Ca. 54. 
 
 (d) Lloyd v. Williams, 2 Atk. 110 ; Barwell v. Parker, 2 Ves. 343 ; Earl of Bath v. 
 Earl of Bradford, Id. 587 ; Shirley v. Earl of Ferrers, 1 Bro. C. C. 41 ; Stewart v. 
 Noble, Vern. & Scriv. 528 ; Tait v. Lord Northwiek, 4 Ves. 816. 
 
 (e) Ante, PI. I, of this, Section ; and see Hamilton v. Houghton, 2 Bligh, 169. 
 (/) Carr v. Burlington, 1 P. Wms. 228. 
 
 (g) Tait v. Lord Northwiek, 4 Ves. 816; and see Hamilton v. Houghton, 2 Bligh, 
 187. 
 
 (h) Culpepper v. Aston, 3 Ch. Ca. 115 ; Maugham v. Mason, 1 V. & B. 410 ; King 
 v. Denison, Id. 272 ; Halliday v. Hudson, 3 Ves. 210. [Ante, p. 119.] 
 
 (i) Culpepper v. Aston, 2 Ch. Ca. 115 ; Maugham v. Mason, 1 V. & B. 410. 
 
 1 See ante, note 1 to page 343. But in Hosack v. Eogers, 6 Paige, 415, it was held 
 that where a trustee for payment of debts was also executor, he was entitled, before the 
 Revised Statutes, to retain for his own debt ; and so in Hall v. 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. See Dring v. Greetham, 23 L. J. Ch. 156, however, as to proceeds of real 
 estate sold under 3 & 4 William 4, c. 104. 
 
524 OF TRUSTEES FOE THE PAYMENT OF LEGACIES. 
 
 between a devise in trust to pay debts, and a devise charged with debts. 
 In the former ease the devise is for a particular purpose, and nothing 
 more, and as we have seen, a resulting trust arises 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. (k) This subject, however, has been already fully discussed in a 
 previous part of this treatise. (J) 
 
 III. — OF TRUSTEES 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.(l) 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 suf- 
 r*3fi01 fi c i en t *to charge the real estate with debts, will also be adequate 
 to charge it with legacies. The 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 defi- 
 cient.^) So, in Kightley v. Kightley,(o) Lord Alvanley, M. R., con- 
 sidered that legacies were not ' charged on the real estate by a will, in 
 which the testator commenced by directing all his legal debts, legacies, 
 and funeral expenses to be fully paid ; and after giving several legacies 
 concluded 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(p) stated, that he 
 still adhered to the opinion expressed in Kightley v. Kightley, notwith- 
 standing the doubt as to its correctness, which had been thrown out by 
 
 (k) King v. Denuison, 1 V. & B. 272. (Z) Ante, p. 118, et seq. 
 
 (m) 2 P. Wins. 187. (n) See 2 P. Wms. 190. (o) 2 Ves. Jan. 328. 
 
 (p) Kneeling v. Brown, 5" Ves. 362. [Lupton v. Lupton, 2 Johns. Ch. 625.] 
 
 (1) It is to be observed, that the payment of legacies out of personal estate is a duty 
 cast by the law upon the executor, as we have already seen to be the case with regard 
 to debts. Therefore a trust for the payment 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, p. 344. 
 
OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 525 
 
 Lord Rosslyn in the case of Williams v. Chitty.(g') 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) However, the soundness of this distinc- 
 tion was expressly denied by Lord Rosslyn in the case of Williams v. 
 Chitty ;(s) and in Trot v. Vernon,(tf) and in several other cases,(w) no 
 such distinction was observed. Moreover, the tendency of the observa- 
 tions of Lord Cottenham, C, in the recent case of Mirehouse v. 
 Scaife,(a;) appears to be strongly against its validity. 1 
 
 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, 
 blending 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 previous gifts.(#) 2 
 
 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.(g) And some stress has also been 
 
 (g) 3 Ves. 551. (r) See Kightley v. Kightley, 2 Ves. Jun. 331. 
 
 (.?) 3 Ves. 551. (<) Prec. Ch. 430 ; S. C. 1 Vera. 708. 
 
 (u) Tompkins v. Tompkins, Prec. Ch. 39V ; Elliot v. Hancock, 2 Vera. 143 ; Lypet 
 v. Carter, 1 Ves. 499 ; Ellison v. Airey, 2 Ves. 568. 
 
 (a;) 2 M. & Cr. 708. [See Paterson v. Scott, 1 De G. Mac. & G. 531.] 
 
 (y) Awbrey v. Middleton, 2 Eq. C. Abr. 479 ; Hassel v. Hassel, 2 Dick. 526 ; 
 Brudenell v. Boughton, 2 Atk. 268; Bench v. Biles, 4 Mad. 187; Cole v. Turner, 4 
 Russ. 376 ; Mirehouse v. Scaife, 2 M. & Cr. 695, 707, 8 ; see Edgell v. Haywood, 3 Atk. 
 358 ; Kidney v. Coussmaker, 1 Ves. Jun. 436. 
 
 (z) Trott v. Vernon, 1 Vera. 708 ; Hassel v. Hassel, 2 Dick. 526. 
 
 1 Whether legacies are charged on lands, depends on the intention of the testator, to 
 be gathered from the will. Lupton v. Lupton, 2 J. C. R. 618; Paxson v. Potts, 2 
 Green's Ch. 313 ; Harris v. Ply, 7 Paige, 421 ; Logan v. Deshay, 1 Clarke, 209 ; Gridley 
 v. Andrews, 8 Conn. 1 ; Brandt's Appeal, 8 Watts, 198 ; Montgomery v. M'Elroy, 3 W. 
 & S. 370 ; Wright's Appeal, 12 Penn. St. R. 258 ; Simmons v. Drury, 2 G, & J. 32 ; 
 Stevens v. Gregg, 10 G. & J. 143 ; Hoes v. Van Hoesen, 1 Comst. 122 ; see the notes 
 to Duke of Ancaster v. Mayer, 1 Lead. Cas. Eq. 452 ; Ripple v. Ripple, 1 Rawle, 386. 
 
 2 Nichols v. Postlethwaite, 2 Dall. 131 ; Hassanclever v. Tucker, 2 Binn. 525 ; Wit- 
 man v. Norton, 6 Binn. 395; M'Lanahan v. Wyant, 1 Penn. R. Ill; Adams v. 
 Brackett, 5 Mete. 280 ; Van Winkle v. Van Houten, 2 Green Ch. 172 ; Downman v. 
 Rust, 6 Rand. 587 ; Lewis v. Darling, 16 How. U. S. 10 ; Carter v. Balfour, 19 Alab. 
 815 ; Buckley v. Buckley, 11 Barb. 43 ; McGlaughlin's Ex's v. McGlaughlin's Adm. , 24 
 Penn . St. 22 : but see contra, Lupton v. Lupton, 2 J. C. R. 614; Stevens v. Gregg, 10 
 G. & J. 143 ; Gridley v. Andrews, 8 Conn. 1. In Paxson v. Potts' Admin'rs, 2 Green, 
 Ch. 320, it was said that this rule only applied where there was no previous specific 
 devise of the real estate ; but the opposite was held in Francis v. Clemow, 1 Kay, 435, 
 by V. Ch. Wood, on the authority of Bench v. Biles, 4 Madd. 187, though with some 
 hesitation. 
 
526 OP TRUSTEES FOR THE PAYMENT OP LEGACIES. 
 
 laid upon the fact of the heir-at-law being appointed residuary legatee 
 r*oci-i an d *devisee and executor,(a) and the legacy being a provision 
 for a child of the testator has also been taken into considera- 
 tion.^) 
 
 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,(t2) that practice is now altered.(«) 
 
 Where a testator has charged his real estate generally with legacies, 
 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, (g) 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 ;(Ji) 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 codicil, although, 
 if the charge be well created by the will itself, the gift of the legacies 
 by such a codicil will be supported, (i) 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 included, (k) And if the land form 
 the primary fund for the payment of the legacies, they cannot be 
 altered or revoked, except by a testamentary instrument duly executed 
 
 (a) Awbrey v. Middleton, 2 Bq. Ga. Abr. 497 ; Alcock v. Sparhawk, 2 'VW 228. 
 [See Downman v. Rees, 6 Rand. 587 ; Van Winkle v. Van Houten, 2 Green Ch. 191; 
 but see Paxson v. Potts' Adm. Id. 322.] 
 
 (6) Lypet v. Carter, 1 Ves. 499 ; [See Vau Winkle v. Van Houten, 2 Green Ch. 
 172.] 
 
 (c) Jones v. Selby, Prec. Ch. 288 ; Miles v. Leigli, 1 Atk. 574; see Webb v. Webb, 
 Barn. 86 ; Austen v. Halsey, 6 Ves. 475 ; Minor v. ^cksteed, 3 Bro. C. C. 627 ; Trent 
 v. Trent, 1 Dow. 102; [ante, 360, note 1.] 
 
 (d) Pawlet v. Parry, Prec. Ch. 450, 1 ; Minor v. Wieksteed, 3 Bro. C. C. 627. 
 
 (e) See 1 Rop. Legs. 579, 3d edition. [See, however, Van Winkle v. Van Houten, 
 2 Green Ch. 191.] 
 
 (/) Hide v. Hide, 1 Eq. Cas. Abr. 409 ; Masters v. Masters, 1 P. Wms. 421 ; Harris 
 v. Packer, Ambl. 556 ; Habergham v. Vincent, 4 Bro. C. C. 353 ; S. C. 2 Ves. Jun. 
 204; Swift v. Nash, 2 Keen, 20. 
 
 (g) Brudenell v. Boughton, 2 Atk. 168; Att.-Gen. v. Ward, 3 Ves. 327; but see 
 Mortimer v. West, 2 Sim. 274. 
 
 (h) See Wilkinson v. Adam, 1 V. & B. 446; Hooper v. Goodwin, 13 Ves. 167; 
 Whytall v. Kay, 2 M. & K. 769 ; [ante, 64, and note.] 
 
 (i) Rose v. Uunninghame, 12 Ves. 29 ; Whytall v. Kay, 2 M. & K. 765. 
 
 (7c) Masters v. Masters, 1 P. Wms. 421 ; Bonner v. Bonner, 13 Ves. 379; Hooper v. 
 Goodwin, 18 Ves. 156 ; Strong v. Ingram, 6 Sim. 197 ; Radburn v. Jervis, 3 Beav. 450. 
 
OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 527 
 
 according to the statute ;(l) still less can any new charges be created by 
 any other means.(m) And it was held in a recent case (n) 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 eacb fund would have borne its proportion of the amount, a revoca- 
 tion of the legacy by an unattested codicil, though good as to the pro- 
 portion payable out of the personal estate, was invalid as to so much as 
 was payable out of the produce of the realty. (n) 
 
 Even where the legacies are charged on the land only in aid of the 
 personal estate, it has deen decided, that a subsequent testamentary 
 paper, insufficiently attested, will not operate as an implied revocation 
 of the *charge on the real estate.(o) And it will be immaterial r*qcoi 
 that the paper contains an express clause revoking 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 
 affected 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.it) 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 to have been 
 disregarded by Sir John Leach, V. C, in a modern case.(a;) 
 
 (I) Brudenell v. Boughton, 2 Atk. 272 ; Att.-Gen. v. "Ward, 3 Ves. 331 ; Hooper v. 
 Goodwin, 18 Ves. 167. (m) 1 Bop.Legs.590,3d ed. (n) Stacker v. Harbin, 3 Beav.479. 
 
 (o) Buckeridge v. Ingram, 2 Ves. Jun. 652 ; Hooper v. Goodwin, 18 Ves. 156. 
 
 (p) Sneddon v. Goodrich, 8 Ves. 500 ; Gallini v. Noble, 3 Mer. 691 ; Francis v. 
 Collier, 4 Buss. 331 ; and see Mortimer v. West, 2 Sim. 264, where an express revoca- 
 tion of the legacy was held to be inoperative as to the real estate. 
 
 (g) See Habergham v. Vincent, 2 Ves. Jun. 228, 232 ; Smart v. Prujean, 6 Ves. 560 ; 
 Wilkinson v. Adam, 1 V. & B. 460. 
 
 (r) Booke v. Worrall, 11 Sim. 216 ; see Strong v. Ingram, 6 Sim. 197. [Gallimore 
 v. Gill, 2 Sm. & Giff. 158.] (s) Ante, PI. II, (2) of this Section. 
 
 (t) Parker v. Pearnley, 2 S. & St. 592 ; Warren v. Davies, 2 M. & K. 49. 
 
 (u) Elliot v. Hancock, 2 Vern. 143 ; Alcock v. Sparhawk, 2 Vern. 228. [Cross v. 
 Kennington, 9 Beav. 150. See Downman v. Rust, 6 Rand. 587 ; Van Winkle v. Van 
 Houten, 2 Green Ch. 172 ; but see Paxson v. Potts, Id. 313 ; Nyssen v. Gretton, 2 Y. 
 & C. Ex. 222.] (x) Parker v. Fearnley, 2 S. & St. 592. 
 
528 OF TRUSTEES FOR THE PAYMENT. OP LEGACIES. 
 
 It may be observed, that legacies and annuities given by a will, have 
 been universally treated as on the same footing.^) 
 
 The legal effect of a general charge of legacies on the real estate is 
 merely to create a fund in aid of the personalty :(a) 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 discussed on this 
 subject with regard to the- payment of debts, apply with equal force to 
 legacies, and to them the reader is referred. (a) 1 
 
 However, a general charge of legacies, as such, must be carefully dis- 
 tinguished 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 re- 
 
 (y) Alcock v. Sparhawk, 2 Vern. 228; Buckeridge v. Ingram, 2 Ves. Jun. 351 ; Nan- 
 nock v. Horton, 7 Ves. 391 ; Swift v. Nash, 2 Keen, 20 ; Page v. Adam, 4 Beav. 269 ; 
 Creed v. Creed, 1 Dr. & W. 416, 424. [Paterson v. Scott, 1 De G. Mac. & G. 531 ; 
 Hawley v. James, 5 Paige, 318 ; Trent v. Trent, Gilmer, 174.] 
 
 (z) Amesbury v. Brown, 1 Ves. 482 ; Holford v. Wood, 4 Ves. 76, 89. 
 
 (a) Ante, PI. II, (2) of this Section ; [notes to Ancaster v. Mayer, ut supra.] 
 
 (6) Whaley v. Cox, 2 Eq. Ca. Abr. 549 ; Phipps v. Annesley, 2 Atk. 57 ; Amesbury 
 v. Brown, 1 Ves. 482 ; Wood v. Dudley, 2 Bro. C. C. 316 ; Bead v. Lichfield, 3 Ves.' 
 479 ; Spurway v. Glyn, 9 Ves. 483 ; Noel v. Lord Henley, 7 Price, 241 ; sed vide Hol- 
 ford v. Wood, 4 Ves. 89, and Fowler v. Willoughby, 2 S. & St. 354 ; see Gittins v. 
 Steel, 1 Swanst. 24. [See Hoover v. Hoover, 5 Barr, 351 ; Holliday v. Summerville, 
 3 Penna. R. 533.]* 
 
 1 Hassanclever v. Tucker, 2 Binn.J525; Buckley v. Buckley, 11 Barb. S. C. 43; 
 Leavitt v. Wooster, 14 N. H. 550 ; Hoes v. Van Hoesen, 1 Comst. 122 ; Chase v. Lock- 
 erman, 11 Gill & J. 186 ; Hancock v. Minot, 8 Pick. 29 ; Ruston v. Ruston, 2 Yeates, 
 65; Bank U. S. v. Beverley, 1 How. U. S. 134, 149 ; Fenwick v. Chapman, 9 Peters, 
 466 ; and see ante, 350, 353, notes. Where, however, there is a power of sale given over 
 the real estate, and the proceeds together with the personalty are constituted a joint 
 fund for the payment of legacies, or as it has been said, where the real and personal 
 estate " are thrown into a common mass," and expressly subjected to a joint charge, 
 both contribute ratably according to their value. But it is now held that it must ap- 
 pear that an out and out conversion of the real estate was intended, and that the mere 
 blending of real and personal estate in one disposition, or even a joint devise thereof to 
 trustees, subject to or for the payment of the charge, will not of itself produce the effect 
 of exonerating the personalty pro tanto. See authorities cited, ante, note to p. 354. On 
 the other hand, in the recent case of Lewis v. Darling, 16 How. U. S. 10, it seems to 
 have been considered, that where a legacy is charged by implication on land, by reason 
 of a residuary devise of real and personal estate (see ante, p. 360), the legatee may re- 
 sort to the real estate in the hands of the devisee, though not also executor, in the first 
 instance, and that it is not necessary in a bill for that purpose to allege the exhaustion 
 of the personalty. The authorities cited, however, do not bear out so broad a position, 
 which is inconsistent with the general doctrine, that the personal estate is the primary 
 fund unless clearly exonerated ; and the case was a very special one in its circum- 
 stances. 
 
 As to the abatement of legacies charged on a joint fund by the withdrawal of part 
 thereof, see ante, 354, note. 
 
OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 529 
 
 spect, *debts and legacies are on a very different footing, for, as r*9ft ri 
 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 per- 
 sonal estate, independently of any direction in the will.(c?) 
 
 It occasionally happens, that some legacies are charged on the land 
 to the e'xclusion of the others. Thus in Home v. Medcraft,(e) the 
 testator devised lands subject to debts, and all legacies thereafter men- 
 tioned; and he then proceeded to give several legacies, all of which he 
 directed to be paid by the devisee. He then devised the same lands to 
 another person, subject to all the legacies before mentioned ; and finally 
 disposed of the residue of his 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 subject.(/) It is 
 to be observed, however, that a charge of legacies being certain in its 
 amount, a purchaser from a trustee for their payment prior to the late 
 act 7 & 8 Vict. c. 1Q,{g) would have been bound to see to the due appli- 
 cation of the purchase-money to the purposes of the trust ;(h) unless he 
 were expressly exempted from that liability by the terms of the will.(i) 
 But if the estate were charged generally with debts, 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. (k) 
 
 (c) Ante, PL II, (2) of this Section ; Bickham v. Cruttwell, 3 M. & Cr. 763. 
 
 \d) See Noel v. Lord Henley, 7 Pri. 241 ; 2 Jarm. Pow. Dev. 708. 
 
 (e) Home v. Medcraft, 1 Bro. C. C. 261 ; and see Masters v. Masters, 1 P. Wms. 
 421 ; Strong v. Ingram, 6 Sim. 197 ; Radburn v. Jervis, 3 Beav. 450 ; but see Rooke v. 
 Worrall, 11 Sin*. 216. 
 
 (/) Ante, PL II, (2) of this Section. 
 
 (g) The 10th section of that act, and the extent to which it has altered the law on 
 this subject, has been already stated, ante, PL II, (1) of this Section : and see post, Ch. 
 Ill, of this Division. [This act has been since repealed. See ante.] 
 
 (A) Smith v. Gwyon, 1 Bro. C. C. 186 ; Horn v. Horn, 2 S. & St. 448 ; 2 Sugd. V. & 
 P. 32, 9th ed. ; Johnson v. Kennett, 3 M. & K. 630. [Duffy v. Calvert, 6 Gill. 487.] 
 
 (*) See Binks v. Lord Rokeby, 2 Mad. 239. 
 
 (Jc) Rogers v. Skillicome, Ami. 188; Williamson v. Curtis, 3 Bro. C. C. 96 ; Barker 
 v. Duke of Devonshire, 3 Mer. 310 ; Johnson v. Kennett, 3 M. & K. 630 ; Eland v. 
 Bland, 1 Beav. 235, and 4 M. & Cr. 421. [Andrews v. Sparhawk, 13 Pick. 393 ; 
 Stroughill v. Anatey, 1 De G. Mac. & G. 635.] 
 
 34 
 
530 OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 
 
 And the same rule prevailed where the land was subjected to annuities, 
 after a general charge of debts.(Z)(l) 1 
 
 (Z) Page v. Adam, 4 Beav. 269 ; [see 1 De G. Mac. & G. 635.] 
 
 ( 1 ) But where the nature of the transaction between the trustee for the payment of 
 debts and legacies and the purchaser, afforded in itself sufficient evidence that the pur- 
 chaser 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 legacies. Watkin v. Cheek, 2 S. & 
 St. 199; Johnson v. Eennett, 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. Ill, of this Division. [See Stroug- 
 hill v. Anstey, 1 De G. Mac. & G. 635, upon these cases, and that it is immaterial 
 whether there were debts in fact or not; and Mather v. Norton, 21 Law J. Chanc. 15. 
 See post, 506, and note.] I 
 
 1 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 
 a lien on the land, the purchaser would be held liable. Note to Elliott v. Merryman, 1 
 Lead. Cas. Eq. 75. But on a devise charged with a specific sum, the purchaser un- 
 doubtedly takes subject to the legacy: Bugbee v. Sargent, 23 Maine, 269; Kemp v. 
 McPherson, 7 H. & J. 320 ; Leavitt v. Wooster, 14 N. H. 550 ; Long v. Long, 1 Watts, 
 267 ; Mohler's Appeal, 8 Barr, 28 ; see Swasey 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 trus- 
 tees, as for the purpose of applying the income for the benefit of legatees, or the like, 
 the purchaser is plainly not liable ; for otherwise, he would be compelled to guarantee 
 the trustees' solvency. Hauser v. Shore, 5 Ired. Eq. 357. In Stroughill v. Anstey, 1 
 De G. Mac. & G. 635, it was said by the Chancellor, that the rule that a purchaser was 
 not liable to see to the application of the purchase-money where 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 pur- 
 chaser or mortgagee from seeing to the application 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 bona fides of the trustees, where the latter are merely trustees, and not entitled 
 to the estate. See, also, Mather v.. Norton, 21 Law J. Chanc. 15. 
 
 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, "because 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 appli- 
 cation is to be at a distant time, or in the discretion of the trustee. Coonrod v. Coonrod, 
 6 Hamm. 114; Wormley v. Wormley, 8 Wheat. 421. Sims v. Lively, 14 B. Monr. 
 433 ; Steele v. Levisay, 11 Gratt. 454. See upon this subject the articles in 1 1 Jurist, 
 pt, ii, pages 110, 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 administrator 
 under a power in the will, for any purpose, the purchaser may pay the money into the 
 
OF TRUSTEES FOR THE PAYMENT OF LEGACIES. 531 ^ 
 
 As the legatees all take as volunteers by the bounty of the testator, 
 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 equally r*qfi4-i 
 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 re- 
 lieved from the charge. (m) 
 
 Where some legacies are charged on the land, and others are not, the 
 legatees who have the two funds to resort to, will not be suffered to ex- 
 haust 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.(rc) 1 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 interest in land in violation of 
 the Statute of Mortmain. (c)(1) 
 
 (m) Birmingham v. Kirwin, 2 Sch. & Lef. 448. 
 
 (n) Hanby v. Roberts, Ambl. 127; Masters v. Masters, 1 P. Wins. 421; Bligh v. 
 Earl of Darnley, 2 P. Wins. 619 ; Bonner v. Bonner, 13 Ves. 379. 
 
 (0) Mogg v. Hodges, 2 Ves. 52 ; Hobson v. Blackburn, 1 Keen, 273; Williams v. 
 Kershaw, Id. 274, n. ; Philanthropic Society v. Kemp, 4 Beav. 581 [see Wright t. 
 Trustees, &c, 1 Hoffm. Ch. 202]. 
 
 (1) It has been decided, that where a' testator creates a general mixed fund of real 
 
 Orphans' Court, &c, and be thereby discharged from responsibility for its application. 
 (Dunlop, Dig. 520.) See Cadbury v. Duval, 10 Barr, 265. And now, by Act of 1855, 
 " whenever any executor or other trustee having a power to sell real estate, shall have 
 taken, or shall take any payment in money or other thing, on account of a sale made 
 under such a power, and shall die or afterwards be removed from his office or trust, it 
 shall not be lawful for any successor to the power or trust, or other person interested, 
 to require the vendee to repeat such payment, unless he shall have knowingly connived 
 with such executor or trustee, so selling to him, to violate his power or trust." Bright. 
 Supp. 1156. This Act, though somewhat roundabout in its phraseology, was perhaps in- 
 tended to dispense with the necessity of a purchaser's seeing to the application of 
 purchase-money, in any case. 
 
 1 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 in the place of the 
 creditors as against the devisee. Paterson v. Scott, 1 De G. Mac. & G. 531, before 
 Lords Justices of Appeal, overruling Mirehouse v. Scaife, 2 Myl. & Cr. 695 ; see Smith 
 v. Wyckoff, 11 Paige, 49 ; Mollan v. Griffith, 3 Paige, 402 ; Loomis's Appeal, 10 Barr, 
 390 ; Bardwall v. Bardwall, 10 Pick. 19 ; but see Miller v. Harwell, 3 Murph. 194 ; 
 and vide on this subject notes to Aldrich v. Cooper, 2 Lead. Cas. Eq. pt. i, 222, &c, 
 and the cases there cited ; and 14 Jur. pt. ii, 234. In Pennsylvania it is held that specific 
 legacies are entitled to contribution from devisees. Teas' App. 23 Penn. St. 228, over, 
 ruling Hoover v. Hoover, 5 Barr, 351. And the doctrine in England now is, that 
 legatees and devisees, being equally objects of the testator's bounty, are entitled to equal 
 consideration. See Tombs v. Boch, 2 Coll. 494; Fleming v. Buchanan, 3 De G. M. & 
 G. 976. 
 
532 OP TRUSTEES FOR RAISING PORTIONS. 
 
 Where an executor, who is also appointed the trustee for the invest- 
 ment and application of legacies, has set apart and invested the legacies, 
 he will be considered to have divested himself of the character of 
 executor quodd 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.(p) 
 
 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 payment be 
 fixed, then the interest will commence from the expiration of a twelve- 
 month after the testator's death. 1 The interest allowed by the court is 
 usually at the rate of four per cent. It is almost needless to add, how- 
 ever, 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.(g') 
 
 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. 2 
 
 Charges of this description are in their nature real, and although 
 
 (p) Page v. Leapingwell, 18 Vea. 463 ; Ex parte Chadwin, 3 Sw. 380; Byrchall v. 
 Bradford, 6 Mad. 13, 235 ; Philippo v. Munnings, 2 M. & Cr. 309 ; Wilmot v. Jenkins, 
 
 1 Beav. 401 ; Newman v. Williams, 10 Law Journ. N. S., Chanc. 106 ; [ante, 23V.] 
 
 (j) See 2 Bop. Legs. 222, et seq. 3d ed. 
 
 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 exclu- 
 sively 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. [In Robinson v. Geldard, 3 Macn. & Gord. 735, however, it was held that where 
 it is clear that the intention of the testator intended that charity legacies should be 
 paid out of the pure personalty, the assets would be marshalled so as to throw the 
 general legacies on the personalty savoring of realty. The charity legacies were treated 
 as demonstrative. Sturge v. Dimsdale ; and Philanth. Soc. v. Kemp, were commented 
 on and to some extent overruled. See the observations of the Chancellor in this case 
 on the doctrines of marshalling in such cases.] 
 
 1 See as to the United States, 2 Kent Comm. 417, note (a) ; Glen v. Fisher, 6 J. C. 
 E. 33 ; Birdsall v. Hewlett, 1 Paige, 32 ; Trippe v. Frazier, 4 H. & J. 446 ; Hitev.Hite, 
 
 2 Rand. 409 ; and post, p. 376. 
 
 2 See Hawley v. James, 5 Paige, 318 ; Morehouse v. Colvin, 21 Law J. Ohanc. 177; 
 15 Beav. 341, S. C. ; 21 Law J. Chanc. 782 ; De Beil v. Thomson, 3 Beav. 469; 12 
 CI. & F. 45 ; Sugd. Law of Prop. 53 ; Jones v. Maggs, 9 Hare, 605 ; 2 Spence Bq. 
 Jur. 390. ' 
 
OF TRUSTEES FOR RAISING PORTIONS. 533 
 
 there *be a covenant in the settlement on the part of the settlor r*9«c-| 
 to pay the amount, yet that will usually be considered as auxi- 
 liary 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, (s) 
 
 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 por- 
 tions may, and frequently does, happen in the lifetime of the parent. 
 Under those circumstances a doubt has very frequently arisen in prac- 
 tice (where the event is not expressly provided for in declaring 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 effect in possession by the determination 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 be raisable in the parent's life- 
 time ;(*) whilst in others it has been decided, that the children are not 
 entitled until the parent's death.(w) It was said by Lord Talbot, and 
 the words were adopted by Lord Eldon, that "the raising or not raising 
 must depend upon the particular penning of the trust, and the intention 
 of the instrument."^) And the court in construing the instrument will 
 not be eager to lay hold of circumstances, but will hold an equal mmd.(y) 
 Although it was laid down in some earlier cases, that very small grounds 
 would be sufficient to induce the court to decide against the raising of 
 the money before the term vested in possession.(s) 
 
 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 
 
 (r) Lanoy v. Duke of Athol, 2 Atk. 444; Lechmere v. Charlton, 15 Ves. 193. 
 
 (s) Edwards v. Freeman, 2 P. Wins. 437 ; Burgoyne v. Fox, 1 Atk. 576. 
 
 (t) Hillier v. Jones, 1 Bq. Ca. Abr. 337 ; Grerrard v. Gerrard, 2 Vern. 458 ; Staniforth 
 v. Staniforth, Id. 460; Sandys v. Sandys, 1 P. Wms. 707 ; Hall v. Carter, 2 Atk. 354; 
 Hebblethwaite v. Cartwright, Forr. 30 ; Smith v. Evans, Ambl. 533 ; Codrington v. 
 Foley, 6 Ves. 364 ; Smith v. Foley, 3 Y. & C. 142 ; Michell v. Michell, 4 Beav. 549. 
 
 (w) Reresby v. Newland, 2 P. Wms. 94; S. C. 6 Bro. P. C. 75 ; Brome v. Berkely, 
 Id. 484 ; Stanley v. Stanley, 1 Atk. 549 ; Corbet v. Maydwell, 2 Vern. 640 ; sed vide S. 
 C. P. 656 ; Stevens v. Dethick, 3 Atk. 39 ; Conway v. Conway, 3 Bro. C. C. 267 ; sed 
 vide Lord Eldon's observations, 6 Ves. 379 ; Clinton v. Seymour, 4 Ves. 440 ; Wynter 
 v. Bold, 1 S. & St. 507 ; Verney v. Verney, 2 Ed. 25. 
 
 (a;) Hebblethwaite v. Cartwright, Forr. 32 ; Codrington v. Foley, 6 Ves. 379. 
 
 \y) 6 Ves. 380. 
 
 (s) Stanley v. Stanley, 1 Atk. 549 ; Clinton v. Seymour, 4 Ves. 460. 
 
534 OP TRUSTEES FOR RAISING PORTIONS. 
 
 raised by the immediate mortgage or sale of the term, though it be re- 
 versionary.^) 
 
 But it is scarcely necessary to add, that if there be any expressions 
 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 sufficient for this pur- 
 l~*Sfifil P ose *W *And so if the parents have a general power of appoint- 
 ing the portions amongst the children 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 intention, 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 instru- 
 ment itself, and any extraneous evidence is inadmissible.(cZ) 
 
 To prevent any question on this point, a direction is now usually in- 
 serted, 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 payable : as, for 
 instance, where the trust of portions is for younger children 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 representatives 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 portion, and that the period of payment only was post- 
 poned ; and the personal representatives of the child will therefore be 
 entitled when the time for raising the money has arrived.^) 1 
 
 (a) Codrington v. Foley, 6 Ves. 380. (6) Butler v. Duncornb, 1 P. Wins. 448. 
 
 (c) Wynter v. Bold, 1 S. & St. 507 ; but see Gough v. Andrews, 1 Coll. 69, where the 
 existence of such a power in the parents was held by V. C. K. Bruce not to have the 
 effect stated in the text. 
 
 (d) Corbet v. Maydwell, 2 Vern. 641. (e) See Hall v. Carter, 2 Atk. 356. 
 (/) Howgrave v. Cartier, 3 V. & B. 86 ; Whatford v. Moore, 2 M. & Cr. 291 ; Clayton 
 
 v. Earl of Glengall, 1 Dr. & W. 1, 15. [See Swallow v. Binns, 19 Jur. 483 ; 1 Kay & 
 J. 417.] 
 
 (g) Emperor v. Rolfe, 1 Ves. 208 ; Woodcock v. Duke of Dorset, 3 Bro. C. C. 569 ; 
 Hope v. Lord Clifden, 6 Ves. 499 ; Powis v. Burdett, 9 Ves. 428 ; King v. Hake, 9 Ves. 
 
 1 In Swallow v. Binns, 19 Jurist, 483, 1 Kay & Johns. 417, it was held that this rule 
 of construction was applicable to a voluntary settlement ; and that the consideration of 
 natural love and affection extended to grandchildren provided for by the settlement, in 
 relation to whom the settlor placed himself in loco parentis. 
 
I 
 
 OF TRUSTEES FOR RAISING PORTIONS. 535 
 
 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 ex- 
 pressed 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 
 that the *sum should be raised only by the gradual perception r*9«7-| 
 of the annual income, and a sale will be directed.(A) And the 
 same doctrine will prevail, where the trust is, to raise the portions " as 
 soon as conveniently may be," or, " as soon as possible."(?) Indeed, in 
 several cases, a trust, to raise a gross sum by "rents and profits," with- 
 out 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) 1 
 
 438; Howgrave v. Carrier, 3 V. & B. 79; S. C. Coop. 66; Fry v. Lord Shelbourne, 3 
 Sim. 243; Combe v. Combe, 2 Atk. 185 ; Clayton v. Earl of Glengall, 1 Dr. & W. 15. 
 [See Evans v. Scott, 11 Jur. 292 ; 1 CI. & P. (N.S.) 57 ; Jones v. Jones, 13 Sim. 568 ; 
 Henderson v. Kennicott, 12 Jur. 848; Swallow v. Binns, 19 Jurist, 483 ; 1 Kay& 
 J. 417.] 
 
 (h) Hotchkin v. Humfrey, 2 Mad. 65 ; Fitzgerald v. Field, 1 Russ. 430 ; Whatford v. 
 Moore, 7 Sim. 574 ; S. C. 3 M. & Cr. 274. 
 
 (t) Backhouse v. Middleton, 1 Ch. Ca. 175 ; Meynel v. Massey, 2 Vern. 1 ; Sheldon 
 v. Dormer, Id. 310 ; Ashton v. , 10 Mod. 401. 
 
 (k) Sheldon v. Dormer, 2 Vern. 310 ; Backhouse v. Middleton, 1 Ch. Ca. 175 ; 
 Okeden v. Okeden, 1 Atk. 551 ; see Allan v. Backhouse, 2 V. & B. 65, 75. 
 
 (1) Trafford v. Ashton, 1 P. Wms. 416 ; Ashton v. , 10 Mod. 401. 
 
 (to) Anon. 1 Vern. 104; Warburton v. Warburton, 2 Vern. 420; Green v. Belcher, 
 1 Atk. 505 ; Hall v. Carter, 2 Atk. 358 ; Baines v. Dixon, 1 Ves. 42 ; Lord Shrewsbury 
 v. Shrewsbury, 1 Ves. Jun. 234. [See Schermerhorne v. Schermerhorne, 6 J. C. R. 70 ; 
 Story's Eq. g 1063, &c. Ante, p. 342, n. (c)] 
 
 (n) See Ivy v. Gilbert, 2 P. Wms. 19 ; Evelyn v. Evelyn, Id. 669; Mills v. Banks, 3 
 P. Wms. 7, 8. (o) Anon. 1 Vern. 104; and see Garmstone v. Gaunt, 9 Jurist, 78. 
 
 (p) Rivers v. Derby, 2 Vern. 72 ; Ivy v. Gilbert, 2 P. Wms. 13 ; Prec. Ch. 583 ; 
 
 1 Where a testator directs the rents and profits of an estate to be applied for a limited 
 
536 OF TRUSTEES FOR RAISINS PORTIONS. 
 
 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 satisfac- 
 tion of the portions ;{q) and it is immaterial that an alternative is given 
 them to raise the amount by the rents or profits, or by sale or mort- 
 gage.^) 
 
 If the term limited for securing the portions be insufficient for raising 
 them by ordinary means, recourse may be had to the timber, which may 
 be sold, or to mines, which may be worked for that purpose.(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.(f) 
 But it is otherwise where several distinct sums are directed to be raised 
 and paid to the children at particular 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, (u) 
 
 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 ex- 
 
 T* ! ?681 P ress 'y *said respecting interest,(:r) and the interest allowed by 
 
 the court is usually four per cent.(y) If there be an intention 
 
 expressed or implied in the instrument to give interest or any payment 
 
 Evelyn v. Evelyn, 2 P. Wms. 669 ; Mills v. Bants, 3 P. Wins. 1 ; Okeden v. Okeden, 1 
 Atk. 550 ; see Shaftesbury v. Duke of Marlborough, 2 M. & K. 121. 
 
 (?) Okeden v. Okeden, 1 Atk. 552. 
 
 (r) Warter v. Hutchinson, 1 S. & St. 276 ; see Hall v. Carter, 2 Atk. 358. 
 
 (*) Offley v. Offley, Prec. Ch. 27. (if) Gillbrand v. Goold, 5 Sim. 149. 
 
 (u) Dickenson v. Dickenson, 3 Bro. 0. C. 19. 
 
 (x) Beal v. Beal, Prec. Ch. 405 ; Roseberry v. Taylor, 6 Bro. P. C. 43 ; Bagenal v. 
 Bagenal, Id. 81 ; Boycot v. Cotton, 1 Atk. 552; Earl of Pomfret v. Lord Windsor, 2 
 Ves. 472 ; Hall v. Carter, 2 Atk. 358 ; Leech v. Leech, 2 Dr. & W. 568, overruling 
 Hays v. Bayley, 3 Sugd. V. & P. 10th edition. 
 
 (y) Gullam v. Holland, 2 Atk. 343 ; Lord Trimlestown v. Colt, 1 Ves. 277. 
 
 - — — . - 
 
 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 v. 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 por- 
 tion, the court might direct the portion to be raised out of the rents and profits on hand ; 
 and if they had been distributed, the distributees to refund. 
 
OF INVESTMENT BY TRUSTEES. 537 
 
 in lieu of interest from a particular period, that direction will of course 
 be followed in place of the general rule.(z) 
 
 A trust for raising portions for children is expressly exempted from 
 the operation of the Thellusson Act (39 & 40 Geo. Ill, c. 98), -by which 
 the period for accumulation of the income of property is restrained 
 within certain limits. 1 
 
 The expenses of raising portions must, as a general rule, be borne by 
 the trust' estate, and not by the portions themselves, (a) Although this 
 rule will be subject to any direction to the contrary by the creator of 
 the trusts. 
 
 V. — OF INVESTMENT BY TRUSTEES. 2 
 
 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 
 
 (z) Boycot v. Cotton, 1 Atk. 553 ; Mitchell v. Bower, 3 Ves. 286 ; Clayton v. Earl of 
 Glengall, 1 Dr. & W. 1. 
 
 (a) Michell v. Michell, 4 Beav. 549. 
 
 1 As to what are portions within this Act, see Jones v. Maggs, 9 Hare, 605 ; Morgan 
 v. Morgan, 20 Law J. Ch. 109; Halford v. Stains, 16 Sim. 488; 13 Jur. 73; Beech v. Lord 
 St. Vincent, 14 Jur. 731 ; 19 L. J. Ch. 131 ; Evana v. Hellier, 5 CI. & P. 114, and par- 
 ticularly Lord Barrington v. Liddell, 2 De G. Macn. & G. 480, 17 Jurist, 241 ; and 
 Burt v. Sturt, 17 Jur. 729 ; Edwards v. Tuck, 17 Jur. 921, 3 De G. Macn. & G. 40, 
 where the authorities are fully discussed. The 9th section of the Act of April 18th, 
 1853, of Pennsylvania (P. L. 507), copied from the Thellusson Act, omits the proviso 
 with regard to portions ; so with the Revised Statutes of New York, Part II, Tit. 2, 
 Chap. I, Art. I, § 37. 
 
 2 In many of the United States there are statutes which authorize the investment, 
 by fiduciaries, in particular Btocks, 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 spe- 
 cified, he may present a petition to the Orphans' 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 liability. It is provided, however, 
 that the court shall not make any order contrary to the direction of the will 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, Phila- 
 delphia 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., tit. Testamentary 
 Trustees, ch. Ill, J 11, 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, 
 
538 OP INVESTMENT BT TRUSTEES. 
 
 his own security. Any direction in the trust instrument as to the par- 
 ticular mode and nature of the investment, must be carried 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, 
 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 pro- 
 perly executed by lending the trust-money on mortgage of freehold 
 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 ac- 
 commodate a trader with a loan upon his bond.(tZ) However, where 
 there is a discretionary power for executors 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 different as 
 against creditors.(f) 1 
 
 (o) Stickney v. Sewell, 1 M. & Cr. 15 ; and see Wyatt v. Sharratt, 3 Beav. 498. [See 
 Jones v. Lewis, 13 Jur. 877.] 
 
 (c) Stickney v. Sewell, 1 M. & Cr. 8 ; see Wyatt v. Sharratt, 3 Beav. 498. [See 
 Phillipson v. Gatty, 1 Hare, 516 ; but see Jones v. Lewis, ut supra.] 
 
 (d) Langston v. Olivant, Coop. 33. (e) Forbes v. Boss, 2 Cox, 116. 
 (/) Doyle v. Blake, 2 Sob. & Lef. 239, 40. s 
 
 Bev. 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 Bev. Code Va. 552, 624; Bev. Code New 
 Jersey, 209, &e. ; Bev. St. Missouri, 551 ; Rev. St. Michigan, 301. 
 
 In New York, it was said in Ackerman v. Emott, 4 Barb. S. C. 626, that by analogy 
 to the English rule, trustees would be authorized to invest in real securities,- in the 
 public stocks of the United States, or of the State of New York, or in the N. Y. Life 
 Insurance and Trust Company. It seems that in Maryland, however, there is no favored 
 stock. Murray v. Feinour, 2 Maryl. Ch. 419; Evans v. Iglehart, 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 untenable. In fact, there are no public secu- 
 rities in this country which would answer the requisitions of an English Court of 
 Equity." 
 
 1 See Ackerman v. Emott, 4 Barb. S. C. 626 ; Murray v. Feinour, 2 Maryl. Ch. 419. 
 The general rule is 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 con- 
 vert by purchasing land with the trust-moneys ; the cestui que trusts having in such 
 
OF INVESTMENT BY TRUSTEES. 539 
 
 Where the trust is in the alternative to invest in land or any other 
 
 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 ; Royer's 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, 
 productive in proportion to its cost.' 7 In Phillipson v. Gatty, 7 Hare, 516, on the usual 
 trust for government or real securities, it was held that a mortgage on town houseB, 
 whose value depended on their situation, and was affected by covenants with neighbor- 
 ing houses, which mortgage was nearly to the value, was a breach of trust. The gene- 
 ral rule appears to be, indeed, that trustees will not be justified in lending more than 
 two-thirds of its worth on freehold property of a fixed and permanent value, nor more 
 than one-half upon property of a fluctuating character. Stretton v. Ashmall, 24 L. J. 
 Ch. 277 ; 3 Drew. 9 ; Parrar v. Barraclough, 2 Sm. & Giff. 231. But in Jones v. Lewis, 
 13 Jur. 877 ; 3 De Gex k 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 
 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, &c. Under a power in a settlement to 
 trustees to invest on real securities, in Ireland, it was held in a recent case by the Mas- 
 ter of the Rolls, that the trustees were authorized in lending money upon leaseholds for 
 lives, with a covenant for perpetual renewal, 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. Annesley, 
 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. 
 And in Drosier v. Brereton, 15 Beav. 221, it was held that such a mortgage on house 
 property, much out of repair, was undoubtedly a breach of trust. But it is not a breach 
 of trust to invest on a mortgage without a power of sale. Farrar v. Barraclough, 2 
 Sm. & Giff. 231. That the security is greater than is necessary, is not, however, ob- 
 jectionable, 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 annuity re- 
 quires. Barnett v. Sheffield, 1 De G. Mac. & G. 371. In Mant v. Leith, 16 Jur. 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 payment could not be enforced 
 for eight years." The Master of the Rolls remarked, " It is not sufficient for a trustee 
 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 Robinson v. Robinson, 11 Beav. 371; 12 Jur. 
 969 ; but in the case on appeal, where the decision of the Master of the Rolls was re- 
 versed, 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 executors would have been authorized to have invested in them in the first 
 
540 OP INVESTMENT BY TRUSTEES. 
 
 P^of.q-1 *security, the investment in land will be taken as the one pri- 
 marily contemplated by the settlor ; unless the nature of the 
 trusts forbids the adoption of that construction. (g) 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 investment which its 
 own rules do not authorize. (A) And a trust to invest at the trustee's 
 
 (g) Earlom v. Saunders, Ambl. 340 ; Cowley v. Hartsonge, 1 Dow. 361 ; Cookson t. 
 Reay, 5 Beav. 22 ; see Hereford v. Ravenhill, 5 Beav. 51. 
 
 (h) Booth v. Booth, 1 Beav. 125 ; see Trafford v. Boehm, 3 Atk. 440 ; Ryder v. 
 Bickerton, 3 Sw. 80, u. ; Wilkes v. Steward, Coop. 6 ; De Manneville v. Crompton, 1 
 V. & B. 359. 
 
 instance ; and a reference was directed to determine whether it would not be expedient 
 to have them sold. Robinson v. Robinson, 21 L. J. Ch. 111. And in Raby v. Rede- 
 halgh, 24 L. J. Ch. 528 ; 19 Jur. 473, indeed, it appears to have been doubted whether 
 trustees, without special authority, could invest on real security at all ; but see Stretton 
 v. Ashmall, 24 L. J. Ch. 277 ; 3 Drewr. 9 ; Farrar v. Barraclough, 2 Sm. & Giff. 231. 
 The rule, of course, is a very different one in the United States, where real securities 
 are generally favored by the courts. In Barry v. Marriott, 12 Jur. 1043; 2 De G. & 
 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 
 executors 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. Subsequently, how- 
 ever, in Worrell's App., 9 Barr, 508, an investment in the stock of the Schuylkill Navi- 
 gation Company, which was not preferred, was held a breach of trust, though the com- 
 pany 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, Twad- 
 dell's case was thought to have gone to the limits of the doctrine ; and the practice of 
 investing in navigation and 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 Peun. 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 re- 
 deemable 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. v. Clay, 2 B. Monr. 386. Prom 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. Burrill v. Sheil, 2 Barb. S. C. 457. 
 
 A direction to invest in " bank stocks, or freehold lands or lots," will not authorize 
 investment in the United States loan. Banister v. McKenzie, 6 Munf. 447. 
 
OF INVESTMENT BY TRUSTEES. 541 
 
 " discretion," will not authorize a loan of trust-money on personal secu- 
 rity.^') 
 
 A power to invest on personal, or any other unusual security, will be 
 construed strictly, and the trustee will not be justified in exceeding the 
 terms of the authority. Thus, where the trustees of a settlement were 
 empowered to lend 3000Z. on personal security, and they lent 5000?., 
 being nearly the whole of the fund, they were held liable for a breach of 
 trust, as having exceeded their authority, (k) And so a power in a set- 
 tlement to lend trust-money to the husband on the security of his bond, 
 will not authorize a loan to him on his promissory note.(l) In a recent 
 case, a trustee by the terms of the settlement, was " empowered and re- 
 quired" 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 act, and the trustee then refused to lend him the 
 money, though required 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. (mf 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 personal 
 
 (i) Pocock v. Reddington, 5 Ves. 794. [Wormeley v. Wormeley, 1 Brockenb. 339, 
 8 Wheat. 421.] 
 
 (k) Payne v. Collier, 1 Ves. Jun. 170. (I) Greenwood v. Wakeford, 1 Beav. 576. 
 
 (m) Boss v. Godsall, 1 N. C. C. 617. [See Fowler v. Reynal, 13 Jur. 649.] 
 (n) See Burt v. Ingram, Lewin, Trust, 277. 
 
 1 Trustees of a marriage settlement held a bond of the husband for a sum of 
 £2000, which they were, according to the trusts of the settlement, to permit to remain 
 on this security with the written consent o the wife and husband, or else to call it in, 
 and invest on government security with like consent. The trustees, without any written 
 consent, permitted the money to remain on the bond, and the husband became bank- 
 rupt. A composition was made by him of 16*. on the pound, and paid to the other 
 creditors, and the fiat was annulled, the trustees being consenting parties. They did 
 not receive the composition, and the husband became again bankrupt. The trustees 
 after the first bankruptcy obtained the wife's written consent that the money should 
 not be called in. The whole was ultimately lost, although as it was proved the 16«. 
 on the pound might have been recovered. It was held first, that there had been no 
 breach of trust prior to the first bankruptcy ; second, that on that event it became the 
 duty of the trustees to call in the money; third, that the subsequent consent did not 
 protect the trustees ; and fourth, by L. J. Knight Bruce affirming the decision of a 
 Vice-Chancellor, the other Lord Justice doubting, that the trustees were liable for the 
 whole amouvt of the £2000, as it was impossible to say whether if the first bankruptcy 
 had been prosecuted the bankrupt would have obtained his certificate. Wiles v. Gres- 
 ham, 24 L. J. Ch. 264. 
 
 But in general, where trustees are authorized and required, with the approbation of 
 the cestui que trust for life, to invest the trust fund on any particular security, it is im- 
 perative for them so to do on the request of the cestui que trust. Cadogan v. Earl 
 of Essex, 23 L. J. Ch. 487. 
 
542 OF INVESTMENT BY TRUSTEES. 
 
 security, require the observance of any formalities, those formalities 
 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 attes- 
 tation is required to the written consent, that formality cannot be dis- 
 pensed with,( p) and a subsequent consent to the investment will not he 
 sufficient where a, previous consent was made necessary. (q) 
 
 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 executed 
 
 by an investment of that description. («) But if the existing securities 
 
 be unsafe and improper, and an immediate conversion be required, it 
 
 ["*3701 * seems to De tne duty °f tne trustees to make an interim invest- 
 
 ment in the funds, until a proper purchase of freeholds can be 
 
 found, (t) 
 
 Where stock is settled in trust for a husband and wife for life with re- 
 mainder to their children, with power for the trustees " to call in and 
 lay out the money at greater interest, if they could," an investment in 
 the purchase of an annuity for the life of one of the tenants for life is 
 improper.(w) 
 
 A trust to invest on " government securities" has been held not to 
 authorize an investment in Exchequer bills.(xf 
 
 Where trustees are directed by will to invest a sum of money "with 
 all convenient speed" in the purchase of land, it has been held, that 
 twelvemonths 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 securities 
 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 
 
 (o) Cocker v. Quayle, 1 R. & M. 535 ; see Kellaway v. Johnson, 5 Beav. 319. 
 
 (p) Hopkins v. Mial1, 2 E. & M. 86. 
 
 (q) Bateman v. Davis, 3 Mad. 98 ; see Adams v. Broke, 1 N. C. C. 627. 
 
 (r) Westover v. Chapman, 1 Coll. 177. 
 
 (s) Wyatt v. Wallace, 8 Jurist, 117. [1 Cooper, 155 (n.)] 
 
 (t) Sowerby v. Clayton, 8 Jurist, 597; 3 Hare, 430. 
 
 (u) Fitzgeneral v. Pringle, 2 Moll. 534. 
 
 \x) Ex parte Chaplin, 3 Y. & C. 396. [Knott v. Cottee, 16 Jur. 752-1 
 
 (j/) Parry v. Warrington, 6 Mad. 155. 
 
 1 But an investmeut in Navy five per cents, is within such a trust, it seems. Band v. 
 Fardell, 19 Jurist, 1214; 25 L. J. Ch. 21. 
 
OF INVESTMENT BY TRUSTEES. 543 
 
 England. It has been decided that the application to the court for this 
 purpose may be made either in a cause, or by petition without suit in a 
 summary way.(g) 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 advantage 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 conse- 
 quences of which will be visited on the trustees. And if they unneces- 
 sarily retain cash balances in their hands, or otherwise, without sufficient 
 reason, allow any part of the trust funds to remain unproductive, they 
 will be personally answerable to their cestui que trusts for any loss of 
 income or capital that may be traced to that source. 1 
 
 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 have been 
 bought *with the trust fund, at the time when it ought to have r*Q7-n 
 been invested.(c) And the same rule applies to an executor, 
 who by his conduct has become a trustee for the investment of a le- 
 gacy.^) 
 
 * 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 making a pro- 
 per investment, the trustees shall be answerable for the principal 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 
 
 (a) Ex parte French, 7 Sim. 510 ; see Stuart v. Stuart, 3 Beav. 430. [See on this 
 Act, Kirkpatrick's Trust, 15 Jur. 941.] n 
 
 (a) Stuart v. Stuart, 3 Beav. 430. 
 
 (c) Byrchall v. Bradford, 6 Mad. 235, 240 ; and see Pride v. Fooks, 2 Beav. 430 ; 
 Watts v. Girdlestone, 6 Beav. 188 ; Clough v. Bond, 3 M. & Cr. 496. [Phillipson v. 
 Gatty, 7 Hare, 516 ; see Bank of Virginia v. Craig, 6 Leigh, 399 ; Robinson v. Robin- 
 son, 21 Law J. Chanc. 111.] (d) Ibid. 
 
 1 See post, 374, n. 1, where the American cases cited on the question of interest, 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. 
 
544 OF INVESTMENT BY TRUSTEES. 
 
 money only would have been forthcoming to the trust.(e) But in a sub- 
 sequent case where there was a similar trust, Lord Gifford, M. R., after 
 some hesitation held the trustees liable for the amount of stock, which 
 might have been purchased, notwithstanding the alternative discretion 
 given to the trustees. (/) And this last decision was followed by Lord 
 Langdale, M. R., in a very recent case. (^7) So that the distinction taken 
 by Sir J. Leach, in Marsh v. Hunter, must now be considered as over- 
 ruled. (1) 
 
 (e) Marsh v. Hunter, 6 Mad. 295. [Affirmed, Robinson v. Robinson, 21 Law J. Chanc. 
 111.] (/) Hockley v. Bantock, 1 Euss. 141. 
 
 (g) Watts v. Girdlestone, 6 Beav. 188. [These eases, however, are now overruled, 
 21 Law J. Chanc. Ill ; see post.] 
 
 (1) But the doctrine of this case (Marsh v. Hunter) has been revived in England, in 
 a case still more recent than any cited in the text. For, where trustees were directed 
 to invest trust-money in such stocks, funds, or securities, as to them should seem reason- 
 able, 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 therewith. Shepherd v. Mouls, June 7, 1845, Jurist, No. 
 441, p. 506 [4 Hare, 500], before Vice-Chancellor Wigram, whose opinion was deli- 
 vered 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 securi- 
 ties. 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 with the amount of money and interest, or whether the parties interested in 
 the fund have a right to charge them with the amount of stock 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 in- 
 stead of doing so, retain the money in their hands, the cestui que 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 terms of the trust, have a discretion to invest it in various 
 ways, and, instead of doing so, they retain 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 discre- 
 tion 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 pos- 
 sible 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 better 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 th™trustees were bound to invest in the funds, unless a real 
 security had presented itself, than for saying that they were 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 securities. That was the opinion of Sir 
 John Leach, in the case of Marsh v. Hunter, 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 
 
OP INVESTMENT BY TRUSTEES. 545 
 
 *In like manner if the principal be lost by the failure of r*q>ro-| 
 the banker, or other person, in whose hands the trustees have 
 
 •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 prin- 
 ciple can the court charge the trustee with the accidental improvement 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? It is extremely to be regretted, that there 
 should be a difference of opinion in the decisions upon a point like this, 1 and I desired 
 that the case might stand over, in order to see whether I could find a Judge deci- 
 dedly 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 authority now stands 
 thus: — 
 
 " That the trustees are liable at ( Hockley v. Bantock, 1 Buss. 141. 
 the option of the cestui que trust, ( Watts v. Girdlestone, 6 Beav. 188. 
 
 " That thev are not so liable but f Marsh V> Hunter > 6 Madd - 295 - 
 only to pay principal and interest, Shepherd v. Mouls, Jurist, No. 441, p. 506. 
 
 J * } * * ' I [4 Hare, 500.]" 
 
 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 com- 
 plete 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 
 principle, as that trustees having done wrong, either by doing that 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, dealing with it only as they are 
 directed or permitted to deal with it by the instrument of trust ; or, if there be no di- 
 rections contained in such instrument, then according to certain known rules prescribed 
 by the court. It follows as one consequence 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 in- 
 formation to the contrary, is the produce of the fund. It follows, as a second conse- 
 quence of the principle above stated, that whatever trustees have actually made with 
 the trust fund, they 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 own labor in 
 making the trust fund grow beyond the extent to which it was their mere duty to ex- 
 tend it. 
 
 There are cases upon cases which show that the court has not generally entertained 
 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 discre- 
 tion 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 
 
 35 
 
 i 
 
546 OP INVESTMENT BY TRUSTEES. 
 
 unnecessarily allowed it to remain, they will be liable to make good the 
 amount, (h) 
 
 (h) Anon. Lofft. 492 ; Challen v. Shippam, 4 Hare, 555 ; Fletcher v. Walker, 3 Mad. 
 73 ; Massey v. Banner, 4 Mad. 41 9 ; Moyle v. Moyle, 2 R. & M. 701 ; Lowry v. Pulton, 
 9 Sim. 115; Munch v. Cockerell, lb. 339 ; Matthews v. Brise, 6 Beav. 239 ; Macdonnell 
 v. Harding, 7 Sim. 178. [Drever v. Mawdesley, 13 Jur. 331. But see Johnston v. 
 Newton, 17 Jurist, 825.] 
 
 that, judicially, he was at liberty to punish them. The case to which we refer is Pocock 
 v. Reddington, 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 language of his conduct, still in decreeing against him, did not put the decree 
 on any ground of punishing the trustee, but simply treated him as liable to answer 
 for what he might reasonably be supposed to have made ; and if he had made more, for 
 that also.(l) 
 
 The innumerable cases, indeed, upon breaches of trust by executors and trustees, all 
 appear to proceed upon the ground of the trustee's title being purely representative, so 
 -fthat he must, when called upon, produce the fund, with such accretions as it has actu- 
 /jally 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 hint-liable to account as if he had 
 been specifically directed to do that which, in the result, turns out most to the advan- 
 tage 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 
 selection, 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. Bantock ; those being inva- 
 riably 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, 
 / J having improperly employed, but fortunately increased, the fund, shall be caused to 
 U deliver up what the fund has actually 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 totally 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 pro- 
 duce 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 de- 
 
 (1) This case may, perhaps, be referred to, as in some measure supporting Shepherd v. Mouls. The 
 trust for investment was to place the funds out at interest at tlieir (llie trustees') discretion. The Matter of 
 the Kolls 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 investment on real 
 security ; and, if so, the case was of the same class as those we are considering, as the power was, in 
 that view of the case, in effect, to invest in the funds or on real security. 
 
OF INVESTMENT BY TRUSTEES. 547 
 
 And it is no answer to a charge of this description to say, that the 
 fund *ha,s been retained or misapplied by one or more of the co- r*q7q-i 
 trustees, if the others have been cognizant of or in any 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 answerable to r*Q74i 
 the cestui que trusts, if the fund be lost through his neglect of 
 that duty.(Aj) 1 
 
 And in these cases the trustees will in general be decreed to account 
 for the principal, which has been retained unproductive, or lost, with in- 
 terest.^) And interest in these cases is generally given at four per 
 
 (i) Lincoln v. Wright, 4 Beav. 427 ; Meyer v. Montriou, 5 Beav. 146 ; Overton v. 
 Banister, V. C. Wigram [3 Hare, 503] ; Hewett v. Poster, 6 Beav. 259 ; Chambers v. 
 Minehin, 7 Ves. 186 ; Lord Shipbrook v. Lord Hinchinbrook, 11 Ves. 252 ; Brice v. 
 Stokes, Id. 319 ; Walker v. Symonds, 3 Sw. 1 ; Langford v. Gascoigne, Id. 333 ; Under- 
 wood v. Stephens, 1 Mer. 712 ; Booth v. Booth, 1 Beav. 125 ; Williams v. Nixon, 2 
 Beav. 472 ; Broadhurst v. Balguy, 1 N. C. C. 16 ; Ante, Ch. I, Sect. 2 of this Division, 
 page 309, and notes. 
 
 (A) Challen v. Shippam [4 Hare, 555 ; Byrne v. Norcott, 13 Beav. 336.] 
 (I) Fletcher v. Walker, 3 Mad. 73 ; Underwood v. Stevens, 1 Mer. 712 ; Munch v. 
 Cockerell, 9 Sim. 339, 351. 
 
 termine for him what, in the exercise of a discretion unfettered 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 Shepherd v. Mouls bringing back the rule (so far as in the con- 
 flicting 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 principles, and not inconsistent with the reasonable protection of cestuis que 
 trustent."—T. 
 
 [The conflict of authorities on this subject has been recently terminated in England 
 by the case of Robinson v. Robinson, 21 Law J. Chanc. Ill, before the Lords Justices 
 of Appeal, where it was held, overruling S. C. 12 Jur. 969 ; 11 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 trustees 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 principal and interest, and could not claim 
 the amount of the three per cents. ; and see Phillipson v. Gatty, 13 Jur. 318 ; Rees v. 
 Williams, 1 De G. & Sm. 314. However, a writer in the English Jurist (17 Jur. p. ii, 
 199) argues very strenuously against the decision in this case. He insists that the rea- 
 soning 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 responsibility of trustees ; and it is contrary, we submit, also, to the established 
 principles of Equity."] 
 
 1 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, 
 3 Mac. & G. 568 ; see, also, to the same effect, Ghost v. Waller, 9 Beav. 497. 
 
548 OF INVESTMENT BY TRUSTEES. 
 
 cent. ;(m) but if there be also crassa negligentia on the part of the trus- 
 tees, or, they be guilty of an active breach of trust, as by employing the 
 trust-moneys for _tbeir_^3nL.hfinej5t, or by other acts of misfeasance, in- 
 terest at_five per cenlLwillJie chargejl,(w) But mere ordinary negligence 
 ■will not be a sufficient reason for charging a trustee with the interest at 
 five per cent.(o) 1 
 
 (m) Lincoln v. Allen, 4 Bro. P. C. 553; Hicks v. Hicks, 3 Atk. 274; v Perkins v. Bap- 
 ton, 1 Bro. C. C. 375 ; Newton v. Bennett, Id. 359 ; Littletales v. Gascoigne, 3 Bro. C. 
 C 73 ; Franklin v. Firth, Id. 433 ; Younge v. Combe, 4 Ves. 101 ; Longmore v. Broom, 
 7 Ves. 124; Roche v. Hart, 11 Ves. 58 ; Dawson v. Massey, 1 Ball & B. 231 ; Trim- 
 mleston v. Hammil, Id. 385 ; Tebbs v. Carpenter, 1 Mad. 290 ; Mousley v. Carr, 4 Beav. 
 49 ; Hosking v. Nicholls, 1 N. C. C. 478. 
 
 (n) Treves v. Townshend, 1 Bro. C. C. 384 ; Forbes v. Ross, 2 Bro. C. C. 430 ; Piety 
 v. Stace, 4 Ves. 620 ; Pocock v. Reddington, 5 Ves. 794 ; Roche v. Hart, 11 Ves. 60 ; 
 Dornford v. Dornford, 12 Ves. 127 ; Ashburnham v. Thompson, 13 Ves. 402; Bate v. 
 Scales, 12 Ves. 402 ; Crockelt v. Bethune, 1 J. & W. 586 ; Heathcote v. Hulme, Id. 
 122 ; Att.-Gen. v. Solly, 2 Sim. 518 ; Brown v. Sansome, 1 M'Clel. & Y. 427 ; Sutton v. 
 Sharp, 1 Buss. 146 ; Mousley v. Carr, 4 Beav. 49 ; Westover v. Chapman, 1 Coll. 177. 
 
 (o) Roche v. Hart, 11 Ves. 58. 
 
 1 In Robinson v. Robinson, 21 Law J. Chanc. Ill, where this subject was fully dis- 
 cussed, the following propositions were laid down, on a review of the authorities : 
 " 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, 15 Beav. 3S8, 21 Law J. Chanc. 725; Knott v. Cottee, 16 Jur. 752.) 
 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. 
 J Thirdly, where trustees lend or use trust-money on trade, they are chargeable not only 
 I with the money and interest, but with the profits made in the trade, the interest gene- 
 \ rally being at five per cent." (See Williams v. Powell, 16 Jur. 393; Jones v. Foxhall, 
 15 Beav. 388, 21 Law J. Chanc. 725.) This case is understood to have settled the law 
 of the Court of Chancery on the subject, see Knott v. Cottee, 16 Jur. 752. 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 Robinson v. 
 Robinson, but it is to be presumed that the usual rule was not intended to be affected. 
 In Jones v. Foxhall, 21 Law J. Chanc. 725 ; 15 Beav. 388, the Master of the Bolls 
 uses the following language : " Generally, it may be stated, that if an executor has re- 
 tained balances in his hands which he ought to have invested, the court will charge 
 him with simple interest at 4 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, w,ith compound interest." . . . . " The principle upon which executors 
 and trustees', when charged with interest on balances, are made to account with yearly 
 
OF INVESTMENT BY TRUSTEES. 549 
 
 Where a very strong case of corruption or improper conduct is esta- 
 blished against the trustees, and there is an express direction in the 
 
 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 executor with an account in 
 the nature of a penalty for his misconduct, where he has not merely committed a breach 
 of trust, but where he has himself actually endeavored to derive, or has, in fact, derived 
 some pecuniary advantage from the use of the money of which he has thus obtained pos- 
 session. 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 prin- 
 ciple 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, but which he suffered to remain in the 
 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 Wil- 
 liams v. Powell, 16 Jur. 393, 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 lega- 
 cies (the time for distribution having arrived), and dividing the residue among the re- 
 siduary legatees, retains the money in his own hands, he is guilty of a breach of trust, 
 and will be charged five per cent, on the money retained ; and if he pays the money 
 into his banker's, and mixes it with his own money, he will be considered to have had 
 the same benefit in respect of it, 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 jn Knott v. 
 Cottee, 16 Jur. 752, where it did not appear that a trustee, who had made improper in- 
 vestments, had benefited 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 sur- 
 plus income, which the trustee had neglected to do, annual rests were allowed. 
 
 So in Byrne v. Norcott, 13 Beav. 336, it was held, generally, that trustees directed 
 to accumulate, must make good all the loss occasioned by their neglect to accumulate. 
 But in the recent case of Atty.-Gen. v. Alford, 19 Jurist, 361 ; 4 De G. Macn. & Gord.843, 
 a more liberal doctrine than that of the foregoing cases was held by the Lord Chancel- 
 lor. There an executor had retained a trust fund in his hands, and invested in his own 
 name for a number of years, without any notice to the beneficiaries, but, it appeared, 
 without any actual fraud and without making any profit from it, and he was made 
 liable only for the original money, and the dividends on the stock, with four per cent, 
 interest. The Lord Chancellor remarked upon the indefinite character of the rule 
 which the court had recognized in similar cases, observing, that so far as that rule was 
 intended to punish an executor by charging him with more- interest than he had actually 
 received, it would be quite as just to charge him with more principal than he had 
 actually received. And he proceeded to say, " What the court ought to do, I think, is 
 to charge him only with the interest which he has received, or which it is justly entitled 
 to say he ought to have received, or which it is so fairly to be presumed that he did 
 receive, that he is estopped from saying that he did not receive it. I do not think there 
 is any other intelligible ground for charging an executor with more interest than he 
 
550 OF INVESTMENT BY TRUSTEES. 
 
 trust instrument to accumulate the income, the account will be directed 
 to be taken with annual or half-yearly rests, so as to charge them with 
 
 has made, than one of these I have mentioned. Misconduct does not seem to me to 
 warrant the conclusion, that the executor did in fact receive, or is estopped from saying 
 that he did not receive the interest ; or that he is to be charged with anything he did 
 not receive, if it is not misconduct contributing to that particular result." 
 
 It is well settled in the United States, that where an executor, guardian, or other 
 truste e, mingles the trust fund with his own : Mumford v. Murray, 6 J. C. R. 1 ; Beverleys 
 v. Miller, 6 Munford, 99 ; Diffenderffer v. Winder, 3 G. & J. 341 ; Jacot v. Emmett, 
 11 Paige, 142 ; Kellett v. Rathbun, 4 Paige, 102 ; De Peyster v. Clarkson, 2 Wend. 77 ; 
 Garniss v. Gardiner, 1 Edw. Ch. 128 ; Spear v. Tinkham, 2 Barb. Ch. 211 ; Peyton v. 
 Smith, 2 Dev. & Rati. Eq. 325; Jameson v. Shelby, 2 Hump. 198 ; Dyott's Est., 2 W. & S. 
 565 ; Merrick's Est., 2 Ashm. 485 ; In re Thorp, Daveis'Rep. 290 ; Kerr v. Laird, 27Mississ. 
 544 ; or uses it in Ms private business : Ibid. ; Miller v. Beverleys, 4 Henn. & M. 415 ; 
 Manning v. Manning, 1 J. C. R. 527 ; Brown v. Ricketts, 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. R. 620 ; Garniss v. Gardiner, 1 Edw. Ch. 
 128 ; Williamson v. Williamson, 6 Paige, 298 ; Dunscombe v. Dunscombe, 1 J. C. R. 
 508; Chase v. Lockerman, 11 G. & J. 185 ; Armstrong v. Miller, 6 Hammond, 118; 
 Aston's Est., 5 Wh. 228 ; Handly v. Snodgrass, 9 Leigh, 484 ; In re Thorp, Daveis, 
 290; though he is entitled to a reasonable time, at first, to seek investments: Dilliardv. 
 Tomlinson, 1 Munf. 183 ; Minuse v. Cox, 5 J. C. R. 448 ; Carter v. Cutting, 5 Hunf. 
 223 ; Ringgold v. Ringgold, 1 H. & G. 11; (for which purpose six months have been 
 considered proper: Dunscombe v. Dunscombe, 1 J. C. R. 508 ; Ringgold v. Ringgold, 
 1 H. & G. 11 ; Merrick's Est., 2 Ashm. 485; Worrell's App., 23 Penn. St. 44; see 
 Arthur v. Master in Eq., 1 Harp. Eq. 47 ; in 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; and on the other hand, in Barney v. Saunders, 16 How. U. S. 544, 
 three months appears to have been considered sufficient) ; or the trustee invests in un- 
 productive property : Ringgold v. Wilmer, ut supra ; or neglects to settle his account 
 for a long period: Lyles v. Hatton, 6 G. & J. 122 ; Turney v. Williams, 7 Yerg. 172; 
 or to distribute where necessary: Gray v. Thompson, 1 J. C. R. 82 ; Williams v. Powell, 
 
 '16 Jur. 393 ; Griswold v. Chandler, 5 N. H. 497 ; he is liable to interest. In Rapalje 
 v. Norsworthy, 1 . Sandf._ Chj_.3j}9, however, it was held that the trustee is not thus liable, 
 
 ^mkrdy 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. Where the trustee does not show 
 what amount of interest has been actually received, he will be charged with the whole 
 
 [ amount accruing due since a reasonable period after the commencement of the trust. 
 Bentley v. Shreve, 2 Maryl. Ch. 219. 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. Best, 2 McCord's Ch. 317 ; Jordan v. Hunt, 2 Hill's Eq. 
 
 ' 145 ; ^Walker v. Bynum, 4 Desaus. 555 ; Campbell v. Williams, 3 Monr. 122 ; Jones 
 v. WMrd, 10 Yerg. 160 ; Sheppard v. Stark, 3 Munf. 29 ; Burwell v. Anderson, 3 Leigh, 
 
 >W; Garrett v. Carr, Id. 407 ; though see Powell v. Powell, 10 Alab. 900. The proper 
 mode of taking the account was said in Pettus v. Clawson, 4 Rich. Eq. 92, to be to 
 treat funds received during the current year as unproductive till its close, and to regard 
 all expenditures in the course of the year as made before the balance struck, and as 
 bearing interest. 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. Norsworthy, 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 executor's account, or to an assignee's account, the latter is bound to keep the fiwd 
 
OF INVESTMENT BY TRUSTEES. 551 
 
 compound interest,(p) 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, (q) 
 
 {p) Stacpoole v. Stacpoole, 4 Dow. 209. [See the remarks on this case by the M. 
 R. in 16 Jur. 754.] Brown v. Southouse, 3 Bro. 0. C. 107 ; Raphael v. Boehm, 11 Ves. 
 92, 13 Ves. 407, 590 ; Walker v.Woodward, 1 Russ. 107 ; Dornford v. Domford, 12 
 Ves. 127 ; Brown v. Sansome, 1 M'Clel. & Y. 427. 
 
 (<2) Brown v. Sansome, 1 M'Clel. & Y. 427. 
 
 at interest, and is liable therefor. Yundt's Appeal, 13 Penn. St. R. 575 ; Lane's Appeal, 
 24 Penn. St. 487, in which last case two months were allowed to invest. 
 
 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 accumu- 
 late, according to several cases, or dicta, in this country, compound interest may be 
 allowed. Schieffelin v. Stewart, 1 J. C. R. 620 ; Garniss v. Gardiner, 1 Edw. Ch. 128 ; 
 Vanderheyden v. Vanderheyden, 2 Paige, 287 ; Ackerman v. Emott, 4 Barb. S. C. 
 626 ; Utica Ins. Co. v. Lynch, 11 Paige, 520 ; Latimer v. Hanson, 1 Bland, 51 ; Dif- 
 fenderffer v. Winder, 3 G. & J. 341 ; Wright v. Wright, 2 McCord's Ch. 185 ; Bobbins 
 v. Hayward, 1 Pick. 528, note ; Hodge v. Hawkins, 2 Dev. & Batt. 566 ; Swindall v. 
 Swindall, 8 Ired. Eq. 286 ; Greening v. Fox, 12 B. Monr. 190 ; Karr v. Karr, 6 Dana, 
 3, where biennial rests were thought proper ; Clemens v. Caldwell, 7 B. Monr. 171 ; 
 Harland's Accounts, 5 Rawle, 329 ; Lukens's App., 7 W. & S. 48 ; Pall v. Simmons, 6 
 Geo. 272 ; Kenan v. Hall, 8 Geo. 417, where under the circumstances interest was 
 charged annually, and compounded every six years ; See 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 or compound in- 
 terest 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 Barney v. 
 Saunders, 16 How. U. S. 542, the rule on this subject is thus stated by Mr. Justice 
 Grier: "On the subject of compounding interest on trustees, there is, and indeed could 
 not well be, any uniform rule which could justly apply to all cases. When a trust to 
 invest has been grossly and wilfully neglected, where the funds have been used by the 
 trustees in their own business, or profits made of which they give no account, interest 
 is compounded as a punishment, or as a measure of damages for undisclosed profits, 
 and in place of them. For mere neglect to invest simple interest only is given. Six 
 months rests have been made only where the amounts received were large, and such 
 as could be easily and at all time3 invested." In this case yearly rests were allowed, 
 but under the circumstances the account was so taken as to give compound interest in 
 effect on the principal, but only simple interest on the annual balances. In Garrett v. 
 Carr, 1 Rob. Va. 196, it was held, that under the Virginia statute with regard to guar- 
 dians, they were liable to compound interest ; but as to executors, it is different. 
 Burwell v. Anderson, 3 Leigh, 348. InKer's Adm. v. Snead, 11 Bost. L. Rep. 217 (in 
 the Circuit Superior Court of Accomac County, Virginia), this subject was very learn- 
 edly discussed, and the conclusion arrived at is that, except in cases of a provision ibr 
 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. f) 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 vindication 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. 
 
 In Kyle v. Barnett, 17 Alab. 306, a trustee had invested the trust funds in a trading 
 
552 op Investment by trustees. 
 
 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 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) -$" <>> f**^ ->*ax- *^* ^' 
 
 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 trust to 
 have them charged with interest at five per cent., or to take the profits 
 '< actually made, to ascertain which an inquiry will be directed. (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, (t) 
 
 However, trustees will not always be charged with interest on the 
 amount of a trust fund, which has been lost through their neglect of in- 
 vestment. And interest has been refused, where the error has been 
 
 [*375] 
 
 through *ignorance and without any improper motive ;(w) or 
 
 where the amount of the principal sums has been comparatively 
 small ;{x) 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 rea- 
 sonable 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 de- 
 creed to pay interest, although the court decide against his claim, and 
 order the principal into court.(s) But the question of interest will be 
 further considered in a future place, (a) 
 
 It is difficult to lay down any general rule as to the amount of the 
 balances which a trustee cannot allow to remain unproductive without 
 
 (r) Ex parte Hilliard, 1 Ves. Jun. 89 ; Roche v. Hart, 11 Ves. 61; and see this sub- 
 ject further considered, post, p. 518 [Remedies for Breach of Trust]. 
 
 (s) i See_Docker v. Somes, 2 M. & K. 655, where the authorities are collected and ex- 
 amined by_LorarB^ougnammhisjudgment ; Palmer v. Mitchell, 2 M. & K. 672, n. 
 
 (t) HeathcotevTHutoeTl J. & W. 122. 
 
 (u) Bruere v. Pemberton, 12 Ves. 386 ; Massey v. Banner, 4 Mad. 419. , 
 
 (x) Bone v. Cooke, 13 Price, 343 ; S. C. 1 M'Clel. 168. 
 
 (y) Merry v. Ryves, 1 Ed. 1. 
 
 (a) Bruere v. Pemberton, 12 Ves. 386; see Parrott v. Treby, Prec. Ch. 254; Bod- 
 dam v. Ryley, 4 Bro. P. C. 561 ; Hooker v. Goodwin, 1 Swanst. 485. 
 
 (a) See post, p. 522, Div. II, Ch. 1, Sect. 2. 
 
 partnership of which he was a member, the operations of which were based partly on 
 cash and partly on credit. It was held that he was chargeable only with that propor- 
 tion of the -profits, if it could be ascertained, which accrued on the cash investments; 
 that he was chargeable with such profits and the interest thereon from the time when 
 they were received; and after the dissolution of the concern with interest on the capital 
 invested, from the time he received or might with due diligence have received it. 
 
 Where a trustee has employed the funds on usurious loans, he is chargeable with the 
 whole interest received. Barney v. Saunders, 16 How. U. S. 543. 
 
OF INVESTMENT BY TRUSTEES. 553 
 
 incurving the consequences of a breach of trust. Where any payments 
 are to be made, or liabilities to be provided for, the trustees will unques- 
 tionably be justified in retaining a sufficient fund to answer those pur- 
 poses. But otherwise the whole of the ready money ought doubtless to 
 be invested. 1 
 
 In Moyle v. Moyle, the sum of 260Z. 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 be re- 
 tained in any event, the court refused to sanction that proposition, and 
 held the executors responsible for the loss. (b) 
 
 The consequence of a breach of trust do not apply to such tempo- 
 rary deposits of sums in cash, as are necessarily required for the pur- 
 poses of the trust, such as rents and dividends, or other periodical pay- 
 ments, which are made with reasonable prudence and precaution. Thus 
 where money is deposited with a banker in good credit for remittance 
 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, had 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 discretion as to the mode of in- 
 vestment, 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 ac- 
 cording to the trust. For it is not always possible to find a secure in- 
 vestment of that nature.(/) It was said by Lord Cottenham, in a recent 
 
 (o) Moyle v. Moyle, 2 R. & M. T15, Iff. [See 17 Jur. 826.] 
 
 (c) Addams v. Claxton, 6 Ves. 226. 
 
 (d) Knight v. Lord Plymouth, 3 Atk. 480 ; Jones v. Lewis, 2 Ves. 240 ; Eouth v. 
 Howell, 3 Ves. 564; Belchier v. Parsons, Ambl. 219. [See Johnston v. Newton, IT 
 Jur. 826.] 
 
 (e) Freme v. Woods, 1 Taral. 172 ; see Matthews v. Brise, 6 Beav. 239. 
 (/) Wyatt v. Wallis, 8 Jurist, 117 ; [1 Cooper, 154, n.] 
 
 1 In Barney v. Saunders, 16 How. U. S. 544, a trustee was held liable for the loss by 
 failure of his banker, of a balance of trust funds arising from payments on account of 
 capital, left deposited by him for more than three months, that being considered to be 
 a reasonable time for seeking investment ; but not for a balance arising merely from 
 current collections. 
 
 But in Johnston v. Newton, 22 L. J. Ch. 1039, where a will contained no direction 
 for the executors to invest the proceeds of the testator's estate, and those proceeds 
 were left in the hands of the testator's bankers, the executors were held not to be liable 
 for a loss which ensued by a failure of the banker within a twelvemonth after the 
 testator's decease. 
 
554 OP INVESTMENT- BY TRUSTEES. 
 
 case,(<7) that when the loss arises from the dishonesty or failure o^any 
 one, to whom the possession of part of the estate has been intrusted, 
 r*q7«n necessity, which includes the *regular course of business in ad- 
 L J ministering the 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 considered to have 
 treated the whole as his own, and would be held liable for interest ;(h) 
 as well as for any loss of the principal occasioned by the banker's in- 
 solvency.^') 1 
 
 And if the deposit of the trust fund under such circumstances be 
 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 de- 
 posited, when the trustee with proper caution might have rendered it 
 more secure, he will be held responsible for any loss. 8 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 Ex- 
 chequer Bills, which he left for a twelvemonth in the hands of his broker, 
 who made away with a part of them, and became bankrupt ; it was held 
 by Lord Langdale, M. R., 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 Exchequer bills at the time 
 of the broker's bankruptcy, with interest at four per cent.(&) 
 
 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 
 
 {g) Clough v. Bond, 3 M. & Cr. 496. 
 
 (h) Ex parte Hilliard, 1 Ves. Jun. 89 ; Roche v. Hart, 11 Ves. 61. 
 
 (i) Wren v. Kirton, 11 Ves. 377; Massey v. Banner, 4 Mad. 413; Freeman v. 
 Fairlee, 3 Mer. 39 ; 2 Story, Eq. Jur. § 1270 ; Macdoanell v. Harding, 7 Sim. 178 ; 
 Fletcher v. Walker, 3 Mad. 73. 
 
 (k) Matthews v. Brise, 6 Beav. 239. 
 
 1 Stanley's App., 8 Barr, 431 ; Royer's App., 11 Penn. St. R. 36 ; Lukens's App., 7 W". 
 & S. 48 ; Jenkins v. Walter, 8 G. & J. 218. Where trust-moneys are paid into a 
 banker's to the private account of the trustee, the account being a simple account, not 
 distinguished or marked in any way, the debt thus constituted from the bank to him, 
 belongs, so long as it all remains due, specifically to the trust, as between the cestui que 
 trust on the one hand, and the trustee or his personal representatives on the other ; and 
 this is not affected by the fact that the trustee has also deposited his own proper moneys 
 in the account, and also drawn out portions of the moneys deposited by general checks. 
 The method of ascertaining what part of the balance is the trustee's own money is to 
 apply the checks to the earliest items first : that is to say, in diminution of the trust 
 fund^wo tanto, if those items arise from trust-moneys, or of the trustee's own moneys 
 pro tanto, if they arise from them. Pennell v. Deffell, 18 Jur. 273 ; 23 L. J. Ch. 115. 
 
 3 Aston's Est, 5 Wharton, 228 ; Drever v. Mawdesley, 13 Jur. 330. In this last case 
 the trustees were held liable, as regards infant cestui que trusts, even though a receiver 
 had been appointed, in a suit for an account. 
 
OF INVESTMENT BY TRUSTEES. 555 
 
 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 undoubted 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 interest 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 properly invested.(Z) 
 
 Questions of this nature have more usually occurred upon wills ; how- 
 ever, the same equitable principles apply with equal force to trusts 
 created by deed, (m) 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. The court itself invariably 
 directs any *funds under its control to be invested in the three (-#0771 
 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 fluctua- 
 tions of that fund ;( p) but he is liable for the fluctuations of any un- 
 authorized 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 justifiable and proper step,(r) but not as a proper 
 investment, (s) 
 
 In an early case, Lord Harcourt stated his opinion, that if an execu- 
 tor 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 
 
 (I) Challen v. Shippam, V. C. Wigram, 20th Jan. 1845, MS. [4 Hare, 555. See re- 
 marks, 17 Jur. 826.] 
 
 (m) See Trafford v. Boehm, 3 Atk. 440 ; Ryder v. Bickerton, 3 Swanst. 80 ; Bate v. 
 Scales, 12 Ves. 402. 
 
 {n) Lyse v. Kingdom, 1 Coll. 184, 188. 
 
 (0) Trafford v. Boehm, 3 Atk. 444 ; Holland v. Hughes, 16 Ves. 114 ; Howe v. B. of 
 Dartmouth, 7 Ves. 150. 
 
 (p) Peat v. Crane, 2 Dick. 499, n. ; Clough v. Bond, 3 M. & Cr. 496 ; Jackson v. 
 Jackson, 1 Atk. 513; Ex parte Champion, 3 Bro. C. C. 434; cited Franklin v. Frith, 
 3 Bro. C. C. 434. 
 
 (q) Hancom v. Allen, 2 Dick. 498 ; Howe v. Earl of Dartmouth, 7 Ves. 150 ; Clough 
 v. Bond, 3 M. & Cr. 496, 7. 
 
 (r) Matthews v. Brise, 6 Beav. 329, 
 
 (s) Ex parte Chaplin, 3 Y. & C. 397. [Knott v. Cottee, 16 Jur. 752.] 
 
556 OF INVESTMENT BY TKUSTEES. 
 
 without the indemnity of a decree. (t) However, his Lordship admitted, 
 that the point had not been settled ; nor does it appear, that the opinion 
 then expressed has ever been judicially adopted.(l) A trustee, there- 
 fore, could not be advised to undertake 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 direction to invest in the funds, an investment 
 on a mortgage security is improper.(a;) And it is equally certain, that 
 where trust property is properly invested in the three per cents., a 
 trustee cannot without special 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. (y) 
 
 So it is also unquestionably clear, that trustees have no power perma- 
 nently to convert the nature of the trust property, by laying out money 
 in the purchase of real estate, unless a special authority for so doing is 
 conferred upon them by the trust instrument. (g) 1 And the exercise of a 
 mere discretionary power to make such a conversion, 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. (b) 
 
 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 
 
 (t) Brown v. Litton, 1 P. Wins. 141 ; see Lord Bldon's observations on the propriety 
 of calling in trust-money laid out on real securities, in Howe v. Earl of Dartmouth, 7 
 Ves. 150 ; and see Norbury v. Norbury, 4 Mad. 191 ; Widdowson v. Buck, 2 Mer. 498, 
 9 ; Caldecott v. Caldecott, 1 N. C. C. 322. 
 
 {u) See Wyatt v. Sherratt, 3 Beav. 498. (a:) Pride v. Pooks, 2 Beav. 430. 
 
 (y) E. Powlett v. Herbert, 1 Ves. Jun. 297. 
 
 (z) See E. of Winchelsea v. Norcliffe, 1 Vern. 434 ; as to effect of power of varying 
 the securities, vide post, p. 482, Sect. 3, PI. Ill, of this chapter. 
 
 (a) Lee v. Young, 2 N. C. C. 532. 
 
 (6) Beauclerk v. Ashburnham, Rolls, 26th February, 1845, MS. ; [8 Beav. 322 ;] 
 vide post, ubi supra. 
 
 (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 been of the same opinion in the late case of Lyse 
 v. Kingdom, 1 Coll. 188 ; but see Norbury v. Norbury, 4 Mad. 191. [See ante, note to 
 page 368.] 
 
 1 Bonsall's App., 1 Rawle, 273 ; Billington's App., 3 Rawle, 55 ; Kaufman v. Craw- 
 ford, 9 W. & S. 131 ; Royer's App., 11 Penn. St. 36 ; Ringgold v. Ringgold, 1 H. & 
 G. 11 ; Eckford v. De Kay, 8 Paige, 89 ; Heth v. Richmond, &c, R. R. Co., 4 Gratt. 
 482 ; Morton's Ex'rs v. Adams, 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 pur- 
 chase a debtor's land under a. judgment against him, to prevent a sacrifice, and the debt 
 being lost. In Oeslager v. Fisher, 2 Penn. St. 467, such a purchase was said by Sergeant, 
 J., to be merely a temporary investment on the part of an executor or administrator; 
 that it was to be treated as personal estate ; and that a purchaser from such executor would 
 not be liable to see to the application of the purchase-money. But, it is apprehended, 
 the purchaser must see that the executor was warranted by the circumstances iii buying. 
 
OF INVESTMENT BY TRUSTEES. 557 
 
 on petition ordered an accumulated sum to be laid out in the purchase 
 of *real estate, but with a declaration, that it was to be consi- r* 070-1 
 dered as personal estate.(e) 
 
 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.(cZ) 
 
 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 securities 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) 1 These remarks apply with equal or 
 even greater force to canal and railway shares' and other similar securi- 
 ties ; as also to the public funds of any foreign state. And if a trustee 
 
 (c) Webb v. Lord Shaftesbury, 6 Mad. 100. [See Ex parte Calmes, 1 Hill's Eq. 
 112.] 
 
 (d) Fyler v. Fyler, 3 Beav. 550 ; Fuller v. Knight, 6 Beav. 205. 
 
 (e) Trafford v. Boehm, 3 Atk;«t44. 
 
 (/) Trafford v. Boehm, 3 Atk. 444 ; Howe v. Earl of Dartmouth, 7 Ves. 150. 
 
 (g) Powell v. Cleaver, 7 Ves. 142, n. 
 
 (A) Hancom v. Allen, 2 Dick. 498; Clough v. Bond, 3 M. & Cr. 496. 
 
 1 See ante, note to p. 368. Whether investments in banking and other corporations, 
 are within the general powers of trustees, is quite unsettled in this country. In Har- 
 vard 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, according to their best judgment," the 
 trustees were held to be authorized to invest in the stock of an incorporated manufac- 
 turing company. The court appear to consider bank stock, indeed, as a safer invest- 
 ment than land. See also Lovell v. Minott, 20 Pick. 116. But such investments are 
 never considered secure in England ; and indeed are only a form of personal security. 
 Therefore, in Pennsylvania, after some little uncertainty, it is now settled that an in- 
 vestment in stock of a banking, manufacturing, or trading corporation, is a breach of 
 trust. Hemphill's App., 18 Penn. St. R. 303 ; Worrell's App., 23 Penn. St. 44 ; see 
 Nyce's Est., 5 W. & S. 254; Morris v. Wallace, 3 Barr, 319. In Hemphill's Appeal, 
 the trustees of Mr. Girard's will had invested 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. Girard had invested in the same stock in 1831, it was held that the 
 trustees were liable. S. P. Worrell's App. ut supr. 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 
 accompany such departure, will protect them where there is an actual loss," But in 
 Maryland, under a power in a writ to invest in " some safe and profitable stock," it was 
 held that trustees were not liable for investing in United States Bank Stock. Gray v. 
 Lynch, 8. Gill, 403. And so, in Mississippi, an investment by executors under a trust 
 to invest " in good securities in the most profitable manner," in the stock of the Com- 
 mercial Bank of Natchez, that stock being considered at the time a safe and profitable 
 security, and taken by the most prudent and cautious men. Smyth v. Burns' Adm., 25 
 Mississ. 422. 
 
558 OF INVESTMENT BY TRUSTEES. 
 
 upon his own responsibility adopt any such investments, he must be pre- 
 pared to take the consequences of any loss. If, therefore, such invest- 
 ments are considered desirable, they should always be expressly autho- 
 rized 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 circumstances of 
 gross negligence,(&) and that dictum is also countenanced 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 cre- 
 ated by a promissory note,(wi) or a bond,(w) constitutes a breach of trust, 
 for which the trustee will be personally liable.(o) 1 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.(p) 
 
 It is to be observed, that if a trustee invest on securities, not expressly 
 authorized 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 ac- 
 count to the cestui que trusts for any profits arising from the same 
 source.^) 
 
 (i) See Adye v. Feuilleton, 3 Sw. 87, n. (&) Harden v. Parsons, 1 Ed. 145. 
 
 (1) Sir Edward Hale's and Lady Carr's case, 3 Sw. 63, n. ; see Emelie v. Emelie, 7 
 Bro. P. C. 259. 
 
 (m) Ryder v. Bickerton, 3 Sw. 80, n. ; Darke v. Martyn, 3 Beav. 525 ; Vigrass v. 
 Binfield, 3 Mad. 62. 
 
 (n) Adye v. Feuilleton, 2 Cox, 24 ; 3 Sw. 84, n. ; Wilkes v. Steward, Coop. 6 ; Lang,- 
 ston v. Ollivant, Id. 33 ; Collie v. Collis, 2 Sim. 365 ; Terry v. Terry, Prec. Ch. 273 ; 
 Walker v. Symonds, 3 Sw. 1. 
 
 (o) Holmes v. Dring, 2 Cox, 1 ; Walker v. Symonds, 3 Sw. 63 ; Clough v. Bond, 3 
 M. & Cr. 496 ; Watts v. Girdlestone, 6 Beav. 188, 191. 
 
 (p) Ex parte Shakeshaft, 3 Bro. C. C. 197 ; Kebble v. Thompson, 3 Bro. C. C. 112; 
 March v. Russell, 3 M. & Cr. 31 ; Walker v. Symonds, 3 Swanst. 1 ; Hewett v. Foster, 
 6 Beav. 259. [See ante, 309, note.] 
 
 (g) Ex parte Shakeshaft, 3 Bro. C. C. 197 ; Wilkinson v. Stafford, 1 Ves. Jun. 32; 
 Piety v. Stace, 4 Ves. 622 ; Bate v. Scales, 12 Ves. 402 ; Crawshay v. Collins, 15 Ves. 
 226 ; Docker v. Somes, 2 M. & K. 655 ; [Lewis v. Cook, 18 Alab. 337.] 
 
 1 The investment of trust funds on merely personal security, is, of course, a breach of 
 trust. Nyce's Est., 5 W. & S. 254 ; Swoyer's App., 5 Barr, 377 ; Wills's App., 22 Penn. 
 St. 330 ; Smith v. Smith, 4 J. C. R. 281 ; Gray v. Fox, Saxton, 259 ; Fowler v. Eeynal, 
 3 Mac. & G. 500, and many other cases. But in Massachusetts, where, as has been 
 remarked, a looser rule appears to obtain, it was held in Lovell v. Minott, 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 sola, 
 the purchaser giving therefor his note, with two good indorsers, and the note of a third 
 person, secured by mortgage. 
 
Or INVESTMENT BY TRUSTEES. 559 
 
 *So the employment of the trust funds in trade, or any specu- r*QTQ-i 
 lative undertaking, without any express authority, will, d 
 fortiori, be treated as a breach of trust. 1 And whatever may be the ap- 
 parent advantages of such a course, and however well-intentioned 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 testator.(w) And it is immaterial that the 
 trustees were the partners of the testator.(a;) 
 
 Where the trust property is already invested on personal or other se- 
 curities which would not be sanctioned by the court, it frequently be- 
 comes 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 proceeds on 
 some proper investment. 2 
 
 If there be an express trust declared for the conversion of the exist- 
 ing 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.(^) And although there may be no positive 
 trust to convert, yet if an order of the court in a suit for the adminis- 
 
 (r) French v. Hobson, 9 Ves. 103. 
 
 (s) Brown v. De Tastet, Jac. 284 ; Cook v. Collingridge, Jac. 607 ; Crawshay v. Col- 
 lins, 15 Ves. 218 ; 2 Russ. 325 ; Featherstonhaw v. Fenwick, 17 Ves. 298 ; Docker v. 
 Somes, 2 M. & K. 655 ; Wedderburn v. Wedderburn, 2 Keen, 722 ; 4.1, & Cr. 41. 
 
 (t) Ex parte Heaton, Buck. 386 ; Booth v. Booth, 1 Beav. 125. [See ante, p. 309.] 
 
 (u) Booth v. Booth, 1 Beav. 125. 
 
 (a:) Wedderburn v. Wedderburn, 2 Keen, 722 ; 4 M. & Cr. 41. [See Cummins v. 
 Cummins, 3 J. & Lat. 64.] 
 
 (y) Dimes v. Scott, 4 Russ. 201, 207; Mucklow v. Fuller, Jac. 198; Bullock v.~~ 
 Wheatley, 1 Coll. 130; Byrne v. Norcott, 13 Beav. 336; vide post [Choses in Action], 
 p. 446. 
 
 ' 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 continue 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 withdrawal 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. So 
 a direction by a testator to his executors, to continue his trade, does not authorize them 
 to embark in his trade any of the testator's general assets, beyond those already em- 
 barked in it at his death. McNeillie v. Acton, 17 Jur. 1041. 
 
 But, where a discretion is expressly given to permit money to remain invested in a 
 trade on personal security, they will not be liable for its loss, where they have acted 
 honestly to the best of their judgment. Patton v. Richardson, 19 Jurist, 1192. 
 
 8 Trustees with discretion to continue assets on their then securities, are not bound 
 to do so against their judgment on the application of the tenant for life. Murray v. 
 Glasse, 23 L. J. Ch. 124. 
 
560 OF INVESTMENT BY TRUSTEES. 
 
 tration of the trust has been made r 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 effecting 
 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 re- 
 main outstanding for five years after the testator's death, and the sum 
 ■wITs lost by the failure of the debtor, the trustees were held liable to 
 make good the amount. (5) 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 
 r^nnA-i suffered the debt to *remain outstanding after three years had 
 elapsed from the testator's death.(c) And in 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 con- 
 fidence in the debtor, who was supposed to be in affluent circumstances.(i) 
 
 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 discre- 
 tion, 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 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 consent of his co-trustee, if his conduct 
 be bona fide.(g) And it is immaterial that the direction is to convert 
 with all convenient speed, for that is no more than the ordinary duty 
 implied in the office of trustee.(^) 
 
 But where there is no actual direction for the conversion of the exist- 
 
 (z) Sowerby v. Clayton, 8 Jur. 597. 
 
 (a) Dimes v. Scott, 4 Russ. 195; Taylor v. Clarke, 1 Hare, 161, 168 ; see Walker v. 
 
 Shore, 19 Ves. 387 ; Gibson v. Bott, 7 Ves. 94, 5. [17 Jur. 826.] 
 
 (6) Bullock v. Wheatley, 1 Coll. 136. (c) 1 Coll. 136. 
 
 (Y) Bullock v. Wheatley, 1 Coll. 130. (e) Garret v. Noble, 6 Sim. 504. 
 
 (/) Buxton v. Buxton, 1 M. & Cr. 80. (g) 1 M. & Cr. 96. 
 (A) 1 M. & Cr. 93. 
 
OF INVESTMENT BY TRUSTEES. 561 
 
 fng 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 therefore 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 securities, 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, (k) 
 
 If, however, the author of the trust in general terms vest his whole 
 estate in 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 out- 
 standing 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. (T) 1 
 
 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 mere 
 personal security, although no specific direction for that purpose is con- 
 tained in the will.(m) ! 
 
 *It has also been laid down to be incumbent on executors r+qo-i-i 
 to transfer into the three per cents., any funds which they 
 may find invested in other than government stock ;(n) 3 and it seems 
 
 (t) Lord v. Godfrey, 4 Mad. 455. [k) 4 Mad, 455. 
 
 (Z) Powell v. Evans, 5 Ves. 844; De Manneville v. Crompton, 1 V. & B. 359; Bul- 
 lock v. Wheatley, 1 Coll. 1.30. [See Hemphill's App., 18 Penn. St. 303.] 
 
 (m) Lowson v. Copeland, 2 Bro. C. C. 157 ; Powell v. Evans, 5 Ves. 839 ; Caffrey v. 
 Darby, 6 Ves. 488 ; Maitland v. Bateman, 13 Law Joum. N. S., Chanc. 272 ; Carrey 
 v. Bond, 12 Id. 484 ; Mucklow v. Puller, Jao. 198 ; Tebbs v. Carpenter, 1 Mad. 297, 8 ; 
 Bailey v. Gould, 4 Y. & C. 221 ; Clough v. Bond, 3 M. & Cr. 496 ; Rogers v. Vasey, 
 V. C. K. Bruce, 27th Jan., 1845, MS.; Att.-Gen. v. Higham, 2 N. C. C. 634. 
 
 (w) Holland v. Hughes, 16 Ves. 114. 
 
 1 In Barton's Estate, 1 Pars. Eq. 24, the trustee suffered bank stock of the testator 
 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. 
 
 2 See Wills's Appeal, 22 Penn. St. 330. 
 
 But it would seem that where a doubtful security has been taken by a testator, his 
 executor, after making all possible inquiries which may be expedient, will be justified 
 in making further advances out of the assets to render the security available. Collinson 
 v. Lister, 24 L. J. Ch.. 762 ; 19 Jur. 839. 
 
 3 A testator directed his executors and executrix to invest his residuary estate " upon 
 government or some other good and sufficient security." The executrix, who was also 
 tenant for life, allowed a sum of Navy 5 per cents., standing in the testator's name at 
 his death, to remain in its then state of investment, and received the dividends up to her 
 
 36 
 
562 OF INVESTMENT BY TRUSTEES. 
 
 that this rule will apply to stock of so undoubted a character as Bank 
 of England stock ;(o) it will prevail therefore a 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.(p) Although it is other- 
 wise where from change of circumstances the security of the investment 
 is diminished, and the capital endangered, as where the interest is not 
 regularly paid, and becomes greatly in arrear.(g') 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 discre- 
 tion adapted to the particular circumstances ; bearing in mind the 
 general rule, that in all cases a trustee is bound to take the same pre- 
 cautions, 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 off voluntarily by the mortgagee, it will be the trustee's duty.to 
 invest the money, in the absence of special directions, in the three per 
 cents, (r) 
 
 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 securities'.(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, unless there has been great 
 negligence on the part of the trustees.(w) 
 
 Where the trust-moneys are once properly invested in stock, the trus- 
 tees cannot without an express authority dispose of the stock, and in- 
 vest 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 re- 
 ' placed for a sum less than that at which it was sold, to invest the 
 
 (o) Howe v. B. of Dartmouth, 7 Ves. 149, 150. 
 
 (p) Howe v. E. of Dartmouth, 7 Ves. 150 ; see Saddler v. Turner, 8 Ves. 621 ; Orr 
 v. Newton, 2 Cox, 274. 
 
 (g) Tench v. Cheese, M. R., 19th Nov. 1844, MS. 
 
 (r) Challen v. Shippam [4 Hare, 556]. 
 
 (.s) Powell v. Evans, 5 Ves. 839 ; Mucklow v. Fuller, Jac. 200. 
 
 (t) Powell v. Evans, 5 Ves. 841 ; Clough v. Bond, 3 M. & Cr. 496. 
 
 [u) Lowson v. Copeland, 2 Bro. C. C. 157 ; Tebbs v. Carpenter, 1 Mad. 298. 
 
 death, more than thirty 'years. During this period the Navy 5 per cents, were re- 
 peatedly converted by Act of Parliament, so that at her death the fund was worth much 
 less than the consols, which might have been purchased with the money arising from 
 the sale within a year after the testator's death. It was held that in the absence of any 
 evidence of unfairness or unreasonableness, the widow having by the will a discretion 
 as to the mode of investment, was not liable for a breach of trust in not having sold the 
 5 per cents. Baud v. Fardell, 19 Jur. 1214; 25 L. J. Ch. 21. 
 
OF INVESTMENT BY TRUSTEES. 563 
 
 surplus in the same stock to the same uses.(a;) 1 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 the trustees, r*QQo-i 
 they will be charged with interest at five per cent.(g) 
 
 It has been decided, that even an express power for the trustees to 
 vary the securities, does not authorize changes made without any appa- 
 rent object, or any prospect of benefiting the trust estate.(a) And if 
 the trustees dispose of the existing securities without having in contem- 
 plation any immediate reinvestment, they will be liable for any loss 
 that may ensue. (b) The exercise of a power of changing the securities 
 will not be imperative on the trustees, unless it be expressly made so by 
 the terms of the instrument. (c) a 
 
 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 of 
 
 (x) Adams v. Clifton, 1 Russ. 297 ; Earl Powlett v. Herbert, 1 Ves. Jun. 297 ; see 
 "Witter v. Witter, 3 P. Wms. 100 ; Fyler v. Fyler, 3 Beav. 550 ; Hanbury v. Kirk- 
 land, 3 Sim. 265 ; Crackel v. Bethune, 1 J. & W. 586 ; Underwood v. Stevens, 1 Mer. 
 712 ; Williams v. Nixon, 2 Beav. 472. [Murray v. Peinour, 2 Maryl. Ch. Dee. 421.] 
 
 (y) Forrest v. Elwes, 4 Ves. 497. [See Fowler v. Raynal, 13 Jur. 649.] 
 
 (a) Pocock v. Reddington, 5 Ves. 794 ; Mosley v. Ward, 11 Ves. 581 ; Bate v. 
 Scales, 12 Ves. 402. 
 
 (a) Brice v. Stokes, 11 Ves. 324, 5, 6 ; see De Mauneville v. Crompton, 1 V. & B. 
 359. [See 3 Mac. & G. 500.] 
 
 (6) Hanbury v. Kirkland, 3 Sim. 265 ; Broadhurst v. Balguy, 1 N. C. C. 16 ; Watts 
 v. Girdlestone, 6 Beav. 190. 
 
 (c) Vide supra, and post, p. 482, Section 3, PI. Ill, of this Chapter. 
 
 (d) Brice v. Stokes, 11 Ves. 319 ; Langford v. Gascoigne, Id. 333 ; Booth v. Booth, 1 
 
 1 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 autho.r of the trust. 
 Murray v. Feinour, 2 Maryl. Ch. 418. Where trustees have committed a breach of 
 trust in selling stock, they are not discharged from the consequences of that breach, by 
 replacing some other stock which is not the stock in question. Therefore, where a sum 
 of consols was sold out by two trustees under a marriage settlement, and the proceeds 
 lent to the husband, and one of the trustees afterwards dying, the money was repaid, 
 and invested in 4 per cents., in the name of the surviving trustee, who again lent the 
 money to the husband, who became insolvent, it was held that the estate of the deceased 
 trustee was liable for the original stock. Lander v. Weston, 20 Jurist, 58. 
 
 2 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 direct it, 
 Wood v. Wood, 5 Paige, 596 ; Deadrich v. Cantrell, 10 Yerg. 263 ; Contee v. Dawson, 
 2 Bland, 264 ; Burrill v. Sheil, 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. Sheil], 
 ut 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 executors to invest in the funds in England ; 
 the court subsequently, on the restoration of confidence, under the Constitution, ordered 
 the funds to be invested in this country. 
 
564 OF INVESTMENT BY TRUSTEES. 
 
 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 compensation to the trustee to 
 the extent of that benefit.(/)' 
 
 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.(A) 
 
 And it is almost unnecessary to add, that the party whose concurrence 
 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, (z) 2 are of course not binding ; and a, cestui 
 
 Beav. 125 ; Broadhurst v. Balguy, 1 N. C. C. 16; Nail v. Punter, 5 Sim. 555; Walker 
 v. Symonds, 3 Sw. 64. 
 
 (e) Booth v. Booth, 1 Beav. 125, 130 ; Fuller v. Knight, 6 Beav. 205. 
 
 (/) Ibid. 130. 
 
 (g) Mountfort v. Lord Cadogan, 17 Ves. 489. [See on this subject Munch v. Cocker- 
 ell, 5 Myl. & Cr. 178.] 
 
 (A) "Walker v. Symonds, 3 Sw. 1 ; Underwood v. Stevens, 1 Mer. 712. 
 
 (t) Cocker v. Quaile, 1 B. & M. 535 ; Hopkins v. Myall, 2 R. & M. 86 ; Kellaway v. 
 Johnson, 5 Beav. 319 ; see Ryder v. Byckerton, 3 Sw. 80, u. 
 
 1 Where trustees who had no express authority to invest trust funds upon mortgage, 
 so invested the same at the instance of the cestui que trust for life, for the purpose of 
 increasing his income, and a loss was occasioned, the trustees were held liable to 
 make it good in the first instance, at the application of the' remainderman, but the 
 cestui que trust for life. was declared bound to the extent of his actual receipts, to re- 
 coup the trustees, and the life estate impounded for the purpose. Raby v. Ridelhalgh, 
 24 L. J. Ch. 528 ; 19 Jurist, 363. In the subsequent case of Baud v. Fardell, 19 Jur. 
 1214, this decision was said to have turned on the ground, that the trustees "had not 
 exercised their own discretion, but allowed themselves to be swayed by the entreaties 
 of the tenants for life." And see the remarks in 19 Jurist, part ii, p. 473. 
 
 2 Murray v. 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 infants, 
 could give consent for them, on bill filed, to a proper change of investment. In Mant 
 v. Leith, 21 Law J. Chanc. 719, 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 in- 
 vestment, he was charged only with the amount of the dividends which would have 
 accrued on the trust fund, had it remained in its original state of investment. In Brewer 
 v. Swirles, 23 L. J. Ch. 542, it was held that where a married woman had by the limita- 
 tions of a settlement, in effect, complete control over, and an absolute interest in the 
 trust funds, she could not make the trustee liable for any loss by an improper investment 
 to which she had consented : and further, that she could not, by appointing the fund to 
 her infant children, enable them to proceed against the trustee for such a purpose. See 
 also as to the approval of an investment by a feme coverte, Barton's Est., ut supra. 
 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. 
 
OP INVESTMENT BY TRUSTEES. 565 
 
 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 sub- 
 sequently questioned.(fc) 
 
 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 con- 
 tinuance of the preceding life estate ; for until his own title accrues in 
 possession, he has no immediate right to interfere in the ordinary ad- 
 ministration of the trust estate.(Z) 
 
 *If a trustee have lent the trust-moneys upon the personal r*ooq-| 
 security of one of the cestui que trusts in a manner not autho- 
 rized 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. (m) This may also be done by the representa- 
 tives of the trustee, by whom the improper investment was originally 
 made.(n) 
 
 And in like manner, if the trust fund have been transferred by 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. (0) And in such a case the cestui 
 que trusts 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 himself 
 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 presumptive evidence be 
 adduced, that the purchase was made in execution of the trust.(r') 
 
 (k) Walker v. Symonds, 3 Sw. 69 ; Bateman v. Davis, 3 Mad. 98 ; Nail v. Punter, 5 
 Sm. 555 ; see Marsh v. Russell, 3 M. & Cr. 31, 42. 
 
 (I) Bennett v. Coley, 5 Sm. 181; S. C. 2 M. & K. 225. 
 
 (m) Payne v. Collier, 1 Ves. Jun. 170 ; Greenwood v. Wakeford, 1 Beav. 576 ; Fuller 
 v. Knight, 6 Beav. 205. 
 
 (n) Greenwood v. Wakeford, 1 Beav. 576. 
 
 (0) Franco v. Franco, 3 Ves. 75 ; May v. Selby, 1 N. C. C. 235. 
 (p) Ibid. 
 
 (q) Wood v. Harman, 5 Mad. 368. [Lock v. Lomas, 21 Law J. Chanc. 503 ; Coon- 
 rod v. Coonrod, 6 Hamm. 114 ; Wormley v. Wormley, 8 Wheat. 421.] 
 
 (r) Perry v. Phillips, 4 Ves. 108 ; vide post, p. 522 (Remedies for Breach of Trust). 
 [But see ante, 91, note.] 
 
 (1) If a trustee be compelled to make good to the cestui que trusts a loss occasioned 
 by the default of a co-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. ' 
 
566 OP TRUSTEES FOR TENANT FOR LIFE. 
 
 A trust to invest in the purchase of land does not authorize the trus- 
 tees 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 benefit of 
 the persons beneficially entitled in remainder, and they are therefore 
 entitled to be present in the Master's office at the investigation of the 
 title to the lands, which are proposed to be purchased, although it would 
 be otherwise where all the persons beneficially interested are before the 
 court, (t) 
 
 The usual indemnity clause will not exonerate a trustee from the 
 consequences of a breach of trust, in neglecting to convert and invest 
 as directed by the trust instrument.(w) 1 
 
 Where a specific sum (as 2,0002.) is given by will to trustees to be in- 
 vested, the costs of the investment in the absence of any express di- 
 rections, must be defrayed out of the particular sum, and will not fall 
 upon the testator's general estate. (x) 
 
 It is the duty of trustees to give their cestui que trusts full informa- 
 tion as to the disposition and investment of the trust property.(^) 
 
 r*3841 * VI " — 0F TRUSTBES 0F PROPERTY SETTLED FOR LIFE, WITH 
 "• 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 imme- 
 diate beneficial enjoyment is given. In administering the trust, there- 
 fore, the interests of both must be equally consulted, nor must any ad- 
 vantage be given to either of them at the expense of the other. 2 
 
 It has been already seen,(s) 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 negli- 
 gence by suffering the tenant for life to possess himself of the deeds ; 
 or d fortiori if they deliver them over to him with cognizance of the 
 intention to make an improper use of them, they will be responsible to 
 
 (*) Bostockv. Blakeney, 2 Bro. C. C. 653. [But see Parsons v. Winslow, 16 Mass. 
 361.] 
 
 (t) Davis v. Combermere, 9 Jar. 76. 
 
 (u) Mucklow v. Fuller, Jac. 198 ; see Langston v. Olivant, Coop. 33. [Fenwickv. 
 Green well, 10 Beav. 412.] 
 
 (x) G-witter v. Allen, 1 Hare, 505. (y) Walker v. Symonds, 3 Sw. 58. 
 
 (z Ante, Pt. II, Ch. Ill, page 272. (a) Ante, Pt. II, Ch. III. 
 
 1 Nor does it exonerate trustees from exercising a careful discretion as to the suffi- 
 ciency of an investment. Drosier v. Brereton, 15 Beav. 221 ; Stretton v. Ashmall, 24 
 L. J. Ch. 277, 3 Drewr. 9. 
 
 2 Equity will entertain a suit to vacate a decree obtained by collusion between 
 trustees and tenants in possession to defeat the remainderman. Wright v. Miller, 4 
 Selden, 9. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 567 
 
 the remainderman for any loss that may ensue.(5) In the recent case of 
 Denton v. Denton,(c) 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 re- 
 mainder over. Upon the testator's death, A. entered into possession of 
 the estate, and acquired possession 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 proceedings ; 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 lordship appears to have attached much weight to the long acquies- 
 cence of the trustees in the possession of the tenant for life.(c) 
 
 So it has been also stated, that in the absence of any express direc- 
 tions in the instrument creating the trust, the trustees will be entitled 
 to the possession and management of the estate, if the nature of their 
 duties require that they should have a controlling power. 1 For instance, 
 where the trust is to keep up insurances, or pay annuities, or other pe- 
 riodical 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.(d) 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 permit 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 limitations 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) However, where the income of the estate is 
 amply sufficient to defray the prior charges upon it, the tenant for life 
 will be let into possession upon giving *proper security for pay- pooc-i 
 ment of the annuities or other charges. (/) Although posses- 
 sion will not be given him until the sufficiency of the estate for that 
 
 (6) Evans v. Bicknell, 6 Ves. 174. 
 
 (c) Denton v. Denton, 8 Jur. 388 ; [1 Beav. 388.] 
 
 (d) Tidd v. Lister, 5 Mad. 429; and see Jenkins v. Milford, 1 J. & W. 629; ante, 
 Pt. II, Ch. III. 
 
 (e) Naylor v. Arnitt, 1 E. & M. 501. 
 
 (/) Blake v. Bunbury, 1 Ves. Jun. 194, 514 ; S. C, 4 Bro. C. C. 21. 
 
 1 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 the cestui que trust 
 and her husband without conversion, they had the right to the possession, the right to 
 control being in the trustees ; but that the money and stocks should remain in the 
 possession of the latter. 
 
568 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 purpose has been ascertained by taking the accounts.^) In the case of 
 Denton v. Denton,(A) which is stated above, the trustees of an estate, 
 charged with the payment of annuities, were restrained from. taking pro T 
 ceedings 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 ex- 
 clusive management of the property, that intention will prevail.(^) And 
 if the personal possession or occupation of the property be essential to 
 its beneficial enjoyment, as in the case of a family residence, there the 
 court will, in any case, deliver the possession to the cestui que trust for 
 life, taking means to secure due protection of the property for the 
 benefit of those in remainder. (T) 
 
 Where the tenant for life takes the legal estate as well as the equitable 
 interest, the right of possession usually follows, and is commensurate 
 with, the title, (m) 1 
 
 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. There- 
 fore, they must not permit him to cut timber, or open mines, or commit 
 other waste. {n) 
 
 (g) Blake v. Bunbury, 1 Ves. Jim. 194, 514; S. C, 4 Bro. C. C. 21. 
 
 (h) Denton v. Denton, 8 Jur. 383; [1 Beav. 388.] 
 
 (i) 5 Mad. 432. [Young v. Miles' Exr's, 10 B. Monr. 290.] (k) Ibid. 
 
 (1) 5 Mad. 432, 3 ; ante, Pt. II, Ch. III. 
 
 \m) See Tidd v. Lister, 5 Mad. 432 ; supra, Pt. TI, Ch. Ill, [p. 269.] 
 
 (n) Whitfield v. Benett, 2 P. Wms. 242 ; Denton v. Denton, 8 Jur. 388. 
 
 1 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 ; and his duties and liabilities as trustee are not affected: Shibla v. Ely, 2 Halst. 
 Ch. 181. The trust is, however, an implied and not an express one. Joyce v. Gun- 
 nels, 2 Rich. Eq. 259. But where money is given to one person for life with remainder 
 to another, the remainderman cannot claim the benefit of contracts made by the tenant 
 for life with the money. Broome v. Curry's Adm., 19 Alab. 805. 
 
 2 Freeman v. Cook, 6 Ired.' Eq. 376 ; Woodman v. Good, 6 W. & S. 169. In the 
 latter case it was held that the trustee might bring an action of waste against the 
 equitable tenant for life. An equitable tenant for life mortgaged his life estate as secu- 
 rity to certain creditors, and then went on to cut down, and sell timber: it was held, 
 that as against mortgages and incumbrances on the life estate the remainderman had 
 an equity to have the injury to the inheritance made good, and had for that purpose a 
 lien on the rents and profits in the hands of the trustee. ' Briggs v. Earl of Oxford, 19 
 Jurist, 817. 
 
 But a tenant for life is subject to no implied trust to keep the property in repair, and 
 a court of equity cannot interfere in such a case to prevent permissive waste. Nor can 
 the trustees interfere with the possession of an equitable tenant for life on such grounds. 
 Powys v. Blagrave, 1 Kay, 495, affirmed, 24 L. J. Ch. 142; see, however, Wilson v. 
 Edmonds, 4 Foster, 545. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 569 
 
 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 materially 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 tenant for life, it will be a 
 sufficient precaution on the part of the trustees to take a schedule 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) 1 
 
 (o) Waldo v. Waldo, 7 Sim. 261 ; see Smythe v. Smythe, 2 Sw. 251 ; Brydges v. 
 Brydges, Id. 150 ; Wykham v. Wykham, 19 Ves. 419. 
 
 (j>) Newdigate v. Newdigate, 1 Sm. 131 : Davies v. Leo, 6 Ves. 786 ; Chamberlain 
 v. Dummer, 3 Bro. C. C. 549. [See on this subject Marker v. Marker, 9 Hare 1 ; 
 Morris v. Morris, 15 Sim. 510; 11 Jur."196 ; Duke of Leeds v. Lord Amherst, 14 Sim. 
 357 ; 2 Phill. 117.] j 
 
 (q) Burge v. Lamb, 16 Ves. 174. 
 
 (r) Bill v. Kynaston, 2 Atk. 82 ; Leeke v. Bennett, 1 Atk. 471. 
 
 1 It is now established, that the first taker of articles specifically bequeathed to seve- 
 ral 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 where 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 removal. Langworthy v, 
 Chadwick, 13 Conn. 42 ; Hudson v. Wadsworth, 8 Id. 363 ; Holliday v. Coleman, 2 Munf. 
 -162 ; Mortimer v. Moffatt, 4 Henn. & Munf. 503 ; Chisholm v. Starke, 3 Call, 25; McLe- 
 more v. Goode, 1 Harp. Eq. 272 ; Swan v. Ligan, 1 McCord Ch. 227 ; Cheshire v. Che 
 shire, 2 Ired. Eq. 569 ; Sutton v. Craddock, 1 Id. 134 ; Howell v. Howell, 3 Id. 522 
 Swan v. Ligan, 1 McC. Ch. 227; Henderson v. Vaulx, 10 Yerg. 30; Clarke v. Saxon, 1 
 Hill's Eq. 75 ; Spear v. Tinkham, 2 Barb. Eq. 211 ; Nance v. Coxe, 16 Alab. 125 ; see 
 Kinnard v. Kinnard, 5 Watts, 109; though the tenant for life be a feme covert. Clarke 
 v. Saxon,l Hill's Eq. 75. And a purchaser from tenant for life may also be compelled 
 to give security; Cordes v. Ardrian, 1 Hill's Eq. 154 ; Westcott v. Cady, 5 J. C. R. 334 ; 
 or (in South Carolina) a purchaser at an execution against the life tenant. Pringle v. 
 Allen, 1 Hill's Eq. 135. The remaindermen are entitled %o apply at once where it is 
 shown that the property is in possession of a wrongdoer who claims the title as his own. 
 Ramey v. Green, 18 Alab. 771. Parties entitled under executory bequests, and to other 
 contingent interests, are also entitled to the protection of the court in such cases. Bras- 
 well v. Morehead, 1 Busb. Eq. 26; Frazer's Adm. v. Bevill, 11 Gratt. 9. In Pennsyl- 
 vania, 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 instance, though they might stay exe- 
 cution till it was given; see Lippencott v. 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 per- 
 sonal 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 compelled 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 sufficiently secure the interest of the person entitled in 
 
570 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 pos- 
 sessor than real estate, it is unquestionably the duty of the trustees to 
 retain the possession for the benefit of those entitled in remainder ; and 
 r* c ?8fi1 ^ *^ey *^ e ^ ver over * ne f" un( l unprotected into 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 trustees 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 property; 
 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 responsibi- 
 lity upon the trustees, as long as no circumstance occurs to alter or 
 defeat the right of the tenant for life to the enjoyment 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 divi- 
 dends, 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 such a power, will have the same effect. > 
 
 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 pay- 
 ing over these unusual additions to the beneficial tenant for life, but 
 they must invest them for the benefit of all parties.(s) 1 
 
 (s) Brander v. Brander, 4 Ves. 800 ; Paris v. Paris, 10 Ves. 185 ; see Hooper v. Ros- 
 siter, 13 Price, 774 ; S. C. 1 M'Clel. 527. 
 
 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. 
 
 Where there has been a conversion of property settled for life with remainders over, 
 though in the lifetime of the first taker, the remaindermen are only entitled to interest 
 or profits from his death. Ramey v. Green, 18 Alab. 771. 
 
 See also a discussion of this subject in the American notes to Howe v. Earl of Dart- 
 mouth, 2 Lead. Cas. Eq., part i, 425, 1st Am. Ed. 
 
 1 In Price v. Anderson, 15 Sim. 473, however, where an insurance company had de- 
 clared for several years yearly dividends of 2J per cent., but in 1846 declared a divi- 
 dend of 12 J per cent., it was held that a tenant for life of the stock was entitled to the 
 whole amount. So in Johnson v. Johnson, 15 Jur. 714, a "bonus or increased 
 dividend of £10 per share, to be added to the usual dividend of £3 per share, making 
 altogether £13 per share," declared by an Insurance Company two years after a testa- 
 tor's death, was held to be income, and the tenant for life of the shares entitled thereto. 
 So in Murray v. Glasse, 17 Jur. 816 ; 23 L. J. Ch. 126, it was held that a tenant for life 
 was entitled to bonuses arising from profits. See, also, Cogswell v. Cogswell, 2 Edw. Ch. 
 231 ; and Ware v. McCandlish, 11 Leigh, 595 ; the general rule being, that the tenant 
 for life is entitled to increase and profit. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 571 
 
 * 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 in- 
 terests 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 remainderman. (tf And 
 the same rule applies to articles, which ipso usu consumuntur, such as 
 wines, live stock, and other property of that nature. (u) And if in con- 
 travention of this rule, the trustees suffer the tenant for life to receive 
 the whole income arising from the perishable securities, he will be de- 
 creed to refund what he may have received over and above what he 
 would have received, if the conversion had been duly made, and the pro- 
 ceeds ^invested in the three per cents. ;{x) and this difference r* 007-1 
 will be treated as capital to be invested for the benefit of all ^ 
 
 parties entitled.(«/) 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. (s) 2 
 
 (t) Howe v. Earl of Dartmouth, 7 Ves. 137 ; Fearns v. Young, 9 Vea. 552 ; Dimes 
 v. Seott, 4 Russ. 200 ; Alcock v. Sloper, 2 M. & K. 701, 2 ; Mills v.. Mills, 7 Sim. 501 ; 
 Pickering v. Pickering, 2 Beav. 57 ; S. C. 4 M. & Cr. 298 ; Lichfield v. Baker, 2 Beav. 
 481 ; Benn v. Dixon, 10 Sim. 636. 
 
 (m) Randall v. Russell, 3 Mer. 194, 195. 
 
 (x) Howe v. Earl of Dartmouth, 7 Ves. 151 ; Mills v. Mills, 7 Sim. 509. 
 
 (y) Ibid. 
 
 (2) Howe v. Earl of Dartmouth, 7 Ves. 151 ; Dimes v. Scott, 4 Russ. 195, 206. 
 
 If stock directed to be laid out in land is sold between the half yearly days of pay- 
 ment of dividends, in order to complete a purchase, a compensation or equivalent will 
 be made to a tenant for life who would have been entitled to the dividends becoming 
 due on the next day of payment. Lord Londesborough v. Somerville, 23 L. J. Ch. 646. 
 
 1 See post, note to page 390. 
 
 * In Meyer v. Simonson, 21 Law J. Chanc. 678, 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 
 
572 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 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 payments, the 
 court" will confine its decree to the conversion, without directing any ac- 
 count of the previous receipts. (a) And where it appeared to be benefi- 
 cial to all parties, that annuities and policies settled on a party for life 
 should not be sold, the court on application has sanctioned their reten- 
 tion in specie by the trustees. (b) 
 
 It is settled that bank stock, when settled for life, though a* permanent 
 security, must also be converted and invested in the three per cents. : 
 because it depends on the will of the directors, whether the casual pro- 
 fits (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, applies 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 con- 
 vert 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 en- 
 titled 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 passing 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 between the annual amount actually 
 
 (a) Lichfield v. Pickering, 2 Beav. 481, 8 ; see Pickering v. Pickering, 4 M. & Cr. 
 298, 304. 
 
 (6) Glengall v. Barnard, 5 Beav. 245. 
 
 (c) Mills v. Mills, 7 Sim. 509 ; see Howe v. Earl of Dartmouth, 7 Ves. 150. [See 
 Price v. Anderson, 15 Sim. 479.] It has been already stated that where property of 
 this description is made the subject of a trust, the bonuses must be treated as capital 
 and invested. [Ante, p. 386.] 
 
 without sacrificing anything by a forced sale. As to this the rule is clear ; it must be 
 converted, and the produce must be invested in securities which the court allows, and 
 the tenant for life is entitled to the income of such investment. Thirdly, property 
 which, according to a reasonable administration, is not capable of an immediate con- 
 version, and which cannot be sold immediately without involving a sacrifice of both 
 principal and interest. In this case, the rule is to take the value of the testator's in- 
 terest, and to give the tenant for life the income of that present value." 
 
OF TRUSTEES FOR TENANT FOR LIFE. 573 
 
 paid, and that which, according to the foregoing rule, ought to have 
 been paid by them to the tenant for life.(d) 
 
 And although the security bearing the higher interest is subsequently 
 disposed of and invested in the three per cents, at a much more ad- 
 vantageous 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, r^ooo-i 
 by setting off against it the increase to the trust estate, ■which 
 had proceeded from the delay in making the required investment ; but 
 they will be charged with the whole of the stock actually purchased, as 
 well as the whole interest actually received, 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 investment 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 E-olls,(/) 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 express trust for 
 conversion and investment is contained in the instrument, it has never 
 been decided, that the trustees would not be justified in paying over to 
 the tenant for life the whole of the income arising from a permanent 
 security, which produces more than the ordinary interest, as long as the 
 trust funds or any part of them are suffered to remain on that secu- 
 rity.^) 
 
 Where a testator directs his residuary estate to be converted and in- 
 vested 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.(i) 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 de- 
 cisions of very eminent Judges may be urged in support of each. 
 
 1st. The tenant for life may be entitled to nothing until the expira- 
 tion of a twelvemonth from the testator's death, according to the opinion 
 of Sir John Leach in Scott v. Holling worth, (&) and of Sir Thomas 
 Plumer in Taylor v. Hibbert ;(l) and the income in the mean time is to 
 
 (d) Dimes v. Scott, 4 Russ. 195; [see as to a discretionary direction to convert,. 
 Prendergast v. Prendergast, 3 H. L. Ca. 195.] 
 
 (e) Dimes v. Scott, ubi supra. (/) 4 Russ. 201. {g) 4 Russ. 207. 
 
 (A) See Howe v. Earl of Dartmouth, 7 Ves. 150 ; [Prendergast v. Prendergast, 3 
 House Lds. cases, 195 ; and Meyer v. Simonson, 21 Law J. Chanc. 678 ; Williamson 
 v. Williamson, 6 Paige, 303.] 
 
 (i) Dimes v. Scott, 4 Russ. 195; see preceding page. 
 
 {k) 3 Mad. 161; and see Vickers v. Scott, 3 M. & K. 500. 
 
 [I) 1J.&W. 308; and see Tucker v. Boswell, 5 Beav. 607. 
 
574 OP TRUSTEES FOR TENANT FOR LIFE. 
 
 be added to, and form part of the capital of the residue. Both those 
 two learned Judges appear to have assumed* that this opinion was in 
 accordance with the established rule of the court, and Sir Thomas 
 Plumer(w?) treats this general rule as having been so settled by Lord 
 Eldon in the case of Sitwell v. Bernard.(w) However, in the subse- 
 quent case of Angerstein v. Martin,(o) that great Judge himself dis- 
 claimed any intention of establishing any such general rule by his de- 
 cision 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.(^) The case of Vickers v. Scott(g') 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*3»cn *^' A ccor ciing to the decision of Sir A. Hart, V. C, in La 
 L -J 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 parts 
 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,(g) and Hewitt v. Morris,(i) are also in favor of this doctrine, 
 which is also strongly supported by the observations of Sir J. Wigram, 
 V. C, in the recent case of Taylor v. Clark.(w) 
 
 •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 testator's 
 death. And this view of the law is supported by Lord Eldon's decision 
 in the case of Angerstein v. Martin, (a;) and by that of Lord Langdale, 
 M. R., in Douglas v. Congreve.(#) It has been observed by Vice-Chan- 
 cellor Wigram, (2) 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 have been considered as overruled by Lord Lynd- 
 hurst's decision in Dimes v. Scott. (6) The latter case of Douglas v. 
 Congreve,(e) which is clearly inconsistent with Dimes v. Scott, was also 
 strongly questioned by Vice-Chancellor Wigram in the recent case of 
 Taylor v. Clark,(d) in which all the authorities on this subject are col-, 
 lected and reviewed, and his Honor's decision, in which he followed 
 
 (m) 1 J. & W. 313. (n) 6 Ves. 522. 
 
 (o) T. & R. 238 ; and see Hewitt v. Morris, T. & R. 244. 
 
 (p) T. & R. 239. (g) 3 M. & K. 500. (r) 2 Sim. 18. 
 
 (*) 7 Ves. 95. \t) T. & R. 241. 
 
 («) 1 Hare, 173, 4; see also Caldecott v. Caldecott, 1 N. C. C. 312. 
 
 («) T. & R. 232. (y) 1 Keen, 410. 
 
 (z) 1 Hare, 172 ; and see Caldecott v. Caldecott, 1 N. C. C. 318. 
 
 (a) 2 Sim. 22. (b) 4 Russ. 209. 
 
 (c) 1 Keen, 410. (d) 1 Hare, 172, 3. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 575 
 
 Dimes v. Scott in preference to Douglas v. Corigreve, is directly at vari- 
 ance with the latter case.(e) 
 
 4th. According to the determination of Lord Lyndhurst in Dimes v. 
 Scott,(ee) the tenant for life will take, not the interest actually arising 
 from the property during the first year after the testator's death, but 
 t he amount of the dividends on so much three per cent, stock, as would 
 have been produced by the conversion of the property at the end of that 
 year. And this solution of the question has recently been adopted by 
 Vice- Chancellor Wigram in the case of Taylor v. Clark. (/) 
 
 In this conflicting state of the authorities on the subject, nothing but 
 the decisions of the highest judicial authority can set the question com- 
 pletely 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 authority in its 
 favor. 1 However, should any adverse claim be originated on this point, 
 no trustee could be advised to take upon himself the responsibility of 
 putting his own construction on the relative rights of the tenant for life 
 
 (e) See Caldecott v. Caldecott, 1 N. C. C. 320. (ee) 4Russ. 209. (/) 1 Hare, 161. 
 
 1 The determination of the Chancellor in Dimes v. Scott, is also approved by Mr. 
 Spence, after a full discussion of the authorities ; 2 Spence, Eq. Juris. 564, &c. ; and 
 was followed by the Master of the Rolls in Morgan v. Morgan, 14 Beav. 72 ; overruling 
 Douglass v. Congreve, &c. In Robinson v. Robinson, 21 Law J. Chanc. Ill, the 
 Lords 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, 21 Law J. Chanc. 678, where the money consisted of per- 
 sonal estate invested on personal security, payable by instalments, V. Ch. Parker held 
 that the tenant for life (the widow), was only entitled to four per cent, 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 Williamson v. Williamson, 6 Paige, 304 ; and 
 the result of the English authorities said to be, and it was so decided, that in the be- 
 quest of a life estate in a residuary 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 after- 
 wards 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 per 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. Iglehart, 6 Gr. & J. 191, however, the English rule appears to be in- 
 applicable in Maryland, as the tenant 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 Angerstein v. Martin, cfted 
 in the text. 
 
576 OF TRUSTEES FOR 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 terms 
 , *have given the tenant for life any interest until certain invest- 
 
 L J ments are made, the court (in the absence of any provisions 
 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, there- 
 fore, be treated as if it had heen 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) < 
 
 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 un- 
 diminished to those entitled in remainder. If, therefore, the will shows 
 an intention on the part of the testator to give the property in its exist- 
 ing 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 parti- 
 cular case will be carried into effect.(«) 
 
 Thus, if a leasehold estate, or a certain sum of terminable annuities, 
 or other property, which is wasting (no matter how rapidly), he be- 
 queathed specifically to, or in trust for, A. for life with remainder over : 
 although the tenant for life may very possibly exhaust the entire pro- 
 perty to the total exclusion of the remainderman, 1 the testator is himself 
 the best judge of what he intended the parties to take, and the general 
 rule for conversion will not apply, (k) 
 
 (h) Sitwell v. Bernard, 6 Ves. 520 ; Tucker v. Boswell, 5 Beav. 607 ; Entwistle v. 
 Markland, lb. 528, n. ; Stuart v. Bruere, lb. 529, n. ; Walker v. Shore, 19 Ves. 387 ; 
 Taylor v. Clark, 1 Hare, 167, 8. 
 
 (i) Alcock v. Sloper, 2 M. & K. 702 ; Pickering v. Pickering, 2 Beav. 57. 
 
 (k) Howe v. Earl of Dartmouth, 7 Ves. 149 ; Bethune v. Kennedy, 1 M. & Cr. 116; 
 Pickering v. Pickering, 4 M. & Cr. 299 ; Vaughan v. Buck, Phill. 80 ; Lord v. Godfrey, 
 4 Mad. 455. [Prendergast v. Prendergast, 3 H. L. Ca. 195 (in the Domus Proc.) ; 
 Morgan v. Morgan, 14 Beav. 72 ; Howe v. Howe, 14 Jur. 359; Cotton v. Cotton, 14 
 Jur. 950 ; Pickup v. Atkinson, 4 Hare, 628.] 
 
 1 Therefore, where leasehold property specifically bequeathed for life, is wrongfully 
 converted by the trustees, the tenant for life surviving the term is entitled to the whole 
 fund, to the exclusion of the remainderman. Phillips v. Sarjent, 7 Hare, 33. The 
 rule laid down in this ease was followed in Beaufoy's Est., 1 Sm. & GifF. 22, and applied 
 to compensation-money paid into court by a railway company, for a leasehold interest 
 held for lives, the tenant for life being held entitled to the whole on the death of the 
 last cestui qui vie. On a similar principle where real estate, subject to a long lease, 
 held by a tenant for life, with remainders, was taken by a railway company, the tenant 
 for life was held to be entitled to interest on the whole purchase-money, though more 
 than the previous rent. Re Steward's Estate, 1 Drew. 636. 
 
OP TRUSTEES FOR TENANT FOR LIFE. 577 
 
 And where there is a specific gift of articles quce ipso usu consumun- 
 tur, 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 interest is inopera- 
 tive.^) 
 
 There is little difficulty, therefore, in those cases, where the bequest is 
 clearly specific. But it has been observed by Lord Cottenham,(m) that 
 there are other cases of very great difficulty, 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 pro- 
 perty is not to be enjoyed specifically. In these cases, the construction 
 will, of course, be governed by the particular expressions 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 oonversion, a principle, which was said 
 by Lord Cottenham(w) to be often very difficult to carry out.(o) 1 
 
 (I) Randall v. Russell, 3 Mer. 194, 5. (m) 4 M. & Cr. 299. 
 
 (re) In Pickering v. Pickering, 4 M. & Cr. 303. 
 (o) See Hinves v. Hinves, 3 Hare, 611, 12. 
 
 1 Cafe v. Bent, 5 Hare, 35, where it was said, that the general rule as to the conversion 
 of wasting property, " does not proceed on the assumption that the testator intended 
 Ms property to be sold; but upon this, that the testator has intended the enjoyment of 
 perishable property by different persons in succession ; and this the court can accom- 
 plish only by a sale." To the same effect are the observations of Lord Brougham in 
 the case of Prendergast v. Prendergast, 3 H. L. Ca. 195, in the House of Lords. The 
 rule above stated, and established in Howe v. Lord Dartmouth, is not very favorably 
 regarded in the modern cases ; 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 lean- 
 ing 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, 16 Jurist, 1081 ; 21 L. J. Ch. 
 811 ; see, however, the remarks of L. J. Knight Bruce in this case on appeal, 22 L. 
 J. Ch. 238 ; 2 De G. Mac. & G. 115 ; Burton v. Mount, 2 De G. & Sm. 383 ; 12 Jur. 
 934 ; Howe v. Howe, 14 Jur. 359 ; and see 2 Spence Bq. Jur. 42, 554, and the autho- 
 rities there cited. "The court," it was said in Prendergast v. Prendergast, 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. Par- 
 ker in Blann v. Bell, ut supr., " that the applicability of the rule, in a particular case, 
 is to be ascertained by construing the whole will according to the directions given by 
 vthe testator." It is still incumbent, 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, 2 De G. Macn. & G. 775. See, also, an able and thorough discussion of 
 the subject in the London Law Magazine for August, 1853, vol. 50, p. 171. 
 
 The difference between a specific and residuary gift of chattels' is fully recognized in 
 
 37 
 
578 OF TRUSTEES FOE TENANT FOR LIFE. 
 
 Thus, it seems to be now clearly settled, that a general residuary gift, 
 
 the United States. Where there is specific gifts of articles quae usu consumuntur, 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 are not consumed by use, but 
 are only deteriorated, or wear out, as furniture, plate, farming utensils, &c, the re- 
 mainder is good, but the tenant for life is entitled to the use of the articles. If, how- 
 ever, the gift is residuary, the property, of whatever kind, must be sold, and the interest, 
 only, of the proceeds, given to the tenant for life. Covenhoven v. Shuler, 2 Paige, 
 132; Patterson v. Devlin, 1 McMull. Bq. 459; Woods v. Sullivan, 1 Swann, 507; 
 Robertson v. Collier, 1 Hill. Eq. 373 ; Horry v. Glover, 2 Id. 515 ; Calhoun v. Furge- 
 son, 3 Rich. Eq. 165 ; Saunders v. Haughton, 8 Ired. Eq. 217 ; Tayloe v. Bond, 1 Busb. 
 Eq. 25 ; De Peyster v. Clendining, 8 Paige, 295 ; Henderson v. Vaulx, 10 Yerg. 30 ; 
 Homer v. Shelton, 2 Metcalf, 194 ; Kinnard v. Kinnard, 5 Watts, 108. In Evans v. 
 Iglehart, 6 Gill & Johns. 192, however, it was held that the English rule, which re- 
 quires 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, the 
 tenant for life is only entitled to the interest, unless he gives security. Patterson v. 
 Devlin, ut supr. ; Eichelberger v. Barnetz, 17 S. & R. 293 ; Kinnard v. Kinnard, ut 
 supr. ; Rodgers v. Rodgers, 7 Watts, 19 ; Freeman v. Cook, 6 Ired. Eq. 379. With re- 
 gard to the increase of stock, &c., 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. Devlin, McMull. Eq. 459; Poindexter v. Blackburn, 1 Ired. Eq. 
 286 ; Saunders v. Haughton, 8 Ired. Eq. 217 ; Calhoun v. Furgeson, 3 Rich. Eq.160; 
 Evans v. Iglehart, 6 Gill & John. 172 ; Woods v. Sullivan, 1 Swann, 507 ; Hunt v. 
 Watkins, 1 Humph. 498 ; 2 Kent's Comm. 253, note (a). But where a life estate is 
 given in slaves, it has been held, in Virginia, Alabama, and North and South Carolina, 
 that the remainderman was entitled to the issue. Ellison v. Woody, 6 Munf. 368; 
 Covington v. McEntire, 2 Ired. Eq. 316 ; Milledge v. Lamar, 4 Desaus. 617 ; Robertson 
 v. Collier ; Horry v. Glover ; Patterson v. Devlin, ut supr. ; Strong's Exr. v. Brewer, 
 17 Alab. 713; Patterson v. High, 8 Ired. Eq. 52 ; Calhoun v. Furgeson, 3 Rich. Eq. 160. 
 But in Maryland, the general rule appears to apply. Scott v. Dobson, 1 H. & McH. 
 160 ; Evans v. Iglehart, 6 G. & Johns. 172 ; Wootten v. Burch, 2 Maryl. Ch. Dec. 191 ; 
 Holmes v. Mitchell, 4 Maryl. Ch. 163. But it has been held in the latter State, that where 
 a farm with negroes, &c, is given in trust that the income arising therefrom shall be 
 applied for the benefit of the cestui que trust for life, he is not entitled to the increase ; 
 for the reason of the rule does not apply. Holmes v. Mitchell, ut supr., affirmed by a 
 divided court, in 4 Md. R. 532. Though considerations of policy and humanity might 
 seem to justify those decisions which, departing from general principle, give the off- 
 spring of slaves to the remainderman, it cannot be denied that they must often work 
 great injustice to the tenant for life ; for he must thereby be compelled to maintain at 
 considerable expense the young, from whose labor he can hope to derive eventually but 
 little benefit, while on the other hand the burden of the support of the aged and in- 
 firm falls -on him, without any compensation whatever. 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 Patterson v. Devlin, 1 McMull. Eq. 459; 
 Covenhoven v. Shuler, 2 Paige, 131 ; Black v. Ray, 1 Dev. & Batt. Eq. 443. See 
 on this subject Calhoun v. Furgeson, 3 Rich. Eq. 160, where the distinctions above 
 stated are considered and examined with much clearness. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 579 
 
 in trust for a person for life, followed by a direction to sell after r*qq-i-i 
 *the death of the tenant for life, will entitle the tenant for life 
 to the specific enjoyment of such parts of the trust estate as consist of 
 leaseholds, or other perishable securities,^) and the contrary decisions 
 of the Vice-Chan cell or of England in Mills v. Mills, (q) and Benn v. 
 Dixon, (r) would scarcely be suffered to prevail against the other autho- 
 rities, (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.(z) 
 
 In Alcock v. Sloper(w) 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 effects 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 converted during her life, and that she 
 was therefore held entitled to receive the income of some long annuities 
 which formed part of the residuary estate. (w)(l) 
 
 So in Collins v. Collins(a;) 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 be divided in the 
 following manner — one-half in equal proportions to my father," and so 
 on, and Sir J. Leach was of opinion, that the remainderman was not 
 entitled to have a leasehold estate of the testator sold, there being a 
 sufficient indication of the testator's intention, that the widow should 
 enjoy the property in specie: and this decision was afterwards approved 
 of and acted upon by Lord Cottenham in Pickering v. Pickering. {y) 
 
 In Bethune v. Kennedy(s) the testatrix, after making two specific 
 bequests of sums in the long annuities, gave the residue of her property, 
 all she did or might possess in the funds, copy or leasehold estates, to 
 her two sisters during their lives ; at the decease of both of them to be 
 
 ( p) Alcock v. Sloper, 2 M. & K. 699 ; Daniel v. Warren, 2 N. C. C. 29q. 
 
 (2) 7 Sim. 501. 
 
 (V) 10 Sim. 636. [See, also, Chambers v. Chambers, 15 Sim. 189.] 
 
 (s) See Hinves v. Hinves, 3 Hare, 611. 
 
 \t) Collins v. Collins, 2I.4K. 703 ; Bethune v. Kennedy, 1 M. & Cr. 114. 
 
 (u) Alcock v. Sloper, 2 M. & K. 699. 
 
 (x) 2 M. & K. 703. [See Hunt v. Scott, 1 De G. & Sm. 219.] 
 
 (y) 4 M. & Cr. 300. (z) Bethune v. Kennedy, 1 M. & Cr. 114. 
 
 (1) However, in Mills v. Mills, 7 Sim. 501, a direction by a testator for the sale 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 re- 
 quiring the conversion of the leasehold property. 
 
580 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 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 150Z. 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 0. Pepys, M. K., 
 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.(g) 
 I"*3Q9T *The next case is Pickering v. Pickering,(a) where the testator 
 gave and bequeathed to his wife all the interest, rents, dividends, 
 annual produce and profits, use and enjoyment, of all his estate and 
 effects whatsoever, real and personal, for and during the term of her 
 natural life, and (after giving her certain specified articles) at the de- 
 cease of his said wife, he gave, devised, and bequeathed to his son-in- 
 law, E. R. P., all the rest and residue of his estate and effects what- 
 soever, 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 property of the testator 
 during her life without any conversion for the benefit of the remain- 
 derman. And this decision was affirmed on appeal by Lord Cotten- 
 ham.(aa) 
 
 In Goodenough v. Tremamondo,(o) 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 trustees 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 con- 
 tended, that this leasehold ought to have been converted; but the Master 
 of the Rolls (Lord Langdale), without 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 re- 
 peated ; there being no other property except the leasehold to which the 
 term was applicable.(b) It maybe remarked, that the term "rents" 
 was also made use of by the testator in Pickering v. Pickering, although 
 
 (z) Bethune v. Kennedy, 1 M. & Cr. 114. 
 
 (a) Pickering v. Pickering, 2 Beav. 31 ; S. C. on Appeal, 4 M- & Cr. 289. [See 
 Prendergast v. Prendergast, 3 H. L. Ca. 195 ; see further Burton v. Mount, 2 De G. & 
 Sm. 383 ; 12 Jur. 934.] 
 
 (aa) Pickering v. Pickering, 2 Beav. 31 ; S. C. on Appeal, 4 M. & Cr. 289. [See 
 Prendergast v. Prendergast, 3 H. L. Ca. 195 ; see further, Burton v. Mount, 2 De G. & 
 Sm. 383, 12 Jur. 934; Hood v. Clapham, 24 L. J. Ch. 193.] 
 
 (6) Goodenough v. Tremamondo, 2 Beav. 512. In a late, case it was held by the 
 same learned Judge, that a direction that the tenant for life should have "the full and 
 entire enjoyment of real and personal estate" operated as a specific gift of leaseholds. 
 Harvey v. Harvey, 5 Beav. 134 ; see Att. Gen. v. Petter, 5 Beav. 164. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 581 
 
 neither of the learned Judges, ■who decided that case, appears to have 
 attached any particular importance to that circumstance. There indeed 
 the testator appears to have been possessed of an estate in land pur 
 autre vie, to which the term " rents" might have applied.(cXl) 1 
 
 The recent decision of the Lord Chancellor in Vaughan v. Buck(d) is 
 also in favor of the enjoyment of the residue in specie by the legatee 
 for life. 
 
 But in the late case of Benn v., Dixon,(e) the testator gave to his wife 
 the whole o"f the interest arising from his property both real and per- 
 sonal during her life, and at her decease to be disposed of, as thereafter 
 named, and should she die without leaving issue, he gave the whole of his 
 property, both real and personal, to his brothers and sister in equal pro- 
 
 (c) 4 M. & Qr. 292. (d) 1 Phill. 76. (e) 10 Sim. 636. 
 
 (1) In Mills v. Mills, 7 Sim. 501, the same expression occurred, but Sir L. Shadwell, 
 V. C, notwithstanding, held, that the property ought to have been converted in favor of 
 the remainderman. [See Hood v. Clapham, 24 L. J. Ch. 193.] 
 
 1 In Harris v. Poyner, 1 Drewry, 174, a testator gave all his residuary real estate, 
 and all his stock, 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, 15 Beav. 193. however, where the 
 testator bequeathed the interest and proceeds of the residue of his property " of every 
 description it might be at his death," to certain persons for life, and afterwards over, it 
 was held that railway shares ought to be converted ; and see Morgan v. Morgan, 14 
 Beav. 92. So in Blann v. Bell, 11 L. J. Ch. 236 ; 2 De G. Mac. & G. 775, where a 
 testator gave the residue of his estate to trustees to pay the dividends of 1500Z. stock to 
 A. for life, and after to divide the dividends between P. 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 dividends, interest, rents, and annual 
 produce to his wife E. B. for life, with remainder to F. R. for life, with other remain- 
 ders. The testator had leasehold property, canal, and insurance shares, and Dutch 
 bonds. It was held by the Lords Justices, that she was not entitled to enjoy the shares 
 and Dutch bonds in specie, though she was the leaseholds. In Hood v. Clapham, 24 
 L. J. Ch. 193, a testator gave ''all his freehold and leasehold estates, and also all other 
 his real and personal estate, upon trust to collect and receive all moneys due to him, 
 mortgages, bonds, or other securities and rents" and after payment of debts and 
 legacies, to invest the residue in government stock ; " and as to one-half of all his said 
 freehold and leasehold estates, and all the said trust-moneys, stocks, funds, and securities, 
 and all other his real and personal estate, upon trust to pay the rents, dividends, and 
 annual income," in equal half parts to each of his daughters for life, with remainders 
 over. The testator's personal estate consisted of leaseholds, and several terminable an- 
 nuities, furniture, &c. The trustees did not convert any of these, but, on the contrary, 
 they divided the rents and the annuities between the tenants for life ; and they also 
 divided the furniture between them. Upon a bill filed by parties claiming through 
 those entitled in remainder, held, that the trustees were bound to convert the whole 
 of the personal estate, including the terminable annuities other than the leaseholds. 
 
582 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 portions. Part of the testator's estate consisted of a leasehold house, 
 in which he resided, and which his widow continued to occupy after his 
 r*3Qm *death. ■"■* was contended on behalf of the widow, on the 
 authority of Alcock v. Sloper, Collins v. Collins, and Pickering 
 v. Pickering, that she was entitled to the specific enjoyment of this pro- 
 perty ; 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 the property to be sold by public auction. The Vice-Chancellor 
 held, that S. M. W. was entitled to the enjoyment in specie of lease- 
 holds, which formed part of the testator's estate. 1 
 
 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 whatsoever for her 
 life at her own disposal, but not to sell without the consent 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 entitled 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, con- 
 sist of a reversionary interest, which produces no immediate available 
 income, but which admits of being valued, and converted into money, 
 the same rule which in the cases hitherto considered, works for the 
 benefit of the persons entitled in remainder, will also hold good (to the 
 same extent and subject to the same exceptions) for the benefit of the 
 tenant for life : and according to that rule it is primd facie the duty of 
 trustees at once to dispose of such an interest, and invest the proceeds 
 
 (/) Benn v. Dixon, 10 Sim. 639 ; and see Mills v. Mills, 1 Sim. 501, stated supra, 
 391, ii. iff) 2 N. C. C. 290. (h) 3 Hare, 609. 
 
 ' 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 "itas 
 follows:" — He then gave various general stock legacies, and whatever there might be 
 then remaining, after the above-mentioned directions 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. Lichfield v. Baker, 2 Beav. 481. 
 
op Trustees for tenant for life. 583 
 
 in stock, which will produce an immediate income 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 per- 
 sonally 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 & 40 Geo. Ill, c. 98 
 (usually called the Thellusson Act), 1 the enjoyment of the income of 
 *property might have been suspended for so long a period as the t-^qqa-i 
 vesting of the estate itself, viz., for a life in being, and a subse- *■ ^ 
 quent period of twenty-one years. (I) The abuse of this legal right in the 
 case of the will of the late Mr. Thellusson, induced the legislature to in- 
 terfere 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 settlor, or 4th, During the minority or minorities of any 
 person or persons, who, if of full age, would be entitled under the limi- 
 tations to the income, which is directed to be accumulated. But the 
 
 (i) Fearns v. Young, 9 Ves. 549, 552 ; Dimes v. Scott, 4 Buss. 200. 
 (k) Kaye v. Powell, 1 Ves. Jun. 408. 
 
 (1) Lord Southampton v. Marquis of Hertford, 2 V. & B. 61. [Hillyard v. Miller, 10 
 Barr, 333.] 
 
 1 Upon the construction of this Act, the following decisions since the publication 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. Harman, 9 Beav. 320 ; Bateman v. Hotchkin, 10 
 Beav. 426 ; Bouth v. Hutchinson, 8 Beav. 581 ; Boughton v. Boughton, 1 H. L. Ca. 
 406 ; Lady Rosslyn's trust, 16 Sim. 391 ; Halford v. Stains, Id. 488; Ellis v. Maxwell, 
 12 Beav. 104; "Wilson v. Wilson, 1 Sim. N. S. 288; Bassil v. Lister, 9 Hare, 177; 
 Morgan v. Morgan, 20 Law J. Chanc. 109 ; S. C. Id. 441 ; Bourne v. Buckton, 2 Sim. 
 N. S. 91 ; Corporation of Bridgnorth v. Collins, 15 Sim. 528. See as to proviso with 
 regard to portions, ante, 368, and note. In Pennsylvania, there was formerly no legis- 
 lative provisions 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 v. Miller, 10 Barr, 326. Now, however, the Legislature, by the act 
 of 1853 (P. L. 507), \ 9, has substantially adopted the Thellusson Act, omitting, how- 
 ever, the proviso with regard to trusts for debts and portions. On the other hand, in 
 addition, donations, bequests, and devises, for any literary, scientific, charitable, or reli- 
 gious 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 ii, ch. 1, tit. 2, § 15, 37 ; tit. 4, \ 1, &c, there are restrictions against the accumu- 
 lations, even more stringent than the Thellusson Act. 
 
584 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 act contains an exception in favor of any accumulation directed for the 
 payment. 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 pro- 
 perty 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.(jw) 
 
 The act goes on to direct, that any accumulations directed contrary 
 to its provisions shall be void, and that the income directed to be accumu- 
 lated 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 when the period allowed 
 by the act for accumulation has expired, the income during the residue 
 of the time appointed for its accumulation 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 remain- 
 der over, the trustees will not be justified in raising out of the corpus of 
 the estate any sums, which may be requisite for the substantial 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') 1 
 
 (m) Griffiths v. Vere, 9 Ves. 136 ; 1 Jarm. Pow. Dev. 418, 9 ; Ellis v. Maxwell, 3 
 Beav. 587. [Wilson v. Wilson, 1 Sim. N. S. 288.] 
 
 (ra) Lade v. Holford, Ambl. 479 ; Eyre v. Marsden, 2 Keen, 564 ; S. C. on appeal, i 
 M. & Cr. 231, and cases cited ; Marshall v. Holloway, 3 Swanst. 432 ; Griffiths v. Vere, 
 9 Ves. 129 ; Longdon v. Simpson, 12 Ves. 295 ; Lord Southampton v. Hertford, 2 V. 
 & B. 61 ; Haley v. Banister, 4 Mad. 277. [Nettleton v. Stephenson, 3 De G. & Sm. 
 366 ; see the remarks of Gibson, C. J., in 10 Barr, 335 ; ante, note to page 393.] 
 
 (o) Eyre v. Marsden, 2 Keen, 564 ; 4 M. & Cr. 231 ; M'Donald v. Bryce, 2 Keen, 
 271. [Sewell v. Denny, 10 Beav. 315 ; Barrett v. Buck, 12 Jur. 771; Boughton v. 
 Boughton, 1 H. L. Cas. 406 ; Nettleton v. Stephenson, 3 Be G. & Sm. 366.] 
 
 [p) O'Neil v. Lucas, 2 Keen, 313 ; Ellis v. Maxwell, 3 Beav. 587; Att.-Gen. v. 
 Pojlden, 3 Hare, 555, 
 
 (g) Bostock v. Blackeney, 2 Bro. C.'C. 653 ; Hibbert v. Cooke, 1 S. & St. 552 ; Nairn 
 v. Majoribanks, 3 Russ. 582 ; Caldecott v. Brown, 2 Hare, 144. 
 
 ' See Thurston v. Dickinson, 2 Richard. Eq. 317 ; Cogswell v. Cogswell, 2 Edw. Ch. 
 231 ; Jones v. Dawson, 19 Alab. 672; Martin's App., 23 Penn. St. 438; and in this 
 last case it was doubted whether even the Legislature could authorize the trustee to 
 make such expenditure. But in Parsons v. Win slow, 16 Mass. 361, it was said, that 
 where trustees are directed to invest in real estate, and purchase a house, the expenses 
 of putting it in tenantable repair, come out of the capital. And in Harris v. Poyner, 
 1 Drewry, 174, where leaseholds were specifically bequeathed for life, and the tenantfor 
 life was compelled to make good dilapidations incurred by the testator, under a cove- 
 nant in the lease, it was held that the expenses were to be charged on the corpus of the 
 estate ; though the rule is different as between a specific and a residuary legatee. 
 
OP TRUSTEES FOR TENANT FOR LIFE. 585 
 
 Previously to the act 4 & 5 Will. IV, c. 22, the representatives or 
 assigns of tenants for life of rents, annuities, or stocks, &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 indeed 
 there were an express provision for that purpose. 1 But by that statute 
 
 Hickling v. Boyer, 1 De G. Mac. & G. 762. A tenant for life making permanent im- 
 provements on the estate will not in general be allowed compensation as against the 
 remainderman. Corbett v. Laurens, 5 Rich. Eq. 301. But in Gambril v. Gambril, 3 
 Maryl. Ch. 259, where a tenant for life had made necessary permanent improvements 
 for the mutual accommodation of himself and the remainderman, and the property was 
 sold to promote the interests of all concerned, the former was held to be entitled to com- 
 pensation against the latter in proportion to the value of his interest, out of the proceeds 
 of sale. A second tenant for life cannot charge on the inheritance, money expended in 
 repairs which ought to have been performed by the previous life tenant, unless the ex- 
 pense was occasioned by wilful waste by the latter. Sharshaw v. Gibbs, 1 Kay, 333. 
 
 Now, however, in Pennsylvania, by the 3d Sect, of the Act of May 3, 1855 (Bright 
 Supp. 1156), it is enacted that it shall be lawful for the Court of Common Pleas of the 
 proper county, upon notice to the parties in interest, whenever, in the opinion of the 
 court, it will promote the interest of any estate held in trust composed of both real and 
 personal estate, to order, on the petition of the trustee and the beneficial owner 
 for at least a life estate, that the personal property, or a portion thereof, shall be applied 
 for the improvement and greater productiveness of the real estate : and it is further 
 provided that it shall be the duty of the trustee to keep an account of such expenditures, 
 and if the personal and real estate shall go to different persons in remainder or rever- 
 sion, there shall be no change of the rights of such persons, but such expenditure shall 
 be a charge on such realty, in favor of those entitled to the personalty, and be recoverable 
 by decree in such court, and if necessary, an order and decree of sale, as in the case of 
 Orphans' Court sales. In the case of a total destruction of an insured building by fire, 
 the property 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 in- 
 terests ; and the money is not to be applied to the rebuilding of the house ; Haxall's 
 Ex'rs v. Shippen, 10 Leigh, 536 ; Graham v. Roberts, 8 Ired. Eq. 99 ; but the case of 
 a partial injury is different, and the amount of the insurance is to be applied to the 
 repair of the building. Brough v. Higgins, 2 Gratt. 408. 
 
 1 In most of the States there are now statutory provisions authorizing the apportion- 
 ment of rent on the death of the tenant for life; following the 11 Geo. II, ch. 19, &c. 
 See 3 Kent Comm. 471; Pennsylvania Act of 1834, g 7 (Dunlop, 518); 3 Greenleaf 
 Cruise, 117 (306), note ; Code of Virginia, 1849, p. 574; see Price v. Pickett, 21 Alab. 
 741. With regard to annuities, the general rule is that they are not apportionable. 
 Wiggin v. Swett, 6 Metcalf, 194; Mannings v. Randolph, 1 Southard, 144; Tracy v. 
 Strong, 2 Conn. 659; Earp's Will, 1 Pars. Eq. 468; see Gheen v. Osborn, 17 S. & 
 R. 171; McLemore v. Goode, Harp. Eq. 275 ; Waring v. Purcell, 1 Hill's Eq. 199. 
 Where, however, a testator gave an annuity to his wife " in lieu of dower," it was held 
 apportionable. Gheen v. Osborn, 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 generosity 
 of the donor, an annuity is apportionable. Dividends from money in the funds, and 
 bank stock, are also not apportionable : Earp's Will, 1 Pars. 468 ; Wilson v. Harman, 
 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 ; Sweigart v. Berks, 8 S. & R. 299. 
 Under a will made before the 4 & 5 William IV, and consequently under the 11 Geo. II, 
 
586 OF TRUSTEES FOR TENANT FOR LIFE. 
 
 the right to such an apportionment is given in all cases, where the right 
 .-^qqr-i to the payment *is created by any instrument or will executed 
 or coming into operation after the passing of the act.(r) 
 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 defraying 
 those charges out of the general trust fund.(s) 1 
 
 (r) See re Markby, 4 M. & Cr. 484; Michell v. Michell, 4 Beav. 549. [This act ap- 
 plies to an annuity not continued after the death of the annuitant. Trimmer v. Danby 
 
 23 L. J. Ch. 979.] 
 
 (s) Fountaine v. Pellet, 1 Ves. Jun. 342. 
 
 it was held that where the proceeds of land held by tenant for life with remainders, 
 taken by a railway company, were invested, and the tenant for life died between two 
 dividends, there was no apportionment. Longworth's Est, 23 L. J. Ch. 104. 
 
 1 Cairns v. Chabert, 3 Edw. Ch. 312; Jones v. Dawson, 19 Alab. 672; Tupperv. 
 Fuller, 7 Rich. Eq. 170. 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 incumbrances on the estate, falls on 'the tenant for life. 
 4 Kent's Comm. 74; Jones v. Sherrard, 2 Dev. & Batt. Eq. 187 ; Cogswell v. Cogswell, 
 2 Edw. Ch. 231 ; see Caulfield v. Maguire, 2 J. & Lat. 141 ; Hiuves v. Hinves, 3 Hare, 
 609. But this is only to the extent of the rents and profits, and therefore, if a tenant 
 for life pays off and takes an assignment of a mortgage, he is entitled to charge the 
 inheritance with the difference between the interest payable on the mortgage and the 
 annual rents and profits, if the former exceeds the latter. Lord Kensington v. Bouverie, 
 
 24 L. J. Ch. 442 ; 19 Jur. 100, L. JJ. of Appeal. In taking the account in such a 
 case, the tenant for life is not to be charged with wilful default, as a mortgagee in 
 possession, unless on special grounds. Ibid. Though it was formerly held that a second 
 tenant for life is bound to pay out of the rents and profits arrears of interest on a 
 charge which have accrued out during the life of a preceding tenant for life: Penrhyn 
 v. Hughes, 5 Ves. 99 ; this appears to be now overruled, and such arrears are held to be 
 between him and the remainderman, a charge on the inheritance. Sharshaw v. Gibbs, 
 1 Kay, 333. In North Am. Coal Co. v. Dyett, 7 Paige, 9, where a manufacturing 
 establishment was held in trust, it was ruled that the one entitled to the present income 
 was exclusively responsible for the debts incurred in carrying on the establishment. 
 So the expenses of management of a plantation are chargeable to the life tenant alone. 
 Jones v. Dawson, 19 Alab. 672 ; Tupper v. Fuller, 7 Rich. Eq. 170. 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, 186; Chesson v. 
 Chesson, 8 Ired. Eq. 141 ; Atkins v. Kron, Id. 1. What the proportion is, see 4 Kent's 
 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. Neimcewicz v. Gahn, 3 Paige, 652 ; Jones v. Sherrard, 2 
 Dev. & Batt. Eq. 189. This, however, is not the exclusive standard, for on the reference, 
 the state of health of the tenant for life, and the other circumstances affecting the 
 probable duration of his life, must be taken into consideration. Atkins v. Kron, 8 
 Ired. Eq. 1; Gambril v. Gambril, 3 Maryl. Ch. 259. The simplest plan is, of course, 
 where it is practicable, to have the proceeds invested and the income only paid to the 
 life tenant. Where the estate is not sold, the estimate of the value of a life interest 
 becomes a matter of considerable difficulty, for it must be based not merely on the 
 probable duration of life, but also upon other elements relating to the land itself, such 
 as its annual income, whether the price of land is rising or falling, and whether tbe 
 particular land is likely to be improved or deteriorated by the usual method of cultiva- 
 tion. Atkins v. Kron, ut supra. 
 
OF TRUSTEES FOR TENANT FOR LIFE. 587 
 
 It not ^infrequently 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.(t) But if any beneficial interest remains in the 
 tenant for life ; as for instance, where the property in the event con- 
 templated is to be in trust for the benefit of him and his wife and family ; 
 in that case, whatever benefit he is entitled to, will unquestionably go to 
 his assignees. (u) However, where it is left entirely in the discretion of 
 the trustees to continue or withhold any benefit to the bankrupt or in- 
 solvent, his assignees will not be entitled to anything, as long as nothing 
 is given to him by the trustees. (a) 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 
 contemplate a particular and voluntary alienation, it will not be extended 
 to an alienation by act of law.(z) 1 
 
 (t) Dommet v. Bedford, 3 Ves. 149 ; Cooper v. "Wyatt, 5 Mad. 482 ; Shee v. Hale, 
 13 Ves. 404 ; Lewes v. Lewes, 6 Sim. 304 ; Twopenny v. Peyton, 10 Sim. 487 ; Page 
 v. Way, 2 Beav. 20 ; Brandon v. Aston, 2 N. C. C. 24. 
 
 (u) Rippon v. Norton, 2 Beav. 63 ; Lord v. Bunn, 2 N. C. C. 98 ; Green v. Spioer, 1 
 Boss & Milne, 395 ; Piercy v. Roberts, 1 M. & K. 4; Snowdon v. Dales, 6 Sim. 524; 
 Younghusband v. Gisborne, 3 Jur. 750 ; S. C. 1 Coll. N. C. C. 400 ; [affirmed 10 Jur. 
 419 ; Rochford v. Hackman, 9 Hare, 475.] 
 
 (x) Godden v. Crowhurst, 10 Sim. 642. [But see the remarks on this ease, and that 
 of Twopeny v. Peyton, 10 Sim. 487, in 1 Coll. Ck 400, and in 10 Jur. 419.] Lord v. 
 Bunn, 2 N. C. C. 98 ; Kearsley v. Woodcock, 3 Hare, 185. 
 
 (y) Lord v. Bunn, 2 N. C. C. 98 ; Kearsley v. Woodcock, 3 Hare, 185. 
 
 (z) Lear v. Leggett, 2 Sim. 479 ; 1 R. & M. 690 ; Whitfield v. Pricket, 2 Keen, 608. 
 [Rochford v. Hackman, 9 Hare, 475, 482.] 
 
 1 In Rochford v. Hackman, 9 Hare, 475, it was held, that though a proviso restrain- 
 ing 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 con- 
 nected 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 Sim. N. S. 37, 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 licitas, which 
 that was held to be, and conditiones rei non licitce, 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, how- 
 ever, 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 necessary to decide the point at /present, but I do not understand 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 any gift over being made. The 
 true rule is, that the court must collect the testator's intention, — whether the life estate 
 
588 OF TRUSTEES FOR INFANTS. 
 
 VII. — OF TRUSTEES FOR INFANTS. 
 
 Infants and their property are in an especial manner under the pro- 
 tection of the Court of Chancery, -which regards with peculiar jealousy 
 anything approaching to a dereliction of duty by their trustees. 1 
 
 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 
 
 should continue or not, — from 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." A proviso that if a legatee should anticipate or assign, or attempt to antici- 
 pate or assign, his interest in a legacy on trust, then both the income and the principal 
 should go over, is valid ; and an assignment by the legatee transferring for a valuable 
 consideration all the dividends which were then payable, but not future dividends, 
 " so far as the assignee lawfully could or might, without working a forfeiture of his life 
 interest," is such an attempt to assign as to work a forfeiture. In re Stulz, IV Jur. 
 615. 
 
 In Grace v. 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 j£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 sum, not subsequent, and therefore, also, 
 good. This principle was again recognized in Lloyd v. Lloyd, 2 Sim. N. S. 255 ; Heath 
 v. Lears, 1 Bq. Rep. 55 ; Potts v. Richards, 24 L. J. Ch. 488. 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 valid when an- 
 nexed to real estate, Comm. v. Stauffer, 10 Barr, 350: but void (without a limitation 
 over) in bequests of personalty and annuities. Hoopes v. Dundas, 10 Barr, 75. In 
 Maddox v. Maddox's Adm., 11 Gratt. 804, conditions imposing a religious qualifica- 
 tion were also held to be invalid. Whether a proviso in the creation of a trust, that the 
 trust property shall not be liable to the cestui que trust's debts[is valid withouta limitation 
 over, is not settled in this country. It was held not to be so in Hallett v. Thompson, 5 
 Paige, 583 (see Rider v. Mason, 4 Sandf. Ch. 352) ; and Dick v. Pitchford, 1 Dev. h 
 Ban. Eq. 480 ; Heath v. Bishop, 4 Rich. Bq. 46. In Stagg v. Beekman, 2 Edw. Ch. 
 89, however, it was held that a direction in n, will for the investment, under the direc- 
 tion of the court, of a certain sum, for the sole benefit of a person, discharged from all 
 claim of his creditors, or if not possible, the fund to sink into the residue, could be 
 carried into effect. In Pennsylvania, 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 himself 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. Taylor, 2 Rawle, 33 ; Norris v. Johnston, 5 Barr, 289 ; Byrick v. Hetrick, 13 
 Penn. St. R. 491. So in Kentucky, Pope v. Elliott, 8 B. Monr. 56. See, in Massa- 
 chusetts, Braman v. Stiles, 2 Pick. 463. 
 
 1 The Supreme Court of Pennsylvania in a recent case, which has struck at the root 
 of the law of trusts in that State, seem to have held that a trust for minors, though 
 expressly for their maintenance and education, could not be supported, and that the 
 minors in such case took the legal estate. Kuhn v. Newman, 2 Casey, 227. This de- 
 cision has occasioned much surprise and regret, for it is generally thought to have 
 overturned what had hitherto been the settled doctrine on the subject, and to have in- 
 troduced unnecessary doubt and confusion into the law of real estate, in matters which 
 had been before quite plain and indisputable. 
 
OF TRUSTEES FOR INFANTS. 589 
 
 laid out by the trustees 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, having 
 saved *3000Z. out of the profits of his real estate, laid it out in r*qqe-i 
 the purchase of lands contiguous to the infant's 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 investment of their own authority, and 
 
 (a) Norbury v. Norbury, 4 Mad. 191. 
 
 (&) 1 Mad. Ch. Pr. 260, 279 ;"1 Ponbl. Eq. B. 1, ch. 2, s. 5, n. (6) ; 2 Story Eq. Jur. 
 {j 1357 ; Ex parte Phillips, 19 Ves. 122 ; Witter v. Witter, 3 P. Wms. 101 ; Rook v. 
 Worth, 1 Ves. 461 ; Tullitt v. Tullitt, Ambl. 370. 
 
 1 Royer's App., 11 Perm. St. R. 36 ; Bonsall's App., 1 Rawle, 273 ; Kauffman v. 
 Crawford, 9 Watts & Serg. 131; Wolf v. Eichelberger, 2 Penn. R. 346 ; Eckford v. De 
 Kay, 8 Paige, 89 ; Rogers v. Patterson, 4 Paige, 409 ; Ex parte Crutchfield, 3 Yerg. 
 336. Sherry v. Sansberry, 3 Port. Ind. 324 ; Hassard v. Rowe, 11 Barb. 22. But in a 
 case of imminent necessity, a guardian may purchase land with his ward's money. 
 Bonsall's App,, ub. supra ; see Billington's App., 3 Rawle, 55 ; Royer's App., 11 Penn. 
 St. R. 36 ; though see Moore v. Moore, 12 B. Monr. 651, contra. So in a proceeding 
 in the Orphans' Court in partition, 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 pur- 
 chase it for his ward, if it seems it is necessary to prevent its being sacrificed. Bow- 
 man'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. 
 Barkley, 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. Tallmadge, 1 J. C. R. 561. Permanent improvements are equiva- 
 lent 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 guardian 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, 16 Jur. 560, 
 the court ordered a reference to inquire whether it would be for the interest of an in- 
 fant 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. See ante, note 
 to page 394, Pennsylvania Act of 1855. 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 of Va. v. Craig, 6 Leigh, 399 ; 
 Hunter v. Lawrence, 11 Gratt. Ill ; see ante, page 166, and note. 
 
590 OF TRUSTEES FOR INFANTS. 
 
 that they should therefore account to the infant's executors for the 
 3000Z.(e) 
 
 However, it has been laid down that trustees may change the nature 
 of the infant's estate under particular circumstances, where it is mani- 
 festly for his advantage or convenience to do so ; and the transaction 
 will be supported, if the court would act so itself under the same circum- 
 stances. (d)(1) But it is obviously very difficult to apply this rule with 
 
 (c) Earl of Winchelsea v. Norcliffe, 1 Vern. 434; see Gibson v. Scudamore, 1 
 Dick. 45. 
 
 (d) Inwood v. Twinne, Ambl. 419 ; S. C. 2 Ed. 147, 152 ; see Terry v. Terry, Prec. 
 Ch. 273. [Forman v. Marsh, 1 Kern. 547 ; ante, note to page 394.] 
 
 (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 marriage, 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 court, was 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 12 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 property 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 in- 
 fant's leasehold estate, on the notion of its being for his benefit. [Reported, 1 Coll. 
 577. The same doctrine was held by the Master of the Rolls in Field v. Moore, 19 
 Beav. 176 ; 24 L. J. Ch. 167. The jurisdiction of a court of equity in general to 
 direct the conversion of an infant's estate, was asserted in the Matter of Salisbury, 3 
 John. Ch. 347 ; Huger v. Huger, 3 Desaus. 18 ; Stapleton v. Langstaff, Id. 22 ; For- 
 man v. Marsh, 1 Kern. 547 ; Troy v. Troy, 1 Busb. Eq. 87 ; Williams v. Harriugton, 11 
 Ired. R. 616 ; Ex parte Jewett, 16 Alab. 409 ; but denied in Rogers v. Dill, 6 Hill, 415; 
 Baker v. Lorillard, 4 Comst. 257 ; see Williams's case, 3 Bland, 186, for a full discus- 
 sion 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 applica- 
 tion of the guardian, &c, where it is necessary, or for the former's benefit. See in 
 Pennsylvania, Acts of 1834, \ 33 (3) ; (Dunlop, 476) ; of 1836, \ 1 (Dunlopjk695) ; of 
 1851, I, ? 1 (Dunlop, 1133) ; and the recent act of April 18, 1853. See, also, Garland 
 v. Loving, I Rand. 396 ; Matter of Wilson, 2 Paige, 412 ; Pope v. Jackson, 11 Pick. 
 113 ; Talley v. Starke, 6 Gratt. 339 ; Duckett v. Skinner, 11 Ired. 431 ; Brown's case, 
 8 Humph. 200 ; Peyton v. Alcorn, 7 J. J. Marsh. 502 ; Forman v. Marsh, 1 Kern. 
 547 ; Dalrymple v. Taneyhill, 4 Maryl. Ch. 171 ; Dow's Petition, Walker's Ch. 145 ; Ex 
 parte Jewett, 16 Alab. 409 ; Young v. Keogh, 11 Illinois, 642. In New York it has 
 been held that the jurisdiction of the court over the sale of an infant's real estate is 
 wholly derived from the statute of that State, and that it does not extend to cases not 
 there provided for. Baker v. Lorillard, 4 Comst. 257. There is no question but that 
 a State Legislature may constitutionally direct such a conversion. Snowhill v. Snow- 
 hill, 2 Green's Ch. 20 ; Norris v. Clymer, 2 Barr, 277 ; Davison v. Johonnot, 7 Mete. 388 ; 
 
OF TRUSTEES FOR INFANTS. 591 
 
 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 dis- 
 countenancing the absolute conversion of the personal estate of an infant 
 into real estate. According to the old law, an infant at seventeen 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 :(e) 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, however, 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 matter of doubt, whether the court L -• 
 would in future adhere with the same strictness to the old rule for the 
 benefit of the infant's heir. The observations which fell from Lord 
 Eldon in Ware v. Polhill,(^) 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 
 
 (e) Earl of Winchelsea v. Norcliffe, 1 Vern. 436 ; Pierson v. Shore, 1 Atk. 480 ; 
 Witter v. Witter, 3 P. Wms. 101 ; Ex parte Grimstone, Ambl. 708 ; Ex parte Phillips, 
 19 Ves. 123. 
 
 (/") Sergeson v. Sealey, 2 Atk. 413, 4 ; Ashbnrton v. Ashburton, 6 Ves. 6 ; Ware v. 
 Polhill, 11 Ves. 278 ; Ex parte Phillips, 19 Ves. 123 ; Webb v. Lord Shaftesbury, 6 
 Mad. 100. 
 
 (ff) 11 Ves. 278 ; and see Rook v. Worth, 1 Ves. 461. (h) 1 Atk. 480. 
 
 (t) 2 Vfes. Jun. 69, 70 ; S. C. 4 Bro. C. C. 201. [See Matter of Salisbury, 3 J. C. E. 
 347 | Lloyd v. Hart, 2 Barr, 477.] 
 
 Spotswood v. Pendleton, 4 Call, 514; Dorsey v. Gilbert, 11 G. & J. 87; Powers v. 
 Bergen, 2 Seld. 358 ; Nelson v. Lee, 10 B. Monr. 495 ; even though the infants be 
 non-residents ; Nelson v. Lee, ut supr. But where land is sold by Act of the Legisla- 
 ture, or by decree of the court, the proceeds remain real estate for the purposes of 
 descent, during minority: Genet v. Tallmage, 1 J. C. B. 561; Snowhill v. Snowhill, 
 2 Green Ch. 20 ; Lloyd v. Hart, 2 Penn. St. 473 ; March v. Berrier, 6 Ired. Eq. 524 ; 
 Shumway v. Cooper, 16 Barb. 556 ; Sweezy v. Thayer, 1 Duer, 286 ; Forman v. Marsh, 
 1 Kernan, 544; Penna. Act of 1853 ; though when the minor arrives of age, they go 
 as personalty. Forman v. Marsh, ut supr. There is no conversion, however, till the pur- 
 chaser has complied with the terms of sale. Dalrymple v. Taneyhill,4 Maryl. Ch. 171.] 
 
592 OF TRUSTEES FOR INFANTS. 
 
 Ex parte Grimstone,(&) the court refused to interfere as between the 
 two classes of the 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 distinc- 
 tion between infants and lunatics was admitted by Lord Loughborough 
 in Oxenden v. Lord Compton,(Z) and was also recognized 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 of the law, and these last cases are therefore autho- 
 rities for holding, that if an infant's real estate have been actually con- 
 verted, the court will not interpose on behalf either of his real or per- 
 sonal 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 recognize 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 himself.(l) 
 
 It is almost superfluous to add, that if the instrument, creating the 
 trust for- the infant, contain any express direction as to the disposition of 
 the estate, the express trust will override any general rule of construc- 
 tion, which will prevail only in the absence of any positive declaration 
 on the point in question. (n) 
 
 In some instances the infancy of the cestui que trust necessarily in- 
 vests 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 in- 
 terested, (o) If, however, the cestui que trusts were infants, or other- 
 wise incapacitated, the trustees would necessarily take by implication 
 poqo-i the power *of giving a discharge to the purchaser; for the 
 power of sale would otherwise be nugatory, (p) 
 
 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 
 
 V 
 
 (k) Ambl. 706 ; S. C. 4 Bro. C. C. 235, n. (Z) 2 Ves. Jun. 75. 
 
 (m) 19 Ves. 122, 3. 
 
 (») See Ashburton v. Ashburton, 6 "Ves. 6 ; Terry v. Terry, Prec. Ch. 273. [Rogers 
 v. Dill, 6 Hill, N. Y. 415.] 
 
 (0) 2 Sugd. V. & P. 45, 9th ed. 
 
 (p) Lavender v. Stanton, 2 Mad. 46 ; Sowarsby v. Lacy, 4 Mad. 142 ; Breedon *. 
 Breedon, 1R.4M. 413. 
 
 (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]. 
 
OP TRUSTEES FOR INFANTS. 593 
 
 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. (q) 
 And a release taken from the infant will be wholly inoperative.(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 after- 
 wards claiming a repayment.(s) But the intention to confirm the pay- 
 ment must be clear, and it will not necessarily be inferred merely from 
 the acquiescence of the party after attaining his full age, though con- 
 tinued for as long a period as fourteen or fifteen years.(tf) However, if 
 an infant by means of fraudulent misrepresentations induce a trustee to 
 pay over to him the trust fund, he cannot take advantage of his own 
 fraud and compel a repayment on coming of age.(w) 
 
 By the statute 36 Geo. Ill, c. 52, s. 32, an executor is enabled to dis- 
 charge himself from all responsibility with respect to the payment of 
 legacies due to infants, by paying the amount, after deducting the legacy 
 duty, into the Bank with the privity of the Accountant- General of the 
 Court of Chancery to the account of the party entitled 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.(v) 2 
 
 Where the trust is for the payment of the money not to the infant 
 himself, but to a guardian or trustee for Mm, 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, according to 
 the principle already considered, will be a good discharge for the money 
 so paid, (a;) And on this principle, where there is a bequest of 1001. to 
 
 (g) Dagley v. Tolferry, 1 P. Wms. 285 ; Phillips v. Paget, 2 Atk. 80 ; Davies v. 
 Austen, 3 Bro. C. C. 178 ; Lee v. Brown, 1 Ves. 369 ; Overton v. Banister, 8 Jur. 996 ; 
 S. C. 3 Hare, 503. 
 
 (r) Overton v. Banister, 8 Jur. 996 ; S. C. 3 Hare, 503. 
 
 \s) Cooper v. Thornton, 3 Bro. C. C. 97 ; Lee v. Brown, 4 Ves. 368 ; 1 Bop. Legs. 771. 
 3d ed.; 2 Wms. Executors, 869; 1 Bop. Legs. 771; Cory v. Gertchken, 2 Mad. 40. 
 [See post, 526, note.] 
 
 (t) Dagley v. Tolferry, 1 P. Wms. 285 ; see Lee v. Brown, 4 Ves. 362. 
 
 (u) Cory v. Gertchken, 2 Mad. 40 ; Overton v.' Banister, 8 Jur. 996 ; S. C. 3 Hare, 
 503. [See ante, 144, note 2.] 
 
 (v) 2 Wms. Executors, 867, 8 ; 1 Rop. Legs. 767. 
 
 (x) 2 Wms. Executors, 866 ; 1 Bop. Legs. 771. 
 
 1 Furman v. Coe, 1 Caines' Cas. 96 ; Sparhawk v. Buell, 9 Verm. 41. Not even to 
 guardian, without security. Hoyt v. Hilton, 2 Edw. Ch. 202. 
 
 2 In Parrance v. Viley, 21 Law J. Chanc. 313, the shares of infants in an estate, 
 under 201. each, were directed to be paid at once to the parties maintaining them, to 
 save the expense of the above proceeding. So in Ker v. Buxton, 16 Jur. 491, legacies 
 of Wl. given to two infants for mourning, were directed to be paid to the father, wha 
 had always maintained them, he undertaking to apply it for the purpose. 
 
 38 
 
594 OP TRUSTEES FOR INFANTS. 
 
 A. to be equally divided between bimself 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. (y) 
 
 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 
 r*qqQ-| f uu & *even for the advancement of the infant, and still less 
 merely for his maintenance.^) 
 
 Therefore if the instrument creating the trust do not authorize an 
 application of the corpus of the fund in advancement and maintenance, 
 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. 1 In 
 Walker v. Wetherell(a) a doubt was expressed by Sir Win. Grant, M. 
 R., whether even the court upon petition could order the capital of an 
 infant's fund to be broken in upon for mere maintenance, although it 
 had frequently been done for the purpose of advancement. However, 
 such an order was made in the earlier case of Barlow v. Grant,(i) on 
 the ground of the small amount of the fund. And Sir Thomas Plumer, 
 M. R., for the same reason made a similar order on petition in Ex parte 
 Green. (c) And Ex parte Chambers,(cZ) which was decided by Lord Lynd- 
 hurst, C., is an authority to the same effect.(e) So that there appears 
 to be no doubt as to the jurisdiction of the court to make such an order 
 merely for the maintenance 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 applica- 
 tion of the capital of his fortune for that purpose.(/) Indeed pay- 
 
 (y) Cooper y. Thornton, 3 Bro. C. C. 96, & 186 ; Robinson v. Tickell, 8 Ves. 142. 
 
 (z) Walker v. Wetherell, 6 Ves. 474. Anon. Mosley, 41. 
 
 (a) 6 Ves. 474. [See Williams's case, 3 Bland. 186.] 
 
 (o) 1 Vern. 255. [See Ex parte Hays, 13 Jur. 762; 3 De G. & Sm. 485 ; Ex parte 
 Allen, 3 De G. & Sm. 485; Matter of Bostwick, 4 J. C. R. 100.] 
 
 (c) 1J. & W. 253. {d) 1 R. & M. 577. 
 
 (e) And see Ex parte Knott, 1 R. & M. 499; Ex parte Swift,,Ib. 575; Evans v. 
 Massey, 1 Y. & J. 196 ; Bridge v. Brown, 2 N. C. C. 181. 
 
 (/) Barlow v. Grant, 1 Vern. 255 ; Franklin v. Green, 2 Vern. 137; In re England, 
 
 1 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 ; McDowell v. Caldwell, 2 McCord, Ch. 43 ; Davis v. Roberts, 1 Sm. & 
 M. Ch. 543 ; Hester v. Wilkinson, 6 Hump. 219 ; Prelick v. Turner, 26 Mississ. 393 ; 
 Martin's App., 23 Penn. St. 438 ; Villard v. Chovin, 2 Strob. Eq. 40 ; Bybee v. Tharp, 
 4 B. Monr. 313 ; Carter v. Rolland, 11 Humph. 339 ; Cornwise v. Bourgum, 2 Geo. 
 Dec. 15 ; Haigood v. Wells, 1 Hill's Eq. 59. But in cases of necessity, payments out 
 of the capital have been allowed. Ex parte Potts, 1 Ash. 340 ; Ex parte Bostwick, 4 
 J. C. R. 100 ; Long v. Norcom, 2 Ired. Eq. 354 ; see Haygood v. Wells, Hill's Eq. 79; 
 Maupin v. Dulany, 5 Dana, 593. Where the expenditure is for the purpose of educa- 
 tion or advancement, it will be more readily allowed. Maclin v. Smith, 2 Ired. Eq. 
 371 ; Carter v. Rolland, 11 Humph. 339. See this subject ably discussed in the notes 
 to Eyre v. Countess of Shaftesbury, 2 Lead. Cas. Eq. pt. ii, 267, &c. 
 
OF TRUSTEES FOR INFANTS. 595 
 
 merits for such a purpose out of the capital have been allowed to trustees 
 in passing 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 bona fide and for the infant's benefit : for such payments ought to 
 be discouraged upon principles of general convenience. (h) 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 them of their 
 own authority ; if made for actual necessaries for the infant's use. (A;) 
 
 It is almost unnecessary to remark, that where there is a discretionary 
 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 
 be properly made. But the terms and restrictions annexed to the power 
 must be strictly observed ; and where the author of the trust intended 
 that the power *ahould be exercised only with the concurrence r*4on-| 
 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. (T) 
 
 Where the trust fund is given over for the benefit of another person 
 in case of the death of the infant under twenty-one, no part of the capital 
 ean be applied for the infant's advancement even by the court, in the 
 absence of an express power created by the trust instrument, still less 
 can the trustees so apply the fund of their own authority.(m) However, 
 an advancement may be made in such cases, if the parties entitled in 
 remainder being competent, appear and give their consent.(w) 
 
 Trustees cannot safely apply even the income of an infant's fortune 
 for his maintenance or benefit without the sanction of the court, unless 
 
 1 R. & M. 499 ; Ex parte Chambers, lb. 577. [Re Welch, 23 L. J.'Ch. 344 ; Nunn v. 
 Harvey, 2 De G. & Sm. 301; Re Clarke, 17 Jur. 362; Re Lane, Id. 219; Williams's 
 Case, 3 Bland, 186 ; Matter of Bostwick, 4 J. C. R. 100.] 
 
 {g) Barlow v. Grant, 1 Vern. 255 ; Franklin v. Green, 2 Vern. 137. 
 
 (h) Davies v. Austen, 3 Bro. C. C. 178 ; Lee v. Brown, 4 Ves. 362 ; Walker v. 
 Wetherell, 6 Ves. 473. [See ante, note to page 395.] 
 
 (t) Lee v. Brown, 4 Ves. 369 ; vide post, Remedies for Breach of Trust. 
 
 (k) See Davies v. Austen, 3 Bro. C. C. 178. 
 
 (I) Palmer v. Wakefield, 3 Beav. 227. 
 
 (to) Lee v. Brown, 4 Ves. 362. [Van Vechten v. Van Veghten, 8 Paige, 104,] 
 
 (n) Evans v. Massey, 1 Y. & Jerv. 196. 
 
596 OF TRUSTEES FOR INFANTS. 
 
 they are expressly authorized to do so hy the trust instrument.(o) 1 And 
 even if the instrument contain a power or trust for maintenance, yet if 
 the direotion be general, without specifying how much is to be so applied, 
 the uncertainty of amount will render an application to the court requi- 
 site for the security of the trustees.(p) And the court in such cases 
 will fix the amount of the maintenance with regard to the fortune an8 
 circumstances of the infant, (j) 
 
 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 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 main- 
 tenance, except under the direction of the court. 8 
 
 However, where the gift has proceeded from the parent of the infant, 
 or 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 property is given over to 
 
 (o) 1 Bop. Legs. 768, 3d ed. ; 2 Wins. Executors, 868. 
 
 (p) 1 Rop. Legs. 768. 
 
 (g) 2 Rop. Legs. 241, and cases cited. [Owens v. Walker, 2 Strob. Eq. 289. Ex 
 parte Williams, 2 Coll. Ch. 740.] 
 
 (r) Archerly v. Vernon, 1 P. Wms. 783; Rogers v. Southen, 2 Keen, 598. [Corbin 
 v. Wilson, 2 Asbm. 208.] 
 
 (s) Incledon v. Northcote, 3 Atk. 433, 438 ; Harvey v. Harvey, 2 P. Wms. 22 ; Lam- 
 bert v. Parker, Coop. 143 ; Brown y. Temperley, 3 Russ. 263 ; Mills v. Robarts, 1 Russ. 
 & M. 555 ; Ex parte Chambers, 1 Russ. & M. 577 ; Boddy v. Dawes, 1 Keen, 362; 
 Fairman v. Green, 10 Ves. 45 ; [Seibert's App., 19 Penn. St. 49 ;] but see Lomox v. 
 Lomox, 11 Ves. 48. 
 
 (t) Mole v. Mole, 1 Dick. 310; Greenwell v. Greenwell, 5 Ves. 194; Cavendish v. 
 Mercer, lb. 195, n. ; Collis v. Blackburn, 9 Ves. 470 ; Fairman v. Greene, 10 Ves. 45 ; 
 M'Dermot v. Kealy, 3 Russ. 264, n. ; Stretch v. Watkins, 1 Mad. 253. [Corbin v. Wil- 
 son, 2 Asbm. 208 ; Newport v. Cook, Id. 342.] 
 
 1 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 exercise a discretion, 
 and is not to place the funds directly in the hands of a beneficiary 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. 
 
 2 Now, however, in Pennsylvania, by the Act of April 18, 1853, notwithstanding 
 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 nave equal interests. A 
 similar provision exists in New York, Rev. St. part ii, ch. 1, tit. 2, \ 38 ; Id. tit. 4, ? 5. 
 
OF TRUSTEES FOR INFANTS. 597 
 
 the other children on the death of the infant under twenty-one, if the 
 chance of the survivorship be equal ;(«)' although if that be not the 
 case, maintenance will not be given without the consent of the parties 
 entitled in remainder.(a;) 
 
 *But maintenance in such cases will only be given where the r * Ani -, 
 subject of the trust is a residuary personal 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 contin- 
 gency, will belong to the testator's heir, in the one case, and to his re- 
 siduary 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) 
 
 And the gift for the infant's benefit must proceed from its parent, or 
 a person who has placed himself in the place of a parent. And main- 
 tenance 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 grand- 
 father to his grandchild, (J) 3 or where the infant is a natural child, if not 
 recognized and adopted by the father.(c) 
 
 Where an infant has an interest in two or more funds, but his interest 
 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 contingently 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 
 
 (u) Fairmanv. Green, 10 Ves. 48 ; Ex parte Kebble, 11 Ves. 604; Turner v. Turner, 
 4 Sim. 434. [Newport v. Cook, 2 Ashm. 332 ; Seibert's App., 19 Penn. St. 49 ; see 
 Matter of Ryder, 11 Paige, 185.] 
 
 (x) Erratt v. Barlow, 14 Ves. 202 ; Kime v. Welpitt, 3 Sim. 533 ; Turner v. Turner, 
 4 Sim. 430 ; Cannings v. Flower, 7 Sim. 523. 
 
 {y) Green v. Ekins, 2 Atk. 476 ; Bullock v. Stones, 2 Ves. 521. 
 
 (z) Leake v. Robinson, 2 Mer. 384. 
 
 (a See Bullock v. Stones, 2 Ves. 521. 
 
 (6) Errington v. Chapman, 12 Ves. 20. [Chisolm v. Chisolm, 4 Rich. Eq. 266. See 
 Corbin v. Wilson, 2 Ashmead, 208.] But see Greenwell v. Greenwell, 5 Ves. 194. 
 [Seibert's App., 19 Penn. St. 49.] 
 
 (c) Lowndes v. Lowndes, 15 Ves. 301. 
 
 1 In Newport v. Cook, 2 Ashmead, 332, maintenance was decreed, although the interests 
 of the minors in the accumulating fund were unequal, the amount applied for the purpose 
 being greatly less than what each of the minors would be eventually entitled to. 
 
 2 In Seibert's App., 19 Penn. St. 49, however, where a legacy was given by a testa- 
 tor to his daughter for life, and after her death to her issue, to be divided among them, 
 share and share alike, as they arrived at the age of twenty-one, the court allowed main- 
 tenance to the grandchildren after the death of the daughter, though the testator had 
 not placed himself in loco parentis to them. 
 
598 OP TRUSTEES FOR INFANTS. 
 
 to another at twenty-one, the income of the first-mentioned fund will 
 first be applied for his maintenance, (d) 1 
 
 If the infant be absolutely entitled to the fund, and no adverse ques- 
 tion can arise for decision, the order for maintenance will be made on 
 petition without suit.(e) 2 But if the interest of other parties be impli- 
 cated, 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 for- 
 tune 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 effect, 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 reference 
 to his capability of supporting his children, this should be expressly 
 stated by the power. (A) However, this doctrine will not be applied to 
 a ^positive trust for the application of the children's income for 
 L J ■ 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, there- 
 fore, the father will be entitled to have the income arising from his 
 
 {d) Rawlins v. Goldfrap, 5 Ves. 440 ; Foljambe v. Willoughby, 2 S. & St. 165; aee 
 Re Ashley, 1 R. & M. 371 ; but see Wynch v. Wynch, 1 Cox, 433. 
 
 (e) Ex parte Whitfield, 3 Atk. 315 ; Ex parte Kent, 3 Bro. C. C. 88 ; Ex parte Salter, 
 
 3 Bro. C. C. 500 ; Ex parte Mountfort, 15 Ves. 445 ; Ex parte Starkie, 3 Sim. 339 ; Ex 
 parte Chambers, 1 R. & M. 577 ; Ex parte Green, 1 J. & W. 253 ; Ex parte Myers- 
 cough, lb. 151. [See Ex parte Hays, 13 Jur. 762; 3 De G. & Sm. 405; Matter of 
 Bostwick, 4 J. C. R. 105 ; Rice v. Tonnele, 4 Sandf. Ch. 571.] 
 
 (f) Fairman v. Green, 10 Ves. 45. 
 
 (<7) Andrews v. Partington, 3 Bro. C. C. 60 ; S. C, 2 Cox, 223 ; Thompson v. Griffin, 
 Cr. & Phill. 317 ; but see Hoste v. Pratt, 3 Ves. 730. 
 (h) See Stephens v. Lawry, 2 N. C. C. 87. 
 
 1 See Methold v. Turner, 20 L. J. Ch. 201. In Chisolm v. Chisolm, 4 Rich. Eq.. 266, 
 however, it was held that where an infant had an absolute estate of about §16,000, and 
 also an estate of about twice that amount contingent on his arriving at the age of twenty- ■ 
 one or marrying, given under the will of one who had not placed himself in loco parentis, 
 the maintenance should be allowed him out of the absolute estate. 
 
 2 In Cross v. Beavan, 2 Sim. N. S. 53, a reference as to maintenance and on the 
 appointment of a guardian, was directed in the course of a suit, without petition. 
 
 3 Cruger v. Heyward, 2 Desaus. 94 ; Matter of Kane, 2 Barb. Ch. 375 ; Bethea v. 
 McColl. 5 Alab. 312 ; Sparhawk v. Buell, 9 Verm. 41 ; Walker v. Crowder, 2 Ired. Eq. 
 478 -j Chaplin v. Moore, 7 Monr. 173 ; Dupont v. Johnson, 1 Bail. Eq. 279. This does 
 not apply, it would seem, to a step-father : Gay v. 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. 
 
OF TRUSTEES FOR INFANTS. 599 
 
 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 discretionary 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. (&) 
 
 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.(Z) 1 
 
 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 maintain 
 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. 8 
 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.(w) And 
 in determining that question, the circumstances of the parties must, of 
 course, be taken into consideration. (0) However, the order for mainte- 
 
 (i) Mundy v. Lord Howe, 4 Bro. C. C. 223; Meacher v. Young, 2 M. & K. 490 ; 
 Stocken v. Stocken, 4 Sim. 152 ; 4 M. & Cr. 95. 
 
 (Jc) Thompson v. Griffin, Cr. & Ph. 322. 
 
 (1) Brown v. Casamajor, 4 Ves. 498 ; Hammond v. Neame, 1 Swanst. 35. 
 
 (m) Billingsby v. Critchett, 1 Bro. C. C. 268 ; Haley v. Bannister, 4 Mad. 275, 280 ; 
 but see Smee v. Martin, Bunb. 131. 
 
 (ji) Hughes v. Hughes, 1 Bro. C. C. 386. [Lucknow v. Brown, 12 Jur. 1017.] 
 
 (o) Jervoise v. Silk, Coop. 52. 
 
 1 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 " towards" their 
 respective maintenance and education ; though with a direction 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 with- 
 out an account. Browne v. Paull, 1 Sim. N. S. 92, 15 Jur. 5 ; Hadow v. Hadow, 9 Sim. 
 438 ; Rainsford v. 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 be- 
 came 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, 
 1 De G. Mac. & G. 265. In Crawford's Exrs. v. Patterson, 11 Gratt. 364, there was a 
 bequest of a life estate to the widow, with a provision for the maintenance and educa- 
 tion of children, and one of the children afterwards went to live with a relative, by 
 whom she was supported and maintained for several years, the widow being always 
 ready and willing to provide for her. It was held that the widow's interest could not 
 be charged for this intermediate support. 
 
 2 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. Andrews, 12 Beav. 
 310, 14 Jur. 73 ; Bruin v. Knott, 1 Phill. 573 - y Anderton v. Yates, 5 De G. & Sm. 202, 
 accord. 
 
600 OP TRUSTEES FOR INFANTS. 
 
 nance has occasionally been made at once without any reference, in con- 
 sideration of the poverty of the parties.(p) Where the father is unable 
 to maintain the children, an order may be made for payment of the 
 children's income to him, though he be resident abroad.(g') 1 
 
 A trustee, who makes payments out of the income of the infants' pro- 
 perty 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 circumstances are such 
 that the court, upon application, would have directed a similar payment, 
 the act of the trustee will be supported, although riade 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) 
 
 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*4.nm *^o *trustees,(£) unless they are invested with a power for that 
 purpose.(w) 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 interest is contingent, 
 and there is an express direction for accumulation. {y) 
 
 A power for the maintenance of a daughter until twenty-one^ is not 
 determined by her marriage during her infancy.(s) 
 
 Where there was a devise of lands to trustees to apply the rents, &c, 
 
 (p) Payne v. Low, 1 R. & M. 223. 
 
 (q) De Weever v. Rochfort, 6 Beav. 391, and cases cited. [See Carmichael v. 
 Hughes, 20 Law J. Chanc. 396.] 
 
 (?•) Andrews v. Partington, 3 Bro. C. C. 60 ; Cotham v. "West, 1 Beav. 381 ; Bridge 
 v. Brown, 2 N. C. C. 187. 
 
 (s) Lee v. Brown, 4 Ves. 369 ; see Barlow v. Grant, 1 Vern. 255 ; Franklin v. Green, 
 2 Vern. 137 ; 1 Bop. Legs. 768 ; 2 Wms. Executors, 869 ; Sisson v. Shaw, 9 Ves. 288; 
 Maberly v. Turton, 14 V.es. 499 ; Ex parte Darlington, 1 Ball & B. 241. 
 
 {t) See Hearle v. Greenbank, 2 Atk. 697, 716 ; Long v. Long, 3 Ves. 286, n. 
 
 (u) See Bawlins v. Goldfrap, 5 Ves. 440. 
 
 (x) Aynsworth v. Pratchett, 13 Ves. 321 ; Allen v. Coster, 1 Beav. 202 ; Josselyn v. 
 Josselyn, 9 Sim. 63 ; Stretch v. Watkins, 1 Mad. 253. [Newport v. Cook, 2 Ashm. 332 ; 
 Corbin v. Wilson, Id. 178.] 
 
 (y) Aynsworth v. Pratchett, 13 Ves. 321 ; Stretch v. Watkins, 1 Mad. 253 ; Josselyn 
 v. Josselyn, 9 Sim. 63 ; [Newport v. Cook ; Corbin v. Wilson, ut supr.] 
 
 (z) Chambers v. Goldwin, 1 1 Ves. 1. 
 
 1 Where the father is unable to support his child, the trustees are authorized to apply 
 the income without .express power. Rice v. Tonnele, 4 Sandf. Ch. 571 ; Bethea v. 
 McColl, 5 Alab. 312 ; Corbin v. Wilson, 2 Ash. 178 ; Newport v. Cook, Id. 337 ; Matter 
 of Burke, 4 Sandf. Ch. 617. In some cases, allowances to the father for past mainte- 
 nance have been made. Corbin v. Wilson ; Newport v. Cook ; Carmichael v. Hughes, 
 20 Law J. Chanc. 396. So of the mother. Matter of Bostwick, 4 J. C. R. 100 ; Bruin 
 v. Knott, 1 Phil. 573. But, in England, it is considered, that the father cannot have 
 past maintenance, except there are very special circumstances : Reeves v. Brymer, 6 
 Ves. 425, and Sherwood v. Smith, Id. 454, were doubted; Lord Cranworth in Car- 
 michael v. Hughes, ut supr. So iu South Carolina : Presley v. Davis, 7 Rich. Eq. 109. 
 
OF TRUSTEES FOR INFANTS. 601 
 
 for the " maintenance, education and bringing up" of the children of A. 
 during A.'s life, the interest of the children is not confined to their 
 minority, but continues during A.'s life. (a) However, it would be other- 
 wise, 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 mi- 
 nority.^) 
 
 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#he 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 suifered 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 of 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 laches of his trustee, (e) This, 
 however, is now no longer law, and there can be 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 prejudice to the infant's remedy against his trustee on 
 coming of age. 1 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; an r^A,-, 
 opinion, which, it will be observed, is in direct contradiction 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 
 
 (a) Badham v. Mee, 1 R. & M. 631. 
 
 (6) 1 B. & M. 632. (c) Anon. 2 Ves. 630. 
 
 \d) Homes v. Dring, 2 Cox, 1 ; Terry v. Terry, Prec. Ch. 273. 
 
 (e) Allen v. Sayer, 2 Vern. 368. (/) 3 P. Wms. 309. 
 
 (g) 3 P. Wms. 310, n. (h) Vide Supra, p. 268. 
 
 1 "Williams v. Otey, 8 Humph. 563 ; Smilie v. Biffle, 2 Barr, 52 ; see ante, p. 268, and 
 note. 
 
602 OF TRUSTEES FOR INFANTS. 
 
 order of the court for that purpose ;(»') although they cannot claim any 
 compensation for personal trouble or loss of time. (k) 
 
 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 
 plaintiff was robbed of 40Z. in money, which he had received for the 
 infant, and also at the same time of a larger sum of his own, the 40Z. 
 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 expenses 
 of repairs and other improvements of the property.(w) And this though 
 the payments be made out of the surplus rents which are directed to be 
 accumulated :(n) and although the allowance be opposed by^he first 
 tenant in tail in esse.(o) But there might be a serious question, whether 
 such payments could be allowed to a trustee, who is not invested with 
 any authority, either general or special, for so applying the fund.(£>) 
 
 Every carefully drawn trust instrument contains an express direction 
 to accumulate the income of "the infant's trust fund, which may not be 
 required for maintenance. But in the absence of such a positive direc- 
 tion, it will be equally the duty of the trustees to make this accumula- 
 tion. 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. (q) But this rule will not be extended to a particular con- 
 tingent 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 
 
 (i) Brocksopp v. Barnes, 5 Mad. 90 ; see Feams v. Young, 10 Ves. 184. 
 
 (k) Brocksopp v. Barnes, 5 Mad. 90 ; Re Ormsby, 1 Ball & B. 189. 
 
 (I) Morley v. Morley, 2 Ch. Ca. 2. 
 
 (m) Bowes v. Earl of Strathmore, 8 Jur. 92. 
 
 (n) Ibid. (o) Ibid. 
 
 (p) Vide post, Div. II, Ch. V, p. 570 [ante, note to page 395]. 
 
 (q) Green v. Ekins, 2 Atk. 473 ; Studholm v. Hodgson, 3 P. Wms. 299 ; Trevanion 
 v. Vivian, 2 Ves. 430 ; Bullock v. Stone, Id. 521. [See Ware v. McCandlish, 11 
 Leigh, 595.] 
 
 (r) Leake v. Robinson, 2 Mer. 384. 
 
 (.?) Green v. Ekins, 2 Atk. 476 ; Bullock v. Stones, 2 Ves. 521 j see Studholme t. 
 Hodgson, 3 P. Wms. 299 ; see 305. 
 
 (/) Bullock v. Stones, 2 Ves. 521. 
 
OP TRUSTEES FOR MARRIED WOMEN. 603 
 
 the trust, and the period of payment only is pdstponed, 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 accumu- 
 lation will then cease ; although the testator has fixed any later period 
 — as, for instance, *the age of twenty-five, for the time of pay- r*4Qc-i 
 ment, and has directed the income to be accumulated until that 
 time.(w) 1 
 
 It has been already stated, that trustees will be liable to be charged 
 with compound interest, where they misapply the trust fund in contra- 
 vention of an express trust to accumulate.^) 
 
 VIII. — OF TRUSTEES FOR MARRIED WOMEN. 
 
 1st. Op Real Estate held in Trust fob a Mabbied Woman [405]. — 2d, As to 
 Peesonal Estate held in Trust fob a Marbied Woman [407]. 
 
 1st. Of Real 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 coverture. Equity 
 has adopted the same rules with regard to the equitable interests of 
 married women in real estate; and the husband 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 ;{yf and the act 
 of marriage gives him an estate for the joint lives of himself and his 
 
 (u) Saunders v. Vautier, 4 Beav. 115 ; S. C. Cr. & Ph. 240. 
 
 (x) Ante, PI. V. [Of Investment, p. 3T4, and note] ; vide post [Remedies for 
 Breach of Trust, p. 523]. 
 
 (y) Watts v. Ball, .1 P. "Wins. 108 ; Casborne v. Scarfe, 1 Atk. 603 ; Morgan v. Mor- 
 gan, 5 Mad. 408. And it is immaterial that the wife takes an estate for her separate 
 use for life. Ibid. 
 
 1 See Conner v. Ogle, 4 Maryl. Ch. 443. 
 
 2 4 Kent's Comm. 30 ; Cochran v. O'Hern, 4 W. & S. 95 ; Bobison v. Codman, 
 1 Sumner, 121; Shoemaker v. Walker, 2 S. & R. 554; Norman v. Cunningham, 5 
 Gratt. 67 ; Mullany v. Mullany, 3 Green Ch. 16 ; Norton v. Norton, 2 Sandf. Sup. Ct. 
 298 ; Davis v. Mason, 1 Pet. S. C. 508; Rawlings v. Adams, 7 Maryl. 54; Houston v. 
 Embry, 1 Sneed. 480. So, though the limitation is expressly for her separate use. Cochran 
 v. O'Hern, 4 W. & S. 95 ; Payne v. Payne, 11 B. Monr. 139 ; Mullany v. Mullany, 3 Green 
 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. Mullany, 3 Green Ch. 16, however, a 
 different doctrine was held, though that was a case where there 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 altered the law on this and many of the other doctrines con- 
 tained in the following pages. 
 
604 OF TRUSTEES FOR MARRIED WOMEN. 
 
 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, (s) 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 continuance without 
 making any previous settlement on the wife : and the wife in general has 
 no equity for a provision out of her equitable interest 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.(a) 1 
 
 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 bankruptcy, the 
 wife's equity for a provision attaches upon all her equitable estate, 
 whether real or personal. (6) 
 
 (z) 1 Eop. Husb. & Wife, 3. [2 Kent's Coram. 134.] 
 
 (a) Fitzer v. Pitzer, 2 Atk. 514 ; Lupton v. Tempest, 2 Vern. 626. 
 
 (b) Burdon v. Dean, 2 Ves. Jun. 607 ; Oswell v. Probert, Id. 680 ; Freeman v. 
 Parsley, 3 Ves. 421 ; [post, 410.] 
 
 1 This distinction seems now overruled in England, and the wife's equity to a settle- 
 ment sustained, as well against real as personal' estate. Stusgis v. Champneys, 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 mort- 
 gagee, 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 settlement on the wife. This case was fol- 
 lowed 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 outstanding, was held to be so far equitable as to entitle the wife to a 
 settlement; see also Freeman v. Fairlie, 11 Jur. 447. Where, however, a husband and 
 wife mortgaged 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. 
 Champneys 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 re- 
 ferring to personal property. In Haviland v. Myers, 6 J. C. R. 25, however, it was 
 held to apply equally to real and personal estate ; and this was approved in Bees v. 
 Waters, 9 Watts, 90 ; Rorer v. O'Brien, 10 Barr, 212, and seems implied from Thomas v. 
 Sheppard, 2 McCord's Bq. 36. So in Barron v. Barron, 24 Verm. 376, it was expressly 
 held to be enforceable against the rents and profits of real estate ; and in Lay's Exrs. 
 v. Brown, 13 B. Monr. 296 ; Moore v. Moore, 14 Id. 259, as to proceeds of wife's land. 
 But in Van Duzer v. Van Duzer, 6 Paige, 368, and Wickes v. Clarke, 8 Id. 172, tfte dis- 
 tinction appears to be asserted, so far, at least, as to deny the wife any equity against 
 the husband's life estate in her laud. 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, up- 
 held 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 provision for her. 
 In Hill v. Hill, 1 Strob. Eq. 2, it was held, that where the proceeds of a married 
 woman's real estate remained in court, the equity to a settlement attached. See also 
 the remarks in Carleton v. Banks, 7 Alab. 35 ; and Story on Equity, \ 1409, &c. 
 
OP TRUSTEES FOB MARRIED WOMEN. 605 
 
 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 disposi- 
 tion 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. 1 
 
 *It was at one time settled, that a husband might dispose of r*40«-i 
 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 
 trustees to assign to the assignee of the husband, although it was objected 
 that he made no settlement or provision for his wife.(rf) 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 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 effectually excluded by a limitation to 
 her separate use : and according to the terms of the limitation, this ex- 
 clusion may either extend to the whole of the husband's interest, 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, notwithstanding, be 
 entitled to an estate by curtesy after her death. (i) 
 
 (c) Penne v. Peacock, Forr. 41. 
 
 (d) Sir Ed. Turner's Case, l.Vern. 7 ; Pitt v. Hunt, Id. 18; Tudor v. Samyre, 2 
 Vern. 207 ; Parker v. Wyndham. Prec. Ch. 419 ; Sanders v. Page, 3 Ch. Rep. 223 ; 
 Bates v. Dandy, 2 Atk. 208 ; Jewson v. Moulson, Id. 421 ; Lord Carteret v. Wyndham, 
 3 P. Wms. 200 ; Macauley v. Phillips, 4 Ves. Jr. 19. 
 
 (e) Donne v. Hart, 2 R. & M. 360. 
 
 (f) Sturgis v. Champneys, 5 M. & Cr. 97 ; Hanson v. Keating, 14 Law Journ. N. S, 
 Chanc. 14 ; [4 Hare, 1 ; Carleton v. Banks, 7 Alab. 35 ; Story, Eq. Jur. § 1410. Where, 
 however, the husband mortgages the legal interest in the term, on foreclosure, the wife 
 has no equity. Hill v. Edmonds, 16 Jurist, 1133.] Vide post, p. 410. i 
 
 (g) Lord Carteret v. Wyndham, 3 P. Wms. 200. 
 (h) Bennet v. Davis, 2 P. Wms. 316 ; ante, 405 n. 
 
 (j) Roberts v. Dixwell, 1 Atk. 606 ; Morgan v. Morgan, 5 Mad. 408, overruling 
 Hearle v. Greenbank, 3 Atk. 715. 
 
 1 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, 20 L. J. Ch. 199 ; but the contrary was held in Briggs v. Chamber- 
 lain, 11 Hare, 69; Tuer v. Turner, 18Beav. 185 ; 24 L. J. Ch. 185. 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. 
 
606 OF TRUSTEES FOR MARRIED WOMEN. 
 
 However, the intention to exclude the husband must appear distinctly 
 from the terms of the limitation, and a simple gift or settlement upon 
 her, or trustees for her, will not have that effect.(A) The sufficiency 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) 
 
 Real 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 direc- 
 tion, and will treat him as a trustee for his wife.(m) 1 And it is no objec- 
 tion to a trust for the wife's separate use, that the husband is himself 
 appointed one of the trustees for her.(w) However, it may be remarked 
 that in the first case that occurred on this subject, Lord Cowper ex- 
 pressed 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 
 r*407T nus ^ an( ^ himself may, by a clear act or *declaration constitute 
 *- J himself a trustee for his wife's separate use,(jt?) and it is also 
 unquestionably competent for him to make a valid gift of property to 
 trustees for the same purpose. (q) 
 
 (k) Lamb v. Milnes, 5 Ves. 517 ; Tyler v. Lake, 4 Sim. 144; S. C. 2 R. & M. 183. 
 
 (Z) Post, p. 420, and note. 
 
 (to) Bennet v. Davis, 2 P. Wins. 316 ; Lee v. Prieaux, 3 Bro. C. C. 383 ; Parker v. 
 Brooke, 9 Ves. 583 ; Rich v. Cockell, Id. 375 ; Darley v. Darley, 3 Atk. 399 ; Baggett 
 v. Meux, 13 Law Journ. N. S. Chanc. 228. [1 Phillips, 627.] 
 
 (n) Kensington v. Dollond, 2 M. & K. 184. 
 
 (o) Harvey v. Harvey, 1 P. Wms. 125 ; S. C. 2 Vern. 659 ; and see Burton v. Pier- 
 pont, 2 P. Wms. 79. 
 
 (p) Maclean v. Longlands, 5 Ves. 71 ; Walter v. Hodge, 2 Sw. 104 [Sledge's 
 Admr's v. Clopton, 6 Alab. 599 ; Shepard v. Shepard, 7 J. C. R. 57.] 
 
 (q) Ibid. [See Rigler v. Cloud, 14 Penn. St. R. 361.] 
 
 1 Shirley v. Shirley, 9 Paige, 364 ; Jamison v. Brady, 6 S. & R. 466 ; Trenton Bank- 
 ing Co. v. Woodruff, 1 Green, Ch. 118; Steel v. Steel, 1 Ired. Eq. 452; Goodrum v. 
 Goodrum, 8 Id. 313 ; Boykin v. Ciples, 2 Hill's Eq. 200 ; Hamilton v. Bishop, 8 Yerg. 
 33 ; Franklin v. Creyon, 1 Harp. Eq. 243 ; McKennan v. Phillips, 6 Wharton, 571 ; 
 Porter v. Bank of Rutland, 19 Verm. 410 ; notes to Hulme v. Tenant, 1 Lead. Cas.Eq., 
 1st Am. Ed. 378 ; 2 Kent's Coram. 152. See Blanchard v. Blood, 2 Barb. S. C. 3521 
 In those States, however, whose legislation has secured to married women their sepa- 
 rate property, and excluded the husband entirely, it may be perhaps doubted whether 
 on a conveyance directly to the wife, with a separate use clause, the latter, as such, can 
 be supported. For there is no one in such case taking the legal estate to be decreed a 
 trustee. See Haines v. Ellis, 24 Penn. St. 253. 
 
 A husband, who has charge of his wife's separate estate, comes within the ordinary 
 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, except for her benefit. Methodist Church v. Jaques, 3 J. C. R. 77 ; Dickinson 
 v. Codwise, 1 Sandf. Ch. R. 214. Nor is his possession an adverse one, or fraudulent 
 as to creditors. Harley v. Platts, 6 Rich. L. 310. 
 
OF TRUSTEES FOB, MARRIED WOMEN. 607 
 
 However, it is 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 con- 
 struction which is most for her advantage, by holding 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 husband. (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 con- 
 sidered more conveniently in discussing their powers and duties as to her 
 personal estate. 
 
 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 life- 
 time :(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 possession 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;) 1 
 
 (r) Harton v. Harton, 7 T. R. 652 ; see Nevill v. Saunders, 1 Vera. 415 ; Bush v. 
 Allen, 5 Mod. 63 ; Oswell v. Probert, 2 Ves. Jun. 680 ; Hawkins v. Luscombe, 2 Sw. 
 391 ; vide supra, Pt. II, Ch. I. 
 
 (s) Tidd v. Lister, 5 Mad. 432, 3 ; ante, Pt. II, Ch. III. 
 
 (t) Co. Litt. 300 ; 1 Rop. Husb. & Wife, 166, 201 ; Langham v. Nenny, 3 Ves. 469. 
 [4 Kent's Comm. 1341, 43 ; see Murphy v. Grice, 2 Dev. & Batt. Eq. 199.] 
 
 (m) Burdon v. Dean, 2 Ves. Junr. 608, 9 ; Oswell v. Probert, Id. 682 ; Murray v. 
 Lord Elibank, 10 Ves. 90 ; Att.-Gen. v. Whorwood, 1 Ves. 539 ; 1 Rop. Husb. & Wife, 
 271, 2. 
 
 (x) 1 Rop. Husb. & Wife, 270. 
 
 1 Carter v. Carter, 14 Sin. & 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 Mc- 
 Cord's Ch. 36 ; Whitesides v. Dorris, 7 Dana, 107 ; Wiles v. Wiles, 3 Maryl. 1. 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 pay- 
 ment 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 possession, 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. 
 
OF TRUSTEES FOR MARRIED WOMEN. 
 
 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 trustees, 
 or the obligee, or debtor, may safely pay or transfer the fund to the 
 husband alone, if no suit has been instituted for the administration of 
 the trust. And such a payment or transfer cannot afterwards be ques- 
 tioned by the wife, though she survive her husband.(y) 
 
 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 per- 
 sonal property of his wife, he will not in general receive the assistance 
 r*Art8n °^ * ne cour * f° r tna * P ur P ose j except on the terms of making 
 L -"an adequate *provision for her,^) 1 and for this purpose it is 
 immaterial that she is separated from her husband.(a) a And the same 
 equity will be enforced against all persons claiming under the husband — 
 whether assignees claiming by operation of law on his bankruptcy, (b) or 
 
 {y) Murray v. Lord Elibank, 10 Ves. 90 ; Glaister v. Hewer, 8 Ves. 206. 
 
 (z) Langham v. Nenny, 3 Ves. 469 ; Franco v. Franco, 4 Ves. 515 ; Blount v. Best- 
 land, 5 Ves. 515 ; Elibank v. Montolieu, Id. 737. 
 
 (a) Eedes v. Eedes, 10 Law Journ. N. S. Chanc. 199 ; [11 Sim. 569. But see the 
 remarks on this case, in Macqueen, on Husb. & Wife, 86.] 
 
 (&) Oswell v. Probert, 2 Ves. Jun. 680 ; Mitford v. Mitford, 9 Ves. 87 ; Wright v. 
 
 Carter v. Carter, 14 Sm. &, M. 59. So in general where the husband obtains possession 
 of the property by fraud. 2 Spence, Bq. Jur. 488, citing Colmer v. Colmer, 2 Atk. 98; 
 Moseley, 113 ; Watkyns v. Watkyns, 2 Atk. 96. 
 
 1 The equity of a wife to a settlement out of her personal property (as to real estate, 
 see ante, 405), is recognized in most of the United States; as New York, Maryland, 
 South Carolina, Georgia, Kentucky, Maine, Vermont, Tennessee, Alabama (see cases 
 collected in the note of Mr. Wallace to Murray v. 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. Barnett, 1 Binn. 358) ; Bees v. Waters, 9 Watts, 
 90; Borer v. O'Brien, 10 Barr, 212; 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, I 48, of 1847, g 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. It has also been enforced by courts of the United States through their equity 
 jurisdiction. Ward v. Amory, 1 Curtis, 432. In New Hampshire and North Carolina, 
 this equity is not recognized. 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. 
 
 2 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. But see contra, Carr v. Eastabrooke, 4 Ves. 146 ; Ball v. Mont- 
 gomery, 2 Ves. Jr. 191 ; Watkyns v. Watkyns, 2 Atk. 97. 
 
OF TRUSTEES FOR MARRIED WOMEN. 609 
 
 taking under some particular disposition or assignment, either made 
 voluntarily, (c) or for valuable consideration :(d) 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) 1 
 
 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 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 dis- 
 allowed by the court.(/) 
 
 However, this equitable doctrine is not without 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 settle- 
 ment 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 subsequently 
 become entitled to any additional property, the husband will not be held 
 to have become a purchaser by settlement of the additional interest, 
 unless the instrument expresses, or clearly imports, such an intention. (h) 
 Thus, where the settlement was expressed to be in consideration of such 
 fortune, as the wife "is or may be" entitled to, it has been held, that if 
 anything come afterwards during the coverture to the wife, the husband 
 
 Morley, 11 Ves. 101. [Dunkley v. Dunkley, 2 De G. Mac. & G. 390 ; Napier v. Napier, 
 
 1 Dr. & Warr. 410 ; Mumford v. Murray, 1 Paige, 620 ; Shaw v. Mitchell, Davies, 216 ; 
 Crook's Ex'rs v. Turpin, 10 B. Monr. 244 ; see notes to Murray v. Lord Elibank, ut 
 supra.] 
 
 (c) Burnet v. Kynaston, 2 Vera. 401 ; Mitford v. Mitford, 9 Ves. 99 ; Johnson v. 
 Johnson, 1 J. & W. 487 ; Jewson v. Moulson, 2 Atk. 420. 
 
 (d) Earl of Salisbury v. Newton, 1 Ed. 370 ; Like v. Beresford, 3 Ves. 506 ; Macau- 
 lay v. Phillips, 4 Ves. 19 ; Pryor v. Hill, 4 Bro. C. C. 139 ; Johnson v. Johnson, 1 J. 
 & W. 476, 7. [This is clear in the United States ; Kenny v. Udall, 5 J. C. K. 464 ; 3 
 Cowen, 591 ; Wright v. Arnold, 14 B. Monr. 642 ; and see the cases collected in the 
 note to Murray v. Lord Elibank, ut supra, 352.] 
 
 (e) See Worrall v. Marlar, and Bushnan v. Pell, 1 P. Wins. 459, n. ; et vide post. 
 (/) Macaulay v. Phillips, 4 Ves. 18 ; Murray v. Lord Elibank, 10 Ves. 90 ; De la 
 
 Garde v. Lempriere, 6 Beav. 344, 347. [Crook v. Turpin, 10 B. Monr. 243.] 
 
 (g) Druee v. Denison, 6 Ves. 395 ; Carr v. Taylor, 10 Ves. 579 ; Garforth v. Bradley, 
 
 2 Ves. 677 ; Mitford v. Mitford, 9 Ves. 96. [See Martin v. Martin, 1 Comst. 473.] 
 (h) Garforth v. Bradley, 2 Ves. 677 ; Druce v. Denison, 6 Ves. 395 ; Mitford v. 
 
 Mitford, 9 Ves. 95, 6 ; Carr v. Taylor, 10 Ves. '579. [See Matter of Beresford, 1 De- 
 saus. 263 ; Barrow v. Barrow, 18 Beav. 529.] 
 
 1 The equity^to a settlement may be also enforced by original bill on the part of the 
 wife, where the fund is within the control of the court. Wiles v. Wiles, 3 Maryl. R. 1 ; 
 Moore v. Moore, 14 B. Monr. 259 ; Wright v. Arnold, Id. 642. 
 
 39 
 
610 OF TRUSTEES FOB MARRIED WOMEN. 
 
 is to be considered a purchaser, and will take it.(i) 1 But if the instru- 
 ment 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. (k) And where the provision for the wife by the settle- 
 r*40QT men * * 1S v ery inadequate in consequence of her subsequent ac- 
 cession of fortune, 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 pro- 
 vision for her.(Z) However, it is settled, that a settlement, or even an 
 agreement for a settlement, (to) made by the husband previously to the 
 marriage, and expressed to be in consideration of his wife's fortune, will 
 entitle him 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.(n) 
 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. However, 
 it may be remarked that the wife's equity will not be bound by an 
 adequate provision made by a voluntary settlement after marriage.(o)* 
 
 It is not essential, that the settlement made by the husband on mar- 
 riage 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.(p) 
 
 (i) Garforth v. Bradley, 2 Ves. 677 ; Mitford v. Mitford, 9 Ves. 96 ; Carf v. Taylor, 
 10 Ves. 579. 
 
 (k) Druce v. Denison, 6 Ves. 385 ; Mitford v. Mitford, 9 Ves. 87 ; Carr v. Taylor, 
 10 Ves. 578. 
 
 (I) March v. Head, 3 Atk. 720 ; Tomkyns v. Ladbrok, 2 Ves. 595 ; Staokpole v. 
 Beaumont, 3 Ves. 98 ; Elibank v. Montolieu, 5 Ves. 737. 
 
 (m) Adams v. Cole, 2 Atk. 449, n. ; Forr. 168 ; Brett v. Forcer, 3 Atk. 405. 
 
 (») Lanoy v. Duke of Athol, 2 Atk. 448 ; see 3 P. Wms. 199, u (d) 
 
 (o) 2 Atk. 448. 
 
 (p) Blois v. Hereford, 2 Vern. 502 ; sed vide Salwey v. Salwey, Ambl. 692. 
 
 1 The fact of a wife's living separate from her husband by mutual agreement, will not 
 give her an equity to a settlement out of her future property, where such a provision 
 has already been settled upon her as would have entitled the husband to such future 
 property if they had continued to live together. Re Erskine's Trusts, 23 L. J. Ch. 
 327; 19 Jurist. 156; 1 Kay & John. 302. 
 
 2 In Dunkley v. Dunkley, 2 De G. Mac. & G. 390, before Lord St. Leonards, the 
 whole residue of the wife's fortune was settled on her by the court, under the circum- 
 stances; though the husband had settled after marriage a considerable portion of his 
 property on her ; and see Matter of Beresford, 1 Desaus. 263. 
 
OF TRUSTEES FOE MARRIED WOMEN. 611 
 
 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.(g') 
 
 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.^) 
 
 Equity will not interpose in favor of the wife, and compel a settle- 
 ment out of her equitable property, unless the amount of the property 
 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 
 100?. ;(t) and that sum has since been increased to 200Z., or 101. per 
 annum. (w) 1 And where the property does not exceed that 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 concurrence, or consent ;{x) and r %.* ni 
 though she had been deserted by him and opposed the applica- *- -1 
 tion.(^) But if the amount at all exceeds 200Z., 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 2002.(2) 
 
 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 ac- 
 cording to the old law the husband might have disposed absolutely of 
 such interests in right of his wife. (a) But this distinction was disap- 
 proved of on more than one occasion, (b) and was at length overruled by 
 Lord Cottenham in the late case of Sturgis v. Champneys,(e) in which 
 
 (q) Cleland v. Cleland, Prec. Ch. 63 ; Burdon v. Dean, 2 Ves. Jun. 607. 
 
 (?•) Rudyard v. Neirim, Prec. Ch. 209 ; Lister v. Lister, 2 Verti. 68 ; Mitford v. Mit- 
 ford, 9 Ves. 96 ; Salwey v. Salwey, Ambl. 692 ; Heaton v. Hassell, 4 Yin. Abr. 40, 
 PI. II. 
 
 (s) March v. Head, 3 Atk. 721. (t) Bonrdillon v. Adair, 3 Bro. C. C. 237. 
 
 (m) 5 Ves. 742, n.(c); 8 Ves. 201, 512, 524; 1 Mad. Ch. Pr. 609. 
 
 (x) Elworthy v. Wickstead, 1 J. & W. 69. 
 
 (y) Poden v. Finney, 4 Russ. 428. [Overruled, see ante, note to 409.] 
 
 (2) Beaman v. Dodd, 13 Law Journ. N. S., Chanc. 141. 
 
 (a) Sir B. Turner's case, 1 Vern. 7 ; and cases cited in note supra, p. 407. 
 
 (6) Pitt v. Hunt, 1 Vern. 18 ; Jewson v. Moulson, 2 Atk. 417. (c) 5 M. & Cr. 97. 
 
 1 This is now overruled, and a settlement will be compelled, though the amount be 
 under 200Z. Cutler's Trust, 14 Beav. 220 ; Kincaid's Trust, 22 Law Journ. Ch. 395, 
 where it is said, the rule as to the 200Z. applies only as to taking the wife's consent. 
 But see Roberts v. Collett, 1 Sm. & Giff. 138. 
 
612 OP TRUSTEES FOR MARRIED WOMEN. 
 
 his Lordship decided, that the wife was entitled to the same provision 
 out of her equitable interest in chattels real, as in other personal pro- 
 perty. This decision has since been followed, though reluctantly, by 
 Vice-Chancellor Wigram, in the case of Hanson v. Keating,(<#) where 
 the same question called for decision. The law, therefore, must now be 
 considered as finally settled in the manner stated above. 
 
 Where the wife's equitable interest is for life only, her equity for a 
 settlement will not attach as against a purehaser'for valuable consider- 
 ation 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) 1 Although as against the husband's general assignee 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 equitable 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 property, as 
 a compensation for his liability to maintain her.(g) Consequently, he 
 will be entitled to the uncontrolled beneficial enjoyment of her life in- 
 terests, unless he desert her, or otherwise fail to discharge 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 as- 
 signment to him is made before the husband had deserted, or ceased to 
 maintain, his wife. (h) 
 
 Where the wife has already an adequate provision made for her by 
 
 (d) 8 Jur. 949 ; S. C, 14 Law Journ. N. S., Chane. 14. [4 Hare, 1 ; see ante, 406.] 
 
 (e) Elliott v. Cordell, 5 Mad. 156 ; Stanton v. Hall, 2 R. & M. 175, 182 ; Burdon v. 
 Dean, 2 Ves. Jun. 608. 
 
 (/) 5 Mad. 156 ; see Brown v. Clark. 3 Ves. 166 ; Pryor v. Hill, 4 Bro. C. C. 139 ; 
 Lumb v. Milnes, 5 Ves. 517; Brown v. Amyatt, 1 Mad. 376, n. ; Wright v. Morley, 11 
 Ves. 12, 21. [Sturgis v. Champneys, 5 My. & Cr. 97.] 
 
 (g) Carter v. Anderson, 3 Sim. 370; 1 Rop. Husb. and Wife, 273. 
 
 (h) Elliott v. Cordell, 5 Mad. 156 ; Stanton v. Hall, 2 R. & M. 182. [Vaughan v. 
 Buck, 1 Sim. N. S. 284.] 
 
 1 Vaughan v. Buck, 7 Jur. 338 ; 13 Sim. 404 ; and this was also approved by Lord 
 Cranworth, V. Ch., in S. C, 1 Sim. N. S. 284. But in Wilkinson y. Charlesworth, 10 
 Beavan, 327, Lord Langdale held, notwithstanding that decision, that the wife was 
 entitled as against her husband, or a purchaser for value, to a settlement out of her life 
 estate, and repudiated the distinction. In the subsequent case of Tidd v. Lister, 23 L. 
 J. Ch. 249, it was expressly decided, that a married woman whose husband does not 
 maintain her is not entitled as against the particular assignee of the husband for value, 
 to maintenance out of the income of real and personal estate to which the wife is 
 entitled in equity for life. " To involve a purchaser of the wife's interest," said the Lord 
 Chancellor, " in inquiries, how far the husband may be doing his duty in disposing of 
 the wife's interest, would be highly inconvenient." See 2 Spence, Eq. Jur. 482 ; and 
 see Udall v. Kenney, 3 Cowen, 607. 
 
OF TRUSTEES FOR MARRIED WOMEN. 613 
 
 settlement, she will not be entitled to any further provision out of a 
 mere life interest, either against the husband upon his desertion or re- 
 fusal to support *her, or against his general assignees upon his r*4;M-| 
 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 exe- 
 cuted.^) Unless indeed the children have acquired an actual interest 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 ; a,s where she lives in adultery and apart from her husband. In 
 such cases the court will not interpose in her favor, for she is unworthy 
 of its protection ; neither on the other hand will it direct the fund to be 
 delivered over to the husband without his making any settlement ; 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 clan- 
 destine marriage ; for in that case whatever may be the irregularity of 
 the wife's conduct, the court will compel the husband to make a settle- 
 ment 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, although 
 she maybe 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 a fortiori be entitled to a pro- 
 vision out of her equitable property, (q) Indeed we shall see presently 
 
 (i) Aguilar v. Aguilar, 5 Mad. 414. 
 
 (k) Stiffe v. Everett, 1 M. & Cr. 37, 41 ; see Purdew v. Jackson, 1 Ross. 71, n. ; Com. 
 Dig. [Baron and Feme, K.] 
 
 (I) Rowe v. Jackson, 2 Dick. 604 ; Murray v. Lord Elibank, 10 Ves. 84 ;, Martin v. 
 Mitchell, 10 Ves. 89, cited ; Steinmetz v. Halthin, 1 Gl. & J. 64 ; Hodgens v. Hodgens, 
 11 Bligh, 103, 4, 5. [Ferris v. Brush, 1 Edw. Ch. 572; Pastell v. Skirving, 1 Desaus. 
 158 ; Tevis v. Richardson, 7 Monr. 644 ; Ex parte Warfield, 11 G. & J. 23 ; see Sawyer 
 v. Baldwin, 20 Pick. 378 ; Taylor v. Anderson, 7 B. Monr. 552.] 
 
 (m) Ex parte Gardiner, 2 Ves. 671 ; see Fenner v. Taylor, 1 Sim. 169 ; S. C, 2 R. & 
 M. 190. 
 
 (n) Ball v. Montgomery, 2 Ves. Jun. 191 ; Carr v. Eastabrooke, 4 Ves. 146. 
 
 (0) Ball v. Coutts, 1 V. & B. 302, 4; see Like v. Beresford, 3 Ves. 506.. [Martin v. 
 Martin, 1 Comst. 473 ; but see ante, 408, note.] 
 
 (p) Eedes v. Eedes, 10 Law Journ. N. S. Chane. 199. [11 Sim. 569; see ante, 
 p. 408.] 
 
 (q) Oxendenv. Oxenden, 2 Vern. 463; Ball v. Montgomery, 4 Bro. C. C. 339. 
 
 (1) There is no, distinction in this respect between the rights of the assignees of a 
 "bankrupt" or an "insolvent" husband. Napier v. Napier, 1 Dr. & W. 410. 
 
614 OP TRUSTEES FOR MARRIED WOMEN. 
 
 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 sufficient, that a reasonable part is secured.(s) 1 And 
 where it has been referred to the Master to approve of a proper settle- 
 ment, it will be a good ground for exception to his report, that the 
 settlement includes the whole of the fund.(^) The question in most cases 
 has been, how much the wife shall have ; and in determining that, the 
 court has exercised a discretion, and has not tied itself down to any 
 precise rule.(w) However, in several instances, half of the fund has 
 been considered a fair proportion *as between the wife, and the 
 L -■ assignees of a bankrupt husband.(a;) The husband, or those 
 claiming in his place, after making the required settlement, will be abso- 
 lutely entitled to the remainder of the property, as far as it can be re- 
 duced 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-treat- 
 ment, and left her totally unprovided for ; the court will secure for the 
 wife's benefit the whole of her equitable property, which it can find still . 
 
 (r) Vide post. 
 
 (s) Wright v. Morley, 11 Ves, 21, 22 ; see Burdon v. Dean, 2 Ves. Jun. 607; Green 
 v. Otte, 1 S. & St. 250. 
 
 (t) Beresford v. Hobson, 1 Mad. 362 ; Goose v. Davis, lb. 375, cited. [But see Ber- 
 rett v. Oliver, 7 Gill & J. 191.] 
 
 (u) 1 Mad. 379, 380 ; Napier v. Napier, 1 Dr. & W. 409. 
 
 (x) Worrall v. Marlar, 1 P. Wms. 459, n. ; S. C, 1 Cox, 158 ; Brown v. Clark, 3 Ves. 
 166; Carr v. Taylor, 10 Ves. 578; Beresford v. Hobson, 1 Mad. 362. [Bagshaw v. 
 Winter, 5 De G. & S. 466, where the costs were thrown on the assignees' half.] 
 
 1 In Dunkley v. Dunkley, 2 De G. Mac. & G. 390, 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 estate, 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, 1 Drew, 
 202; Kincaid's Trust, 22 L. J. Ch. 395; Gardner v. Marshall, 14 Sim. 587; Scott v. 
 Spashett, 3 Mac. & G. 599; Barrow v. Barrow, 24 L. J. Ch. 267 ; Layton v. Layton, 1 
 Sm. & Giff. 179, 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. Pranciscus, 2 Bland, Ch. 545 ; Kenny v. Udall, 5 John. Ch. 464; 3 
 Cow. 591 ; Napier v. Howard, 3 Kelly (Geo.) 205 ; Bowling v. Winslow's Adm. 5 B. 
 Monr. 31 ; Browning v. Headley, 2 Robn. Va. 340; Hall v. Hall, 4 Maryl. Ch. 283; 
 McVey T. Boggs, 3 Maryl. Ch. 94; Barron v. Barron, 24 Verm. 375. 
 
OF TRUSTEES FOR MARRIED WOMEN. 615 
 
 remaining and available for that purpose. (j/) And if the husband have 
 committed a contempt by running away with and marrying a ward of 
 the court 5(2) 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 bankrupt, after he has obtained his 
 certificate, is a free man. And in consequence of this distinction in a 
 late case in the Court of Exchequer, Alderson, B., directed the whole of 
 an equitable fund, belonging to the wife of an insolvent, to be settled 
 on her and her children to the entire exclusion of the assignees of the 
 husband. (J) 
 
 It is to be observed that this equitable right of a wife to a settlement, 
 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 without any condition. (c) 1 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 difficulty in allowing the trustee his costs of the 
 suit.(d) 
 
 The court has no power to compel a husband to make any settlement 
 on his wife or 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 
 
 (y) See Elliott v. Cordell, 5 Mad. 156 ; Bond v. Simmons, 3 Atk. 21 ; Oxenden v. 
 Oxenden, 2 Vern. 493; Nichols v. Danvers, lb. 691; Coster v. Coster, 9 Sim. 597, 
 where three-fourths of the fund were settled on the wife. [Vaughan v. Buck, 1 Sim. 
 N. S. 284; and Ex parte Pugh, 1 Drew, 202, where two-thirds were settled.] 
 
 (2) Like v. Beresford, 3 Ves. 506 ; [see Helms v. Pranciscus, 2 Bland, 545 : .Or one 
 who would have been a ward of court, but for a marriage, intended to frustrate the 
 proper application. Layton v. Layton, 1 Sm. & Giff. 179.] 
 
 (a) Kent v. Burgess, 10 Law Journ. N. S. Chanc. 100. [11 Sim. 361.] 
 
 (b) Brett v. Greenwell, 3 Y. & Coll. 230 ; [and see McVey v. Boggs, 3 Maryl. Ch. 94.] 
 
 (c) Sawyer v. Shute, 1 Anstr. 63 ; Campbell v. French, 3 Ves. 321 ; Dues v. Smith, 
 Jac. 544; Anstruther v. Adair, 2 M. & K. 513. 
 
 (d) Anstruther v. Adair, 2 M. & K. 516. 
 
 1 In Hitchcock v. Clendennin,. 12 Beav. 534, it was held that where the wife by the 
 law of her domicile can claim no equity, her husband is entitled to the proceeds of her 
 real estate in England, absolutely ; and if the estate be yet unsold, may take a con- 
 veyance to himself in fee. So in McCormick v. Garnett, 23 L. J. Ch. 777, it was held 
 that where by the law of the foreign country the husband would be entitled to the per- 
 sonal property, the wife has no equity. (L. JJ. of App.) 
 
616 OF TRUSTEES FOE MARRIED WOMEN. 
 
 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 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 refusal be without sufficient 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, (gf 
 
 But "where the husband deserts his wife without having made any pro- 
 vision 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) 2 
 
 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 ; therefore d 
 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 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.(jfc) If, therefore, upon, a 
 proper examination she consent to have the property made over abso- 
 lutely 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) 
 
 (e) Sleech v. Thorington, 2 Ves. 562 ; 1 Bop. Husb. and Wife, 274. 
 
 (/) Bullock v. Menzies, 4 Ves. 798. 
 
 (g) Burdon v. Dean, 2 Ves. Jun. 607 ; Oswell v. Probert, lb. 680 ; Lumb v. Milnes, 
 5 Ves. 517 ; Wright v. Morley, 11 Ves. 20, 21. 
 
 (h) Ball v. Montgomery, 2 Ves. Jun. 191 ; S. C. 4 Bro. C. C. 339 ; Sleech v. Tho- 
 rington, 2 Ves. 562 ; Wright v. Morley, 11 Ves. 12. 
 
 (t) 4 Ves. 18 ; 10 Ves. 90.' [See ante, 405, note.] 
 
 (k) Ante ; and see Hodgens v. Hodgens, 11 Bligh, 103, 5. 
 
 (Z) Dimmock v. Atkinson, 3 Bro. C. C. 195 ; Willatts v. Cay, 2 Atk. 67. [Ante, 
 411.] (m) Johnson v. Johnson, 1 J. & W. 472. 
 
 1 Dumond v. Magee, 4 J. C. R. 318; Kenny v. Udall, 5 Id. 464, 3 Cow. 591; Helms 
 v. Franciscus, 2 Bland, 545 ; note to Murray v. Lord Elibank, ut supra. 
 
 2 A widow entitled to dividends on a sum of stock, which she erroneously supposed 
 to have been settled to her separate use, and other property, on a, second marriage 
 required her other property to be settled on herself. A separation took place eight 
 weeks after the marriage, and the wife obtained a divorce a mensa ei tlioro on the 
 ground of adultery, but no alimony was decreed. The second husband, who was an 
 attorney, had seen the first settlement of the stock. On a bill filed by the wife to enforce 
 her equity to a settlement, the court of appeal decreed the whole dividends to be paid 
 to her. Barrow v. Barrow, 24 L. J. Ch. 267. 
 
OF TRUSTEES FOR MARRIED WOMEN. 617 
 
 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 ;(n) or if she cannot appear personally, 
 a commission will be issued to take her examination apart from her hus- 
 band.^) 
 
 An application for the transfer of a fund belonging to a married 
 woman,, must be made by petition in a cause, 1 and the court requires an 
 affidavit of the parties that there was no settlement on their marriage. (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, (q) 
 
 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 agreement 
 or disposition made by her in any other manner is altogether inopera- 
 tive, and *will be totally disregarded by the court, if she after- r*4i4"i 
 wards insist upon her claim. (rf 
 
 The court will not take the consent of a married woman to the trans- 
 fer of her fund, until the amount has been ascertained ; for though she 
 may not think 5001. a proper subject of a settlement, she may think 
 differently of. Q00l.(s) And for this reason a residue, or share of a 
 residue, will not be transferred upon the wife's separate examination and 
 consent,(t) and the produce of a wife's reversionary interest in stock, 
 which has been contracted to be sold, is open to the same objection. (u) 
 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 
 714Z. 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 hesita- 
 tion, 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 pay- 
 able under the decree was still unascertained, (a;) 
 
 (n) Macaulay v. Phillips, 4 Ves. 18. [Ante, 411.] 
 
 (o) Parsons v. Dunne, 2 Ves. 60 ; Bourdillon v. Adair, 3 Bro. C. C. 237 ; Campbell 
 v. French, 3 Ves. 322 ; Re Tasburgh, 1 V. & B. 507. 
 
 ( p) Minet v. Hyde, 2 Bro. C. C. 663'; Binford' v. Bawden, 2 Ves. Jun. 38 ; Elliott v. 
 Remington, 9 Sim. 502. The affidavit may be made by the wife only if the husband be 
 abroad, lb. (q) Rose v. Rolls, 1 Beav. 270. 
 
 (r) Macaulay v. Phillips, 4 Ves. 18 ; see Maitland v. Bateman, 13 Law Journ. N. S., 
 Chanc. 274, 5 ; and post. 
 
 (s) Jarnegan v. Baxter, 6 Mad. 32. (t) Sperling v. Rochfort, 8 Ves. 178. 
 
 (u) Woollands v. Croucher, 12 Ves. 174; Godber v. Laurie, 10 Price, 152. 
 
 (x) Packer v. Packer, 1 Coll. 92. 
 
 1 Mumford v. Murray, 1 Paige, 620 ; Duvall v. Farmers' Bank, 4 Gill & John. 283. 
 
 2 But in Wright v. Arnold, 14 B. Monr. 642 ; Smith v. Atwood, 14 Geo. 402, it was 
 held that a married woman would be estopped by an informal consent and long 
 acquiescence. 
 
618 OF TRUSTEES FOR MARRIED WOMEN. 
 
 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 pro- 
 vision out of that property, of which, if it were a legal interest, the 
 husband could take actual and immediate possession in her right. There- 
 fore, 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, (t/) 1 For such an interest cannot be reduced into immediate pos- 
 session. And although some decisions of a contrary tendency are to be 
 met with, (z) 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 property 
 absolutely to her husband, but a settlement will be directed, (b) 
 
 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 Gullin v. Gullin, (c) a married woman 
 under twenty-one presented a petition, praying that a sum in court, to 
 which she was entitled, might be paid to her husband ; 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 Rolls, in which a similar application was made on the 
 authority of Gullin v. Gullin, Lord Langdale, M. R., said he felt con- 
 siderable difficulty in acting on that authority, and refused to make the 
 order.(ctf) Indeed it does not seem easy to reconcile the order of the 
 ["*41V1 Vi ce -Chancellor in Gullin v. * Gullin with the general principles 
 which govern the court in dealing with the property of infants 
 under its protection. And in a subsequent case, upon the point being 
 
 (y) Socket v. Wray, 2 Atk. 6, n.; Frazer v. Bailie, 1 Bro. C. C. 518; Kichards v. 
 Chambers, 10 Ves. 508; Woodlands v. Croueher, 12 Ves. 175; Ritchie v. Broadbent, 2 
 J. & W. 456 ; Packard v. Roberts, 3 Mad. 384. 
 
 (z) Macartnick v. Buller, 1 Cox, 357 ; Howard v. Damiani, 2 J. & W. 458, n. 
 
 (a) See Honnor v. Morton, 3 Russ. 63 ; Piekard v. Roberts, 3 Mad. 384 ; Purdew v. 
 Jackson, 1 Russ. 48. 
 
 (6) Stackpole v. Beaumont, 3 Ves. 89. (c) Gullin v. Gullin, 7 Sim. 236. 
 
 (d) Stubbs v. Sargon, 2 Beav. 496. 
 
 1 Whittle v. Henning, 2 Phill. 731 ; 12 Jur. 1079; Greedy v. Lavender, 13 Beav. 
 612 ; Cunningham v. Antrobus, 16 Sim. 436 ; Hobby v. Allen, 20 Law J. Chanc, 139 ; 
 15 Jur. 835; Brandon v. Woodthorpe, 10 Beav. 463 ; Rogers v. Acaster, 14 Beav. 445 ; 
 overruling Hall v. Hugonin, 14 Sim. 595. But as to chattels real, see Duberly v. Day, 
 14 Beav. 9. See full discussions on this subject in 10 Jurist, pt. ii, 474, 482 ; 7 Engl. 
 Law Magazine, 234; 8 Id. 215 ; and, for American 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, 9 Hare, 434; 
 and see Walker v. Drury, 23 L. J. Ch. 712. Where the husband outlives the wife he 
 will become entitled to her reversionary interests by survivorship, and his assignees in 
 bankruptcy are therefore in such case entitled to claim them when they vest in posses- 
 sion. Drew v. Long, 22 L. J. Ch. 717. 
 
OF TRUSTEES FOR MARRIED WOMEN. 619 
 
 again submitted to the Vice-Chancellor, his Honor decided that the in- 
 fant's consent could not he taken. (0) 
 
 If the husband fail to reduce into possession his wife's equitable pro- 
 perty in his lifetime, she will take the whole by survivorship at his 
 death. (/) And in this respect, any distinction between equitable in- 
 terests and legal choses in action is entirely exploded.^) 1 
 
 (e) Abraham v. Newcombe, 12 Sim. 566. [See accord, Ex parte Warfield, 11 Gill 
 & J. 23 ; Udall v. Kenney, 3 Cow. 590.] 
 
 (/) Twisden v. Wise, 1 Vern. 161 ; Hutchings v. Smith, 9 Sim. 137 ; Mitford v. Mit- 
 ford, 9 Ves. 98. 
 
 (g) Twisden v. Wise, 1 Vern. 161 ; Hornsby v. Lee, 2 Mad. 16 ; Purdew v. Jackson, 
 1 Russ. 1 ; Honnor v. Morton, 3 Rnss. 65. 
 
 1 It is now well settled, that the choses in action, including legacies and distributive 
 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. Krumbaar 
 v. Burt, 2 Wash. C. C. 406; Schuyler v. Hoyle, 5 J. C. R. 196; Searing v. Searing, 9 
 Paige, 283 ; Snowhill v. Snowhill, 1 Green Ch. 30; Dare v. Allen, Id. 419 ; Pike v. 
 Collins, 33 Maine, 43; Poor v. Hazleton, 15 N. H. 568; Legg v. Legg, 8 Mass. 99 ; 
 Stanwood v. Stanwood, 17 Id. 57 ; Hayward v. Hayward, 20 Pick. 517 ; Parsons v. 
 Parsons, 9 N. Hamp. 309 ; Lodge v. Hamilton, 2 S. & R. 491 ; Bohn v. Headley, 7 H. & 
 J. 257 ; Browning v. Headley, 2 Rob. Va. 340 ; Revel v. Revel, 2 Dev. & Batt. 272 ; 
 Rice v. Thompson, 14 B. Monr. 379; Whitehurst v. Harker, 2 Ired. Eq. 292; Poin- 
 dexter v. Blackburn, 1 Id. 286 ; Terry v. Brunson, 1 Rich. Eq. 78 ; Bibb v. McKinley, 
 9 Port. 636; Sayre v. Flournoy, 3 Kelly, 541 ; Kellar v. Beelor, 5 Monr. 573 ; Clarke v. 
 McCreary, 12 Sm. & M. 347 ; Pickett v. Everett, 11 Missouri, 568 ; though the contrary 
 was held in Griswold v. Penniman, 2 Conn. 564. 
 
 It is held in some of the United States, that a transfer for value, or release of a chose, 
 in which the wife has a, present interest, will bar her survivorship. 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. Hamp. 309 ; Tuttle v. 
 Fowler, 22 Conn. 58; Weeks v. Weeks, 5 Ired. Eq. Ill ; Siter's Est., 4 Rawle, 468; 
 Tucker v. Gordon, 5 New H. 564. In others, the more recent English authorities have 
 been followed, and the wife held to take by survivorship, where the assignee of the 
 husband has not actually reduced the chose into possession. Matheney v. Guess, 2 Hill 
 Eq. 63 ; Browning v. Headly, 2 Rob. Va. 340 ; Arrington v. Yarborough, 1 Jones Eq. 
 (N. C.) 72 ; George v. Goldsby, 23 Alab. 333. In Pennsylvania, it is settled 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 survivorship (Eshelman v. Shuman's Adm., 13 Penn. St. 
 R. 561), yet it will, if specifically included : Richwine v. Heim, 1 Pa. R. 373 ; Shuman 
 v. Reigart, 7. W. & S. 168, explained in 13 Penn. St. R. 563 ; the latter being con- 
 sidered the voluntary act of the husband, and for the consideration of his recovery of 
 liberty. Siter's ease, 4 Rawle, 481. But in Van Epps v. Van Deusen, 4 Paige, 64; 
 Outcalt v. Van Winkle, 1 Green Ch. 513; and Poor v. Hazleton, 15 N. H. 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 v. Hazleton ; and indeed in this last case, 
 it was doubted whether it would pass at all. However, even in Pennsylvania, it is held 
 that proceedings in bankruptcy being in invitum, the assignees there will not take ab- 
 solutely. Shay v. Sessaman, 10 Barr, 434; Krumbaar v. Burt, 2 Wash. C. C. 406 ; 
 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 ; Slaymaker v. The 
 Bank, 10 Barr, 373. The husband may, however, assign it, by express words in pay- 
 ment of his debts : Barnes v. Pearson, 6 Ired. Eq. 482 ; but a transfer as collateral 
 
620 OF TRUSTEES FOR MARRIED WOMEN. 
 
 An actual payment or transfer by the legal holder to the husband 
 
 security alone, will not be enough : Hartman v. Dowdel, 1 Rawle, 279 ; Latourette v. 
 Williams, 1 Barb. Ch. 9 ; that not being a transfer for value. See Siter's case, 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 aud distributive shares may therefore 
 be attached : Wheeler v. Bowen, 20 Pick. 563 ; Holbrook v. 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 cannot be attached : Dennison v. High, 
 
 2 Watts, 90 ; Robinson v. Woelpper, 1 Wharton, 179; Wheeler v. Moore, 13 N. Hamp. 
 478 ; or reached in equity by creditors : Andrews v. 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: Frauenfelt's Est., 3 Whart."415. How- 
 ever, 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 divorce, will 
 not be supported: Krupp v. Scholl, 10 Barr, 194; see Blenkinsopp v. Blenkinsopp, 1 
 De G. M. & G. 495. An assignment made in good faith, however, will not be affected 
 by the fact that the husband was at the time in contemplation of a divorce. Tuttle v. 
 Fowler, 22 Conn. 58. 
 
 Upon the question of the assignment of a wife's choses, the modern authorities in 
 England are at variance with many of 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 the choses are actually reduced to pos- 
 session by the assignee : see post, page 416. Then as to an assignment for value, it also 
 appears established, that the purchaser acquires no greater power. This was the doc- 
 trine 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. Smith, 
 9 Sim. 137 ; Elwin v. Williams, 7 Jur. 338 ; 12 L. J. Ch. 440 ; S. C. under the name 
 of Ellison v. Elwin, 13 Sim. 309 (see post, 417) ; Ashby v. Ashby, 1 Coll. 554; Wilkin- 
 son v. Charlesworth, 10 Beav. 328; Le Vasseur v. Scratton, 14 Sim. 118; Borton v. 
 Borton, 13 Jur. 247 ; 16 Sim. 552. This conclusion is approved in Macqueen, Husband 
 & Wife, 54 ; 2 Spence's Eq. Jar. 476 ; 4 Law Review, 249 ; but see the remarks of Mr. 
 Bell, Property of Hushand and Wife, 73. Contra, it seems, as to terms for years: 
 Duberly v. Day, 14 Beav. 9 ; but see ante, 406. In Siter's case, 4 Rawle, 461, this sub- 
 ject was dispussed, and Purdew v. Jackson strongly disapproved. The doctrine of 
 Siter's case, and of many of the American decisions, is that an assignment for value by 
 the husband amounts to a contract, which equity would execute against him by com- 
 pelling a reduction, and therefore will treat as executed, after his death. But this 
 reasoning appears to be open to several objections. In the first place, as was shown; 
 indeed, in Siter's case, the husband has not a property in, but only a naked power over 
 his wife's choses, which 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 abso- 
 lute power. Next, the equitable principle referred to is admissible only as between the 
 purchaser, and the assignor and his representatives. But the wife does not claim 
 through her husband, but on a distinct title. Further, a court of equity does not, ex- 
 cept in peculiar cases, compel specific performance of a contract with regard to per- 
 
OF TRUSTEES FOR MARRIED WOMEN. 621 
 
 hiniself,(&) 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. 
 
 sonal property, but leaves the parties to their remedies at law. And, though the 
 assignment of a chose in action imports in equity an agreement by the assignor to 
 allow his name to be used by the assignee, this could only bind the executor of the 
 husband, not the wife, after his death. Finally, in the case of choses in action proper, 
 the legal title in the wife must prevail, if the equities are equal, and undoubtedly the 
 wife has, as owner, an equal equity with the purchaser. Indeed, considering the pecu- 
 liar favor with which femes 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. With regard to the equitable in- 
 terests of the wife, the case is still clearer, for equity only recognizes the husband's 
 rights over them, because it is bound to follow the law. 
 
 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 v. Taliaferro, 2 Call, 376 ; 
 Mayfield v. Clifton, 3 Stew. 375 ; Kintzinger's Estate, 2 Ashm. 45 ; 3ee Miller's Estate, 
 1 Id. 323 ; Gochenaur's Est., 23 Penn. St. 460 ; though if the husband in such case 
 charges his wife's legacy in his account as paid, and the charge is allowed : Pierce v. 
 Thompson, 17 Pick. 391 ; or he dies without settling an account, having previously 
 appropriated the property of the estate to his own use : Ellis v. Baldwin, 1 W. & S. 
 253 ; or sells it, taking notes therefor, which he converts to his own use : Wardlaw v. 
 Gray, 2 Hill's Eq. 644; it is a reduction. On the same ground, the mere joining in a 
 suit with his wife, with regard to her property, is insufficient. Pike v. Collins, 33 Maine, 
 43 ; Thompson v. Ellsworth, 1 Barb. Ch. 624; Arnold v. Buggies, 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 appointed, who acted, but did not report, it was held that 
 the wife took by survivorship. Gregory v. Marks, 1 Rand. 355. So in Bennett v. Dil- 
 lingham, 2 Dana, 436, where in a suit for distribution, the commissioners made sale, 
 and then the husband died. A judgment or decree in a joint suit is not enough ; there' 
 must be also execution, or a delivery of the property sued for to the husband or some one 
 for him. Pike v. Collins, 33 Maine, 43 ; Mason v. McNeill, 23 Alab. 201. 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 legacy. Lodge v. Hamilton, 2 S. & R. 491 ; 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 pay- 
 ment 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. Hunter v. 
 Hallett, 1 Edw. Oh. 388 ; Pickett v. Everett, 11 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 off a part of the incumbrance to the comortgagee, the wife's survi- 
 vorship 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 codistributees, 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. Bumpass, 4 Ired. 
 Eq. 385. So where the husband receives from the executor of an estate from which 
 •his wife is entitled to a legacy, money, not as an advance, but under a contract to re- 
 fund : Savage v. Benham, 17 Alab. 120 ; or on an understanding that it is to be em- 
 ployed in part payment of land bought in the wife's name. Barron v. Barron, 24 Verm. 
 
622 OF TRUSTEES FOR MARRIED WOMEN. 
 
 him to receive the fund,(a) will be a reduction into possession, and will 
 defeat the •wife's title by survivorship ; and this though she be an in- 
 fant.^) 
 
 (i) Glaister v. Hewer, 8 Ves. 207 ; Johnson t. Johnson, 1 J. & W. 472 ; Hansen v. 
 Miller, 8 Jur. 209. (k) Hansen v. Miller, 8 Jar. 209. 
 
 375. In short, in order to amount to a reduction to possession, the receipt by the hus- 
 band must he jure mariti. Barron v. Barron, ut supr. 
 
 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 declarations at the 
 time or subsequently, to have been intended for the benefit or in trust for the wife. 
 Hind's Estate, 5 Wharton, 138 ; Gray's Est., 1 Barr, 327 ; McDowell v. Potter, 8 Barr, 
 191 ; Gochenaur's Est., 23 Penn. St. 460. But to create a disclaimer, subsequent 
 admissions must be " deliberate, positive, precise, clear, and consistent." Gray's Est., 
 ut supra ; Gochenaur's Est., 23 Penn. St. 460. And where the reduction has been 
 complete, subsequent expressions of regret, however positive or sincere, will not avail 
 to revive the right of the wife. Nolen's App., 23 Penn. St. 38. 
 
 Not only must the intention to appropriate appear distinctly, but the act of reduction 
 must be complete at the husband's death. Mason v. McNeill, 23 Alab. 201. 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 execution, 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 survivorship. Donaldson v. 
 West Branch Bank, 1 Barr, 286. And where a husband attempts to reduce the chose, 
 and but part was actually received, the remainder will survive. Schuyler v. Hoyley 5 
 J. C. R. 196. 
 
 Where, however, the requisites enumerated concur, the survivorship is excluded. 
 Thus, taking bond from an executor for a legacy, and judgment thereon, is a reduc- 
 tion : 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, as 
 in Siter's case, 4 Rawle, 461, a deed of wife's chases by husband to a trustee for tie 
 benefit of the wife and child, excludes the wife's survivorship. Where the money is re- 
 ceived 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 possibilities, 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 appro- 
 priation, under a separate examination ; 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. Bran- 
 son, 1 Rich. Eq. 78; Reese v. Holmes, 5 Id. 531 ; Sales v. Saunders, 24 Mississ. 24; 
 Goodwin v. Moore, 4 Humph. 221 ; Caplinger v. Sullivan, 2 Id. 548. But in Pennsyl- 
 vania the rule is different. Siter's case, 4 Rawle, 461 ; Woelpper's App., 2 Barr, 71 ; 
 Webb's App., 21 Penn. 248 ; and this was held in a case where the interest of the wife 
 did not become vested till after the passage of the " Married Woman's Act" of 1848, 
 the assignment by the husband being before. Smilie's ,Est., 22 Penn. 130. So in 
 Kentucky : Merriwether v. 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 
 
OF TRUSTEES FOB, MARRIED WOMEN. 623 
 
 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, but 
 die before the security with the legal estate is released or transferred, 
 the receipt of the debt by the husband will be treated as a sufficient re- 
 duction 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 by the 
 direction of the husband, was a reduction 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 reduc- 
 tion, which does not vest the legal title to it in the husband, or the per- 
 son 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)(l) or has been trans- 
 ferred by the existing trustees to other persons as trustees for the wife's 
 benefit ;(q) 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 in other words, it still remains 
 an equitable chose in action. So the mere filing of a bill by the husband 
 
 {I) Rees v. Keith, 10 Law Journ. N. S. Chanc. 46. [Siter v. McLanahan, 2 Grattan, 
 280.] 
 
 (m) Hansen v. Miller, 8 Jur. 209. 
 
 (») "Wall v. Tomlinson, 16 Ves. 413 ; see Baker v. Hall, 12 Ves. 49?. 
 
 (0) Blount v. Bestland, 5 Ves. 515. 
 
 {p) Macaulay v. Phillips, 4 Ves. 17, 18. 
 
 (q) Wall v. Tomlinson, 16 Ves. 413 ; Fort v. Fort, Forrest, 171 ; Ryland v. Smith, 1 
 M. & Cr. 53. 
 
 (1) Unless indeed it be paid in to the account of the husband alone j Re Jenkins, 5 
 Russ. 183. 
 
 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 v. 
 Leake, 2 Dev. & Batt. R. 133 ; Howell v. Howell, 3 Ired. Eq. 528 ; Weeks v. Weeks, 
 5 Ired. Eq. 111. 
 
 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 ; Hayward v. Hayward, 20 Pick. 
 517 ; Atcheson v. Atcheson, 11 Beav. 485 ; Laprimaudaye v. 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. Attheson v. Atcheson, ut supra. The 
 interest of the husband in property settled to the joint use of himself and his wife is 
 liable to his creditors, notwithstanding a provision that it shall not be liable to his debts, 
 &c; and passes to hisinsolvent assignees. Rivers v. Thayer, 7 Rich. Eq. 166; Carson 
 v. O'Bannon, Id. 219.' 
 
624 OP TRUSTEES FOE MARRIED WOMEN. 
 
 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 
 r*4.;|fil °^ ^ e h USDan d an d wife, *will not affect her rights by survivor- 
 ship.(s) Although it will be otherwise, where the fund is ordered 
 to be paid, or declared to belong to the husband alone ; and in that 
 case, his executors 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, (u) 
 
 It is clear, that receipt by the husband of the interest or dividends of 
 the funds, is no reduction into possession by him. (a;) And even the re- 
 ceipt 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 sur- 
 vive.^) 
 
 So it has long been settled, that the general assignment by operation 
 of law upon the bankruptcy or insolvency of the husband, will not ope- 
 rate 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.(a) And still 
 less will a mere voluntary assignment by the husband have that effect.(a) 
 So where the wife's equitable interest 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 valua- 
 ble 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 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, 
 
 (r) Pierce v. Thornely, 2 Sim. 167, 180. 
 
 \s) Nanney v. Martin, 1 Eq. Ca. Abr. 68 ; 3 Atk. 726 ; Forbes v. Phipps, 1 Ed. 502; 
 Nightingale v. Lookman, Fitzgibb. 148 ; Hore v. Woulfe, 2 Ball & B. 424 ; Adams v. 
 Lavender, 1 McClel. & Y. 41 ; Be Jenkins, 5 Buss. 183. 
 
 (<) Packer v. Wyndham, Prec. Ch. 412 ; Heygate v. Annesley, 3 Bro. C. C. 362; see 
 Be Jenkins, 5 Buss. 183. 
 
 (u) Oglander v. Baston, 1 Vern. 396. 
 
 (a;) Nash v. Nash, 3 Mad. 133. (y) Ibid. 
 
 (z) Gayner v. Wilkinson, 2 Dick. 491 ; 1 Bro. C. C. 50, n. ; Mitford v. Mitford, 9 Ves. 
 87, 97 ; Hormsby v. Lee, 2 Mad. 16 ; Pierce v. Thornely, 2 Sim. 167, 177. 
 
 (a) Lord Carteret v. Pascal, 3 P. Wins. 199 ; Burnet v. Kynaston, 2 Vern. 401 ; Mit- 
 ford v. Mitford, 9 Ves. 99 ; Johnson v. Johnson, 1 J. & W. 472. 
 
 (6) Hornsby v. Lee, 2 Mad. 16 ; Purdew v. Jackson, 1 Buss. 1 ; Honnor v. Morton, 3 
 Buss. 65 ; Dalbiac v. Dalbiac, 16 Ves. 122. [See Duberly v. Day, 14 Beav. 9, and 
 ante, 414, note.] 
 
OF TRUSTEES FOR MARRIED WOMEN. 625 
 
 ■which agreement being for valuable consideration ought to be per- 
 formed.^) And although the principle of those decisions was disap- 
 proved 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,(d) the doctrine which they established, ap- 
 pears notwithstanding to have been recognized and admitted,(e) until the 
 Vice-Chancellor's Observations in the recent case of Hutchings _ 
 
 v. Smith(/) raised considerable doubt as to its authority. *- J 
 
 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 hus- 
 band. 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 de- 
 creed 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 question as to the effect of the as- 
 signment 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 considered 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."(gr) This case has since been followed by 
 that of Elwin v. Williams,(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 husband 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 by the hus- 
 band, 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. 
 
 (c) Duke of Chandos v. Talbot, 2 P. W. 608 ; Lord Carteret v. Paschall, 3 P. Wms. 
 197 ; Bates v. Dandy, 2 Atk. 207 ; S. C. 1 Russ. 33, n., and 3 Russ. 72, n. ; "Wright v. 
 Morley, 11 Ves. 20, 21 ; Grey v. Kentish, 1 Atk. 280 ; Hawkins v. Obyn, 2 Atk. 549 ; 
 Pascall v. Thurston, 2 Bro. P. C. 19 ; Honnor v. Morton, 3 Russ. 68, 9. 
 
 (d) See Mitford v. Mitford, 9 Ves. 99 ; Johnson v. Johnson, 1 J. & W. 476 ; Honnor 
 v. Morton, 3 Russ. 65 ; Purdew v. Jackson, 1 Russ. 60. 
 
 (e) Johnson v. Johnson, 1 J. & W. 476 ; Honnor v. Morton, 3 Russ. 68. 
 
 (/) 9 Sim. 137, 146, 7. (g) Hutchings v. Smith, 9 Sim. 137, 146 
 
 (h) Elwin v. Williams, 12 Law Journ. N. S., Chanc. 440. [7 Jur. 337 ; S. C. sub nom. 
 Ellison v. Elwin, 13 Sim. 309 ; see ante, p. 415, note.] 
 
 40 
 
626 OF TRUSTEES FOE MARRIED WOMEN. 
 
 The Vice-Chancellor held that the husband's assignment in this case did 
 not affect any part of the wife's interest, which was not reduced into 
 possession in his lifetime.ii) It is therefore settled by this decision, 
 that an assignment for valuable consideration 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 de- 
 feated 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 pos- 
 session of the fund, (k) 
 
 It is immaterial, that the wife herself joins with her husband in exe- 
 cuting any assignment of her equitable interests, which is inoperative 
 to bind her title by survivorship. For any deed executed by her during 
 the coverture is merely inoperative, and it will be competent for her or 
 for her representatives *after his death, to dissent from it, and 
 L J 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. (mf And although he die before 
 the property is got in, his representatives, and not the wife's next of 
 kin, will be entitled. (n) Hence, an assignment by the husband of his 
 wife's choses in action or equitable interest in personalty, is good 
 against every one except her, surviving ; for it will, of course, be binding 
 on himself, and all parties claiming under him.(o) 
 
 In enforcing the equity of the wife for a settlement, the interests of 
 
 (i) Lord Salisbury v. Newton, 1 Ed. 370. (k) Vide supra. 
 
 (I) Wright v. Rutter, 2 Ves. Jun. 673 ; Macaulay v. Phillips, 4 Ves. 16 ; Hornsby v. 
 Lee, 2 Mad. 18 ; Purdew v. Jackson, 1 Russ. 1 ; Honnor v. Morton, 3 Russ. 65 ; Hutch- 
 ings v. Smith, 9 Sim. 137. [Ante, 415, note.] 
 
 (m) Squib v. Wyn, 1 P. Wms. 378 ; 1 Rop. Hus. & Wife, 203. 
 
 {n) Cart v. Rees, 1 P. Wms. 381, cited ; Humphrey v. Bullen, 1 Atk. 458 ; Elliott v. 
 Collier, 3 Atk. 526. 
 
 (o) White v. St. Barb, 1 Ves. & B. 405 ; see Ranking v. Bernard, 5 Mad. 32. 
 
 1 Accord, Whitaker v. Whitaker, 6 John. R. 112; Hunter v. Hallett, 1 Edw. Ch. 
 388; Hoskins v. Miller, 2 Dev. R. 360; Lockwood v. Stockholm, 11 Paige, 87; Big- 
 gert v. Biggert, 7 Watts, 563 ; Clay v. Irvine, 4 Watts & Serg. 232 ; Hatton v. Weems, 
 12 G. & J. 83; Glasgow v. Sands, 3 G. & J. 96 ; Donnington v. Mitchell, 1 Green, Ch. 
 243 ; Dawson v. Dawson, 2 Strob. Eq. 34 ; Lee v. Wheeler, 4 Geo. 541 ; Wilkinson v. 
 Perrin, 7 Monr. 214 ; Jackson v. Sublitt, 10 B. Monr. 469 ; Lowry v. Houston, 3 How. 
 Miss. 394. Contra, Curry v. Fulkinson, 14 Ohio, 100;, Baldwin v. Carter, 17 Conn. 
 201 ; Bryne v. Stewart, 3 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. 
 
OP TRUSTEES FOR MARRIED WOMEN. 627 
 
 her children will always be considered and protected by the court, (p) 1 
 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, (q) 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 
 actually executed, and this though the Master have actually approved 
 of a settlement under a decree. (r) 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 settle- 
 ment will prevail against the husband's right by survivorship, though 
 the wife died before the settlement is made, or any further proceedings 
 are taken. (s) And it is immaterial, that the decree or order is for a 
 settlement on the wife alone, without mentioning the children. (t) 
 
 It was decided by Sir J. Leech, in Steinmetz v. Halthin,(w) that this 
 equity attaches in favor of the children immediately upon the filing of 
 the bill, 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;) However, in the subsequent case of De la Garde 
 
 (jp) Murray v. Ld. Elibank, 10 Ves. 84; Lloyd v. Williams, 1 Mad. 450 ; Groves v. 
 Clark, 1 Keen, 132. [Howard v. Moffatt, 2 J. 0. R. 206 ; Udall v. Kenney, 3 Cow. 
 609 ; Groverman v. Diffenderfer, 11 Gill & John. 22 ; Napier v. Howard, 3 Kelly, 193 ; 
 Andrews v. Jones, 10 Alab. 401 ; notes to Murray v. Lord Blibank, ut supr.] 
 
 (q) Scriven v. Tapley, 2 Ed. 337 ; S. C. Ambl. 509 ; Lloyd v. Williams, 1 Mad. 450. 
 [Martin v. Sherman, 2 Sandf. Ch. 341 ; Bell v. Bell, 1 Kelly, 637 ; Barker v. Woods, 
 1 Sandf. Ch. 129.] 
 
 (r) Ante, and see Row v. Jackson, 12 Dick. 604 ; Murray v. Ld. Elibank, 10 Ves. 
 84 ; Martin v. Mitchell, 10 Ves. 89, cited; Steinmetz v. Halthin, 1 Gl. & J. 64. 
 
 (s) Murray v. Ld. Elibank, 10 Ves. 84 ; Lloyd v. Williams, 1 Mad. 450 ; Groves v. 
 Clarke, 1 Keen, 132. [Mumford v. Murray, 1 Paige, 621 ; Helms v. Pranciscus, 2 
 Bland Ch. 581.] 
 
 (i!) Groves v. Clarke, 1 Keen, 132 ; Groves v. Perkins, 6 Sim. 584. [See Hill v. Hill, 
 3 Strobh. Eq. 94.] 
 
 (u) 1 Gl. & J. 64. {x) 1 Keen, 132. 
 
 1 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, remainder to her chil- 
 dren as she should appoint, remainder to the children in default of appointment, and 1 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. Taggart, 1 De G. Mac. & Gord. 286 ^ 
 Bagshaw v. Winter, 5 De G. & S. 466. Circumstances may exist, however, in a par- 
 ticular 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. 
 
628 OF TRUSTEES FOE, MAESIED WOMEN. 
 
 v. Lempriere,(y) 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 
 L J equity did not attach merely upon Hhe filing of the bill, and that 
 upon her death, before decree, her husband became absolutely entitled 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, (s) 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 limi- 
 tation, giving her the sole and exclusive enjoyment of it. At law a 
 married woman, during the coverture, is in general incapacitated from 
 acquiring or holding property separately from her husband.(J) 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 exclusion 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 effec- 
 tually created, although she be unmarried at the time, and no 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.(d) 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 was unmarried at the time, it vests, on 
 her marriage, in her husband absolutely in his marital right. 1 But in 
 
 (y) De la Garde v. Lempriere, 6 Beav. 344. 
 
 (2) Macaulay v. Phillips, 4 Ves. 19. (a) Ibid. 
 
 (6) 1 Rop. Husb. & Wife, 3, 53 ; and 2 lb. 151. 
 
 (c) 2 Rop. Husb. & Wife, 151. [2 Kent's Comm. 162 ; note to Hulme v. Tenant, 
 1 Lead. Oas. Eq. 370.] 
 
 (<2) Anderson v. Anderson, 2 M. & R. 427 ; Davies v. Thornyeroft, 6 Sim. 420; Tullett 
 v. Armstrong, 1 Beav. 1 ; 4 M. & Cr. 390 ; Scarborough v. Borman, 1 Beav. 34 ; and 
 4 M. & Cr. 377. ( e ) 2 M. & K. 174. 
 
 1 Accord, Hamersley v. Smith, 4 Whart. 1 26 ; Lindsay v. Harrison, 3 Eng. Arkan. 
 R. 311 ; see Dick v. Pitchford, 1 Dev. & Batt. Eq. 480. But in Beaufort v. Collier, 6 
 
OF TRUSTEES FOR MARRIED WOMEN. 629 
 
 the subsequent cases of Tollett v. Armstrong,(/) and Scarborough v. 
 Bowman, (g) 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 Cot- 
 tenham, when Chancellor, formally overruled his own dictum in Massey 
 v. Parker, and finally established the doctrine as stated above. (h) 
 
 And it is settled, that the trust for the separate use, though suspended 
 by the cessation of coverture, 1 will reattach on a subsequent marriage, 2 
 if a future marriage be contemplated by the terms of the trust.(i) But, 
 *if the trust be confined in its terms to the first coverture, it will r ^..nn-\ 
 not be extended to a subsequent marriage. (k) 3 - L -• 
 
 As this separate interest of a married woman is the subject only of 
 equitable cognizance, the interposition of trustees was at first deemed 
 
 (/) 1 Beav. 1. (g) 1 Beav. 34. 
 
 (A) 4 M. & Or. 377. [Gaffee's Trust, 14 Jur. 277 ; 1 McN. & Gord. 541.] 
 
 (i) Clark v. Jacques, 1 Beav. 36 ; Dixon v. Dixon, lb. 40. And although the wife 
 was an infant at the period of the first settlement. Ashton v. M'Dougall, 5 Beav. 56. 
 
 (k) Knight v. Knight, 6 Sim. 121 ; Benson v. Benson, lb. 126. [Overruled, see 
 below.] 
 
 Hump. 487 ; Shirley v. Shirley, 9 Paige, 363 ; Fellows ?. Tann, 9 Alab. 1003 ; Pears 
 v. Brooks, 12 Geo. 197 ; Robert v. West, 15. Id. 123 ; Nix v. Bradley, 6 Rich. Eq. 43, 
 the later English doctrine in Tollett v. Armstrong was followed. 
 
 1 Hamersley v. Smith, 4 Whart. 126 ; Smith v. Starr, 3 Id. 62 ; notwithstanding ex- 
 press words to the contrary : Harrison v. Brolasky, 20 Penn. 299 ; see Clarke v. Wind- 
 ham, 12 Alab. 800. 
 
 2 Roberts v. West, 15 Geo. 123. Contra, Hamersley v. Smith, ut supr. 
 
 a But in the case of Gaffee's Trust, 14 Jur. 277 ; 1 Mac. & Gord. 541 (overrul- 
 ing S. C. 13 Jur. 74; 6 Hare 101), the wife's property, by a post-nuptial settle- 
 ment, 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 said G." (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 for life was 
 limited to the wife; but an estate for life was given to tha husband after the decrease 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 subse- 
 quent 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, without 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 considered 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 restric- 
 tion 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. 
 
630 OF TRUSTEES FOR MARRIED WOMEN. 
 
 h 
 
 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 interven- 
 tion 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 sepa- 
 rate benefit of his wife. (to) 1 
 
 It is clear that no particular form of words is necessary to create a 
 trust for a feme's separate use. 2 Such a trust may either be declared 
 
 (I) Harvey v. Harvey, 1 P. Wms. 125 ; S. C. 2 Vern. 659 ; Barton v. Pierpoint, 2 P. 
 Wins. 79. ' (m) 2 Rop. Huab. & Wife, 152. 
 
 («) Bennet v. Davis, 2 P. Wms. 316 ; Barley v. Darley, 3 Atk. 399 ; Lee v. Prideaux, 
 3 Bro. C. C. 383 ; Parker v. Brooke, 9 Ves. 283 ; Baggett v. Meux, 13 Law Jour. N. S., 
 Chanc. 228 [1 Phill. 627] ; Rich v. Cockell, Id. 375 ; Major v. Lansley, 2 R. & M. 
 355. [See ante, p. 406, and note.] 
 
 1 Though a direct gift from a husband to his wife is not valid at law, it will be sus- 
 tained in equity as a separate provision for her, where it is kept distinct from his other 
 property. Herr's App., 5 W. & S. 494 ; Reade v. Livingston, 3 John. Ch. 490 ; Searing 
 v. Searing, 9 Paige, 284; Pinney v. Fellows, 15 Verm. 536; Barron v. Barron, 24 
 Verm. 375. 
 
 2 Perry v. Boileau, 10 S. & R. 208 ; Lewis v. Adams, 6 Leigh, 320 ; Ballard v. Tay- 
 lor, 4 Desaus. 550 ; Stuart v. Kissam, 2 Barb. S. C. 494 ; Heathman v. Hall, 3 Ired. 
 Bq. 414 ; Pears v. Brooks, 12 Geo. 197 ; Beaufort v. 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 v. Knorr, 4 Rawle, 66 ; Ashcraft v. Little, 4 Ired. Eq. 
 236 ; Williams v. Claiborne, 7 Sm. & M. 488 ; Carroll v. Lee, 3 G. & John. 505 ; Cook 
 v. Kennedy, 12 Alab. 42 ; Pears v. Brooks, ut supra ; note to Hulme v. Tenant, ut 
 supra. It is impossible, however, to reconcile all the decisions, 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," Newman v. James, 12 Alab. 29; or " in trust for the proper use 
 and benefit of the feme coverte, and her heirs forever ;" Warren v. Haley, 1 Sm. & 
 Marsh. Ch. 647 ; " for the use and benefit of the wife and her heirs," Good v. Harris, 2 
 Ired. Eq. 630 ; " for the entire use, benefit, profit, and advantage" of the wife, Heathman 
 v. Hall, 3 Ired. Eq. 414 ; " for her own proper use and benefit," Griffith v. Griffith, 5 B. 
 Monroe, 113 ; "to the use and benefit of A. and children, to remain in possession of A.," 
 Hamilton v. Bishop, 8 Yerg. 33 ; " not to be sold, bartered or traded" by the husband, 
 Woodown v. Kirkpatrick, 2 Swan, 218; "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 mainte- 
 nance," 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 v. 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. Clippenger, 5 Barr, 385 ; " to be at her own dis- 
 posal in true faith/' Bridges v. Wood, 4 Dana, 610 ; "for her own and sole use for- 
 ever," Fisher v. Filbert, 6 Barr, 61 ; " for her own proper use during her lifetime," 
 Snyder v. 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. Kissam, 2 Barb. S. C. 494. So in Tyson's App.j 1" 
 
OF TRUSTEES FOR MARRIED WOMEN. 631 
 
 in express terms, or it may be inferred from the. provisions or directions 
 as to the mode of enjoyment or management of the property.(o) Thus 
 a limitation to the "separate" use of the wife,(p) or what has been de- 
 cided to be the same thing, to her " sole" use,^) will be clearly suffi- 
 cient. 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 
 
 <o) Stanton v. Hall. 2 R. & M. 180 ; Tyler v. Lake, Id. 188. 
 
 (p) Scarborough v. Borman, 1 Beav. 34 ; 4 M. & Cr. 377. 
 
 (q) Adamson v. Armitage, Coop. 283 ; S. C. 19 Ves. 416 ; Ex parte Bay, 1 Mad. 
 199 ; Wills v. Sayers, 4 Mad. 409 ; Ex parte Killick, 8 Jurist, 67 ; [3 Mont. Deac. & 
 De G. Bank. Cas. 480.] 
 
 (r) Pritchard v. Ames, T. & R. 222 ; Stanton v. Hall, 2 R. & M. 180 ; Tyler v. Lake, 
 Id. 188. 
 
 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. Maull, 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 be liable for the debts of 
 her present or any future husband," it was held that, as against the personal represen- 
 tatives of the husband, it constituted a separate estate. And in the recent case of 
 Pears v. 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. Haw- 
 kins, 21 Law J. Ch. 796 ; Davis v. Cain, 1 Ired. Eq. 304, accord ; but see Evans v. Knorr, 
 
 4 Rawle, 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. 446 ; 
 Geyer v. Branch Bank, 21 Alab. 414 ; " the gift not to extend to any other person," 
 Ash craft v. Little, 4 Ired. Eq. 236; "all to be for her and her heirs' proper use," 
 Rudisell v. Watson, 2 Devereux Eq. 430 ; S. P. Houston v. Embry, 1 Sneed, 480 ; "for 
 her use, benefit, and behoof," Torbert v. Twining, 1 Yeates, 432 ; or in " trust for the 
 use" of the feme, Tenant v. Stoney, 1 Rich. Eq. 222 ; " to her and the heirs of her body, 
 and to them alone," Poster v. Kerr, 4 Rich. Eq. 390 ; " I lend to A. during her life and 
 after her death to her issue," Bryan v. Duncan, 11 Geo. 67. And in Pears v. Brooks, 
 12 Geo. 198, it was conceded that the words "to her use and benefit" would not create 
 a separate estate. So in Clevenstine's App., 15 Penn. St. R. 499, of a legacy to a feme, 
 "she to have the use of the same during her life," and after her death, to her children. 
 It is clear, too, that the mere intervention of a trustee, will not create a separate use : 
 Williams v. Maull, 20 Alab. 727 ; Hunt v. Booth, 1 Freem. Ch. 215 ; Mayberry v. Neely, 
 
 5 Hump. 339 ; and & fortiori, a direct gift to a married woman cannot. Fitch v. Ayer, 
 2 Conn. 143 ; Moore v. Jones, 13 Alab. 296 ; Hall v. Sayre, 10 B. Monr. 46. See, 
 further, note to Hulme v. Tennant. And for the separate use now in New York, sefi 
 Noyes v. Blakeman, 3 Sandf. S. C. 538, 2 Seld. 567, and post. 
 
632 OF TRUSTEES FOR MARRTED WOMEN. 
 
 the husband,"(«) or for her own use and benefit " independent of any 
 other person,' \t) or if it be declared, that "her receipts shall be a good 
 discharge,"(M) or that " the husband should not dispose of it without her 
 consent. "(a;) So a declaration, that the estate is for the "livelihood" of 
 the wife,(?/) or that she shall " enjoy and receive" the rents and pro- 
 fits,^) 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 ques- 
 tion whether these last decisions would be recognized 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 considered 
 sufficient. It was said in a late case by Lord Brougham, that the ex- 
 pressions 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 that a simple trust 
 L J to pay an annuity or interest to a married woman,(6) or " for her 
 own use and benefit,"(c) or "into her own proper hands for her own use 
 and benefit,"(d) 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 case,(/) Sir J. Wi- 
 gram, 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 determi- 
 nation 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, 
 
 (s) Wagstaff v. Smith, 9 Ves. 420 ; Dixon v. Olmius, 2 Cox, 414 ; Simmons v. Hor- 
 wood, 1 Keen, 7 ; Newlands v. Paynter, 4 M. & Cr. 408 ; Tullett v. Armstrong. 1 Beav. 
 1 ; 4 M. & Cr.' 377. 
 
 (i) Margetts v. Barringer, 7 Sim. 482. [See Ashcraft v. Little, 4 Ired. Eq. 236.] 
 
 (u) Lee v. Prideaux, 3 Bro. C. C. 381 ; Stanton v. Hall, 2 R. & M. 180 ; Tyler v. 
 Lake, Id. 188. 
 
 (x) Johnes v. Lockhart, 3 Bro. C. C. 383, n. 
 
 (y) Darley v. Darley, 3 Atk. 399. [See, however, Harkins v. Coalter, 2 Port. Alab. 
 476 ; 2 Spence's Eq. Jur. 508, n. (d).] 
 
 (z) Tyrrell v. Hope, 2 Atk. 561 ; and see Ateherley v. Vernon, 10 Mod. 531. 
 
 (a) Tyler v. Lake, 2 R. & M. 189. [Pears v. Brooks, 12 Geo. 196.] 
 
 (6) Dakins v. Beresford, 1 Ch. Ca. 194; Lumb v. Milnes, 5 Ves. 520; see Brown 7. 
 Clark, 3 Ves. 166 ; Stanton v. Hall, 2 R. & M. 175. 
 
 (c) Wills v. Sayers, 4 Mad. 409 ; Roberts v. Spicer, 5 Mad. 491 [see 2 Port. Alab. 
 475] ; Kensington v. Dollond, 2 M. & K. 184 ; Beales v. Spencer, 2 N. C. C. 651. 
 
 (d) Tyler v. Lake, 4 Sim. 144 ; S. C. 2 R. & M. 183 ; and see Massey v. Parker, 2 
 M. & K. 181 ; Blacklow v. Laws, 2 Hare, 49. 
 
 (e) Hartley v. Hurle, 5 Ves. 545. (/) Blacklow v. Laws, 2 Hare, 49, 53. 
 
OF TRUSTEES FOR MARRIED WOMEN. 633 
 
 has been held not to create a trust for her separate use ; although the 
 terms of the gift would otherwise have had that operation. (g) 
 
 In equity a married woman is considered as a feme sole in respect of 
 her separate property. (h) 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.^') 1 However, where real estate is 
 limited absolutely to the separate use of a married woman, she can only 
 dispose of it in the manner prescribed by law, viz., by a conveyance 
 duly acknowledged,(&)(l) unless indeed a power of disposition be ex- 
 
 (g) Wardle v. Claxton, 9 Sim. 524. [Ashcraft v. Little, 4 Ired. Eq. 236 ; Inge v. 
 Forrester, 6 Alab. 418 ; but see Jasper v. Howard, 12 Alab. 652 ; Good v. Harris, 2 
 Ired. Eq. 630 ; Hamilton v. Bishop, 8 Yerger, 33.] 
 
 (7j) Hulme v. Tennant, 1 Bro. C. C. 21 [1 Lead. Cas. Eq. 355 and notes] ; Sockett 
 v. Wray, 4 Bro. C. C. 486 ; Peacock v. Monk, 2 Ves. 190 ; Pybus v. Smith, 4 Bro. C. 
 C. 346 ; Lillia v. Ayre, 1 Ves. Jun. 278 ; WagstafF v. Smith, 9 Ves. 524 ; Witts v. Daw- 
 kins, 12 Ves. 501 ; Sturgis v. Corp, 13 Ves. 190. [2 Kent's Comm. 162.] 
 
 (t) Pettiplace v. Gorges, 3 Bro. C. C. 10. 
 
 (k) Peacock v. Monk, 2 Ves. 192, cases cited ; Dillon v. Grace, 2 Sch. & Lef. 462, 4; 
 
 (1) However, this rule does not apply to the income of real estate, limited to the 
 
 ' 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. Dolan, 1 Rawle, 231 ; 
 but see below, since Act of 1848) ; South Carolina (Ewing v. Smith, 3 Desaus. 417 ; 
 Reid v. Lamar, 1 Strobh. Eq. 27 ; Calhoun v. Calhoun, 2 Id. 231 ; Nix v. Bradley, 6 
 Rich. Eq. 53) ; Rhode Island (Metcalf v. Cook, 2 Rh. Isl. 355) ; Maryland (Miller v. 
 Williamson, 5 Maryl. R. 219 ; Tarr v. Williams, 4 Maryl. Ch. 68) ; Mississippi (Doty v. 
 Mitchell, 9 Sm. & M. 435) ; Tennessee (Marshall v. Stephens, 8 Hump. 159; Litton 
 v. Baldwin, 8 Hump. 209). In New York, a similar doctrine was held by Ch. Kent 
 in The Meth. Epis. Church v. Jaques, 3 J. C. R. 78 ; but this was overruled by the 
 Court of Appeals in 17 John. 548 ; and Dyett v. N. A. Coal Co., 50 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 sepa- 
 rate estate (where the trust is to pay over the rents and profits to her for life) in the 
 most stringent manner. Herjinterest is declared to be inalienable, and she cannot, in 
 any way, charge the estate, without the assent of the trustee ; and that assent must be 
 expressly authorized by the trust. L'Amoureux v. Van Rensselaer, 1 Barb. Ch. 34 
 Rogers v. Ludlow, 3 Sandf. Ch. 104; Leggett v. Perkins, 2 Comst. 297; Noyes v 
 Blakeman, 3 Sandf. S. C. 538, 2 Seld. 567. On the other hand, in New Jersey (Leay 
 craft v. Hedden, 3 Green's Ch. 551); Connecticut (Imlay v. Huntington, 20 Conn 
 175) ; Kentucky (Coleman v. Woolley, 10 B. Monr. 320 ; Shipp v. Bowmar, 5 Id. 163) 
 Virginia (Vizonneau v. Pegram, 2 Leigh, 183) ; North Carolina (Newlin v. Freeman 
 4 Ired. Eq. 312) ; Alabama (Bradford v. Greenway, 17 Alab. 805 ; Collins v. Laven 
 burg, 19 Alab. 685) ; Georgia (Fears v. Brooks, 12 Geo. 200 ; Wyley 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. In 
 Pennsylvania, since the " Married Woman's Act" of 1848, it appears to be held that a 
 feme coverte may convey real estate settled to her separate use, without any express 
 power of alienation. Haines v. Ellis, 24 Penn. St. 253. There were other elements of 
 decision, however, in this case, so that it is not perhaps to be considered as final. 
 
634 OF TRUSTEES FOR MARRIED WOMEN. 
 
 pressly 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 particular 
 mode of disposition be prescribed by the settlement or instrument of gift, 
 she cannot dispose of it in any other manner,(w) not even by means of 
 her examination in court.(o) Unless, indeed, she take the absolute in- 
 terest *in default of exercising the power so given her, in which 
 L -I case she may of course dispose of that interest in accordance 
 with the general rule, and irrespectively of the particular power.(p) If 
 a trustee act upon a disposition by a married woman of her separate 
 estate, which is not executed according to her power, 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) 1 
 
 Wright v. Cadogan, 2 Ed. 257 ; Ambl. 468 ; 2 Rop. Husb. and Wife, 185 ; 2 Story Eq. 
 Jur. § 1391 ; sed vide Major v. Lansley, 2 R. & M. 355 ; [and Albany Fire Ins. Co. v. 
 Bay, 4 Comst. 9. See Shipp v. Bowmar, 5 B. Monr. 163.] 
 
 (I) Rippon v. Dawding, Ambl. 565 ; Rich v. Beaumont, 3 Bro. P. C. 308 ; Tomlinson 
 v. Dighton, 1 P. Wms. 149 ; Peacock v. Monk, 2 Ves. 191 ; Downes v. Timperon, 4 
 Russ. 334 ; Wright v. Cadogan, 2 Ed. 239. 
 
 (to) Dowell v. Dew, 12 Law Journ. N. S., Chanc. 158. [1 Younge & Coll. C. C. 345, 
 355 ; affirmed, 12 L. J. Ch. 164 ; 7 Jur. 117.] 
 
 (n) Ross v. Ewer, 2 Atk. 156 ; Croft v. Slee, 4 Ves. 60, 64; Anderson v. Dawson, 
 15 Ves. 532 ; Hopkins v. Myall, 2 R. & M. 86. [Ins. Co. v. Bay, 4 Comst. 9 ; Pears v. 
 Brooks, 12 Geo. 200 ; Leayeraft v. Hedden, 3 Green's Ch. 512 ; Williamson v. Beck- 
 ham, 8 Leigh, 20.] 
 
 (o) Richards v. Chambers, 10 Ves. 580. 
 
 (p) Elton v. Shepherd, 1 Bro. C. C. 532 ; Anderson v. Dawson, 15 Ves. 532 ; Barford 
 v. Street, 16 Ves. 135 ; Barrymore v. Ellis, 8 Sim. 1 ; 2 Rop. Husb. and Wife, 230. 
 
 (q) Hopkins v. Myall, 2 R. & M. 86. [But as to the costs, see Mant v. Leith, 15 
 Beav. 524.]. 
 
 (r) Hulme v. Tenant, 1 Bro. C. C. 16 ; Pybus v. Smith, 3 Bro. C. C. 340 ; 1 Ves. 
 Jun. 189 ; see Jackson v. Hobhouse, 2 Mer. 487. 
 
 (*) Jackson v. Hobhouse, 2 Mer. 488 ; Tullett v. Armstrong, 1 Beav. 23 ; 4 M. & 
 Cr. 393. 
 
 separate use of a married woman : for the rents and profits of such real estate may be 
 disposed of by her without auy 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. J 1393 
 [Vizonneau v. Pegram, 2 Leigh, 183] ; and a similar decision has been made in a late 
 case with respect to an annuity charged on land, and given to the separate use of a 
 feme eoverte. Major v. Lansley, 2 R. & M. 355. 
 
 1 A trust for a feme eoverte 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. 
 
OF TRUSTEES FOR MARRIED WOMEN. 635 
 
 The prohibition against alienation in these cases becomes an essential 
 part of the separate estate, with which it must stand and fall.(<) 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 dis- 
 pose of the property notwithstanding the existence of such a clause. (u) 
 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 extinguished by the cessation of her coverture on the death- 
 of her first husband, but it will be merely suspended during her widow- 
 hood, and will reattach on her second marriage, without any resettle- 
 ment.^);!.) 
 
 It is settled that an express negative declaration is requisite to deprive 
 a feme coverte of her prima facie right of disposing of her separate 
 estate ;(g) and the case of Hovey v. Blakeman,(a) which imports a con- 
 trary 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.^) 1 
 
 (t) Tullett v. Armstrong, 4 M. & Cr. 394. 
 
 («) Brown v. Pocock, 2 R. & M. 210 ; 2 M. & K. 189 ; Knight v. Knight, 6 Sim. 121; 
 Tullett v. Armstrong, 4 M. & Cr. 406. 
 
 (x) Tullett v. Armstrong, 1 Beav. 1 ; 4 M. & Cr. 290 ; Scarborough v. Borman, 1 
 Beav. 34; 4 M. & Cr. 377, 390. 
 
 (y) Clark v. Jacques, 1 Beav. 36 ; see 4 M. & Cr. 406. [Gaffee's Trust, ante, p. 420, 
 note.] 
 
 (z) 2 Bop. Husb. and Wife, 236, 240 ; see Brown v. Bamford, 11 Sim. 131. 
 
 (a) Stated 9 Ves. 524 ; and see Mores v. Huish, 5 Ves. 692. 
 
 (6) Clarke v. Pistor, stated, 3 Bro. C. C. 568 ; Pybus v. Smith, 1 Ves. Jun. 189 ; 3 
 
 (1) It is clear that a widow during her discoverture would have the power of abso- 
 lutely alienating her trust property, notwithstanding a restriction against anticipation 
 during coverture. But it might be a question whether a settlement by her on her 
 second marriage, limiting the property to herself absolutely for her separate use^ would 
 remove the previous restriction. The point does not seem to have been decided in 
 practice. 
 
 204. Though the separate use and restraints against alienation and anticipation in 
 the case of a married woman, are the mere creatures of equity imposed for their benefit, 
 yet they cannot be dispensed with by the court, though the interest of the married 
 woman may require it. Thus, where a testator gave a legacy to a married woman, on con- 
 dition that she should convey to third persons her interest in certain property of small 
 value, included in an estate which was settled to her separate use without power of 
 alienation, it was held that the condition could not be accomplished, and that the legacy 
 failed. Bobinson v. Wheelwright, 20 Jurist, 32. 
 
 The restraint against alienation will, however, be invalid where it falls within the rule 
 against perpetuities ; as where a tenant for life with power to appoint by will among 
 his children, makes an appointment to trustees for daughters, for their separate use 
 when covert, without power of anticipation, in which case the restraint against aliena- 
 tion will be stricken out. Try v. Capper, Kay, 163. 
 
 1 1n Ross's Trust, 1 Sim. N. S. 196, a gift in trust to pay the interest to the separate 
 
636 OF TRUSTEES FOR MARRIED WOMEN. 
 
 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 writing 
 under her hand, except in any mode of anticipation, appoint, and in 
 r*A9%~\ default °f *such appointment, into her hands, it was held by Sir 
 *- J K. Bruce, V. C, that the words were sufficient to restrict the 
 wife from antieipation.(c) 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 in- 
 tention, (d) 
 
 In the ordinary form of limitation in these cases, the trustees are 
 directed to pay the income to such persons, &c, as the wife, notwithstand- 
 ing her coverture, but not by 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 pro- 
 hibition of anticipation by the wife. It has been held in two late 
 cases(e) 2 by the Vice-Chancellor of England, that under a trust so 
 framed, the restraint against alienation applies only to the power of ap- 
 pointment, and that the interest given to the wife in default of appoint- 
 
 Bro. C. C. 340 ; Barkes v. White, 11 Ves. 222 ; Witts v. Dawkins, 12 Ves. 501 ; Browne 
 v. Like, 14 Ves. 302 ; Brown v. Bamford, 11 Sim. 127 ; Medley v. Horton, 8 Jurist, 
 853 ; [14 Sim. 222 ; Boss's Trust, 1 Sim. N. S. 196.] 
 
 (c) Moore v. Moore, 1 Coll. 54. 
 
 (d) Baggett v. Meux, 1 Coll. 138, [affirmed 1 Phill. 627 ; Fears v. Brooks, 12 Geo. 
 200 ; Freeman v. Flood, 16 Geo. 528.] 
 
 (e) Barrymore v. Ellis, 8 Sim. 1 ; Brown v. Bamford, 11 Sim. 127. 
 
 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 to her, on her personal 
 appearance and receipt, at any bankers, was held by V. Ch. Cranworth not to be in re- 
 straint of anticipation, and that R. could alien her life interest. In Freeman v. Flood, 
 16 Geo. 528, however, a gift of personal property to a married woman, " to remain in her 
 possession, and be for her special use and benefit during her natural life, and at her 
 death to go to her children, and no other use whatever," was held to create a restraint 
 against-alienation. 
 
 1 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. v. Bay, 4 Comst. 11. 
 
 2 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. 
 McDougal, 8 Beav. 188 ; Moore v. Moore, 1 Coll. 54 ; Gaffee's Trust, 14 Jur. 277 ; 1 
 Mac. & Gord. 541 ; Field v. Evans, 15 Sim. 375. In Baker v. Bradley, 25 L. J. Ch. 7, 
 where there was a devise of real and personal estate to trustees to permit and suffer a 
 married woman to receive the rents and income, during her life, separate from and in- 
 dependent of her then or any future husband, and not subject to his debts, &c, and it 
 was declared that her' receipts alone, or those of some person authorized to receive any 
 payment of the said rents and income, after such payment should have become due, 
 should alone be good discharges, it was held by the Court of Appeal, affirming Field 
 v. Evans, that there was a valid restraint on alienation and anticipation created. 
 
OF TRUSTEES FOR MARRIED WOMEN. 637 
 
 ment, 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 trus- 
 tees, 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 proviso 
 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 ac- 
 tually accrued due, should be, and that no other receipts should be, suffi- 
 cient 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 shall be- 
 come due, but not by way of assignment, charge, or other anticipation 
 thereof, should notwithstanding coverture direct or appoint, and in de- 
 fault 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 alienation, 
 but that restriction is attached in terms only to. the interest given her in 
 default of appointment, she will be competent to, alienate by the exer- 
 cise 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 i-jmo^-i 
 profession ; and the decision of the Vice-Chancellor K. Bruce, 
 in Moore v. Moore,(&) 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, 
 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 
 
 (e) Barrymore v. Ellis, 8 Sim. 1 ; Brown v. Bamford, 11 Sim. 127. 
 
 (/) 11 Sim. 127, 131. (g) Brown v. Bamford, 11 Sim. 127. 
 
 (A) Medley v. Horton, 8 Jur. 853, 14 Sim. 422. 
 
 (i) Brown v. Bamford, 11 Sim. 127. (fc) 1 Coll. 54. (Z) 3 Hare, 624. 
 
638 OP TRUSTEES FOR MARRIED WOMEN. 
 
 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 the trust so framed, and 
 held, that the absence of the negative words in the receipt clause would 
 not control or negative the prohibition previously 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. 1 
 
 It is almost needless to remark, that a married woman, who is re- 
 strained from anticipation, cannot effectually charge her separate estate 
 with the payment of her debts, (m) 
 
 Where a married woman is not restrained from alienating her sepa- 
 rate 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.(w) And it has been 
 determined that even a mere general personal security 2 — such as a bond, 
 or promissory note, or bill of exchange — executed by a married woman, 
 will operate prima facie as an appointment or charge on her separate 
 estate. For she must have meant such a security to operate in some way, 
 and it could have no operation, unless it charged her separate pro- 
 perty.^) 
 
 (m) Barnet v. M'Dowall, Rolls, 27th Feb. 1845, [sub. nom., Harnett v. McDougall, 
 8 Beav. 188 ; but see the remarks in Clarke v. Windham, 12 Alab. 800.] 
 
 (n) Hulme v. Tenant, 1 Bro. C. C.U, 20 ; Wagstaff v. Smith, 9 Ves. 521 ; Power v. 
 Bailey, 1 Ball & B. 49 ; Essex v. Atkins, 14 Ves. 542. 
 
 (o) Stanford v. Marshall, 2 Atk. 69 ; Norton v. Turville, 2 P. Wms. 144 ; Hulme v. 
 Tenant, 1 Bro. C. C. 20 ; Heatley v. Thomas, 15 Ves. 596 ; Bulpin v. Clarke, 17 Ves. 
 365 ; Stuart v. Lord Kirkwall, 3 Mad. 387 ; Murray v. Barlee, 4 Sim. 82 ; S. C. 3 M. 
 & K. 209. 
 
 1 See ante, 423, note. 
 
 2 According to the tendency of modern decisions in England, indeed, any debt what- 
 ever, contracted by a married woman, would be held a charge on her separate estate. 
 Vaughan v. Vanderstegen, 23 L. J. Ch. 779 ; 2 Drew. 363. A distinction was made 
 in this respect between the separate estate of the feme, and that over which she had 
 only general power of appointment ; in the latter case she does not, by exercising the 
 power in favor of volunteers, make the property assets for creditors, as she would if 
 sole. But if she has fraudulently represented herself to creditors as a feme sole, it is 
 otherwise. Vaughan v. Vanderstegen, ut supr. 
 
 3 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 Rev. Statutes referred to), the English cases cited 
 in the text, have not been so closely followed. 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 contracted for the benefit of, or on the 
 credit thereof. N. A. Coal Co. v. Dyett, 7 Paige, 14; Gardner v. Gardner, Id. 112; 
 Cumming v. Williamson, 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 formerly 
 
OF TRUSTEES- FOR MARRIED WOMEN. 639 
 
 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 posses- 
 sion or enjoyment, she is entitled to require an immediate transfer of 
 the legal interest to herself from the trustees. And if the trustees drive 
 her to file a bill by their refusal to make the transfer, the decree will be 
 made against them with costs.Q?) And it is immaterial that the feme 
 was single when the trust was created, and had married 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) 
 
 *The husband must be joined as a defendant to any suit, in- 
 stituted by the wife respecting her separate estate. (s) L J 
 
 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. (t) 
 
 And the trustees will be compelled to give legal effect to any such 
 disposition, upon a bill filed for that purpose, although they may have 
 given notice to the party taking under it, that they would not act upon 
 it.(w) Nor is it any objection to the transaction, that it is entirely for 
 the benefit of the husband.^) 1 And a direct gift from the wife to the 
 
 (p) Thorby v. Yates, 1 N. C. C. 438. 
 
 (q) Ibid, sed vide Taylor v. Glanville, 3 Madd. 179." 
 
 (V) Thorby v. Yates, 1 N. C. C. 438. 
 
 (s) Thorby v. Yates, 1 N. C. C. 438. [Bradley v. Emerson, 7 Verm. 369 ; Clarkson 
 v. De Peyster, 3 Paige, 336 ; Dewall v. Covenhoven, 5 Paige, 581 ; Grant v. Van 
 Sehoonhoven, 9 Paige, 255 ; Stuart v. Kissam, 2 Barb. S. C. 493 ; Sherman v. Burnham, 
 
 6 Barb. S. C. 403 ; Wilson v. Wilson, 6 Ired. Eq. 236.] 
 
 (t) Grigby v. Cox, 1 Ves. 518 ; Essex v. Atkins, 14 Ves. 552, 7. [Coryell v. Dunton, 
 
 7 Barr, 532.] (w) Essex v. Atkins, 14 Ves. 542. 
 
 («) Standford v. Marshall, 2 Atk. 69 ; Parkes v. White, 11 Ves. 209 ; Essex v. Atkins, 
 14 Ves. 542. [See Hughes v. Wells, 9 Hare, 749.] 
 
 in Kentucky. Coleman v. Woolley, 10 B. Monr. 320 ; Dickson v. Miller, 11 Sm. & M. 
 594. And in North Carolina. Frazier v. Brownlow, 3 Ired. Eq. 237. But in Ala- 
 bama, the English cases in text are followed. Bradford v. Greenway,, 17 Alab. 797 ; 
 Collins v. Lavenberg, 19 Id. 685. So in Missouri. Coats v. Robinson, 10 Missouri, 
 757 ; and now in Kentucky, Bell v. Kellar, 13 B. Monr. 381. 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. Eveleigh, 1 McCord, Ch. 267 ; Magwood v. Johnston, 1 
 Hill's Eq. 228 ; Adams v. Mackey, 6 Eich. Eq. 75 ; Mayer v. Galluchat, 6 Rich. Eq. 1 ; 
 but not where contracted on the personal credit of the cestui que trusts. Brown v. 
 Postell, 4 Rich. Eq. 71. See, in Pennsylvania, Wallace v. Costen, 9 Watts, 137. And 
 see note to Hulme v. Tenant, ut supr. ; Story's Eq. $ 1400. 
 
 1 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. Warn- 
 
640 OF TRUSTEES FOR MARRIED WOMEN. 
 
 husband himself will be supported ;{y) although the court looks with 
 some jealousy on such a transaction, and if there be any improper in- 
 fluence 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.fa) 1 
 
 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. Consequently, even as 
 against the husband, the wife or her representatives will not be entitled 
 to an account for any more that one year's -arrears, (b) 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 husband, even for a 
 year.(e) And it is immaterial that the wife is non compos mentis, and 
 therefore incapable of assenting or dissenting from the payments in 
 question.(d) It is clear, therefore, that the trustees, by whom these pay- 
 ments 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 trustees to obtain from the wife an express direction, 
 authorizing the payment of her separate income to her husband. 
 
 (y) Freeman v. More, 1 Bro. P. C. 237; Frederick v. Hatwell, 1 Cox, 193; Parkes 
 v. White, 11 Ves. 209. ' 
 
 (z) Milnes v. Busk, 2 Ves. Jun. 488. 
 
 (a) Pybus v. Smith, 1 Ves. Jun. 189. [Nedby v. Nedby, 5 De G. & S. 511.] 
 
 (6) Powell v. Hankey, 2 P. Wms. 82 ; Square v. Dean, 4 Bro. C. C. 326 ; Fowler v. 
 Fowler, 3 P. Wms. 355 ; Ex parte Elder, 2 Mad. 286, n. ; Smith v. Camelford, 2 Ves. 
 Jun. 698 ; Aston v. Aston, 1 Ves. 167 ; Parkes v. White, 11 Ves. 225 ; Peacock v. 
 Monk, 2 Ves. 190 ; Brodie v. Barry, 2 Ves. & B. 36 ; Thrupp v. Harman, 3 M. & K. 
 513. [See Methodist Ch. v. Jaques, 3 J. C. R. 77 ; McGlinsey's App. 14 S. & R. 64; 
 Moore v. Ferguson, 2 Munf. 421 ; Miller v. Williamson, 5 Maryl. R. 219.] 
 
 (c) Howard v. Digby, 8 Bligh. N. P. 224, 246 ; S. C. 4 Sim. 588 ; 2 CI. & Fin. 665. 
 
 (d) Howard v. Digby, ubi supra; sed vide Nettleship v. Nettleship, 10 Sim. 236. 
 [See, however, the remarks on this case in Sugden's Law of Prop. 165, &c] 
 
 pole, 1 Pet. Cir. Ct. 116 ; Nedby v. Nedby, 5 De G. & S. 377 ; Jaques v. Methodist 
 Church, 17 John. R. 548 ; Whitall v. Clark, 2 Edw. Ch. 149 ; Cruger v. Cruger,5 Barb. 
 S. C. 225 ; Hoover v. Samaritan Soc, 4 Wh. 445 ; Meriam v. Harsen, 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. 
 
 1 Where a wife mortgages or pledges her separate estate for her husband's debt, she 
 is entitled to all the rights of a surety, and to exoneration out of his estate. Sheidle v. 
 Weishlee, 16 Penn. St. 134 ; Neimcewicz v. Gahn, 3 Paige, 614; Knight v. Whitehead, 
 26 Mississ. 246 ; Hudson v. Carmichael, 23 L. J. Ch. 893. 
 
 V 
 
OF TRUSTEES FOR MARRIED WOMEN. 641 
 
 Where a wife has allowed her husband to receive the income of her 
 separate estate during his life without objection or interference, 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) 1 
 
 (e) Ld. Beresford v. Archb. of Armagh, 13 Law Journ. N. S. Chanc. 235 ; S. C. 8 
 Jur. 262 ; [13 Sim. 643 ; Caton v. Ridout, 1 Mac. & G. 519 ; 2 H. & Tw. 55.] 
 
 1 It is well settled that where 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. MeGlinsey's App., 14 S. & R. 64; Towers v. Hagner, 3 Wharton, 
 48 ; Naglee v. Ingersoll, 7 Barr, 204; Yardley v. Raub, 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, MeGlinsey's App., 14 S. & R. 64; or in furniture, 
 which is mixed with his, Shirley v. Shirley, 9 Paige, 363. But if there be an express 
 understanding that the furniture is to be kept separate and held for the wife (Taggard 
 v. Talcott, 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. If the 
 wife permit the husband to use her separate estate, he will not be liable for interest, 
 unless there be an agreement to that effect, express or implied from the mode of deal- 
 ing. Roach v. Bennett, 24 Mississ. 98. Where there has been no gift, actual or construc- 
 tive, to the husband, it is held at law, in England, that the income when paid over to 
 the wife, becomes the absolute property of the husband: Tugman v. Hopkins, 4 
 Man. & Gr. 389 ; Carne v. Brice, 7 M. & W. 183 ; Messenger v. Clarke, 5 Excheq. R. 
 388 ; Bird v. Peagrum, 13 C. B. 639 ; 17 Jur. 577 ; and where lent by her, may be 
 recovered by the husband, jure mariti. Bird v. Peagrum ; Messenger v. Clarke, ut supr. 
 But in a court of equity it would unquestionably be different : see M a cqueen Husb. and 
 Wife, 289. The accumulations or savings of the separate estate, or purchases with 
 them, belong to the wife, and are subject to the same rules as the principal. Gore v. 
 Knight, 2 Vern. 535 ; Churchill v. Dibbin, 9 Sim. 447, note ; 3 Keny. Cas. 85 ; Moloney 
 v. Kennedy, 10 Sim. 254 ; Messenger v. Clarke, 5 Exch. 392, 393 ; Bird v. Peagrum, 
 ut supr. ; Darkin v. Darkin, 23 L. J. Ch. 890 ; 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 general rule is the same in the United States. Merritt v. Lyon, 
 3 Barb. S. C. 1 10 ; Hoot v. Sorrell, 11 Alab. 386 ; Kee v. Vosser, 2 Ired. Eq. 553 ; 
 Gentry v. M'Reynolds, 12 Mo. 533 ; Rogers v. Pales, 5 Barr, 154 ; Yardley v. Raub, 5 
 Whart. 123 ; Towers v. Hagner, 3 Whart. 57 ; Young v. Jones, 9 Humph. 551 ; Barron 
 v. Barron, 24 Verm. 375. But under the " Married Woman's" Acts in many of the 
 States, it is held that the earnings, or savings of a wife, not out of her separate estate, 
 still belong to the husband, so that where property is purchased therewith in his name, 
 except under circumstances which amount to a gift by him, it does not become separate 
 estate, but there is a resulting trust in his favor. Raybold v. Raybold, 20 Penn. 308 ; 
 Henderson v. Warmack, 27 Mississ. 830 ; Merritt v. Smith, 37 Maine, 394. 
 
 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 per- 
 sonal estate, will be entitled to it absolutely, and the trust falls to the ground. Molony 
 v. Kennedy, 10 Sim. 254; Johnstone v. Lumb, 15 Id. 308 ; Proudley v. Fielder, 2 Myl. 
 & K. 57 ; Stead v. Clay, 1 Sim. 294 ; Drury v. Scott, 4 Y. & Coll. Ex. 264 ; Bird v. 
 Peagrum, 13 C. B. 639; Stewart v. Stewart, 7 John. Ch. 229; McKennan v. Phillips, 6 
 Whart. 576 ; Brown v. Brown, 6 Humph. 127 ; Rogers v. White, 1 Sneed, 69 ; Cox v. 
 Coleman, 13 B. Monr. 453; Brown v. Alden, 14 Id. 141 ; Paries' App., 23 Penn. St. 
 29. The same principle has been applied, in New York, to the separate estate created 
 
 41 
 
642 OF TRUSTEES FOE MARRIED WOMEN. 
 
 I"*4.9fi1 *"^- s t ' ie r ig nt °f tne 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 husband, 
 where he lives apart from his wife.(/) Still less where they have re- 
 ceived any notice from the wife, interdicting such an application of her 
 funds.(#) 
 
 Deeds of separation between husband and wife, providing a separate 
 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,^') 1 yet it has been 
 
 (/) Aston v. Aston, 1 Ves. 267. 
 
 (g) See Ridout v. Lewis, 1 Atk. 269 ; Thrupp v. Harman, 2 M. & K. 516 ; Bagot v. 
 Bagot, 10 Law Journ. N. S. Chanc. 116. 
 
 (h) Jones v. Wait, 5 Bing. N. C. 341. [Affirmed, 1 CI. & Pin. 101 ; 4 Mann. & Gr. 
 1104.] 
 
 (i) Head v. Head, 3 Atk. 550 ; Wilkes v. Wilkes, 2 Dick. 791 ; Worrall v. Worrall, 3 
 Mer. 268. 
 
 by the Married Woman's Acts of 1848, 1849. McCosker v. Golden, 1 Bradf. Surr. 
 R. 64. 
 
 1 The law on this subject has been considerably modified in England, by the case of 
 Wilson v. 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 for 
 as they regard an arrangement of property agreed upon. In this case, the husband, in 
 order to stop proceedings in the ecclesiastical court for nullity of marriage, entered into 
 articles of separation. The wife subsequently applied by bill for execution of a deed 
 carrying the articles into effect, which was decreed, and the husband restrained by in- 
 junction from further proceedings in the ecclesiastical court to compel his wife to con- 
 tinue the suit. It seems, that the wife would also have been restrained, bad it been 
 necessary. This case appears to cover the whole ground, and to authorize the inter- 
 ference of equity in all cases, and not merely in the enforcement of the separate provision. 
 Accordingly, in Sanders v. Rodway, 16 Jur. 1005, 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 injunc- 
 tion in this case, which are very stringent. In Green v. Green, 5 Hare, 400, note, a 
 similar injunction was granted. The case of Wilson v. Wilson, was subsequently taken 
 to the House of Lords again, 5 H. Lds. 40, 23 L. J. Ch. 697, and the previous decision 
 compelling the execution of a deed of separation affirmed ; and it was further held that 
 the court could at the same time in favor of the wife correct a clear mistake in the 
 articles. But in the course of his opinion, Lord St. Leonards is reported to have ob- 
 served : " In the original decree of the Vice-Chancellor there was what amounted to 
 an injunction against the appellant (the husband) proceeding in a suit for restitution of 
 conjugal rights, until the deed should be executed. It was doubtful whether, if that 
 part of the decree had been fully brought to the attention of the House, it could have 
 been maintained." 
 
 In the United States, it appears to be still held, that equity will not decree specific 
 performance of such articles ; though, when exeoufed, it will enforce the collateral en- 
 gagements with the trustees. Champlin v. Champlin, 1 HofF. Ch. 55 ; Mansfield v. 
 Mansfield, Wright, Ohio, 284 ; Hutton v. Duey, 3 Barr, 100 ; Simpson v. Simpson, i 
 
OF TRUSTEES FOR MARRIED WOMEN. 643 
 
 settled, not without some seeming anomaly of principle, that the court 
 ■will decree a specific execution of the separate provision made for the 
 wife in the event of separation.(&) 
 
 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. (m) But de- 
 cisions 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 recognize the validity of a trust for the 
 wife in such a deed without any trustee. (p) 1 
 
 However, it is unquestionably more convenient and proper, in cases 
 of separation, that trustees should be appointed, by whom the provisions 
 for the wife's separate maintenance may be enforced. And where, as 
 is usually the case, the trustees, in consideration of the separate provi- 
 sion covenant to indemnify the husband against the wife's debts, or her 
 
 (&) Guth v. Guth, 3 Bro. C. C. 614 ; Lord St. John v. Lady St. John, 11 Ves. 526 ; 
 Worrall v. Jacob, 3 Mer. 256 ; Westmeath v. Westmeath, Jac. 126 ; Westmeath v. Sa- 
 lisbury, 5 Bligh, 375 ; Hoare v. Hoare, 2 Bidg. P. C. 268 ; Wilson v. Wilson, V. C. E. 
 12 Feb. 1845. [14 Sim. 405, aff. Dom. Proc, 1 H. Lds. Cas. 538, see Sugd. Law of 
 Prop. 179, 180.] Elworthy v. Bird, 2 S. & St. 372 ; Frampton v. Frampton, 4 Beav. 
 287; see Jones v. Waite, 5 N. C. 341 [affirmed, 1 CI. & Fin. 101; 4 Man. & Gr. 
 1104] ; Cooke v. Wiggins, 10 Ves. 191 ; Seeling v. Crawley, 2 Verm. 386 ; Angier v. 
 Angier, Gilb. Eq. Bep. 142 ; Prec. Ch. 496 ; Fletcher v. Fletcher, 2 Cox, 109. [Bettle 
 v. Wilson, 14 Ohio, 257 ; Hutton v. Duey, 3 Barr, 100 ; Beed v. Beazley, 1 Blackf. 97 ; 
 Picket v. Johns, 1 Dev. Eq. 123.] 
 
 (1) 11 Ves. 526. (m) 3 Ves. 359 ; and see Worrall v. Jacob, 3 Mer. 268. 
 
 (») More v. Ellis, Bunb. 205 ; Guth v. Guth, 3 Bro. C. C. 614. 
 
 (o) 4 Beav. 294. [See Bowers v. Clark, Phila. Bep. 561.] 
 
 (j>) See 2 Bop. Husb. and Wife, 292. 
 
 Dana, 140 ; Bogers v. Bogers, 4 Paige, 518 ; Carter v. Carter, 14 Sm. & M. 59 ; 
 M'Kennan v. Phillips, 6 Wharton, 571 ; McCrocklin v. McCrocklin, 2 B. Monr. 370 ; 
 Beed v. Beazley, 1 Blackf. 97 ; 2 Kent's Coram. 176 ; see Mercein v. People, 25 Wend. 
 77 ; Sterling v. Sterling, 12 Geo. 201. 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. 
 1 It has been generally ruled, that the intervention of a trustee was necessary to vali- 
 date deeds of separation. Bettle v. Wilson, 14 Ohio, 257 ; Carson v. Murray, 3 Paige, 
 483 ; Tourney v. Sinclair, 3 How. Miss. 324 ; Watkins v. Watkins, 7 Yerg. 283 ; Simp- 
 son v. Simpson, 4 Dana, 140 ; Carter v. Carter, 14 Sm. & M. 59 ; see 2 Kent's Comin. 
 176. But in Hutton v. Duey, 3 Barr, 100, an agreement for immediate separation, 
 without the intervention of a trustee, having been acted on, was supported : S. P. 
 » Barron v. Barron, 24 Verm. 375 ; so (apparently) in Picket v. Johns, 1 Dev. Eq. 123. 
 See Bowers v. Clark, Philada. B. 561. 
 
 As to the subsequent discharge of the articles, see Heyer v. Burger, 1 Hoff. Ch. 1 ; 
 Eatliff v. Huntly, 5 Ired. B. 545 ; Huntly v. Huntly, 6 Ired. Eq. 514; Webster v. Web- 
 ster, 1 Sm. & Giff. 489. 
 
644 OF TRUSTEES FOR MARRIED WOMEN. 
 
 other claims on his property, that will create a valuable consideration, 
 and will support the transaction even against the husband's creditors.^) 
 
 But the absence of such a covenant on the part of the trustees, will 
 not invalidate the deed, which, notwithstanding such an omission, will 
 be binding on the husband himself ;(r) although, for want of a proper 
 consideration, it would not hold good against his creditors. (s) 
 
 It is to be observed, however, that if the provision for the wife still 
 rested in agreement on the part of the husband, and there were no cove- 
 l"*4971 nan * ^ * tne trustees^ or other valuable consideration, to support 
 the agreement, it would be a mere nudum pactum, which could 
 not be enforced in equity, it) But if the trust for the wife be actually 
 created, it is by no means essential that the instrument should be for- 
 mally executed as a deed.(it) 
 
 It was at one time considered, that provisions for the separate main- 
 tenance of a married woman in case of any future separation, might be 
 enforced. (a;) This doctrine, however, is now clearly overruled, and it is 
 settled, that' the agreement must be for an immediate separation.(«/) 
 
 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.(s) 1 
 
 In these cases, if a bond or covenant be entered into by the husband, 
 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 
 
 (q) Stephens v. Olive, 2 Bro. C. C. 90 ; Compton v. Collinson, Ibid. 38 ; Worrall v. 
 Jacob, 3 Mer. 256 ; Elworthy v. Bird, 2 S. & St. 381. 
 
 (r) Fitzer v. Fitzer, 2 Atk. 511 ; Westmeath v. Westmeath, Jac. 126 ; Frampton v. 
 Frampton, 4 Beav. 287. [Reed v. Beazley, 1 Blackf. 98 ; Bowers v. Clark, Phila. Rep. 
 561.] 
 
 (s) Ibid. 
 
 (t) Elworthy v. Bird, 2 S. & St. 372. [See, however, Wilson v. "Wilson, 14 Sim. 405. 
 aff. 1 H. Lds. Cases, 538 ; Sugd. Law of Pr. 179.] 
 
 (u) Elworthy v. Bird, ubi supra ; Angier v. Angier, Prec. Chan. 496 ; Head v. Head, 
 3 Atk. 54. 
 
 (a;) Rodney v. Chambers, 2 East, 297 ; Hoare v. Hoare, 2 Ridg. P. C. 268 ; Chambers 
 v. Caulfield, 6 East, 244. 
 
 [y) Titley v. Durant, 7 Price, 577 ; Hobbs v. Hull, 1 Cox, 445 ; Westmeath v. West- 
 meath, Jac. 142; [Aff. Dom. Proc. Sugd. L. of Pr. 178]. 
 
 (z) Cocksedge v. Coeksedge, 8 Jur. 659 [5 Hare, 397]. 
 
 1 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 meantime they are to be kept to her separate use and control," was 
 good. 
 
 A separation deed in wh,ich the husband covenants with a surety that he will not 
 visit the wife without the surety's consent, does not contemplate reconciliation, and sub- 
 sequent separation, so as to be void as being contrary to public policy. Webster v. 
 Webster, 4 De G. Macn. & G. 437. 
 
OF TRUSTEES OF FREEHOLDS. 645 
 
 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 dis- 
 posing 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 ; conse- 
 quently, any assignment, or charge, or other disposition executed by 
 her, will be merely void, and must be wholly disregarded by the trus- 
 tees.^) 
 
 It is the duty of trustees for a feme coverte, to protect her interests 
 against her husband ; and if, in neglect of that duty, they assist the 
 husband in excluding her from the receipt of her property, and refuse 
 to pay and dispose of her income according to her directions, 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 pur- 
 chaser, 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. (d) 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 
 husband *would not be entitled to the whole, although the wife 
 were guilty of adultery, and separated from him. ((7) L J 
 
 And where the wife is entitled to a provision by virtue of a contract, 
 whether contained in marriage articles, or in a covenant or deed of 
 settlement, it is clearly settled, that the trust may be enforced in her 
 favor, notwithstanding her adultery, and although she may be living 
 apart from her husband.(A) And a suit by the trustees against the hus- 
 band for that purpose may be sustained. (i) 
 
 IX. — OF TRUSTEES OF FREEHOLDS. 
 
 The powers and duties of trustees of freehold estates have necessarily 
 been in a great measure discussed by anticipation in some of the previ- 
 
 (a) Cooke v. Wiggins, 10 Ves. 191 ; see Seagrave v. Seagrave, 13 Ves. 439. 
 (6) Hyde v. Price, 3 Ves. N 437. 
 
 (c) Bagot v. Bagot, 10 Law Journ. N. S., Chanc. 116. 
 
 (d) Duncan v. Campbell, 12 Sim. 616. (e) Duncan v. Campbell, ubi supra. 
 (f) See Duncan v. Campbell, 12 Sim. 636. 
 
 \g) Ball v. Montgomery, 4 Bro. C. C. 339 ; S. C. 1 Ves. Jun. 191. 
 (h) Sidney v. Sidney, 3 P. Wms. 270 ; Blount v. Winter, lb. 277, n.; Moore v. Moore, 
 1 Atk. 276 ; Seagrave v. Seagrave, 13 Ves. 439. 
 
 (i) Blount v. Winter, 3. P. Wms. 277, n. j Moore v. Moore, 1 Atk. 276. 
 
616 OF TRUSTEES OF FREEHOLDS. 
 
 ous chapters of this work ; hut 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 recognized in a court of 
 law, it is one of the primary duties of the trustee of freehold estates, to 
 maintain and defend all such actions at law, as are requisite for the 
 assertion or protection of the title. (Jc) 
 
 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 trustees, 
 having the legal estate, are entitled in general to the custody of the deed 
 of settled property, for the benefit of all the parties beneficially inte- 
 rested, (m) And that it will even be a breach of their duty to suffer the 
 equitable tenant for life to obtain possession of the deeds. (w) Although 
 the court will not suffer this right to be abused by the trustees for the 
 mere purpose of annoying or controlling 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 retain 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 property, 
 and of the powers and duties which the trustees are called upon to ex- 
 ercise.^) 
 
 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 
 r*A<?cn thereto in trust for certain individuals for life with remainder 
 "- -* over, it was held by Sir J. 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 trustees 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 in- 
 strument. Where no such payments are to be made by the trustees, 
 
 (k) 1 Cruise, Dig. 448, 4th ed. ; ante, Pt. II, Ch. Ill, page 272, and note. 
 (1) Ante Pt. II, Ch. Ill, and'Pl. VI, of this Section, page 272, 284; and note. 
 (m) Doe v. Passingham, 6 B. & Cr. 305 ; Barclay v. Collett, 4 N. C. 650 ; Duncombe 
 v. Mayer, 8 Ves. 320. 
 
 (n) Evan v. Bicknell, 6 Ves. 174 ; see Meaux v. Bell, 1 Hare, 82, 98. 
 (o) See Denton v. Denton, 8 Jur. 388. [7 Beav. 388.] 
 (p) Ante, Pt. II, Ch. Ill; and PI. VI, of this section. 
 (q) Naylor v. Armitt, 1 R. & M. 501. 
 
OF TRUSTEES OF FREEHOLDS. 647 
 
 their power to grant leases is at least very questionable, and could rarely 
 be exercised with any safety. 
 
 If the annuities or other payments, wbich 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 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 equi- 
 table tenant for life.(s) But if there are no such duties, and the annui- 
 ties, &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 possession for several years, (t) 
 
 Trustees, who 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, manuring, and 
 other similar works. (u) 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;) 1 
 
 (r) Jenkins v. Milford, 1J.4W. 629. 
 (s) Tidd v. Lister, 5 Mad. 433. 
 
 (t) Denton v. Denton, Rolls, 8 Jurist, 388 ; [1 Beav. 388.] 
 
 (m) Fountaine v. Pellet, 1 Ves. Jun. 337 ; Bowes v. Earl of Strathmore, 8 Jurist, 92. 
 (x) Bowes v. Earl of Strathmore, ubi supra ; [Wykoff v. Wykoff, 3 W. & S. 481 ; 
 Green v. Winter, 1 J. C. R. 26.] 
 
 1 Trustees are authorized to insure, and bound to pay taxes. Burr v. MoEwen, 1 
 Baldw. C. C. 154. Where the trust was to sell the land and pay off incumbrances, &c., 
 and to restore the residue, it was held that the trustee could not be allowed for im- 
 provements of the estate, though made bona fide, as in building houses and mills, 
 clearing lands, making roads, &c. ; but that he was entitled only for necessary expen- 
 ditures, as repairs and the like. Tie 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 contingency, 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 improve- 
 ment, had become capable of being leased for a permanent term at a, high rent, if 
 warehouses were erected thereon, and the court directed or permitted the executors to 
 apply the residuary personal property to the erection of warehouses on the land, charg- 
 ing the tenant for life with six per cent, interest on the investment, a reasonable allow- 
 ance 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 ; Ames v. 
 Downing, 1 Bradf. Surr. R. 321 ; Wykoff v. Wykoff, 3 W. & S. 481 ; and as to improve- 
 ments by guardians, ante, 395, note. 
 
648 OF TRUSTEES OP COPYHOLDS. 
 
 And the position and capacity of the cestui que trust will constitute 
 another ingredient for consideration, in determining the nature and ex- 
 tent of the authorities 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 control will neces- 
 sarily devolve on the trustees for their protection and benefit.(#) 
 
 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.(g) 1 
 
 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. 3 
 
 Prior to the passing of the late act for amendment of the Law of For- 
 r*4-3ffl f e i ture * an d Escheat (4 & 5 Will. IV, c. 23), there appears to 
 have been some risk in vesting copyhold property 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 recognized by 
 entry on the rolls of the manor ;(b) and stewards of manors would very 
 rarely accept any surrender in which the trusts were noticed. The con- 
 sequence 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) How- 
 ever, that risk is obviated by the act above mentioned, which expressly 
 applies to copyhold as well as freehold property, and does away with the 
 
 (y) Tidd v. Lister, 5 Mad. 433. 
 
 (z) Tebbs v. Carpenter, 1 Mad. 290. (a) Blue v. Marshall, 3 P. Wms. 381. 
 
 (6) Chudleigh's case, 1 Co. 122, a ; Burgess v. Wheate, 1 Sir W. Bl. 167 : S. C. 1 Ed. 
 177 ; Att.-Gen. v. Duke of Leeds, 2 M. & K. 342 ; Weaver v. Maule, 2 R. & M. 97 ; 
 ante, p. 50. 
 
 (c) Peachy v. Duke of Somerset, 1 Stra. 454; Burgess v. Wheat, ubi supra; 1 Scri- 
 ven, Cop. 483, 3d ed. ; Att.-Gen. v. Duke of Leeds, 2 M. & K. 342 ; ante, 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, merely because he neglected to give notice to quit, 
 a few months after there appeared to be a probability that the price of agricultural pro- 
 duce would enable him with propriety, as between landlord and tenant, to obtain a 
 higher rent. Ferraby v. Hobson, 2 Phil. 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 unen- 
 closed 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. 
 
 2 See the Act for the gradual Emancipation of Copyholds, of 1853. 
 
OF TRUSTEES OP COPYHOLDS. 649 
 
 escheat or forfeiture in these cases. And it is also retrospective in its 
 operation. 
 
 On the other hand, in case of the death -without heirs, or the attainder 
 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 discharged from the 
 trust, (d) And although in such a case a court of equity will not inter- 
 pose 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 by 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.Qi) 
 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 effected by 
 sale or mortgage, if necessary, unless it appears from the trust instru- 
 ment 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 considered at length in discussing i-^q-i -i 
 the analogous case of the renewal of leasehold interests. (I) *■ ■* 
 
 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.(wj) 
 
 Again, where the copyholder for the time being has the preference of 
 renewing a copyhold held on lives, and a trustee of the copyhold puts in 
 
 (d) Ante, p. 269. (e) Williams v. Lord Londsdale, 3 Ves. 756. 
 
 (/) Rex v. Coggan, 6 Bast, 431. (g) See 1 Scriven, Cop. 485, 3d ed. 
 (h) Trin. Coll. v. Brown, 1 Vern. 441 ; Can- v. Ellison, 3 Atk. 73, 11 ; Earl of Bath 
 v. Abney, I Dick. 260 ; 1 Scriv. Cop. 416, 3d ed. ; ante, p. 269. 
 (t) Com. Dig. Copyhold, K. 24 ; 1 Scriven, Cop. 447, 3d ed. 
 \k) Wilson v. Hoare, 2 B. & Ad 350 ; 1 Scriven, Cop. 389, 3d ed. 
 (1) Vide post [Trustees of Leaseholds], and Playters v Abbott, 2 M. & K. 97. 
 (»») Ibid. 
 
650 OF TRUSTEES OF COPYHOLDS. 
 
 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 circumstances.(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) Conse- 
 quently, where the admission of trustees is absolute, without reference 
 to any trust, it would be very much in their power to dispose of the pro- 
 perty to a purchaser for valuable consideration, without the latter's re- 
 ceiving any notice of the trust. And in that case the title of the pur- 
 chaser 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 sufficient, 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.^) The stewards of manors very gene- 
 rally 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 possibly 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 possession 
 of the legal estate by admission, they should cause the instrument 
 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 relative interests 
 of the persons beneficially entitled. However, by the reeent act for 
 facilitating the enfranchisement of copyholds,(r) in case of the disability 
 of any person beneficially interested in a copyhold, the trustees are em- 
 powered to proceed in enfranchising the property instead of the cestui 
 que trust. 
 
 (n) Vide post [Trustees of Leaseholds], and Playters v. Abbott, 2 M. & K. 97. 
 (o) Pearce v. Newlyn, 3 Mad. 188. (p) Pearce v. Newlyn, 3 Mad. 186. 
 
 (g) Weaver v. Maule, 2 B. & M. 97. (?■) 4 & 5 Vict. c. 35. 
 
OF TRUSTEES OF LEASEHOLDS. 651 
 
 *XI. — OF TRUSTEES OF LEASEHOLDS. [*432] 
 
 v 
 
 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 settlements by 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 covenants 
 during the continuance of his interest. But unless he is also the exe- 
 cutor of the lessee, or has bound himself by a personal covenant to the 
 observance of the covenants in the lease, his liability will continue only 
 as long as he retains possession ; and upon the assignment of his interest, 
 he will be exonerated from all responsibility,^) excepting such as may 
 have been already incurred by a breach of covenant committed during 
 the continuance of his possession.^) And in this respect a trustee dif- 
 fers materially from the executor of a lessee, who in respect of the pri- 
 vity of estate will continue liable to the lessor on the covenants in the 
 lease, notwithstanding his having assigned the lease. («/)(l) 
 
 A person, therefore, who is both executor and trustee, or a trustee 
 only, who has bound himself personally to the performance of the cove- 
 nants 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 assign 
 over the legal estate.(s) And it is immaterial that the trustees 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 positive 
 trust to renew is contained in the trust instrument.(6)(2) 
 
 (s) Ante, PI. VI, of this section [page 386, and notes] . (t) Ibid. 
 
 (it) Onslow v. Corrie, 2 Mad. 330, 340 ; see Valliant v. Diomede, 2 Atk. 546 ; Pitcher 
 v. Toovey, 1 Salk. 81, and 2 Ventr. 228; Taylor v. Shum, 1 Bos. & Pull. 21 ; Rowley 
 v. Adams, 4 M. & Cr. 534; 1 Fonbl. Bq. 361, 2. 
 
 (a;) Trevele v. Coke, 1 Vern. 165. 
 
 (y) Brett v. Cumberland, Cro. Jac. 521, 522 ; 2 Wms. Exors. 1074, et seq. 
 
 («) Simmons v. Bolland, 3 Mer. 547 ; see Marsh v. Wells, 2 S. & St. 90 [ante, p. 281]. 
 
 (a) Cochrane v. Robinson, 11 Sim. 378. 
 
 (6) See O'Perrallv. O'Ferrall, Rep. temp. Plunk. 79 ; Lawrence v. Maggs, 1 Ed. 353. 
 
 ( 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 personally responsible to the cestui 
 que trusts for omitting to do so. Rowley v. Adams, 4 M. & Cr. 534. 
 
 (2) Where an executory trust is created by marriage articles for the settlement of 
 
652 OF TRUSTEES OF LEASEHOLDS. 
 
 However, where a leasehold estate is settled in trust for life with re- 
 mainders 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 
 r*4331 benefit *°f a ^ th e objects of the trust, including the remainder- 
 men ; 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 discre- 
 tionary power of renewing, they will not in the exercise of that discre- 
 tion be permitted to destroy the estate confided to them by neglecting to 
 renew. Thus in Lord Milsington v. Mulgrave,(e2) 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 think 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 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."^) 1 
 
 (c) Verney v. Verney, Ambl. 88, 1 Ves. 428 ; White v. White, 4 Ves. 33 ; Milsington 
 v. Mulgrave, 3 Mad. 491 ; 5 Mad. 471 ; Hulkes v. Barrow, Taml. 264; Lock v. Lock, 
 2 Vern. 666 ; Lord Montford v. Lord Cadogan, 17 Ves. 448 ; 19 Ves. 638. 
 
 (d) Milsington v. Mulgrave, 3 Mad. 491 ; S. C. 5 Mad. 471. 
 
 (e) 5 Mad. 472. 
 
 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. 
 
 1 So in Mortimer v. Watts, 14 Beav. 616, 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 fit or expedient, but not necessarily or peremptorily, effect 
 and keep on foot insurances on the lives of the cesluis que vie, or any of them, and should 
 effect such insurances in such sums as in the opinion of the trustees should be sufficient 
 
OF TRUSTEES OF LEASEHOLDS. 653 
 
 A fortiori the duty of renewal at the regular periods will be binding 
 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 ille- 
 gality : — as for instance, where certain rents of other property were 
 directed to be accumulated by the trustees until the leaseholds to be re- 
 newed were nearly expired, and the trust was thus extended beyond the 
 period allowed by the rules of , law against perpetuity — 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, (g) 
 
 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 considered that the 
 testator *necessarily contemplated the continuance of the lease „ 
 during the wife's life, and that she was therefore bound to *- ^ 
 renew.(A) 1 
 
 (/) Montford v. Cadogan, 17 Ves. 485 ; 19 Ves. 635, and 2 Mer. 3; Colegrave v. 
 Manby, 6 Mad. 72 ; 2 Russ. 238 ; Bennett v. Colley, 5 Sim. 181 ; 2 M. & K. 225. 
 (g) Curtis v. Lukin, 5 Beav. 147. 
 (h) Lock v. Lock, 2 Vern. 666. 
 
 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 imperative 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 exer- 
 cise, in order to keep the estate in its present condition ; that the trustees had a discre- 
 tion 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, the fines and 
 expenses of renewal are to be borne by the tenant for life and remainderman, or parties 
 successively entitled, in proportion 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, be- 
 tween 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 certain proportions, such 
 direction supersedes the general rule ; but if trustees having power to direct the manner 
 in which the fines shall be raised, do not exercise 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 tie remain- 
 derman, or parties entitled in succession, and where the remainderman renews, or the 
 renewal is effected by means of a mortgage of the estate, the tenant for life may be 
 
654 OF TRUSTEES OF LEASEHOLDS. 
 
 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 be 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 directions.(i) 
 
 Where a trust for renewal is clearly created, the trustees will be per- 
 sonally responsible to the cestui que trusts for any loss occasioned by 
 their neglect to renew at the proper time. Thus if the lease be after- 
 wards 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 necessary 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-renewal 
 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 repayment to the trustees will 
 depend, not on the duration of their respective possession, but on the pro- 
 portions in which they would actually have suffered a diminution of in- 
 come, in case the rents had been properly applied towards the renewal, (w) 
 
 However, a purchaser from the tenant for life is not liable to exo- 
 nerate the trustees in such a case, though he purchase 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 expenses of 
 the renewal be consequently borne by the remainderman ; or d fortiori 
 if the lease be lost by the neglect to renew, the party entitled in re- 
 mainder will be entitled to compensation out of the estate of the tenant 
 for life.(p) 
 
 (i) Hulkes v. Barrow, Taml. 264. 
 
 (k) Montfort v. Cadogan, 17 Ves. 485 ; 19 Ves. 635 ; 2 Mer. 3. But if the fine so 
 paid be unreasonable, it will be referred to the Master to settle a proper amount. Cole- 
 grave v. Manby, post. (1) Milsington v. Mulgrave, 3 Mad. 491 ; 5 Mad. 472. 
 
 (to) 2 Mer. 3 ; 19 Ves. 635. («) 2 Mer. 3. (o) 19 Ves. 641. 
 
 {p) Colegrave v. Manby, 6 Mad. 72 ; 2 Russ. 238 ; Bennett v. Colley, 5 Sim. 181 ; 
 and 2 M. & K. 225. 
 
 required to give security to the remainderman for a proportionate part of the fine, cal- 
 culated 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). Hnddleston v. Whelp- 
 dale, 9 Hare, 775. 
 
0E TRUSTEES OP LEASEHOLDS. 655 
 
 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 remain- 
 derman may have chosen to pay, but it will be referred to the Master to 
 determine on the reasonable amount which ought to have been paid for 
 the renewal, (q) The same principle applies 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 tenant's 
 *right of renewal is so generally acted upon by ecclesiastical and r*4qcn 
 other corporations, that it has become an interest recognized by 
 the court. 1 If, therefore, a renewal become impracticable, either from 
 the direct refusal of the lessor, or from his demanding 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 renewal 
 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 expenses of re- 
 newal is all that is given him, and the remainderman will not be deprived 
 of the benefit of this exception, which was expressly reserved for his ad- 
 vantage out of the previous particular estate. (s) In those cases, there- 
 fore, where it is impracticable to renew, a sum equal to that usually paid 
 on renewal should be raised by the trustees from the estate, and invested 
 for the benefit of the cestui que trusts generally, including those entitled 
 in remainder. (t)(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 expenses 
 of renewal are to be raised, it seems, that the trustees will take the 
 power of selling or mortgaging the estate for that purpose.(w) And it 
 
 i 
 
 (q) Colegrave v. Manby, 6 Mad. 87 ; S. C. 2 Russ. 238. 
 
 (r) Colegrave v. Manby, 6 Mad. 82, 83 ; Tardiff v. Robinson, lb. 83, note. 
 
 (s) Colegrave v. Manby, 6 Mad. 87 ; Bennett v. Colley, 2 M. & K. 231. 
 
 \t) Colegrave v. Manby, 6 Mad. 72 ; 2 Russ. 238 ; Bennett v. Colley, 5 Sim. 181 ; 2 
 M. & K. 225. 
 
 (u) See Meynell v. Massey, 2 Vern. 1 ; ante, PI. IV, of this section. In Allan v. 
 Backhouse, Sir Thos. Plumer puts trusts to raise portions, and renewal fines on the 
 same footing. 2 Ves. & B. 75 ; see Buckeridge v. Ingram, 2 Ves. Juu. 666; Earl of 
 Shaftesbury v. Marlborough, 2 M. & K. 121. 
 
 (1) In Tardiff v. 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. 
 
 1 Phyfe v. Wardell, 5 Paige, 268, where such an interest was held to be the subject 
 of a contract of sale. See Monro v. Taylor, 3 Mac. & Gr. 713. 
 
656 OF TRUSTEES OF LEASEHOLDS. 
 
 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 trustees ; 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 mort- 
 gage- (#) 
 
 But if the testator have expressly declared, that the expenses of re- 
 newal shall be raised out of the annual rents and profits, or if the inten- 
 tion so to confine the trust be otherwise sufficiently manifest, the trustees 
 will be restricted to that fund only. (2) 
 
 In Mills v. Mills(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,(5) a testator, 
 "- ' -I after directing his trustees to renew the leases from 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 testator's intention. In the 
 late case of Shaftesbury v. Duke of Marlborough,(c) 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 Allen v. Backhouse. 
 
 In the recent case of Garmstone v. Gaunt, there was a devise of 
 leaseholds for lives to trustees in trust to renew by and out of the rents 
 and profits, OR otherwise ; and Vice-Chancellor Bruce was of opinion, 
 that this trust authorized a mortgage, but not a sale, of the leaseholds, 
 although the mortgagee might afterwards procure a sale.(d) 
 
 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 authorities, 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 ex- 
 pense of renewing on the dropping of a life. And in such cases the 
 
 («) Ivy v. Gilbert, 2 P. Wms. 13 ; Prec. Ch. 583 ; Allan v. Backhouse, 2 V. & B. 
 65 ; Jac. 631 ; Green v. Belcher, 1 Atk. 505 ; but see Shaftesbury v. Marlborough, 2 
 M. & K. 121. 
 
 (y) Playters v. Abbott, 2 M. & K. 97, 103 ; Greenwood v. Evans, 4 Beav. 44, sed 
 vide Garmstone v. Gaunt, 9 Jurist, 78. [See Mortimer v. Watts, 14 Beav. 616.] 
 
 (is) Stone v. Theed, 2 Bro. C. C. 243 ; Milles v. Milles, 6 Ves. 761; Earl of Shaftes- 
 bury v. Duke of Marlborough, 2 M. & K. 122 ; see Anon. 1 Vern. 104 ; Allan v. Back- 
 house, 2 V. & B. 77 ; vide supra, PI. IV, of this Section, page 367, and p. 355. 
 
 (a) 6 Ves. 761. (6) 2 Bro. C. C. 243. (c) 2 M. & K. Ill, 121. 
 
 (d) Garmstone v. Gaunt, 9 Jurist, 78 ; [1 Coll. 581.] ' . 
 
OF TRUSTEES OF LEASEHOLDS. 
 
 6£T 
 
 annual premiums on the policy of insurance must be paid out of the in- 
 come of the estate ;(e)(l) the trustees, therefore, would doubtless be justi- 
 fied in having recourse to this mode of effecting the renewal of their own 
 authority ; and it may be remarked, that it has one peculiar recommen- 
 dation, viz., that of obviating the difficulty pf adjusting the relative lia- 
 bilities 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 re- 
 spect 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. (g) 
 
 , 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 difficulty to 
 *arrange the relative liabilities of the tenant for life, and in re- PM07-1 
 mainder to contribute to its discharge.^') The tenant for life is 
 clearly bound to keep down the interest of this as of other charges,(&) 
 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. (?) 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.^) 1 
 
 (e) Earl of Shaftesbury v. Duke of Marlborough, 2M. &K. 124; Greenwood v. Evans, 
 4 Beav. 44; sed vide Grantley v. Garthwaite, 6 Mad. 96. 
 
 {f) See Greenwood v. Evans, 4 Beav. 46. 
 
 (g) Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K. 121. 
 
 (h) Garmstone v. Gaunt, 9 Jurist, 78 [1 Coll. 581] ; see Playters v. Abbott, 2 M. & 
 K. 104. (i) Greenwood v. Evans, 4 Beav. 46. 
 
 (k) White v. White, 4 Ves. 33; 9 Ves. 562; Allan v. Backhouse, 2 V. & B. 79; 
 Playters v. Abbott, 2 M. & K. 110. 
 
 (Z) Verney v. Verney, Ambl. 88 ; S. C. 1 Ves. 428 ; White v. White, 4 Ves. 33 ; 9 
 Ves. 554 ; Graham v. Lord Londonderry, 2 Bro. C. C. 246, cited. 
 
 (-j») Nightingale v. Lawson, 1 Bro. C. C. 440 ; White v. White, 4 Ves. 33 ; 9 Ves. 
 
 (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 authority to decree 
 an insurance of the life of the cestui qui vie, and a mortgage being impracticable, his 
 Honor directed an absolute sale. Grantley v. Garthwaite, 6 Mad. 96. , 
 
 1 See ante, p. 395, note. 
 42 
 
©68 OF TRUSTEES OF LEASEHOLDS. 
 
 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. For in that case, it is obvious, that the tenant 
 for life would derive no benefit from the renewal, and therefore he will 
 not be liable to contribute t<? the expense of effecting it.(w) Lord Hard- 
 wicke 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 trus- 
 tees 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. 
 
 It is almost unnecessary to state, that the general rule of the court, as 
 to the mode of raising the renewal fines, and the contribution of the 
 tenant for life, will be controlled by the intention of the settlor, as it is 
 to be collected from the trust instrument. (q) And upon this principle, 
 where a testator had expressly created a particular 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 renewals ultra the reserved fund.(r) 
 And in another case, where a testator 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 in- 
 terest 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*438T *^° on t ' ie otner band, if the testator have clearly shown an 
 intention, 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 settlement, subject to that 
 trust. The trust for renewal overrides all the subsequent beneficial in- 
 terests, 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; 
 
 554 ; Allen v. Backhouse, 2 V. & B. 79 ; Playters v. Abbott, 2 M. & K. 108, 9 ; Ran- 
 dall v. Russell, 3 Mer. 190 ; Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K. 
 121 ; Greenwood v. Evans, 4 Beav. 44, 48. 
 
 (n) Verney v. Verney, Ambl. 88 ; 1 Ves. 428 ; White v. White, 4 Ves. 33 ; 9 Ves. 
 561. (o) 1 Ves. 429. ( p) 4 Ves. 33. 
 
 (g) Playters v. Abbott, 2 M. & K. 109 ; Earl of Shaftesbury v. Duke of Marlborough, 
 Id. 119. 
 
 (r) White v. White, 4 Ves. 24 ; 9 Ves. 554 ; and see Stone v. Theed, 2 Bro. C. C. 
 243. (*) Playters v. Abbott, 2 M. & K. 110. 
 
OE TRUSTEES OF LEASEHOLDS. 
 
 and the tenant for life will have no claim for contribution against the 
 parties entitled in remainder.(t) However, it has been already stated, 
 that a direction to raise the requisite amount out of the rents and profits, 
 will 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 con- 
 fined expressly or by implication to the annual income of the property.(w) 
 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 relative 
 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 contemplated and pro- 
 vided 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 cove- 
 nants 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 recognized and protected by the court for the 
 benefit of the trust estate, the trustees will have a title to compensation 
 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 renewal of a church 
 lease held in trust was rendered impossible from the property being re- 
 quired 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.(t/) 
 
 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. (a) 1 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 posi- 
 
 (t) Earl of Shaftesbury v. Duke of Marlborough, 2 M. & K. Ill, 122. 
 
 (u) Milles v. Milles, 6 Ves. 761 ; see Anon. 1 Vern. 104; Stone v. Theed, 2 Bro. 0. 
 C. 246, vide supra. 
 
 (x) Marsh v. Wells, 2 S. & St. 90. (y) Jones v. Powell, 4 Beav. 96. 
 
 (z) Keech v. Sandford, Sel. Ca. Ch. 61 ; [1 Lead. Cas. Eq. 47, 54, and Am. note ;] 
 Holt v. Holt, 1 Ca. Ch. 190 ; Eawe v. Chichester, Ambl. 719 ; Griffin v. Griffin, 1 Sch. 
 & Lef. 352 ; James v. Dean, 11 Ves. 392 ; 15 Ves. 236 ; Pitzgibbon v. Scanlan, 1 Dow. 
 P. Rep. 269 ; Killick v. Flexney, 4 Bro. C. C. 161 ; Parker v. Brooke, 9 Ves. 583. 
 
 (a) James v. Dean, 11 Ves. 392 ; Nesbitt v. Tredennick, 1 Ball k B. 29. 
 
 1 See post, page 539, n. (z) ; Holridge v. Gillespie, 2 J. C. E.33 ; Galbraith v. Elder, 
 8 Watts, 81 ; Pisk v. Sarber, 6 Watts & Serg. 18 ; McClanahan v. Henderson, 2 A. K. 
 Marsh. 388 ; Case of Heager's Exr's, 15 S. & R. 65. 
 
660 OP TRUSTEES OP ADVOWSOHS. 
 
 r^nni tively *refused to renew for the benefit of the cestui que trust, 
 from some personal objection to him, before the trustee obtained 
 the renewal for himself.(S) 
 
 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 re- 
 newable lease: all sueh persons will be trustees of any new lease, 
 obtained by them for those entitled in remainder.(c) But the rule will 
 not be extended to a quasi tenant in tail of 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 repay- 
 ing to the trustee, or other person renewing, the sums expended 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 himself 
 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.^) 
 
 XII. — OP TRUSTEES OP ADVOWSONS, AND PRESENTATIONS TO 
 ECCLESIASTICAL BENEPICES. 
 
 It has been already stated, that the legal right to present to a bene- 
 fice is vested in the trustees having the legal estate in the advowson ; 
 but the right of nomination belongs, in equity, to the cestui que trusts, 
 whose nominee the trustees will be bound to present.(A) 
 
 Where the trusts of the advowson are expressly declared, no question 
 can arise as to the relative rights of the trustees and cestui 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, 
 
 (6) Keech v. Sandford, Sel. Ca. 61 ; Pitzgibbon v. Scanlan, 1 Dow. 269. 
 
 (c) Palmer v. Young, 1 Vern. 376 ; Taster v. Marriott, Ambl. 658; Eawe v. Chi- 
 chester, Ambl. 715 ; Pickering v. Vowles, 1 Bro. C. C. 197 ; Fitzgerald v. Raynsford, 1 
 Ball & B. 37, n. ; Eyre v. Dolphin, 2 Ball & B. 290 ; Featherstonhaugh v. Fenwick, 17 
 Ves. 298; Randall v. Russell, 3 Mer. 196, 197; Tanner v. Elworthy, 4 Beav. 487; 
 Giddings v. Giddings, 3 Russ. 241. [Vanhorne v. Fonda, 5 J. C. R. 388; Smiley v. 
 Dixon, 1 Pa. R. 439, 1 Lead. Cas. Bq. 56, Am. n.] 
 
 (d) Blake v. Blake, 1 Cox, 266. 
 
 (e) See James v. Dean, 11 Ves. 396 ; Randall v. Russell, 3 Mer. 196. 
 (/) Ex parte Phelp, 9 Mod. 357. 
 
 (g) Holt v. Holt, 1 Ch. Ca. 190 ; Rawe v. Chichester, Ambl. 715, 720 ; Kempton T. 
 Packman, 7 Ves. 176, cited. 
 
 (7i) Ante, p. 261 ; Att.-Gen. v. Forster, 10 Ves. 328 ; Att.-Gen. v. Newcombe, 14 Ves. 
 8 ; Att.-Gen. v. Parker, 3 Atk. 577 ; Martin v. Martin, 12 Sim. 579. 
 
OF TRUSTEES OF ADVOWSONS. 661 
 
 &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 only, 
 they *will not be allowed to take the right of presentation, as a r*44rn 
 benefit undisposed of, for themselves (though it is one of no 
 pecuniary value), but that right will result as fruit undisposed of to the 
 heir at law.(&) 
 
 In the late case of Martin v. Martin, (I) a testator devised an advow- 
 son and all other his real estates, and also his personal estate, to trus- 
 tees 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 in- 
 come" 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 incum- 
 bent of the living, of which the advowson was so devised, and it conse- 
 quently 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 chil- 
 dren 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 from the Vice-Chancellor of England, that, as the presenta- 
 tion did not produce " any 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.(ZZ) 
 
 In Edenborough v. Archbishop of Canterbury(m) there was a grant 
 of an advowson by Queen Elizabeth to four persons their heirs and as- 
 signs 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 feof- 
 
 (t) Earl of Albemarle v. Rogers, 2 Ves. Jun. 477 ; S. C. 7 Bro. P. C. 522. 
 (k) Kensey v. Langhaui, Forr. 143 ; Sherrard v. Lord Harborough, Arnbl. 165 ; Ear 
 of Albemarle v. Rogers, 2 Ves. Jun. 482; Martin v. Martin, 12 Sim. 579. 
 (Z) Martin v. Martin, 12 Sim. 579. (H) lb. (m) 2 Russ. 93. 
 
662 OF TRUSTEES OF ADVOWSONS. 
 
 fees 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 bene- 
 ficially. 
 
 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 included, the court re- 
 fused to restrain the other trustee from presenting his co-trustee, for he 
 was clearly an object of the testator's intention, and there was no proof 
 of any corrupt or simoniaeal motive, (n) 
 
 Where there are several cestui que trusts of an advowson, who are 
 jointly entitled to the right of nomination, and there has been no seve- 
 rance of their joint ownership, by an arrangement provided for the 
 alternate exercise *of the privilege of nominating, it was laid 
 L J 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 parish- 
 ioners 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 for an advowson is for the parishioners or inhabitants 
 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 
 recognized, 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 constructing them than by usage. (r)(l) 
 
 (ra) Potter v. Chapman, Ambl. 98. (o) Seymour v. Bennett, 2 Atk. 483. 
 
 (p) Fearon v. Webb, 14 Ves. 13, sec. 24 ; Att.-Gen. v. Rutter, 2 Russ. 101, n., see 
 103 ; Edenborough v. Archbishop of Canterbury, 2 Russ. 108. 
 
 (g) Att.-Gen. v. Parker, 3 Atk. 57G, 1 ; Att.-Gen. v. Forster, 10 Ves. 335 ; Att.-Gen. 
 v. Newcombe, 14 Ves. 1 ; Fearon v. Webb, 14 Ves. 13; Att.-Gen. v. Rutter, 2 Russ. 
 101, n.; Edenborough v. Archbishop of Canterbury, 2 Russ. 93. 
 
 (r) Per Lord Hardwicke, 3 Atk. 577. 
 
 (1) In the case of Attorney-General v. Forster, 10 Ves. 342, Lord Eldon appears 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 Lordship 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 tha trust. 
 
OF TRUSTEES OF ADVOWSONS. 663 
 
 But where this limited construction has not been put upon the trust 
 by usage, it has been held, that a part of the parishioners cannot 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 nomina- 
 tion, 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 parish- 
 ioners have no right to vote who are ratable, 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(a) which has since passed, does not appear to have 
 affected 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 ballot ;(a) for r*44oi 
 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 other- 
 wise, 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.(c) 
 
 The right of nomination to a benefice, when vested in the parishioners 
 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 purpose 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.(d) 
 
 At law, an infant of the most tender years may present to a church 
 on its avoidance, and it has been decided, that he will have the same 
 
 (s) Faulkner v. Elger, 4 B. & Cr. 449 ; Edenborough v. Archbishop of Canterbury, 
 2 Euss. 104. (t) Att.-Gen. v. Parker, 3 Atk. 577. 
 
 (u) Edenborough v. Archbishop of Canterbury, 2 Euss. 104. 
 
 (x) Id. 110, 111. (y) 2 Euss. 111. (z) 10 Geo. IV, c. 7. 
 
 {a) Edenborough v. Archbishop of Canterbury, 2 Euss. 93 ; Faulkner v. Elger, 4 B. 
 & Cr. 449. 
 
 (6) 2 Euss. 108, 9. (c) Ibid. 
 
 (d) Att.-Gen. v. Newcombe, 14 Ves. 1, 6 ; Att.-Gen. v. Parker, 1 Ves. 43 ; see Fea- 
 ron v. Webb, 14 Ves. 19 ; Att.-Gen. v. Cuming, 2 N. C. C. 139, 149. 
 
664 OF TRUSTEES OF ADVOWSONS. 
 
 right of nomination in equity. In Arthington v. Coverly,(e) an advow- 
 son was conveyed to trustees, in trust (in a certain event which hap- 
 pened), to present such person as the grantor, his heir, or assigns, 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 nominating 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 de- 
 prive 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 autho- 
 rized to execute all powers which the bankrupt could legally execute for 
 his own benefit (except the right of nomination to any ecclesiastical bene- 
 fice). As the void turn cannot be sold, it is not assets for the benefit of 
 the creditors. (h) 
 
 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 of Oxford and 
 r*44m * Cambridge. (1) 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 500Z. by presenting to a benefice without giving notice of the avoid- 
 ance 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 Catholics, or by their trustees, or mortgagees, shall be null 
 and void, unless it be for a valuable consideration to a Protestant 
 purchaser. 
 
 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 
 
 (e) 2 Eq. Caa. Abr. 518. (/) 1 Co. Litt. 89, a. n. 1. 
 
 (V) Wata. 106 ; 3 Cruis. Dig. 20. (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. 
 
OP TRUSTEES OP ADVOWSONS. 665 
 
 shall extend to enable any person otherwise than he was then by law 
 enabled, to exercise any right of presentation to any ecclesiastical bene- 
 fice 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 cestui qu6 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, (i) 
 
 Where a feme sole, having an equitable estate in advowson, marries, 
 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 happens 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, (k) 
 
 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 question, 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, (m) 
 
 Where an advowson is vested in several trustees, they must all join 
 in signing the presentation on a vacancy, and the ordinary cannot 
 be compelled to admit the clerk, where all the trustees have not con- 
 curred.^) 
 
 However, this rule does not apply where the trustees have been in- 
 corporated 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^^^-i 
 major part of the trustees shall have the right of appointment, L 
 those who dissent from the choice of the majority will notwithstanding 
 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) 
 
 (i) 3 Cruis. Dig. 22. {k) lb. 14. (I) Wats. 106. 
 
 (m) Ante, Pt. II, Ch. Ill, p. 335, 6. 
 
 (n) Att.-Gen. v. Scott, 1 Ves. 413, 4 ; Seymour v. Bennett, 2 Atk. 483 ; Co. Litt. 186, 
 b ; Wilson v. Dennison, Ambl. 82. 
 
 (o) Att.-Gen. v. Davy, 2 Atk. 212 ; Wilson v. Dennison, Ambl. 82. 
 
 (p) Att.-Gen. v. Scott, 1 Ves. 413; Att.-Gen. v. Gunning, 2 N. C. C. 139; Wilson v. 
 Dennison, Ambl. 82. 
 
666 OF TRUSTEES OF ADVOWSONS. 
 
 And if the dissenting trustee in such a case refuse to concur in the pre- 
 sentation, he will not be allowed his costs of a suit occasioned by his 
 refusal, (q) 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 in- 
 strument.^) 
 
 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 without giving notice of 
 their intention to the other eleven trustees, who supported a rival candi- 
 date, the election was declared void for want of due notice. (s) 
 
 Where the power of choosiDg a clergyman to fill the vacancy is vested 
 in the trustees, that being a personal trust cannot be delegated by them 
 to others, and they cannot therefore vote by proxy at the election ;(4) 
 although where the choice has been regularly made, the power of signing 
 the presentation, being a mere ministerial act, may be deputed by proxy 
 to the others. (w) 
 
 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 prescribed period.(a;) 
 
 So a declaration, that when the trustees are reduced to a certain num- 
 ber 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,(s) or even by the heir of the last surviving trustee,(a) has been 
 supported. 
 
 But in such cases the court will take care that the number of trustees 
 is properly filled up for the future ;(6) and where the appointment in 
 question is set aside, it will direct new trustees to be appointed, before 
 the fresh election is made.(e) An information may be filled by the 
 Attorney-General to have the requisite number of trustees supplied^) 
 
 (g) 5 N. C. C. 156, 7. 
 
 (r) Att.-Gen. v. Scott, 1 Ves. 413, ante, Ch. I, Sect. 1. 
 
 (s) Att.-Gen. v. Scott, 1 Ves. 413 ; and see Att.-Gen. v. Cuming, 2 N. C. C. 139. 
 
 (0 Att.-Gen. v. Scott, 1 Ves. 413, 417 ; Wilson v. Dennison, Ambl. 82, 86. 
 
 (m) Ibid. 
 
 (x) Att.-Gen. v. Scott, 1 Ves. 413, 415; Landsdown case, Ibid, cited. 
 
 (y) Att.-Gen. v. Scott, 1 Ves. 413 ; Att.-Gen. v. Cuming, 2 N. C. C. 139. 
 
 (z) Att.-Gen. v. Floyer, 2 Vera. 748. 
 
 (a) Att.-Gen. v. Bishop of Lichfield, 5 Ves. 825. (5) Id. 825, 831. 
 
 (c) Att.-Gen. v. Scott, 1 Ves. 419. (d) Att.-Gen. v. Newcombe, 14 Ves. 1, 12. 
 
OF TRUSTEES OP STOCK OR SHARES. 667 
 
 Pending a suit respecting the right of nomination or presentation to 
 a *benefice, the bishop will be restrained from taking advantage i-^Vrn 
 of the lapse, and exercising the right of presentation 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 re- 
 fusal 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 affecting 
 public stock standing in their books ; and they will refuse to recognize 
 any other than the legal title. (^(l) 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 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 assigns. (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 them- 
 selves 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 considered, (i) 
 
 (e) Edenborough v. Archbishop of Canterbury, 2 Russ. 92, 111 ; Att.-Gen. v. Cum- 
 ing, 2 N. C. C. 139, 145. 
 
 (/) Att.-Gen. v. Cuming, 2 N. C. C. 139, 156. 
 
 (ff) Hartga v. Bank of England, 3 Ves. 55 ; Bank of England v. Moffat, 3 Bro. C. C. 
 260 ; Bank of England v. Parsons, 5 Ves. 665. 
 
 (h) See Wright v. Lord Dorchester, 3 Buss. 49, n. 
 
 (i) Ante, Pt. I, Div. Ill, Ch. II, Sect. 2, and Pt. Ill, Ch. IV. 
 
 (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. 
 
 1 See note, ante, page 174. 
 
668 OP TRUSTEES OP CHOSBS IN ACTION. 
 
 The acts for the reduction of stock always provide, that any engage- 
 ment respecting the original stock, shall be satisfied by the same amount 
 of reduced stock. Therefore where a person has bound himself 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 aceept 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 of stock, or one of them on behalf 
 ■- J of the others, are empowered to assent to the reduction of 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 annui- 
 tants 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 in- 
 vestments, the same rules of management prevail as those concerning 
 stock in the British funds. 
 
 Any extraordinary bonus 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) 1 
 
 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 conse- 
 quence of this liability. (d) 
 
 A trustee of stock will be allowed in his accounts the usual payment 
 of one-sixteenth per cent, which is charged by a stock-broker for identi- 
 fying 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 frequently declared of choses in action, such as bonds, 
 covenants, policies of assurance, or simple contract debts, and other 
 
 (k) Sheffield v. Earl of Coventry, 2 R. & M. 317 ; Mil ward v. Milward, 2 M. & K. 
 311. (I) Att.-Gen. v. Poulden, 8 Jurist, 611 ; [3 Hare, 555.] 
 
 (c) Brander v. Brander, 4 Ves. 890 ; Paris v. Paris, 10 Ves. 185 ; Clayton v. Gre- 
 sham, lb. 288 ; Witts v. Steere, 13 Ves. 363. 
 
 (d) Preston v. Guyon, 10 Law Journ. N. S., Chanc. 72. 
 
 (e) Jones v. Powell, 6 Beav. 488 ; vide post [Allowances], p. 570, &c. 
 
 1 See ante, note to page 386. 
 
OF TRUSTEES OF CHOSES IN ACTION. 669 
 
 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 tbose cases where the settlor binds himself 
 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 trustees take the legal in- 
 terest, and at the proper time they will be bound to take such legal pro- 
 ceedings, as may be requisite for enforcing payment or performance in 
 their own names ;(1) in *the latter case the assignment gives v-^aah-x 
 them only an equitable title, and all proceedings at law must 
 be instituted by them in the name of the assignor. 1 Where a testator 
 being entitled to choses in action bequeaths 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 appoint- 
 ment as executors. (/) 
 
 It is the duty of the trustees in all these cases to take every necessary 
 step, by suit or action or otherwise, for realizing the chose 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 responsible to their 
 cestui que trusts for the loss, although they acted without any improper 
 motive. (g) And it is not sufficient for the trustee 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.(A) 3 
 
 (/) Caney v. Bond, 6 Beav. 486. 
 
 (g) Caffrey v. Darby, 6 Ves. 488 ; Mucklow v. Fuller, Jae. 198 ; Powell v. Evans, 5 
 Ves. 839 ; Tebba v. Carpenter, 1 Mad. 290 ; Lewson v. Copeland, 2 Bro. C. C. 156 ; 
 Caney v. Bond, 12 Law Journ. N. S. Chanc. 484 ; S. C. 6 Beav. 486 ; Rogers v. Vasey, 
 V. C. K. Bruce, 27th Jan. 1845, MS. [Cross v. Petree, 10 B. Monr. 413.] 
 
 (h) Lowson v. Copeland, 2 Bro. C. C. 156. [See Wolfe v. Washburn, 6 Cowen, 261, 
 that dissent of cestui que trust immaterial at law.] 
 
 (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. 
 
 1 See notes to Row v. 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 can- 
 not sue at law in their own names, on a note payable to, or a judgment recovered by, 
 the original trustee. Ingersoll v. Cooper, 5 Blackf. 426 ; Davant v. Guerard, 1 Spear's 
 Law R. 242. 
 
 2 In Waring v. Darnall, 10 G. & J. 127, it was held that there was no peremptory 
 obligation upon a trustee (especially if acting with the knowledge and approbation of 
 
 I 
 
670 OF TRUSTEES OF CHOSBS IN ACTION. 
 
 However, where covenants or bonds are entered into by a settlor with 
 trustees, it seems that the ability of the settlor to discharge these en- 
 gagements, will be the measure of the responsibility of the trustees, if 
 the sum be lost by their neglect to put in force the security. Thus in a 
 recent case A. on his marriage with B. covenanted with a trustee to pay 
 10,000Z. on Martinmas-day, 1824, upon trust for A. for life, with remain- 
 der to B. for life, and then for the children of the marriage. A. died 
 without having paid any part of the 10,000Z., and a suit was instituted 
 by B. against the trustee to compel him personally to pay the 10,000?. 
 The cause was heard by Lord Cottenham, who made a decree referring 
 it to the Master to inquire, whether A. had been of ability to pay 
 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 4200?. 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, the defendant, the trustee, was ordered to pay the sum of 4200?. 
 into court. («') 
 
 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 trust for neglecting to enforce the payment in such a case.(A) 
 
 And it seems, that the duty of realizing such securities will be pecu- 
 liarly imperative, where the debt which is the subject of the trust, is 
 payable in instalments, in which case the trustees will not be justified in 
 showing much indulgence to the debtor on the non-payment of any in- 
 stalment.^) 
 
 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. (m) 
 
 (i) Maitland v.Bateman, Nov. 1840, V. C. K.Bruce, Feb. 1844, S. C. 13 LawJourn. 
 N. S. 272; 8 Jurist, 926. 
 
 (k) Mucklow v. Puller, Jac. 198. [See ante, Part III, Div. 1, Ch. 1. Sect. 2.] 
 (Z) Caffrey v. Darby, 6 Ves. 495. (m) Buxton v. Buxton, 1 M. & Cr. 80. 
 
 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 rea- 
 sonable expectation, any portion of the debt were lost, in the exercise of a fair discre- 
 tion, equity would not compel him to make good the loss. So in Hester v. Wilkinson, 
 6 Humph. 215, where a trustee residing 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. 
 
 An executor who has effected an additional insurance on a debtor's life, the pre- 
 miums being paid out of the estate, is not justified in letting the second policy drop, 
 though on the ground of the insufficiency of the assets, without the consent of the cestui 
 que trust or the sanction of the court. Garner v. Moore, 24 L. J. Ch. 687 ; 3 Drewr. 211- 
 
OF TRUSTEES OF CHOSES IN ACTION. 671 
 
 *A trustee who brings an action at law for the recovery of a rHc4 ^ ft -. 
 chose in action, or whose name is used for that purpose, is entitled L * 
 to be indemnified by his cestui que trust against the costs ; and a court 
 of equity, on the application of the trustee, will restrain the cestui que 
 trust from proceeding in the action, until he has given the required 
 security for the costs.(w) 
 
 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'assigned by 
 the settlement to the trustees, it has 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) 1 It is therefore 
 unquestionably the duty of trustees of 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.(q) But a notice so limited will continue in operation only as long 
 
 (n) Annesley v. Simeon, 4 Mad. 390. [Roden v. Murphy, 10 Alab. 804 ; Ins. Co. v. 
 Smith, 11 Penn. St. R. 120.] 
 
 (o) Wright v. Lord Dorchester, 3 Russ. 49, n. ; Deare v. Hall, 3 Russ. 1 ; Loveridge 
 v. Cooper, Id. 30 ; Forster v. Blackstone, 1 M. & K. 297 ; Timson v. Ramsbottom, 2 
 Keen, 35. [See Etty v. Bridges, 2 Y. & Coll. 486.J ' - 
 
 (j>) See Jacob v. Lucas, 1 Beav. 436. 
 
 (g) Smith v. Smith, 2 Cr. & Mee. 31 ; Meux v. Bell, 1 Hare, 73 ; Re Styan, Phill. 
 155 ; Duncan v. Chamberlayne, 11 Sim. 123. [See 4 Hare, 446 ; 9 Beav. 323.] 
 
 1 Meux v. Bell, 1 Hare, 73 ; Voyle v. Hughes, 2 Sm. & Giff. 18 ; Stocks v. Dobson, 
 17 Jurist, 539. But the opposite appears to be held in Beavan v. Lord Oxford, 20 
 Jurist, 121, Full Court of Appeal; Clack v. Holland, 24 L. J. 19 ; see Kekewitch v. Man- 
 ning, 1 De G. M. & G. 176. The rule on this point iu most of the United States is, that 
 the assignee's title is good against attaching creditors, or subsequent assignees, without 
 such notice: Sharpless v. Welsh, 4 Dall. 279; Corser v. Craig, 1 Wash. C. C. 424; U. S- 
 v. Vaughan, 3 Binn. 394 ; Muir v. Schenck, 3 Hill (N. Y.), 228 ; Littlefield v. Smith, 17 
 Maine, 327 ; Warren v. Copelin, 4 Metcalf, 594; Talbot v. Cook, 7 Monroe, 438 ; Maybin 
 v. Kirby, 4 Rich. Eq. 105; contra, Vanbuskirk v. Ins. Co., 14 Conn. 145 ; Ward T.Mor- 
 rison, 25 Verm. 593; see Am. Note to Row v. Dawson, 2 Lead. Cas. Eq. pt. ii, 236 (1st 
 Ed.) But 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 postponed 
 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. Dobson, 17 
 Jurist, 539. So in Judson v. Corcoran, 17 How. U. S. 614, it was held that where a 
 second assignee of a claim against the United States, obtained a decision of the com- 
 missioners in his favor, he was, on having obtained the legal title, to be preferred to the 
 first assignee. 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. 
 
672 OF TRUSTEES OF CHOSES IN ACTION. 
 
 as the party to -whom it was given is living, and liable to contribute to 
 the payment, and the other obligors and insurers will not afterwards be 
 affected by the notice.(r) A trustee, therefore, ought not to dispense 
 with a formal notice of the settlement of a 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 ne- 
 glect, 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.(s) 
 
 However, where from the neglect of the trustees to obtain possession 
 of the policy of assurance, which had been assigned to them upon trust, 
 or to give notice of the assignment at the office, the settlor had subse- 
 quently 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. (t) 
 
 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 of a 
 court of equity. Hence, where the assignment is made without any 
 consideration, the court will not usually give any assistance to the par- 
 ties 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. (u) 1 *However, there may be an exception to this 
 L -■ general rule, where the chose in action is assignable by agree- 
 ment 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 re- 
 cognize the title of the assignee, {xf 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, as regards 
 the rights and remedies between the cestui que trust and his trustee, the 
 
 (r) Timson v. Ramsbottom, 2 Keen, 35 ; Meux v. Bell, 1 Hare, 88, 89. 
 
 (s) Evans v. Bieknell, 6 Ves. 174; Knye v. Moore, 1 S. & St. 65 ; Meux v. Bell, 1 
 Hare, 82, 98 ; Booth v. Lightfoot, L. C. 17th Jan.,' 1844. 
 
 (t) Fortescue v. Barnett, 3 M. & K. 36. 
 
 (u) Antrobus v. Smith, 12 Ves. 39; Edwards v. Jones, 1 M. & Cr. 226; Meek v. 
 Kettlewell, 1 Hare, 474 ; but see Sloane v. Cadogan, 2 Sugd. V. & P. Appendix, 26, 
 9th ed. ; Collinson v. Patrick, 2 Keen, 123; vide supra, Pt. I, Div. I, Ch. II, Sect. 5. 
 
 (x) Fortescue v. Barnett, 3 M. & K. 36 ; Edwards v. Jones, 1 M. & Cr. 239 ; sed 
 vide Ward v. Audland, stated supra, p. 89, n. (1). 
 
 (y) Bycroft v. Christy, 3 Beav. 238 ; see Hinde v. Blake, Id. 234 ; M'Fadden v. 
 Jenkin, 1 Hare, 458 ; S. C, Phill. 153. 
 
 1 Kennedy v. Ware, 1 Barr, 445 ; and see the notes, ante, page 83, 84, 
 
 2 See note, ante, page 88. 
 
j OF TRUSTEES OF CHOSES IN ACTION. 673 
 
 fact of the creation of the trust being voluntary will be wholly imma- 
 terial, 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 mentioned 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,(5) 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 good discharge to 
 the debtor.(d) But where the whole legal interest is vested in the trus- 
 tee, 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 recognizance, releases 
 it without consideration, he will be decreed in equity to replace the prin- 
 cipal with interest.^) 1 But it has been held, that a trustee will be justi- 
 fied 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. (h) 
 
 XV. — OF TRUSTEES FOR CHARITABLE OR PUBLIC PURPOSES. 
 
 The rules of construction applicable to trusts for charitable purposes, 
 differ materially in many respects from those respecting ordinary trusts, 
 and there are also important distinctions as to the nature and extent of 
 
 (2) Lechmere v. Earl of Carlisle, 3 P. Wma. 222 ; supra, Pt. I, Div. I, Ch. II, Sect. 5. 
 
 (a) Courtnay v. Ferrers, 1 Sim. 137 ; Parker v. Both, 9 Sim. 388. 
 
 (6) Ex parte Rigby, 19 Ves. 463; 2 Rose, 224; Burridge v. Row, 1 N. C. C. 183, 
 583 ; 8 Jurist, 299. 
 
 (c) Ex parte Smith, 1 Deac. 385 ; 2 M. & A. 536 ; Ex parte Phillips, 2 Deac. 334. 
 
 {d) Ex parte Dubois, 1 Cox, 310; Beardmore v. Cuttenden, Cooke, 211 ; Ex parte 
 Herbert, 2 Gl. & G. 161 ; Ex parte Green, 2 Deac. & Ch. 116. 
 
 (e) Ex parte Dubois, 1 Cox, 312. (/) Green, 149. 
 
 (g) Jevon v. Bush, 1 Vern. 342. 
 
 (h) Blue v. Marshall, 3 P. Wins. 381. [See Walker v. Brungard, 13 S. & M. 725, 
 667 ; Allen v. Randolph, 4 J. C. R. 693.] 
 
 1 See ante, 274, note (1). 
 43 
 
674 OF TRUSTEES FOR 
 
 *the jurisdiction of the Court of Chancery in enforcing or con- 
 L -1 trolling the execution of these trusts. 1 
 
 It has been stated in a previous chapter,(i) that where the object of a 
 testator is charity, a far less accurate and definite declaration of trust 
 will suffice, than is requisite in other cases. Lord Eldon observed 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 
 
 (i) Ante, p. 131. (k) Mills v. Farmer, 1 Mer. 55, 94. 
 
 ' 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 Chancery at com- 
 mon law, independently of that statute ; and that charities within its definition would 
 be enforced, though the beneficiaries were too vaguely designated to claim for them- 
 selves 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 Academy, 
 14 Pick. 240 ; Going v. Emery, 16 Pick. 107 ; Brown v. Kelsey, 2 Cush. 243 ; Burr v. 
 Smith, 7 Verm. 241 ; Wright v. Trustees, 1 Hoff. Ch. 202 ; King v. Woodhull, 3 Edw. 
 Ch. 79 ; Kniskern v. Lutheran Church, 1 Sandf. Ch. 439 ; Banks v. Phelan, 4 Barb. S. 
 C. 80 ; Shotwell v. Mott, 2 Sandf. Ch. 46 ; Newcomb v. St. Peter's Church, Id. 636 ; 
 Williams v. Williams, 4 Selden, 525 (overruling Ayers v. Trustees, 9 Barb. S. C. 324; 
 Andrew v. N. Y. Bible Soc. 4 Sandf. S. C. 156) ; Witman v. Lex, 17 S. & B. 88; Zane's 
 Will, Brightly, 350 ; Pickering v. Shotwell, 10 Barr, 23 ; Griffitts v. Cope, 17 Penn. St. 
 96 ; McCord v. Ochiltree, 8 Blackf. 15 ; State v. McGowen, 2 Ired. Ch. 9 ; Griffin v. 
 Graham, 1 Hawks, 96 ; Atty.-Gen. v. Jolly, 1 Rich. Eq. 99 ; Beall v. Pox, 4 Geo. 404; 
 Wade v. American Col. Soc. 7 S. & M. 663 ; Dickson v. Montgomery, 1 Swan (Tenn.), 
 348 ; Carter v. Balfour, 19 Alab. 814 ; Urmey's Ex'rs v. Wooden, 1 Ohio, St. N. S. 160 ; 
 White v. Fisk, 22 Conn. 31. In other States, the statute-has been said to be still in 
 force. Griffin v. Graham, 1 Hawks, 96 (though see State v. McGowen, 2 Ired. Eq. 9) ; 
 Att.-Gen. v. Wallace, 7 B. Monr. 611 . In Virginia and Maryland, however, it has been 
 decided that neither the statute nor the principles which it embodies, are in force. 
 Baptist Ass. v. Hart, 4 Wheat. 1 ; Wheeler v. Smith, 9 How. U. S. 55 ; Gallego v. Att.- 
 Gen. 3 Leigh, 451 ; Dashiell v. Att.-Gen. 5 Harr. & J. 392; 6 Id. 1 ; Wilderman v. 
 Mayor^&c. of Baltimore, 8 Maryl. R. 551. In Fontain v.Ravenel, 17 How. U. S. 369, 'it 
 was held by a majority of the court, that the courts of the United States had no power, 
 from their constitution as courts of equity, to administer the law of charitable uses, 
 whether existing under or before the Statute of Elizabeth, or under the prerogative or 
 general powers of the English Chancery, except so far as the same had been actually 
 adopted by the lex loci rei sitce. Chief Justice Taney dissented from the reasoning of 
 the court, on the ground that the whole doctrine of charitable as distinguished from 
 ordinary trusts, was prerogative, and therefore incapable of enforcement through a 
 Federal court. Judge Daniel, on the other hand, dissented, on the ground that the 
 j urisdiction over charities, as it existed before the 43 Elizabeth, under the general powers 
 of Chancery, was inherent in the Federal courts, and to be enforced by them in a proper 
 case. In the particular case, which was that of a gift in remainder to executors, to be 
 distributed in charity in a particular manner, and the executors died during the life 
 estate ; it was unanimously agreed, that under the law of Pennsylvania and South 
 Carolina, where the property to be affected was situated, the discretion of the executors 
 could not be exercised by the court, and that as a direct gift to charity it was too vague 
 to be enforced. 
 
 With regard to dedications of land to public or pious purposes, which seem to be sus- 
 tained even in those States where the doctrine of charitable uses has not been adopted, 
 see Beatty v. Kurtz, 2 Peters, 566 ; Cincinnati v. White, 6 Id. 431 ; Hadden v. Chorn, 8 
 B. Monr. 78 ; Price v. Methodist Church, 4 Hammond, 542 ; 3 Kent's Comm- 433, 450. 
 
CHARITABLE OR PUBLIC PURPOSES. 675 
 
 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 executor, 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 effect to a bequest in favor of charity, the court 
 will in both instances supply the place of an executor, and carry into 
 effect that, which in the case of individuals must have failed altogether. 
 A third principle, 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 effect, 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 denied that such a be- 
 quest to charity would indicate that general charitable intention, which, 
 according to the rules' of law, is sufficient to give it effect ; and that the 
 court in such a case would assume the office of the executor."(£) 
 
 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 tes- 
 tator has manifested a general intention to give to charity, the failure of 
 the particular mode in which the charity is to be effectuated, shall not 
 destroy the charity : but if the substantial intention is charity, the law 
 will substitute another mode of devoting the property to charitable pur- 
 poses, though the formal intention as to the mode cannot be accom- 
 plished, "(m) 
 
 In accordance with these principles, it has frequently been decided 
 that where a testator has sufficiently expressed his intention to dispose 
 of his estate in trust for charitable purposes generally, the general pur- 
 pose will be enforced by the court to the exclusion of any claim of the 
 next of kin to take under a resulting trust ; although the particular pur- 
 pose or mode of application is not declared at all by the testator.(nj 
 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 *cannotbe discovered ;(o) and although the selection of r*4c-in 
 the objects of the charity ^and the mode of application are left 
 
 (I) Mills v. Farmer, 1 Mer. 94, 96. 
 
 (m) Moggridge v. Thackwell, 7 Ves. 69 ; ante, p. 130. 
 
 (n) Att.-Gen. v. Mathews, 2 Lev. 167 ; Clifford v. Francis, 2 Freem. 330; Baylis v. 
 Att.-Gen. 2 Atk. 339; Att.-Gen. v.Herrick, Ambl. 212 ; Price v. Archbishop of Canter- 
 bury, 14 Ves. 371, 2 ; vide supra, p. 128. 
 
 (o) Case, 2 Freem. 261 ; 7 Ves. 73, and 1 Mer. 59 ; Att.-Gen. v. Syderfen, 1 Vera. 
 
676 OF TRUSTEES FOR 
 
 to the discretion of the trustees. And it is immaterial that the trustees 
 refuse the gift, or die, or that their appointment is revoked in the life- 
 time of the testator, causing a lapse of the bequest at law.(p) 1 
 
 •The same construction will also be adopted, where a 'particular chari- 
 table purpose is declared by the testator, which does not exhaust the 
 whole value of the estate ;{q) or where the particular trust cannot be 
 carried into effect, either for its uncertainty,^) 2 or its illegality,(s) or for 
 want of proper objects. (i) And in all these cases the general intention 
 of the testator in favor of charity will" be effectuated by the court, 
 through a cy pres application of the fund. 3 
 
 224 ; 7 Ves. 43, n. ; Cook v. Dunkenfield, 2 Atk. 562, 567 ; Mills v. Farmer, 1 Mer. 55 ; 
 Commissioners of Char. Donations v. Sullivan, 1 Dr. & W. 501 ; vide supra, p. 128. 
 
 (p) Att.-Gen. v. Hickman, 2 Eq. Ca. Abr. 193 ; D'Oyley v. Att.-Gen. 2 Eq. Ca. Abr. 
 194; 7 Ves. 58, n.; White v. White, 1 Bro. C. C. 12 ; Moggridge t. Thackwell, 1 Ves. 
 Jun. 464 ; 7 Ves. 36 ; Mills v. Parmer, 1 Mer. 55 ; Att.-Gen. v. Glegg, 1 Atk. 356 ; 
 Att.-Gen. v. Andrew, 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. v. 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. Minshull, 4 Ves. 11 ; Att.-Gen. v. Mayor of Bristol, 
 2 J. & W. 308 ; Att.-Gen. v. Caius Coll., 2 Keen, 150 ; Att.-Gen. v. Catherine Hall, 
 Jac. 381 ; Att.-Gen. v. Drapers' Company, 4 Beav. 67 ; Att.-Gen. v. Wansey, 15 Ves. 
 230 ; Att.-Gen. v. Dixie, 2 M. & K. 342 ; Att.-Gen. v. Merchant Venturers' Society, 5 
 Beav. 338. 
 
 (r) Att.-Gen. v. Mathews, 2 Lev. 167 ; S. C. Finch, 245, and 7 Ves. 69, 70, stated; 
 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. 
 
 !» 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 Queeii 
 Anne's Bounty, Ambl. 637 ; Att.-Gen. v. Guise, 2 Vern. 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. 824; Martin v. Margham, 14 Sim. 230.] 
 
 (t) Att.-Gen. v. City of London, 3 Bro. C. C. 171 ; Att.-Gen. v. Boultbee, 2 Ves. Jun. 
 380; Hayter v. Trego, 5 Bnss. 113; Att.-Gen. v. Ironmongers' Company, 2 M. & K. 
 576 ; S. C. 2 Beav. 373 ; Cr. & Ph. 208 ; Att.-Gen. v. Bishop of Landaff, 2 M. & t. 
 586, stated ; Att.-Gen. v. Gibson, 2 Beav. 317, n. ; Att.-Gen. v. Oglander, 3 Bro. C. C. 
 160; Martin v. Margham, [14 Sim. 230; see Att.-Gen. v. Lawes, 8 Hare, 32;] vide 
 supra, p. 128, etseq. 
 
 1 See Att.-Gen. v. Wallace, 7 B. Monr. 611 ; Pickering v. Shotwell, 10 Barr, 27. 
 
 2 But where the amount of a fund to be appropriated to answer charity bequests is 
 not specified, the whole will be void for uncertainty. Flint v. Warren, 15 Sim. 626. 
 
 3 The cypres doctrine is not generally adopted in the United States. See ante, note 
 to page 128. It was, however, recognized in Baker v. Smith, 13 Metcalf, 41 ; Burr's 
 Ex'r v. Smith, 7 Verm. 287 {semble) ; Urmey's Exr's. v. Wooden, 1 Ohio, N. S. 160; 
 Griffin v. Graham, 1 Hawks, 96, but contra, McAuley 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 exercise their discretion, the Court, at the instance or 
 the Attorney-General, might appoint new trustees, and direct a scheme ; the statute 01 
 Elizabeth being held to be in force in Kentucky. By a recent Act of Assembly, the 
 cy pres doctrines of the English Chancery have been, in substance, incorporated into 
 
CHARITABLE OR PUBLIC PURPOSES. 67T 
 
 However, this construction will not prevail, unless the testator has 
 shown an intention to give to charity generally ; and if the establishment 
 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 dispositions of property 
 by will.(tt) 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 
 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 ana- 
 logy comes within its spirit and intendment.^) 
 
 .It may be premised, however, that a gift for "charity" or " charita- 
 ble purposes," generally, without adding more;(g) 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 purposes" 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 
 
 (m) Vide supra, Pt. I, Div. II, Ch. I, Sect. 3, page 120. 
 
 (a) Att.-Gen. v. Bishop of Oxford, 1 Bro. C. C. 444, n. ; S. C. 4 Ves. 431 ; Att.-Gen. 
 V. Goulding, 2 Bro. C. C. 42? ; Grieves v. Case, 4 Bro. C. C. 67 ; 1 Ves. Jan. 548 ; 
 Att.-Gen. v. Whitchurch, 3 Ves. 141 ; Corbyn v. French, 4 Ves. 418 ; Att.-Gen. v. 
 Davies, 9 Ves. 535 ; Att.-Gen. v. Hinxman, 2 J. & W. 270 ; De Themines v. De Bonne- 
 val, 5 Russ. 288 ; West v. Shuttleworth, 2 M. & K. 684, 698 ; Att.-Gen. v. Grocers' 
 Company, 12 Law Journ. N. S., Chanc. 196; [6 Beav. 526.] 
 
 (y) 2 Rop. Legs. Ill, et seq, ; 2 Story Eq. Jur. \ 1155 ; Morice v. Bishop of Dur- 
 ham, 9 Ves. 405. [See 1 Spence, Eq. 587.] 
 
 (2) Clifford v. Francis, 2 Freem. 330; Att.-Gen. v. Syderfen, 1 Vern. 224; 7 Ves. 
 43, n. ; Att.-Gen. v. Herrick, Ambl. 713 ; Moggridge v. Thackwell, 7 Ves. 36 ; Mills v. 
 Farmer, 1 Mer. 55 ; Legge v. Asgill, T. & R. 265, n. 
 
 (a) Nash v. Morley, 5 Beav. 177. (6) Kendall v. Granger, 5 Beav. 300, 303. 
 
 (c) Baker v. Sutton, 1 Keen, 224. 
 
 (d) Carus v. Townsend. 13 Law Journ. N. S., Chanc. 169. 
 
 the law of Pennsylvania ; the effect of which enactment is to prevent any resulting trust 
 to the heir at law or next of kin, upon any disposition of property thereafter made, for 
 any religious, charitable, literary, or scientific use, on any ground whatever. Act 26 
 April, 1855, I 10, Bright. Purd. Supp. 1118. 
 
678 OF TRUSTEES FOR 
 
 learning, free schools and scholars of universities ; for repairs of bridges, 
 ports, havens, causeways, churches, sea-banks, and highways ; for edu- 
 cation 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, handicraftsmen, and 
 persons decayed ; for relief or redemption of prisoners or captives ; and 
 for aid or ease of any poor inhabitants corilerning payments of fifteenths, 
 setting out of soldiers, and other taxes.(e) 1 
 
 Besides the above, purposes of a similar nature have been determined 
 to be charitable uses. Thus, gifts for diffusing the Protestant tenets 
 of the ■ Christian religion, and promoting public worship according to 
 those tenets, and for providing for its ministers — 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 sup- 
 port of a preacher of a certain chapel ;{m) or of dissenting ministers in 
 England ;{n) 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 ;(j>) to the clerk 
 of *a parish to keep the chimes of a church in good repair to 
 L -* play certain psalms ;(q) for the support of a burial ground,(»-) 
 have all been held to be charitable purposes. So also, gifts for the pro- 
 moting 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 ;(s) a sum 
 of money to be applied in forming works for supplying the inhabitants 
 
 (e) 2 Rop. Legs. Ill; 2 Story, Eq. Jur. \ 1159. 
 
 (/) Att.-Gen. v. Coll. of William and Mary, 1 Ves. Jim. 245. 
 
 (g) Widmore v. Woodroffe, Ambl. 636. 
 
 (h) Att.-Gen. v. Ruper, 2 P. "Wms. 125 ; Att.-Gen. v. Bishop of Oxford, 1 Bro. C. C. 
 444. n. (i) Adnam v. Cole, 6 Beav. 353. 
 
 (7c) Corbyn v. French, 4 Ves. 418, 427. 
 
 (I) Att.-Gen. v. Bishop of Chester, 1 Bro. C. C. 444. 
 
 (m) Grieves v. Case, 4 Bro. C. C. 67 ; S. C. 1 Ves. Jun. 548 ; Att.-Gen. v. Pearson, 
 3 Mer. 353, 409. 
 
 (n) Waller v. Childs, Ambl. 524 ; Att.-Gen. v. Hinckman, 2 Eq. Abr. 193 ; West v. 
 Shuttleworth, 2 M. & K. 696. 
 
 (o) Sorresby v. Hollins, Highmore, 174 ; Turner v. Ogden, 1 Cox, 316. 
 
 (p) Ibid. (q) Ibid. (r) Doe v. Pitcher, 6 Taunt. 363. 
 
 (s) Howse v. Chapman, 34 Ves. 542 ; Att.-Gen. v. Brown, 1 Swanst. 265; Att.-Gen. 
 v. Heelis, 2 S. & St. 67 ; Att.-Gen. v. Corporation of Dublin, 1 Bligh. N. S. 337 ; Att.- 
 Gen. v. Mayor of Carlisle, 2 Sim. 437; Att.-Gen. v. Corporation of Shrewsbury 6 
 Beav. 220. [See ante, 133 note.] 
 
 1 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. 679* 
 
 of a town with spring water ;(t) or for the support of a public botanical 
 garden,(w) 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 mas- 
 ter ;{y) and bequests to the poor inhabitants ;(g) or to the widows and 
 children of seamen belonging to a town ;(a) or to the widow and or- 
 phans ;{b) or to the poor inhabitants of a parish ;(c) or for the support 
 of hospitals ;(d) or to establish a lifeboat ;(e) or for the benefit of the 
 British Museum. (/)' 
 
 In a modern case, where the question of what would constitute a cha- 
 ritable 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 Elizabeth, if it come within the 
 equity of that statute. Thus a gift to 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 London, for the purpose of rebuilding St. 
 Paul's church after the Fire of London — have all been held to be chari- 
 table uses within the equity of the Statute of Elizabeth."^) So a trust 
 to assist a literary person in his pursuits is also a good charitable trust ; 
 as is a trust to found an essay on a subject of science. (A) 2 
 
 So where there is a trust for the benefit of poor "householders" or 
 
 (t) Jones v. Williams, Ambl. 656. [See Att.-Gen. v. Plymouth, 9 Beav. 67.] 
 (w) Townley v. Bedwell, 6 Ves. 194. 
 
 (a;) Att.-Gen. v. Williams, 4 Bro. C. C. 525. [See ante, 133, note.] 
 (y) Att.-Gen. v. Bowles, 2 Ves. 547 ; Johnston v. Swaun, 3 Mad. 457. 
 (z) Att.-Gen. v. Corporation of Exeter, 3 Russ. 395 ; Att.-Gen. v. Wilkinson, 1 Beav. 
 370 ; Bristow v. Bristow, 5 Beav. 289. 
 
 (a) Powell v. Att.-Gen. 3 Mer. 48. [See McColl v. Atherton, 12 Jur. 1042.] 
 (6) Att. Gen. v. Comber, 2 S. & St. 93. 
 
 (c) Att.-Gen. v. Clarke, Ambl. 422 ; Att-Gen. v. Bulles, Jac. 407 ; Att.-Gen. v. Ward, 
 3 Ves. Jun. 228: Att.-Gen. v. Pearce, 2 Atk. 38; Att.-Gen. v. Freeman, 1 Dan. 117. 
 
 (d) Masters v. Masters, 1 P. Wms. 420. (e) Johnston v. Swann, 3 Mad. 457. 
 (/) Trustees of British Museum v. White, 2 S. & St. 594. 
 
 (g) Att.-Gen. v. Helis, 2 S. & St. 67, 76. 
 
 (A) Thompson v. Thompson, 1 Coll. N. C. C. 395. [Pickering v. Shotwell, 10 Barr, 
 27 ; but see Briggs v. Hartley, 14 Jur. 683 j 19 L. J. Ch. 416.] 
 
 1 See ante, 133, and note ; and, in addition to the cases there cited, University of 
 London v. Yarrow, 26 L. J. Ch. 70, where a gift to found, establish, and uphold an 
 " Animal Sanatory Institution," for studying, investigating, and curing the maladies, 
 distempers, and injuries of any quadrupeds or birds useful to man, and for providing 
 a superintendent who was annually to give five lectures on the business of the Institu- 
 tion, was held to be a good charitable bequest. 
 
 2 In Lowell's Appeal, 22 Pick. 215, a bequest " for the promotion of the moral, intel- 
 lectual, and physical instruction and education of the inhabitants" of the city of Boston, 
 was held good as a charity. 
 
-680 OF TRUSTEES FOR 
 
 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 
 such.(i) 1 
 
 But there has been already occasion to observe that a trust for "pri- 
 r*4.^41 vate " *charities cannot be enforced by the court as a charitable 
 purpose ;(k) and also that a direction to apply a fund discretion- 
 arily in favor of objects of " benevolence Ind liberality," does not come 
 within the technical meaning of the term " charitable, "(t) 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.(wi) 
 
 So it has been held, that a gift for " schools of art" is not a charitable 
 purpose. (w) 
 
 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 relief of 
 domestic distress, assisting indigent but deserving individuals, or encour- 
 aging undertakings of general utility in such mode and proportions as 
 their own discretion may suggest, was not such a charitable 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 under- 
 takings of "general utility," rendered the trust too in definite, (o) 
 
 And it is settled, that a trust to present to a church on the nomina? 
 tion 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-Greneral.(p) 
 
 Moreover, in determining whether or not there is a proper charitable 
 purpose, the source from whence the fund is derived, as well as the ob- 
 ject to which it is to be applied, must be attended to. The fund must 
 
 (i) Att.-Gen. v. Pearce, 2 Atk. 88 ; White v. White, 7 Ves. 423 ; see Nash v. Morley, 
 5 Beav. 177. [See Bull v. Bull, 8 Conn. 47 ; stated ante, note to p. 68.] 
 
 (Jc) Ommaney v. Butcher, T. & R. 270; Ellis v. Selby, 1 M. & Cr. 293; Nash v. 
 Morley, 5 Beav. 177 ; ante, Pt. I, Div. II, Ch. I, Sect. 3. 
 
 (I) Morice v. Bishop of Durham, 9 Ves. 399 ; S. C. 10 "Ves. 522, and see James v. 
 Allen, 3 Mer. 17. [But see Witman v. Lex, 17 S. & R. 93.] 
 
 (m) 9 Ves. 405 ; see ante, Pt. I, Div. I, Ch. II, Sect. 4, PI. Ill ; and Pt. I, Div. II, Ch. 
 I, Sect. 3. 
 
 (n) Duke, Char. Us. 128. (o) Kendall v. Granger, 5 Beav. 300. 
 
 (p) Att.-Gen. v. Parker 1 Ves. 43 ; Att.-Gen. v. Newcombe, 14 Ves. 1, 6 ; see Fearon 
 v. Webb, 14 Ves. 19 ; Att.-Gen. v. Cuming, 2 N. C.'C. 139, 149. 
 
 1 A bequest to a lodge of freemasons " for the good of the craft, or for the relief 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, 3 Barb. Ch. 290. But as to Odd Fellows' 
 lodges, see, contra, Babb v. Reed, 5 Rawle, 151. 
 
CHARITABLE OR PUBLIC PURPOSES. 681 
 
 proceed from the gift or bounty 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.(g') 1 
 
 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 ;{rf although it will not interfere 
 to direct the application of the trust fund, where there is a competent 
 jurisdiction in the foreign country for that purpose. («) But it is to be 
 observed, that a trust for a foreign charitable purpose cannot be sup- 
 ported here, if it contravene the policy of the English law, although it 
 may not *be illegal according to the laws of the state where the r!l! A »,.-, 
 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 supported, 
 if they are of an illegal character. And their illegality may arise either 
 from their being in contravention of the common law, or of some statu- 
 tory provision. 3 Thus, gifts to superstitious purposes are illegal and void 
 
 (q) Att.-Gen. v. Heelis, 2 S. & St. 77. [See Thomas v. Ellmaker, 1 Pars. Eq. 107,] 
 
 (r) Oliphant v. Hendrie, 1 Bro. C. C. 571 ; Campbell v. Radnor, lb. 171 ; Att.-Gen. 
 v. Bishop of Chester, lb. 444 ; Att.-Gen. v. City of London, 3 Bro. C. C. 171 ; S. C, 
 1 Ves. Jun. 243 ; Att.-Gen. v. Lepine, 19 Ves. 309 ; S. C, 2 Sw. 181 ; Gospel Propa- 
 gation Society v. Att.-Gen., 3 Russ. 142; Curtis v. Hutton, 14 Ves. 537 ; Mackintosh v. 
 Townsend, 16 Ves. 330 ; Emery v. Hill, 1 Russ. Ill ; Thompson v. Thompson, 8 Jurist, 
 639. [Burbank v. Whitney, 24 Pick. 153.] 
 
 (s) Provost of Edinburgh v. Aubery, Ambl. 236 ; Emery v. Hill, 1 Russ. Ill ; Coll- 
 yer v. Burnett, Taml. 79. 
 
 (i) De Garcia v. Lawson, 4 Ves. 434, n. ; Smart v. Prujean, 6 Ves. 560. 
 
 1 Associations of individuals for general charitable or public purposes, are charities, 
 and within the control of the court as such. Thomas v. Ellmaker, 1 Pars. Eq. 108 ; 
 Wright v. Linn, 9 Barr, 433 ; Penfield v. Skinner, 11 Verm. 296. But it is otherwise 
 with regard to associations for mutual benevolence, as the Odd Fellows' societies. 
 Babb v. Reed, 5 Rawle, 151. 
 
 2 See Forbes v. Forbes, 18 Beav. 552 ; Att.-Gen. v. Sturge, 23 L. J. Ch. 495. The 
 court will not however in such case direct a scheme. Att.-Gen. v. Sturge, ut supr. A 
 corporation of a sister State may take land by gift or devise for a-- charitable use in 
 Pennsylvania, and it is not necessary that the purposes or objects of such a trust, should 
 be confined to the territorial limits of the State. Thompson v. Swoope, 24 Penn. St. 
 474. 
 
 3 A charity, otherwise valid, will not be affected by the fact, that it tends to a per- 
 petuity, 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 
 
682 OF TRUSTEES FOB 
 
 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.(w) 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 ;(y) and it has been de- 
 cided, that the act is retrospective in its operation. (2) 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 
 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.(J) 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 with a trust for charity generally, the failure will create a 
 resulting trust for the heir or next of kin of the donor.(e) 1 
 
 If, however, the gift create a general trust for charity, the illegality 
 of the particular purpose, as being superstitious, will not affect the vali- 
 
 (w) Duke, Char. Us. 466 ; 2 Rop. Legs. 113 ; 2 Jarm. Pow. Dev. 13. 
 
 (x) Att.-Gen. v. Todd, 1 Keen, 803 ; Cary v. Abbott, 7 Ves. 490 ; Att.-Gen. v. Power, 
 1 Ball & B. 145 ; De Themines v. Bonneval, 5 Russ. 288 ; De Garcia v. Lawson, 4 Ves. 
 434, n. ; Smart v. Prujean, 6 Ves. 560. 
 
 (y) West v. Shuttleworth, 2 M. & K. 684. (z) Bradshaw v. Tasker, 2 M. & K. 221. 
 
 (a) Da Costa v. De Paz, 2 Sw. 487, n. ; sed vide Strauss v. Goldsmid, 8 Sim. 514. 
 
 (6) Att.-Gen. v. Fishmongers' Company, 2 Beav. 151. 
 
 (c) West v. Shuttleworth, 2 M. & K. 684; De Themines v. De Bonneval, 5 Euss. 
 288 ; vide supra, p. 134. 
 
 to be created was directed to be ultimately applied to the foundation and support of a 
 charity. In Christ's Hospital v. Grainger, 1 Mac. &G. 460, 14 Jur. 339, however, it was 
 held, that a contingent limitation over from one charity to another, was not within the 
 rule against perpetuities, and therefore good. In the particular case, there was a be- 
 quest, 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 ntterly void, and the property be transferred to the corpora- 
 tion of London, in trust for Christ's Hospital. After the lapse of over two hundred 
 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 Pennsylvania, as entirely 
 satisfactory ; and the distinction on which it is based is, certainly, not very broad. 
 
 In New York, it has been recently held, that where a legacy is given to a religious 
 corporation for a purpose authorized by law, but with a direction that it shall accumu- 
 late until it reaches a certain sum before the income shall be expended, the direction 
 to accumulate only is void, and the legacy is not defeated. Williams v. Williams, 4 
 Selden, 525. 
 
 1 There are no uses which can be denominated superstitious in the United States. 
 Methodist Church v. Remington, 1 Watts, 218 ; Gass v. Wilhite, 2 Dana, 170. 
 
CHARITABLE OR PUBLIC PURPOSES. 683 
 
 dity of the general trust, and the duty of appropriating the amount to 
 other charitable purposes will devolve upon the crown. (d) 
 
 A conveyance or devise of real estate in trust for a charitable or public 
 institution, being a corporation, is inoperative by the Statutes of Mort- 
 main, unless it be sanctioned by a license from the crown. (e) 1 However, 
 the corporation of Queen Anne's bounty is an exception to this general 
 rule, for by the stat. 43 Geo. Ill, c. 107, that institution is exempted 
 from the operation of the Mortmain Acts. 
 
 Previously to the stat. 9 Geo. II, c. 36, there existed no legal restric- 
 tion to the power of vesting real estate in trustees for such charitable 
 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 interest therein, r*4cc-i 
 in trust or for the benefit of any charitable uses whatsoever, are 
 made void ; as are voluntary conveyances inter vivos for the same pur- 
 poses, unless made by deed, indented and sealed and delivered in the 
 presence of two or more witnesses, twelve calendar 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 universi- 
 ties and their colleges, (/) and the colleges of Eton, Winchester, and 
 Westminster, are expressly exempted from the operations of that act. 2 
 
 (d) Da Costa v. De Paz, Ambl. 228 ; S. C, 2 Sw. 487, n. ; Cary v. Abbott, 7 Ves. 
 490 ; West v. Shuttleworth, 2 M. & K. 697, 8; De Themines v. De Bonneval, 5 Russ. 
 297 ; ante, p. 48. 
 
 (e) Co. Litt. 99, a. ; 1 Sand. Us. 339, n. (/) See 45 Geo. Ill, c. 101. 
 
 1 As to the Statutes of Mortmain in the United States, see ante, 48, note. In Penn- 
 sylvania, by the 11th section Of the Act of 26 April, 1855, Bright. Supp. 1119, it is 
 enacted that no estate, real or personal, shall be bequeathed, devised, or conveyed, to 
 any body politic, or to any person in trust, for religious, or charitable uses, except the 
 same be done by deed or will, attested by two credible and at the time disinterested 
 witnesses, at least one calendar month before the decease of the testator or alienor ; 
 and all dispositions of property contrary thereto, shall be void, and go to the residuary 
 legatee or devisee, next of kin, or heirs according to law. 
 
 The Statutes of Mortmain do not apply to property not within the jurisdiction of the 
 State ; and therefore not to personal estate, which follows the law of the domicile. Van- 
 sant v. Roberts, 3 Maryl. R. 119. A corporation in another State may take real estate 
 by devise for a charitable use, in Pennsylvania, notwithstanding that corporations are 
 excepted from the Statute of Wills, in the State of its creation. Thompson v. Swoope, 
 24 Penn. St. 474. 
 
 2 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 ; Sparl- 
 ing v. Parker, 9 Beav. 450 ; Tomlinson v. Tomlinson, Id. 459 ; Smith v. Oliver, 11 Id. 
 481 ; Walker v. Milne, Id. 507 ; Trye v. Corporation of Gloucester, 14 Id. 173 ; Hilton 
 v. Giraud, 1 De G. & Sm. 183 ; Att.-Gen. v. Munro, 2 Id. 122 ; Att.-Gen. v. Gardner, 
 Id. 102; Myers v. Perigal, 16 Sim. 533, contra, S. C. in Common Pleas, 11 C. B. 90, 
 Ashton v. Lord Langdale, 20. Law J. Chanc. 234; Crafton v. Frith, 20 Law J. Chanc. 
 198 ; Whicker v. Hume, 1 De G. Mac. & G. 506 ; Longstaffv. Rennison, 1 Drew. 28; 
 
684 OF TRUSTEES FOR 
 
 This statute has been determined to include not only direct devises of 
 real estate to charitable uses, but also all such bequests, as in any man- 
 ner 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. mort- 
 gage, or by any other means out of lands,(i) (including judgment debts,(&) 
 or the lien of a vendor for his purchase-money,(Z) ) as also of leaseholds 
 or terms for years,(m) money secured on mortgage,(w) or money to be 
 applied in paying off incumbrances affecting lands in mortmain,(o) have 
 all been held to be void within the provisions of the act. And the 
 statute has also been held to apply to money secured by turnpike tolls, 
 or the bonds of turnpike commissioners,^) and to navigation shares,^) 
 and money secured upon poor or county rates,^) 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, hospital, or oljher building for a charitable purpose, is void ; 
 
 (g) Att.-Gen. v. Davies, 9 Ves. 545 ; Att.-Gen. v. Hartwell, Ambl. 451 ; S. C. 2 Ed. 
 334; Att.-Gen. v. Bowles, 2 Ves. 547; "Widmore v. Woodroffe, Ambl. 637; Grieves v. 
 Case, 4 Bro. C. C. 67 ; S. C. 2 Cox, 301 ; Middleton v. Clitherow, 3 Ves. 734. 
 
 (h) Trustees of British Museum v. White, 2 S. & St. 594; Durour v. Motteux, 1 Ves, 
 320 ; Att.-Gen. v. Lord Weymouth, Ambl. 720 ; Curtis v. Hutton, 14 Ves. 53 : Waite v. 
 Webb, 6 Mad. 71 ; Gravenor v. Hallam, Ambl. 643. [See Wright v. Trustees, 1 Hoff. 
 Ch. 202.] 
 
 (i) Arnold v. Chapman, 1 Ves. 108 ; Att.-Gen. v. Lord Weymouth, Ambl. 24; Jack- 
 son v. Hurloek, Ambl. 487 ; Jones v. Williams, Id. 651 ; Wright v. Roe, 1 Bro. C. C. 
 61 ; Leacroft v. Maynard, 1 Ves. Jun. 279 ; White v. Evans, 4 Ves. 21 ; Baker v. Hall, 
 12 Ves. 497 ; Currie v. Pye, 17 Ves. 462 ; Att.-Gen. v. Harley, 5 Mad. 321 ; Cooke v. 
 Stationers' Company, 3 M. & K. 266. 
 
 (k) Collinson v. Pater, 2 R. & M. 344. (1) Harrison v. Harrison, 1 R. & M. 71. 
 
 (m) Att.-Gen. v. Graves, Ambl. 155; Att.-Gen. v. Tomkins, Id. 216; Middleton v. 
 Spicer, 1 Bro. C. C. 201 ; Paice v. Archbishop of Canterbury, 14 Ves. 364; Johnson v. 
 Swann, 3 Mad. 457. 
 
 (n) Att.-Gen. v. Caldwell, Ambl. 635 ; Att.-Gen. v. Meyrick, 2 Ves. 44 ; Howes v. 
 Chapman, 4 Ves. 542 ; Att.-Gen. v. Munby, 1 Mer. 327 ; Johnston v. Swann, 3 Mad. 457. 
 
 (0) Corbyn v. French, 4 Ves. 418; Waterhouse v. Holmes, 2 Sim. 162; Davies v. 
 Hopkins, 2 Beav. 276. 
 
 (p) Knapp v. Williams, 4 Ves. 430, n. (q) Howes v. Chapman, 4 Ves. 542. 
 
 (r) Finch v. Squire, 10 Ves. 41. (s) Negus v. Coulter, Ambl. 367. ' 
 
 (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; Grimmett v. Grimmett, Ambl, 211; Curtis v. 
 Hutton, 14 Ves. 537. But see English v. Orde, Highm. Mortm. 82 ; Bridgm. Duke, 
 Char. Us. 432 ; and Kirkbank v. Hudson, 7 Price, 212 ; see Att.-Gen. v. Goddard, T. 
 & R. 348. 
 
 Att.-Gen. v. Hull, 9 Hare, 647, Church Building Soc. v. Barlow, 3 De G. Mac. & G. 
 120 ; Att.-Gen. v. Ward, 6 Hare, 477. A charitable gift may be divisible, under the 
 Mortmain Act, and will be upheld so far as allowed by law. Crafton v. Frith, 20 Law. 
 J. Chanc. 198. 
 
CHARITABLE OR PUBLIC PURPOSES. 685 
 
 for the direction to build, involves prima facie the purchase of land.(i) 
 In some of the *earlier cases, indeed, such bequests were held not ^.^-1 
 to be within the statute, as it might be possible for the trustees 
 in such cases to get a piece of ground given them, so as to prevent the 
 necessity of any purchase :(u) 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. (x) And the presumption that 
 land is intended to be purchased for the purpose of building, may be re- 
 butted by evidence to disprove that intention. (j/) 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 buildings already in 
 mortmain, is not within the statute. (jz) 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 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.(S) 1 
 
 (t) Att.-Gen. v. Tyndall, Ambl. 614; 2 Ed. 207 ; Pelham v. Anderson, 1 Ed. 296 ; 
 Att.-Gen. v. Hyde, Ambl. 751 ; 1 Bro. C. C. 444, n. ; Poy v. Poy, 1 Cox, 163 ; Att.-Gen. 
 v. Nash, 3 Bro. C. C. 588 ; Att.-Gen. v. Whitchurch, 3 Ves. 144 ; Chapman v. Brown, 6 
 Ves. 604; Att.-Gen. v. Parsons, 8 Ves. 186 ; Att.-Gen. v. Davies, 9 Ves. 535 ; Pritchard 
 v. Arbouin, 3 Russ. 456 ; Giblet v. Hobson, 5 Sim. 651 ; 3 M. & K. 517 ; Mather v. 
 Scott, 2 Keen, 172. 
 
 (m) Vaughan v. Farrer, 2 Ves. 182 ; Att.-Gen. v. Bowles, Id. 547. 
 
 (x) Henshaw v. Atkinson, 3 Mad. 306. (y) Giblet v. Hobson, 3 M. & K. 517. 
 
 (z) Glubb v. Att.-Gen. Ambl. 373 ; Harris v. Barnes, Id. 651 ; Brodie v. Duke of 
 Chandos, 1 Bro. C. C.444, n. ; Att.-Gen. v. Parsons, 8 Ves. 186 ; Att.-Gen. v. Munby 
 1 Mer. 327 ; Foy v. Poy, 1 Cox, 163 ; Ingleby v. Dobson, 4 Russ. 342. [Trye v. Corpo- 
 ration of Gloucester, 14 Beav. 173 ; Crafton v. Frith, 20 Law J. Chanc. 198.] 
 
 (a) Johnston v. Swann, 3 Mad. 457 ; and see Att.-Gen. v. Williams, 4 Bro. C. C. 426. 
 
 (b) Sturge v. Dimsdale, 6 Beav. 462 ; see Philanthropic Society v. Kemp, 4 Beav. 
 581. [See the remarks on these cases in Robinson v. Geldard, 3 Macn. & G. 735, by 
 Lord St. Leonards.] 
 
 1 But in Robinson v. Geldard, 3 Macn. & G. 735, before Lord St. Leonards, overrul- 
 ing 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 demonstrative 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 conversion in favor of charities, so as to 
 enable corporations (where excepted out of the Statute of Wills) to take, see Wright v. 
 Trustees, Hoffm. Ch. 202. 
 
686 OF TRUSTEES FOR 
 
 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.(d) And it has been de- 
 cided 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. 1 But gifts of real estate in England, or any in- 
 terest 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.(z) 
 
 r*4^8T *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 beneficially, and not where 
 they are made trustees for other charitable purposes.(A) 
 
 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 minis- 
 ters, 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, (m) 
 
 And so it seems that a gift to or for the benefit of the Grown 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 
 
 (c) Arnold v. Chapman, 1 Ves. 108 ; Henchman v. Att.-Gen., 2 S. & St. 498 ; S. C, 
 3 M. & K. 262. 
 
 (d) See M'Intosh v. Townsend, 16 Ves. 330 ; Oliphant v. Hendrie, 1 Bro. C. C. 570. 
 
 (e) Campbell v. Lord Radnor, 1 Bro. C. C. 271. 
 
 (/) Att.-Gen. v. Stewart, 2 Mer. 143. [Whicker v. Hume, 1 De G. Mac. & G.506.] 
 
 (g) Curtis v. Hutton, 14 Ves. 537; Att.-Gen. v. Mill, 3 Russ. 328. 
 
 (h) March v. Att.-Gen., 5 Beav. 334. 
 
 (i) Thompson v. Thompson, 1 Coll. N. C. 381. 
 
 (k) Att.-Gen. v. Munby, 1 Mer. 327. 
 
 (Z) 43 Geo. Ill, c. 108 ; 58 Geo. Ill, c. 45 ; 59 G. Ill, c. 134; 3 G. IV, c. 72 ; 5 
 Geo. IV, c. 103 ; 7 & 8 Geo. IV, c. 72 ; 1 & 2 Will. IV, c. 38 & 45 ; 2 & 3 Will. IV, 
 c. 61 ; 1 Vict. c. 75 ; 1 & 2 Vict. c. 106 & 107 ; 2 & 3 Vict, c, 49 ; 3 & 4 Vict. c. 60. 
 
 (m) Middletown v. Cater, 4 Bro. C. C. 409. 
 
 (n) Thellusson v. Woodford, 4 Ves. 227. 
 
 1 See Vansant v. Roberts, 3 Maryl. R. 119. 
 
CHARITABLE OR PUBLIC PURPOSES. 687 
 
 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 en- 
 rolment 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.(p)(l) # 
 
 There has been already occasion to consider at some length the re- 
 spective 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, (q) 
 
 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 respect 
 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, 1 or 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 the 
 proceedings : *and it is only where the question to be decided 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.^ 
 
 (0) British Museum v. White, 2 S. & St. 594. 
 
 (p) Att.-Gen. v. Munby, 1 Mer. 327 ; Price v. Hathaway, 6 Mad. 304. 
 (g) Ante, this section ; et vide supra, Pt. I, Div. II, Ch. I, Sect. 3. 
 (r) Ibid. 
 
 (s) De Themines v. De Bonneval, 5 Russ. 288 ; [Female Association v. Beekman, 
 21 Barb. 569.] 
 
 (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 required 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. 
 
 1 See Att.-Gen. v. Ward, 12 Jur. 807 ; and in the United States, Att.-Gen. v. Wal- 
 lace, 7 B. Monr. 611 ; Going v. Emery, 16 Pick. 119 ; Parker v. May, 5 Cushing, 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. Corporation of Newcastle v. Att.- 
 Gen., 12 CI. & F. 402; Att.-Gen. v. Magdalen College, 18 Beav. 223. 
 
 2 There are many dicta and adjudications since the statute of the 43 Elizabeth, 
 affirming the full jurisdiction of Chancery over charitable uses ab origine ; against 
 which appears but the single dictum of Lord Loughborough, in the Attorney-General 
 v. Bowyer, 3 Ves. Jr. 726 b, that the Court of Chancery had not, prior to the statute, 
 
OF TRUSTEES FOE 
 
 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 conferred 
 on the court by more than one statute. The statute 52 Geo. Ill, 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 adminis- 
 tration of the same ; and in case of any breach of such trusts or when- 
 ever the direction or order of a court of equity shall be deemed neces- 
 sary 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 summary way ; and by the 2d section every 
 such petition must be allowed and certified by the Attorney or Solicitor- 
 General. 1 
 
 By the Act of 59 Geo. Ill, c. 91, the provisions of which were con- 
 tinued 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 management of charities. 
 
 The 21st section of Sir Edw. Sugden's Act (1 Will. IV, c. 60) extends 
 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 
 
 (t) Att.-Gen. v. Hever, 2 Vern. 382 ; Att.-Gen. v. Parker, 1 Ves. 43 ; Att.-Gen. v. 
 Neweombe, 14 Ves. 1, G ; Att-Gen. v. Cuming, 2 N. C. C. 139, 149. 
 
 any cognizance upon informations for the establishment of charities ; but that parties 
 made out such cases 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-Gene- 
 ral, 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 re- 
 ports of cases since the statute, but from the calendars of the proceedings in Chancery 
 in the Tower of London, printed by direction of the Record Commission in 1827, that 
 charitable 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 subsequent, but antecedent to that statute. — T. 
 
 1 Upon the construction of this act see Re Hall's Charity, 14 Beav. 115 ; 15 Jnr. 
 740 ; Re Godmanchester Grammar School, 15 Jnr. 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, 1 Phill. 737 ; Att.-Gen. v. 1 
 Bovill, Id. 762; Re Shrewsbury Grammar School, 1 Mac. & G. 324; 14 Jur. 259; Be 
 Suir Island Charity, 3 Jones & Lat. 171; Re Butterwick Free School, 15 Jur. 913; 
 Att.-Gen. v. Bishop of Worcester, 9 Hare, 328. As to the cost, see Att.-Gen. v. Iron- 
 mongers' Co., 10 Beav. 194; Att.-Gen. v. Ward, 12 Jur. 807; James v. James, 11 
 Beav. 397 ; Solicitor-Gen. v. Bath, 13 Jur. 866. 
 
CHARITABLE OR PUBLIC PURPOSES. 689 
 
 of disability, &c, of the existing trustees ; those provisions have been 
 already considered at length in a previous chapter. (it) 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 Aat, 5 & 6 Will. IV, 
 c. 76, ' provides, that where any municipal corporation then existing, 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, and the future r*4C(yi 
 administration of the trust is to be provided for by the order of 
 the Lord Chancellor. 
 
 The recent act, 3 & 4 Vict. c. 77, 2 also confers extensive jurisdiction 
 on the court for controlling and reforming grammar schools ; and by the 
 21st section this jurisdiction may be exercised on petition, according to 
 the provisions of Sir Samuel Romilly's Act (52 Geo. Ill, 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 \{y) 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 re- 
 gulation of a charity, it will act without any actual complaint, whenever 
 any circumstance comes under its notice, which in its judgment requires 
 a remedy, (b) 
 
 (it) Ante, Pt. I, Div. Ill, Ch. II ; Pt. II, Ch. IV, Sect. 3. 
 
 (a;) Ante, Pt. II, Ch. IV, Sect. 3. 
 
 (y) Ludlow Corporation v. Greenhouse, 1 Bl. N. S. 17. 
 
 (z) Ex parte Bees, 3 V. & B. 10. 
 
 (a) Ex parte Skinner, 2 Mer. 453 ; Re St. Wenn's Charity, 2 S. & St. 66. 
 
 (6) Att.-Gen. v. Cooper's Company, 19 Ves. 194. 
 
 1 As to this Act, see Be St. John's Hospital, 3 Mac. & G. 235 ; 15 Jur. 233 ; Be Wor- 
 cester Charities, 2 Phill. 284 ; Be Shrewsbury Charities, 1 Mac. & G. 85 ; 13 Jur. 20 ; 
 Att.-Gen. v. Ludlow, 2 Phillips, 685 ; Att.-Gen. v. Corp. Norwich, 21 Law J. Chanc. 
 139. 
 
 s See, under this statute, called Sir Eardley Wilmot's Act, and generally as 'to Gram- 
 mar Schools, Be Fremington School, 10 Jur. 512 ; Att.-Gen. v. Earl of Devon, 15 Sim. 
 193 ; Att.-Gen. v. Earl of Stamford, 16 Sim. 453 ; 1 Phill. 737 ; Att.-Gen. v. Ludlow, 2 
 Phill. 685 ; Doe v. Willis, 5 Exch. 894 ; but see Willis v. Childs, 1 3 Beav. 454 ; S. C. 13 
 Beav. 117 ; Beg. v. Dean, &c, of Eochester, 20 Law J. Q. B. 467 ; (see 7 Hare, 532 ; 
 13 Jur. pt. ii, 309 ;) Att.-Gen. v. Bishop of Worcester, 9 Hare, 328. 
 
 44 
 
090 OF TRUSTEES FOR 
 
 Whore there is a local visitor duly constituted, the internal regulation 
 and conduct of the charity will he under his exclusive jurisdiction, and 
 the court will not interfere with him in the exercise of that jurisdiction. (c) 1 
 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.(d) 
 
 The crown is the visitor of all corporations of royal foundation :(e) 
 and also where the heir of the founder cannot be discovered(/) or is 
 lunatic. {g) 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 obtain- 
 ing their act, the court will not suffer the costs of the unsuccessful appli- 
 cation to be thrown on the funds of the charity :(h) although it would 
 r*4«-M be otherwise, *if the legislature had declared its approval of such 
 an application by passing the act.(«) 
 
 It-has been already seen,(/c) 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) 
 
 (c) Att.-Gen. v. Price, 3 Atk. 108; Att.-Gen. v. Middleton, 2 Ves. 327; Att.-Gen. v. 
 Smytbes, 1 Keen, 239 ; S. C. 2 M. & Cr. 135 ; St. John's College, Cambridge, v. Tod- 
 ington, 1 Burr. 200 ; Att.-Gen. v. Lock, 3 Atk. 165 ; Att.-Gen. v. Catherine Hall, Jac. 
 392 ; Att.-Gen. v. Archbishop of York, 2 R. & M. 468. 
 
 (d) Att.-Gen. v. Corporation of Bedford, 2 Ves. 505 ; Att.-Gen. v. Foundling Hospi- 
 tal, 2 Ves. Jun. 42 ; Att.-Gen. v. Dixie, 13 Ves. 519 ; Re Berkhampstead School, 2 V. 
 & B. 134 ; Att.-Gen; v. Earl of Clarendon, 17 Ves. 491. 
 
 (e) Case of Queen's College, Cambridge, Jac. 1 ; Co. Litt. 344, b ; 1 Bl. Comm. 481. 
 (/) Ex parte Wrangham, 2 Ves. Jun. .609 ; Att.-Gen. v. Black, 11 Ves. 191 ; Att- 
 
 Gen. v. Clarendon, IT Ves. 4, 98. 
 
 (g) Att.-Gen. v. Dixie, 13 Ves. 519, 533. 
 
 (A) Att.-Gen. v. Earl of Mansfield, 2 Russ. 501, 519. [Att.-Gen. v. Norwich, 16 
 Sim. 225. See Att.-Gen. v. Andrews, 14 Jur. 905.] 
 
 (i) Ibid. Downing College case, 2 Russ. 519, cited. 
 
 (k) Ante, Pt. I, Div. II, Chap. I, Sect. 3. 
 
 (1) Moggridge v. Thackwell, 7 Ves. 86 ; Paice v. Archbishop of Canterbury, 14 Ves. 
 372 ; Ommaney v. Butcher, T. & R. 270. 
 
 1 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 ; Whiston v. Dean, &c, of Rochester, 1 , 
 Hare, 532 ; Att.-Gen. v. Dean, &c, of Rochester, 20 Law J. Q. B. 467 ; Att.-Gen. v. 
 Browne's Hospital, 17 Sim. 137 ; Sanderson v. White, 18 Pickering (Mass.), 332. 
 
CHARITABLE CK PUBLIC PURPOSES. 691 
 
 It has also been shown,(m) that if a gift be impressed with the cha- 
 racter 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 ap- 
 propriate 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 specified 
 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 ex- 
 clusion of the claim of the trustees, if the specified sum be equal to the 
 annual value of the estate at the time of the gift.(qy Although the 
 principle of these cases has not met with the approval of later Judges, (r) 
 and it will not be 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 speci- 
 fied 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 enjoy- 
 ment of the surplus.(i) 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.(w) 1 
 
 (m) Ante, Pt. I, Div. II, Ch. I, Sect. 3. 
 
 (n) Ante, Pt. I, Div. II, Ch. I, Sect. 3 ; Att.-Gen. v. Ironmongers' Company, 2 M.. & 
 K. 579; 2 Beav. 313, and 1 Cr. & Ph. 208 ; Att.-Gen. v. Bishop of Landaff, lb. 586, 
 stated ; Att.-Gen. v. Oglander, 3 Bro. C. C. 166. 
 
 (o) Att.-Gen. v. Arnold, Show. P. C. 22 ; S. C. 2 Russ. 434, stated ; 2 Att.-Gen. v. 
 Sparks, Ambl. 201 ; Att.-Gen. v. Coopers' Company, 3 Beav. 29 ; Att.-Gen. v. Painters 
 and Stainers' Company, 2 Cox, 51 ; Att.-Gen. v. Minshull, 4 Ves. 11 ; Att.-Gen. v. Earl 
 of Winchelsea, 3 Bro. C. C. 334. 
 
 (p) Thetford School Case, 8 Co. 130 ; S. C. 2 J. & W. 316, stated ; Att.-Gen. v. 
 Johnson, Ambl. 190 ; Att.-Gen. f. Haberdashers' Company, 4 Bro. C. C. 103 ; Att.-Gen. 
 v. Mayor of Coventry, 2 Vern. 399 ; Ex parte Jortin, 7 Ves. 340 ; Att.-Gen. v. Coopers' 
 Company, 3 Beav. 29 ; Att.-Gen. v. Christ's Hospital, 4 Beav. 73 ; Att.-Gen. v. Brent- 
 wood School, 1 M. & K. 570 ; Att.-Gen. v. Drapers' Company, 6 Beav. 382. 
 
 (q) Att.-Gen. v. Coventry, 2 Vern. 399 ; 7 Bro. P. C. 235 ; Att.-Gen. v. Johnson, 
 Ambl. 190 ; Att.-Gen. v. Drapers' Company, 4 Beav. 67 ; Att.-Gen. v. Christ's Hospital, 
 lb. 73 ; Att.-Gen. v. Coopers' Company, 3 Beav. 29 ; Mystery of Mercers v. Att.-Gen., 
 2B1. N. S. 165. (r) See Att.-Gen. v. Mayor of Bristol, 2 J. & W. 307. 
 
 (s) Att.-Gen. v. Mayor of Bristol, 2 J. & W. 294 ; Att.-Gen. v. Grocers' Company, 6 
 Beav. 526. 
 
 (t) Ibid. 
 
 (u) Att.-Gen. v. Christ's Hospital, 4 Beav. 74 ; and see Att.-Gen. v. Caius College, 2 
 Keen, 150. 
 
 1 See on this subject the cases of Mayor of South Molton v. Att.-Gen., 5 H. Lds. 
 Cases, 1 ; Att.-Gen. v. Beverley, 19 Jur. 763. 
 
b9ii OF TRUSTEES FOR 
 
 So, d fortiori, where the residue, after making certain specified pay- 
 
 r*J.f -71 ments *in favor of a charity, is given expressly or by implication 
 
 L to the trustees for their own benefit, the particular charitable 
 
 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.(a;)(l) 
 
 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 property will be applied 
 ratably in the increase of the payments to all the objects of the donor's 
 bounty, including the trustees themselves.(y) 
 
 Where an estate is charged with the payment of certain specified 
 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.(g) 
 
 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 cy pres application — that is, an application to such charitable purpose 
 as will be supposed to come nearest to the original intention of the 
 donor. (b) 1 However, the trustees could never be advised to make such 
 
 (x) Att.-Gen. v. Catherine Hall, Jac. 381 ; Att.-Gen. v. Skinners' Company, 2 Russ. 
 407 ; Att.-Gen. v. Gascoigne, 2 M. & K. 647 ; Att.-Gen. v. Grocers' Company, 6 Beav. 
 526. 
 
 (y) Att.-Gen.' v. Caius College, 2 Keen, 150 ; Att.-Gen. v. Coopers' Company, 3 Beav. 
 29 ; see Mystery of Mercers v. Att.-Gen., 2 Bl. N. S. 165 ; [and Att.-Gen. v. Merchant 
 Venturers' Co., 17 L. J. Ch. 137.] 
 
 (s) Att.-Gen. v. Gascoigne, 2 M. & K. 647 ; Commissioners of Char. Donations v. 
 De Clifford, 1 Dr. & W. 245. 
 
 (a) Ante, Part I, Div. II, Chap. I, Sect. 3. 
 
 (6) Att.-Gen. v. Bonltbee, 2 Ves. Jun. 379 ; Att-Gen. v. Whitechurch, 3 Ves. 141 ; 
 Att.-Gen. v. Bowyer, lb. 714; Bishop of Hereford v. Adams, 7 Ves. 324; Att.-Gen. v. 
 Wansay, 15 Ves. 231 ; Att.-Gen. v. Coopers' Company, 19 Ves. 187 : Att.-Gen. v. Iron- 
 mongers' Company, 2 M. & K. 576 ; 2 Beav. 313, and Cr. & Ph. 208. 
 
 (1) The decision of Lord Langdale, M. R., in the recent case of Att.-Gen. v. 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, was there actually specified, in- 
 stead of being left uncertain. [See the remarks on this case in Mayor of S. Molton 
 v. Att.-Gen., 5 H. Lds. Cas. 1 ; Att.-Gen. v. Beverley, 19 Jur. 763.] 
 
 1 See ante, 451, note. 
 
CHARITABLE OK PUBLIC PURPOSES. 693 
 
 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 
 ey 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. 1 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 r*4f>o-i 
 necessarily follow, that such an alienation will be treated per se 
 as a breach of trust : for in some instances the court has sanctioned, (c) s 
 and has even gone so far as to direct a sale by the trustees, (d)(1) 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 preserve the trust property,((/) and it lies with those, 
 who seek to support a sale by them, to show that the transaction in ques- 
 tion 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 impro- 
 vident or prejudicial to the charity, it will be treated as a breach of 
 trust, and set aside.(^) 
 
 (c) Att.-Gen. v. Warren, 2 Sw. 302 ; Att.-Gen. v. Hungerford, 8 Bl. 437 ; 2 CI. & Fin. 
 357. [Griffitts v. Cope, 17 Penn. St. 96.]. 
 
 (d) Att.-Gen. v. Nethercoat, 1 Hare, 400, cited ; Anon, case, cited 2 Sw. 302 ; and 
 see Att.-Gen. v. Warren, 2 Sw. 291. [Att.-Gen. v. Wallace, 7 B. Monr. 611.] 
 
 (e) Att.-Gen. v. Mayor, &c, of Newark, 1 Hare, 395 ; see Att.-Gen. v. Buller, Jac. 
 412. 
 
 (/) Per Lord Langdale, M. R., 4 Beav. 458. (g) Ibid. 
 
 \h) Att.-Gen. v. Owen, 10 Ves. 555 ; Att.-Gen. v. Brooke, 18 Ves. 326 ; Att.-Gen. v. 
 Brettingham, 3 Beav. 51 ; Att.-Gen. v. Pargeter, 6 Beav. 150. 
 
 (i) Att.-Gen. v. Kerr, 2 Beav. 420 ; Att.-Gen. v. Brettingham, 3 Beav. 91 ; Att.-Gen. 
 v. Mayor of Newark, 1 Hare, 395 ; see Att.-Gen. v. Burgesses of East Retford, 2 M. 
 
 (1) An order for the sale of charity estates may be obtained by petition under Sir S. 
 Romilly's Act (52 Geo. Ill, c. 101). Re Parke's Charity, 12 Sim. 329. [But see Re 
 Suir Island Charity, 3 Jones & Lat. 171.] 
 
 1 Where the scheme has been approved by the Attorney-General, a report by a Mas- 
 ter appears unnecessary; see Att.-Gen. v. Earl of Mansfield, 14 Sim. 601. 
 
 2 Trustees of a religious or charitable purpose cannot create a new use or convey the 
 estate for purposes inconsistent with those for which they held it. But where a cestui que 
 trust definite, as a religious society, assents, it will be valid. Brown v. Lutheran'Church, 
 23 Penn. St. 498. 
 
694 OF TRUSTEES FOR 
 
 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 ;(&y 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 of the lease. 
 
 With regard to the term to be granted, it may be laid down as a gene- 
 ral 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,(«) in possession and not re- 
 versionary,^) and without any absolute covenant for renewal, still less 
 for perpetual renewal.(p) 
 
 This is the general rule ; and trustees could rarely be advised to de- 
 part from it without the sanction of the court. But it by no means 
 follows, that leases granted in opposition to that rule are necessarily in- 
 valid 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 such cases it seems that the 
 L -I number of lives in the grant ought not to exceed thre&(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 trustees 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 re- 
 newal has also been sustained on the same ground.(w) 
 
 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 
 
 & K. 35. [Att.-Gen. v. Magdalen (College, 18 Beav. 223 ; 23 L. J. Ch. 844 ; see Price 
 v. Methodist Church, 4 Hamm. 542.] 
 
 (k) Att.-Gen. v. South Sea Company, 4 Beav. 457. 
 
 (I) Att.-Gen. v. Cross, 3 Mer. 524, 539. 
 
 (to) Att.-Gen. v. Owen, 10 Ves. 555, 560 ; Att.-Gen. v. Backhouse, 17 Ves. 283, 291. 
 
 (n) Ibid. (o) Att.-Gen. v. Kerr, 2 Beav. 420. 
 
 (p) Att.-Gen. v. Brooke, 18 Ves. 319. 
 
 (q) Att.-Gen. v. Cross, 3 Mer. 524; Att.-Gen. v Crook, 1 Keen, 121. 
 
 (r) Att.-Gen. v. Cross, 3 Mer. 539. (s) Att.-Gen. v. Backhouse, 17 Ves. 283. 
 
 (t) Att.-Gen. v. Warren, 2 Sw. 291 ; Att.-Gen. v. South Sea Company, 4 Beav. 453 ; 
 see Att.-Gen. v. Kerr, 4 Beav. 420, 428. [See Black v. Ligon, 1 Harp. Eq. 205 ; but 
 see the remarks of Chancellor Kent, 4 Comm. 107, and post, 482, note.] 
 
 (u) Att.-Gen. v. Hungerford, 8 Bl. 437 ; 2 CI. & Fin. 357. 
 
 1 As to leases of the charity estates, see Att.-Gen. v. Gaines, 11 Beav. 63 ; Att.-Gen. 
 v. Pilgrim, 2 Hall & Tw. 186 ; Att.-Gen. v. Donnington, 22 Law J. Chanc. 707 ; Black 
 v. Ligon, 1 Harp. Eq. 205. 
 
CHARITABLE OR PUBLIC PURPOSES. 695 
 
 terms of years absolute,(a;) or for a term in reversion,^) or containing 
 a covenant for perpetual renewal,^) have repeatedly been set aside for 
 ■want of proof of facts which could establish their propriety. 
 
 Where there is any doubt in the mind of the court as to the propriety 
 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 obli- 
 gation to repair, and expend money on the property,(e) will have their 
 due weight. For the disadvantage occasioned by the length of the 
 term may be counterbalanced by the advantageous nature of the cove- 
 nants and other stipulations. . 
 
 So the custom of letting usually prevailing in the country will be 
 taken into consideration ;(d) although this custom will sanction a hus- 
 bandry lease for 200 years at a fixed rent.(e) 
 
 With regard to the consideration which will support a lease by trus- 
 tees of charity lands, it has been laid down, that the trustees may take 
 fines, or reserve rents, as is the moat 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. (g) 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 be sufficient that a 
 little higher rent might have been obtained,(z'J or that the value •- -■ 
 of the property at a subsequent period is shown to have been greater than 
 the rent obtained.(Zc) In cases of charity property, the security of the 
 rent is the essential point to be looked to ; and for that reason it is de- 
 sirable that the tenant should have a beneficial interest in the property 
 
 {x) Att.-Gen. v. Green, 6 Ves. 453 ; Att.-Gen. v. Owen, 10 Ves. 555 ; Att.-Gen. v. 
 Griffith, 13 Ves. 565 ; Att.-Gen. v. Brooke, 18 Ves. 326 ; Att.-Gen. v. Hotham, T. & R. 
 209 ; Att.-Gen. v. Pargeter, 6 Beav. 150; Att.-Gen. v. Foord, lb. 288. 
 
 (y) Att.-Gen. v. Kerr, 2 Beav. 420. (z) Att.-Gen. v. Brooke, 18 Ves. 319. 
 
 (a) Att.-Gen. v. Maywood, 18 Ves. 315, 319 ; Att.-Gen. v. Backhouse, 17 Ves. 283, 
 294 ; Att.-Gen. v. Warren, 2 Sw. 302. 
 
 (6) Att-Gen. v. Backhouse, 17 Ves. 291 ; Att.-Gen. ,. Owen, 10 Ves. 560. 
 
 (c) Att.-Gen. v. Cross, 3 Mer. 540. 
 
 (d) Att.-Gen. v. Price, 3 Atk. 110 ; Att.-Gen. v. Cross, 3 Mer. 529, 540. 
 
 (e) Att.-Gen. v. Pargeter, 6 Beav. 150. (/) Att.-Gen. v. Stamford, 2 Sw. 591. 
 (g) Ibid. 
 
 (h) Reresby v. Farrer, 2 Vern. 414; East v. Ryal, 2 P. Wrns. 284; Att.-Gen. v. 
 Gower, 9 Mod. 224; Att.-Gen. v. Dixie, 13 Ves. 519 ; Att.-Gen. v. Maywood, 18 Ves. 
 315 ; Yervel v. Sutton, Duke Ch. Us. 43 ; Eltham v. Warreyn, lb. 67. 
 
 (i) Att.-Gen. v. Cross, 3 Mer. 541. {k) Ibid. 
 
696 OF TRUSTEES FOR 
 
 as an encouragement to pay his rent (I) Therefore, the inadequacy of 
 the amount reserved is less a badge of fraud in this, than almost any 
 other instance. (m) 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. (n) And 
 so if there be in addition any evidence, or presumption, of collusion or 
 corruption 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 difference between 
 the proper value and what has been actually received. (q) 
 
 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 trus- 
 tees 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 per- 
 sons. A man acting for himself may indulge his own caprices, and con- 
 sider 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 that 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 incumbent upon 
 them to adhere to the line thus marked out for their guidance.(s) In- 
 deed, the court itself has no power to sanction any departure from the 
 prescribed mode.(i) But where the trust instrument 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 re- 
 serve any personal benefit for themselves. For instance, where a cor- 
 poration, being trustees for a charity, caused a covenant to be inserted 
 
 (I) See Watson v. Hindsworth Hospital, 2 Vera. 596. 
 (m) Ex parte Skinner, 2 Mer. 457. 
 
 (re) Att.-Gen. v. Green, 6 Ves. 452 ; Att.-Gen. v. Dixie, 18 Ves. 519 ; Att.-Gen. v. 
 Brooke, 18 Ves. 326. (o) Ex parte Skinner, ubi supra. 
 
 (p) Ibid. (g) Att.-Gen. v. Stamford, 2 Sw. 592. 
 
 (r) Att.-Gen. v. Kerr, 2 Beav. 428. (s) See Att.-Gen. v. Griffith, 13 Ves. 565. 
 
 (t) Att.-Gen. v. Rochester. 2 Sim. 34. 
 («) Ex parte Berkhampstead School, 2 V. & B. 138. 
 
CHARITABLE OR PUBLIC PURPOSES. 697 
 
 in a *lease of the charity lands, binding the lessee to grind at [-#400-1 
 the corporation mill, it was held by the Lord Chancellor, that 
 this covenant was improper, and a sufficient reason for refusing them 
 their costs.(u) 
 
 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 occupa- 
 tion rent at the extreme value. (a;) 
 
 The extent of the powers of the trustees in the control and manage- 
 ment of charities will depend in every case on the terms of the deed or 
 instrument of foundation. Where the general discretionary administra- 
 tion of the trust is committed to them, the court will not interfere with 
 them in the exercise of their discretion, unless a breach of trust be 
 shown to have been committed. 1 And the right of nominating and re- 
 moving the objects and officers of the charity, and generally of deter- 
 mining its mode of application within the principles pointed out by the 
 founder, will be left exclusively to them.(«/) 
 
 But the trustees must be careful not to exceed the powers conferred 
 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 defined 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 ap- 
 plication of the property to a different object will be a breach of trust. 
 Thus, a trust to find a preacher in Dale, will not be properly executed 
 by providing one in Sale. And a trust to provide a preacher will not 
 authorize an application of the fund to the relief of the poor, or any 
 other different purpose.(a) 
 
 (») Att.-Gen. v. Stamford, 2 Sw. 592, 3. 
 
 (x) Att.-Gen. v. Dixie, 13 Ves. 519, 534; Att.-Gen. v. Clarendon, 17 Ves. 491, 500. 
 
 [y) Att.-Gen. v. Lock, 3 Atk. 164 ; Att.-Gen. v. Myddleton, 2 Ves. 327 ;, Att.-Gen. v. 
 Corporation of Bedford, lb. 505 ; Att.-Gen. v. Harrow School, lb. 551 ; Att.-Gen. v. 
 Foundling Hospital, 2 Ves. Jun. 41 ; 4 Bro. C. C. 165 ; Att.-Gen. v. Earl of Clarendon, 
 17 Ves. 491 ; Ex parte Berkhampstead School, 2 V. & B. 134; Waldo v. Caley, 16 Ves. 
 206 ; Horde v. Earl of Suffolk, 2 M. & K. 59. 
 
 (z) See Att.-Gen. v. Chrisfcchurch, Jac. 474; Att.-Gen. v. Earl of Mansfield, 2 Russ. 
 501 ; Att.-Gen. v. Earl of Lonsdale, 1 Sim. 105 ; Att.-Gen. v. Buller, Jac. 407. 
 
 (a) Duke's Char. Us. 116 ; Wilvescomb case, lb. 94. 
 
 ' Att.-Gen. v. Mosley, 12 Jur. 889; Willis v. Childe, 13 Beav. 117, 454 (but see 
 Doe dem. Childe v. Willis, 5 Exch. 894) ; Reg. v. Darlington School, 6 Q. B. 682 ; 
 Wilkes's Charity, 3 Macn. & G. 440 ; Parker v. May, 5 Cush. 351 ; Att.'Gen. v. Wal- 
 lace, 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. 
 
698 OP TRUSTEES FOB 
 
 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 
 suffer the surplus to be mixed with the parish rates for general pur- 
 poses.(b) And a fund vested in trustees for the purpose of establishing 
 an hospital, will be improperly applied towards lighting and paving the 
 town.(c) 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 trus- 
 tees 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) 
 
 So, the trustees of a charity will not be justified in placing the funds 
 r*4«„ *under the control of other persons, who were not contemplated 
 *-. J 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 construction 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. (g) 1 And a trust to establish a " gram- 
 mar school," must be executed by the establishment of a school for in- 
 struction in the classics : or at any rate a system of education 1 , 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 discretion of the trustees to establish a grammar school, 
 or a school for teaching other branches of learning, subject to the con- 
 trol 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.(i) 
 
 (6) Att.-Gen. v. Vivian, 1 Russ. 237. (c) Att.-Gen. v. Kell, 2 Beav. 575. 
 
 (d) Att.-Gen. v. Brandreth, 1 N. C. C. 200. 
 
 (e) Att.-Gen. v. Mansfield, 2 Russ. 501. 
 (/) Att.-Gen. v. Brandreth, 1 N. C. C. 200. 
 
 (g) Att.-Gen. v. Clarke, Ambl. 422 ; Att.-Gen. v. Corporation of Exeter, 2 Russ. 45, 
 and 3 Russ. 395 ; Att.-Gen. v. Wilkinson, 1 Beav. 370. [But see Att.-Gen. v. Bovill, 
 
 1 Phill. 762, where this rule was disapproved.] 
 
 (A) Att.-Gen. v. Hartley, 2 J. & W. 353 ; Att.-Gen. v. Dean of Christchurch, Jac. 
 474; Att.-Gen. v. Earl of Mansfield, 2 Russ. 501 ; Re Bedford Charity, 2 Sw. 528. 
 (i) Duke's Ch. Us. 169 ; Att.-Gen. v. Hartley, 2 J. & W. 370 ; Att.-Gen. v. Jackson, 
 
 2 Keen, 541. 
 
 (&) Att.-Gen. v. Haberdashers' Company, 3 Russ. 530 ; Att.-Gen. v. Dixie, 3 Russ. 
 534, n. ; 2 M. & K. 342 ; Att.-Gen. v. Gascoigne, 2 M. & K. 652 ; Att.-Gen. v. Caius 
 College, 2 Keen, 151. 
 
 1 See as to the apportionment of bequests to the " poor of a parish," on the division 
 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 appropriated for school 
 purposes for its inhabitants, Plymouth v. Jackson, 15 Penn. St. Rep. 44. 
 
CHARITABLE OR PUBLIC PURPOSES. 699 
 
 In like manner, where the trust is " for the establishment and main- 
 tenance of a place of worship for Protestant dissenters," and the parti- 
 cular sect and nature of the doctrines to he 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 different persuasion will amount to a breach of trust 
 on the part of the trustees, for which they may be removed from the 
 trust.(Z) 1 
 
 (I) Foley v. Wontner, 2 J. & W. 247 ; Att.-Gen. v. Pearson, 3 Mer. 353 ; and 7 Sim. 
 290 ; Att.-Gen. v. Shore, 7 Sim. 309, n. [9 CI. & F. 390 (Lady Hewley's Charities)] ; 
 Att.-Gen. v. Drummond, 1 Dr. & W. 353 ; 3 Id. 162. 
 
 1 See, on this subject, Att.-Gen. v. Shore, 9 CI. & F. 390; Att.-Gen. v. Wilson, 16 
 Sim. 210 ; Att.-Gen. v. Munro, 2 De G. & Sm. 122 ; Glasgow Coll. v. Att.-Gen., 1 H. 
 L. Cas. 801, overruling S. C, 2 Coll. 66o ; "Att.-Gen. v. Hutton, 1 Drury, 480 ; Drum- 
 mond v. Att.-Gen., 2 H. L. Cas. 837 ; Att.-Gen. v. Murdoch, 7 Hare, 445 ; aff. 1 De G. 
 M. & G. 86; Att.-Gen. v. Lawes, 8 Hare, 32. The better doctrine appears to be, 
 in the United States, that the court will interfere to prevent a diversion of the tempo- 
 ralities of a church, whether by a majority or a minority of its members ; and to re- 
 quire them to be appropriated to the support of the form of worship, and to teaching 
 the doctrines, for which they were originally intended. Gable v. Miller, 10 Paige, 647 ; 
 Miller v. Gable, 2 Denio, 492 ; Field v. Field, 9 Wend. 394 ; Kniskern v. Lutheran 
 Churches, 1 Sandf. Ch. 439 ; Hendrickson v. Decow, Saxton, 577 ; App v. Lutheran 
 Congregation, 6 Barr, 201 ; Trustees v. Sturgeon, 9 Barr, 322 ; see Den v. Bolton, 7 
 Halsted, 206 ; Robertson v. Bullions, 1 Kern. 243 ; Harper v. Straws, 14 B. Monroe, 48. 
 Contra Organ Meeting-House v. Seaford, 1 Dev. Eq. 453 ; Keyser v. Stansifer, 6 
 Hamm. 363. In order to ascertain what were those doctrines, references may be made 
 to history, and to the prior and contemporaneous standard theological writers of the 
 time. Att.-Gen. v. Shore, 9 CI. & F. 390 ; Drummond' v. Att.-Gen., 2 H. L. Cas. 837 ; 
 Miller v. Gable, 2 Denio, 492 ; Trustees v. Sturgeon, 9 Barr, 322 ; Kniskern v. Luthe- 
 ran 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 particu- 
 lar opinions is inadmissible. Drummond v. Att.-Gen. ; Trustees v. Sturgeon ; Robert- 
 son v. Bullions, ut supra ; Att.-Gen. v. Clapham, 24 L. J. Ch. 177 ; 19 Jur. 505. In 
 the last case it was held, that where a deed conveyed real estate for the erection and 
 support of a Methodist Chapel, and the trustees and their successors were empowered to 
 appoint the preacher, from time to time, parol evidence was inadmissible, of the para- 
 mount intention of the founder, or that such a method of appointing preachers was in- 
 consistent with the established discipline and organization of the Methodist Church. 
 It was further held not to be material or ground of removal, that the trustees, at the 
 time, did not sympathize with the doctrines of Methodism, no misconduct being shown 
 against them. Where property is conveyed to a particular church, without reference to 
 its connection with any other society or body, the members of the church, who remain 
 under the organization then existing, are the beneficiaries. Harper v. Straws, 14 B. 
 Monr. 48. 
 
 In New York, it appears that a religious corporation created under the provisions of 
 the general Acts of that State, is not an ecclesiastical society in the English sense of 
 the term ; and its trustees cannot take a trust for the benefit of the members of the 
 church, as distinguished from the members of the society. Nor can such trustees re- 
 ceive a trust limited to the support of a particular faith or doctrine, as the majority of 
 the society are given by statute an entire control over its revenues. Robertson v. 
 Bullions, 1 Kern. 243, by a majority of the court. See, further, as to the separation of 
 
700 OP TRUSTEES FOR 
 
 So, where a lease was granted to trustees in trust for " the congrega- 
 tion 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 congregation 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 justified in removing them 
 by ejectment. (m) 
 
 Where a trust is created for maintaining " the worship of God," with- 
 out 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 apply- 
 ing accumulated rents in rebuilding the chapel ; although the corpus of 
 T*4fi81 *^ e property could not be so applied : and it seems that the 
 trust did aot authorize any payments towards the fitting up of 
 the chapel, (o) 
 
 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 ad- 
 mitted of the increase, and where the increase of the salaries was not 
 prohibited by the will.(p) However, in the absence of special discre- 
 tionary 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 education 
 of the children of the parish. (q) 
 
 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 administration 
 of the trustees, however ample may be their discretionary 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 
 
 (m) Broom v. Summers, 10 Law Journ. N. S. Charic. 71. 
 (n) Att.-Gen. v. Pearson, 3 Mer. 409. 
 (o) Att.-Gen. v. Foyster, 1 Anst. 116. 
 (p) Att.-Gen. v. Dean of Christchurch, 2 Russ. 321. 
 (q) Wilkinson v. Malin, 2 Tyr. 544, 570. 
 
 (r) Supple v. Lawson, Ambl. 730 ; "Waldo v. Caley, 16 Ves. 211 ; Wellbeloved v. 
 Jones, 3 S. & St. 40; Corporation of Sons of Clergy v. Mose, 9 Sim. 610. 
 
 religious bodies, Skilton v. Webster, Bright. N. P. 203 ; Presbyterian Congregation v. 
 Johnston, 1 Watts & S. 1 ; Hadden v. Chorn, 8 B. Monr. 78 ; Smith v. Swormstedt, 16 
 How. U. S. 288 (The Methodist Church Case). 
 
 A mere change of name by a religious society will not affect any of its rights. Cahill 
 v. Bigger, 8 B. Monr. 213. 
 
CHARITABLE OR PUJBLIC PURPOSES. 701 
 
 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 reference. (t) 
 
 And where the trust is for a foreign charity, the court has no juris- 
 diction to direct a scheme, but will order the fund to be paid over to the 
 trustees, (it) 
 
 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 effect out of the personal estate, 
 where they are void, so far as they touch any interest in land.(«) 
 
 Neither the old Statutes of Limitation, («/) nor the late act 3 & 4 Will. 
 IV, c. 27, apply to any questions between the trustees and the object of 
 the charity as to the appropriation or application of the trust pro- 
 perty.^) 1 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) 2 
 
 (s) Society for Propagation of Gospel v. Att.-Gen., 3 Russ. 143. 
 
 (t) 1 S. & St. 43 ; 9 Sim. 610. 
 
 (w) Provost of Edinburgh v. Aubery, Ambl. 236 ; Emery v. Hill, 1 Euss. 112; Minet 
 v. Vulliamy, lb. 113 ; Att.-Gen. v. Lepine, 2 Sw. 181. 
 
 (x) Mogg v. Hodges, 2 Ves. 52 ; Att.-Gen. v. Tyndall, Ambl. 614; Porster v. Blag- 
 den, lb. 704; Hillyard v. Taylor, Ambl. 713 ; Att.-Gen. v. Hurst, 2 Cox, 364*; Make- 
 ham v. Hooper, 4 Bro. C. C. 153. [See ante, 457, note.] 
 
 (y) Att.-Gen. v. Mayor of Coventry, 2 Vern. 399 ; 7 Bro. P. C. 235 ; 3 Mad. 353 ; 
 Att.-Gen. v. Mayor of Bristol, 2 J. & W. 321 ; Att.-Gen. v. Mayor of Exeter, Jae. 448 ; 
 Irish Inc'orporated Society v. Richards, 1 Dr. & W. 258 ; Att.-Gen. v. Hungerfbrd, 8 
 Bl. N. S. 437. 
 
 (z) See Sir E. Sugden's observations in Irish Incorp. Society v. Richards, 1 Dr. & 
 W. 287, 8 ; and Att.-Gen. v. Persse, 2 Dr. & W. 67 ; Att.-Gen. v. Flint, V. C. Wigram. 
 [4 Hare, 147 ; Comm. of Donations v. Wybrants, 2 Jones & Lat. 183 ; Att.-Gen. v. 
 Magdalen College, 18 Beav. 223 ; 23 L. J. Ch. 844.] 
 
 (a) Att.-Gen. v. Mayor of Bristol, 2 J. & W. 321 ; Att.-Gen. Mayor of Exeter, Jac. 
 448. 
 
 1 Nor do they affect the right of the Attorney-General to proceed, whether ex officio or 
 ex relatione, against a purchaser from charitable, trustees with notice that the sale was 
 in breach of trust. Att.-Gen. v. Magdalen College, 18 Beav. 225. 
 
 2 No neglect or perversion of the funds of a charity, by the trustees, will be permitted 
 to affect it. Hadley v. Hopkins 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 Hamm. 542; McKissick v. Pickle, 16 Penn. St. 148 ; but see S. 
 C. 21 Penn. St. 232. The declarations of a trustee for a charity will not affect the 
 persons interested in the trust. McKissick v. Pickle, ut supr. See, however, the re- 
 marks on this point in S. C. 21 Penn. St. 236. But the general rule does not apply 
 where there is an express limitation over from one charity to another, contingent 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. 
 
 In Bliss v. Bradford, 1 Gray, 407, where a conveyance had been made in trust for the 
 
702 OF TRUSTEES FOR 
 
 * Where upon an information or suit, the court has decided 
 ■- % -^ 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 information 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 extending the account farther 
 back.(6) And the circumstances of the trustees 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, (d) 
 
 But this relaxation of the strict rules of equity is a matter of discre- 
 tion, in the exercise of which the court will be governed by the particu- 
 lar circumstances of each case.(e) And it is clear, that if there be any 
 wilful or improper conduct on the part of the trustees, the retrospective 
 account will be decreed against them from the commencement 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 account from the time of their re- 
 ceiving the notice, (g) And if they should confound the particular fund 
 ^n question with other charitable funds, also under their control, in one 
 general account, instead of keeping the accounts separate, that would be 
 an act of mal-administration, for which no goodness of intention (sup- 
 posing them to be cognizant of the confusion they were effecting) could 
 excuse them.(/i) 1 
 
 (&) Att.-Gen. v. Johnson, Ambl. 190 ; Att.-Gen. v. Owen, 10 Ves. 555 ; Att.-Gen. v. 
 Griffith, 13 Ves. 565; Att.-Gen. v. Dixie, lb. 519 ; Att.-Gen. v. Skinners' Company, 5 
 Mad. 173 ; Att.-Gen. v. Mayor of Coventry, 7 Bro. P. C. 235 ; Att.-Gen. v. Corporation 
 of Exeter, 2 Russ. 50 ; Att.-Gen. v. Burgesses of East Retford, 2 M. & K. 35 ; Att.- 
 Gen. v. Mayor of Newbury, 3 M. & K. 650; Att.-Gen. v. Prettyman, 4 Beav. 462; 
 Att.-Gen. v. Drapers' Company, lb. 67; Att.-Gen. v. Christ's Hospital, lb. 73; Att.- 
 Gen. v. Drapers' Company, 6 Beav. 382. 
 
 (c) Att.-Gen. v. Mayor of Newbury, 3 M. & K. 651. 
 
 (d) Att.-Gen. v. Prettyman, 4 Beav. 462 ; and see Att.-Gen. v. Caius College, 2 
 Keen, 150, 167. 
 
 (e) Att.-Gen. v. Mayor of Exeter, Jac. 449, 450 ; Att.-Gen. v. Prettyman, 4 Beav. 
 466 ; Att.-Gen. v. Drapers' Company, 6 Beav. 382. 
 
 (f) Att.-Gen. v. Brewers' Company, 1 Mer. 295. 
 
 (g) See Att.-Gen. v. Burgesses of East Retford, 2 M. & K. 35, 37. 
 
 (h) Per Lord Brougham, Ch., in Att.-Gen. v. Mayor of Newbury, 3 M. & K. 651, 2. 
 support and maintenance of ministers who should be ordained and settled over the 
 Anabaptists in C, the court, on petition of four members of an Anabaptist Society 
 which had existed de facto in C. for fifty years, appointed a trustee, without prejudice 
 to the question of forfeiture. 
 
 1 Where there is a breach of trust by charity trustees, the party injured has no right 
 to be indemnified out of the trust fund. Feoffees of Heriot's Hospital v. Ross, 12 CI. & 
 Fin. 507. 
 
CHARITABLE OK PUBLIC PURPOSES. 703 
 
 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 entitle 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 establish- 
 ment 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. (A) 
 
 In some instances the court, notwithstanding the blamelessness of the 
 *trustees, and the hardship of the case, has not thought proper r*4701 
 itself to limit the strict liability of the trustees, but has referred 
 it to the Attorney-General, to consider whether it were a proper case in 
 which to enforce the extreme rights of the charity.(Z) 
 
 If the trustees, by their answer, recognize and establish their liability 
 to account for the charity funds beyond the filing of the information, the 
 court will act upon the admission, and decree the retrospective 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.(w) And so where the defendants (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 de- 
 creed to account generally, without any limitation, although it was 
 objected, that the account would thus go back for 200 years. in) 
 
 The nature of the trust instrument will also materially influence the 
 court in directing retrospective accounts against trustees of charities for 
 their past appropriation of the funds ; and where they have acted 
 honestly, though erroneously, under an instrument of doubtful construc- 
 tion, 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 mistaken, has been honest, and 
 unconnected with any corrupt purpose, the court, while it directs for the 
 future, refuses to visit with punishment what has been done in time past. 
 
 (i) Att.-Gen. v. Burgesses of East Retford, 2 M. & K. 35 ; Att.-Gen. v. Prettyman, 4 
 Beav. 466. 
 
 (k) Per Lord Langdale, M. R., in Att.-Gen. v. Prettyman, 4 Beav. 466 ; and see Att.- 
 Gen. v. Burgesses of East Retford, 2 M. & K. 35. 
 
 (1) Att.-Gen. v. Mayor of Exeter, 2 Russ. 362, 370 ; Att.-Gen. v. Brettinghani, 2 
 Beav. 91, 95 ; Att.-Gen. v. Prettyman, 4 Beav. 462, 467. 
 
 (m) Att.-Gen. v. Corporation of Stafford, 1 Russ. 5,47. 
 
 (n) Att.-Gen. v. Mayor of Exeter, Jac. 443 ; S. C, 2 Russ. 362. 
 
704 OF POWERS OF SALE. 
 
 To act on any other principle would be to deter all prudent persons from 
 becoming trustees of charities."(o) 
 
 There has already been occasion to consider the extent of the jurisdic- 
 tion of the court in removing trustees of charities, and appointing others 
 in their places, as well as the circumstances and the manner in which that 
 jurisdiction will be exercised.^) 1 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 succeed them when necessary.(g') And also, 
 that new trustees of a charity will never be appointed without a refer- 
 ence to the Master. (r) 
 
 The effect of a power in the trust instrument to appoint new trustees, 
 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) 
 
 [*471] *III.— OF TRUSTEES OF POWERS. 
 
 I. Of Powers op Sale [471]. III. — Of Powers of Chahginc Securities 
 
 II.— Or Poweks of Leasing [480]. [482]. 
 
 IV. — Of Discretionary Powers [485]. 
 
 I._OF POWERS OP SALE. 
 
 A trustee could rarely be justified in selling the trust estate for any 
 purpose, however beneficial, without an authority express or implied 
 conferred on him for that purpose by the trust instrument : and wher- 
 ever the nature or duration of the trusts, or the description of the pro- 
 perty, 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 
 
 (o) Att.-Gen. v. Corporation of Exeter, 2 Russ. 45, 54. 
 (p) Ante, Pt. I, Div. Ill, Ch. II, p. 190, and notes. 
 
 (q) Att.-Gen. v. Earl of Winchelsea, Seton Deer. 131 ; Be 52 Geo. Ill, c. 101 ; 12 
 Sim. 262. 
 
 (r) Att.-Gen. v. Arran, 1J. & W. 279. («) Ante, Pt. I, Div. Ill, Ch. I. 
 (i!) Irish Incorporated Society v. Richards, 1 Dr. & W. 294. 
 
 1 It seems, that a testamentary trustee of a charity will not be removed merely be- 
 cause 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. 
 
 The court will appoint a new trustee of a charity without regard to any question as 
 to whether the trust property has been forfeited by misapplication, or breach of con- 
 dition. Bliss v. Bradford, 1 Gray, 407. 
 
 In New York the court has no power to remove the trustees of a church, organized 
 under the general laws of that State, who have been appointed in pursuance of the 
 statute. Robertson v. Bullions, 1 Kern. 243. 
 
OF POWERS OP SALE. 705 
 
 legal estate, and to take effect out of it ; or it may exist as a mere col- 
 lateral 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 testator's heir until 
 divested by the execution of the power, whereupon, it will pass to the 
 vendee.(tf) 
 
 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 execu- 
 tors take only a power, and the freehold vests in the heir by descent.(w) 
 And so it seems to be the better opinion, that a devise of lands to be sold 
 by the executors, without any words of direct gift, will invest them with 
 a power only, and not pass the legal estate.^) 1 
 
 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 
 
 (*) Earl of Stafford v. Buckley, 2 Vea. 179; Warneford v. Thompson, SVes. Jun. 
 513 ; 1 Sugd. Pow. 115, et seq. 6th edit.; see Forbes v. Peacock, 11 Sim. 152. 
 (u) See 1 Sugd. Pow. 128, 6th edit., and authorities there cited. 
 (x) 1 Sugd. Pow. 133. 
 
 1 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 Ire- 
 dell Eq. 143 ; Haskell v. House, 3 Brevard, 242 ; Tainter v. Clark, 13 Metcalf, 220 ; 
 Zebach v. Smith, 3 Binn. 69; and post, 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 ; Thomson v. Gaillard, 3 Rich. 
 418 ; Bradshaw v. Ellis, 2 Dev. & B. Eq. 20 ; Marsh v. Wheeler, 2 Edw. Ch. 156 ; 
 Taylor v. Benham, 5 How. 269 ; Lindenberger 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 Estate, 14 Penn. St. R. 47. So of a devisee. Guyer v. 
 Maynard, 6 Gill. & John. 420. But this intermediate estate will of course 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 pur- 
 poses of sale and conveyance, and also of remedy by action, or otherwise, as if the 
 same had been devised to them to be sold. Under this statute the executors take the 
 legal estate, and they may bring actions for rent falling due, or for injuries to real 
 estate, done after the death of the testator, without reference to any immediate or in- 
 tended exercise of their power. Carpenter v. Cameron, 7 Watts, 51 ; Cobb v. Biddle, 
 14 Penn. St. 444 ; Blight's Exrs. v. Ewing, 26 Id. 135 ; though see Blight v. Wright, 
 Philada. Rep. 549, Dist. Ct. Phila. In New York, by the Revised Statutes, on the other 
 hand (Part II, ch. 1, tit. 2, art. 2, g 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 particularized, authorizing the sale of real estate for debts, 
 and other purposes, by executors, and other trustees, on application to the proper 
 court. 
 
 45 
 
706 OF POWERS OF SALE. 
 
 be sufficient 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 necessary to the due execution of 
 the trust.(s) 1 
 
 Without entering into a discussion of the law affecting powers in 
 ge'neral (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 bene- 
 ficial 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 consent 
 of the tenant for life, cannot be inserted in the settlement without an 
 r*4791 ex P ress *provision : not even where there is a direction by the 
 L testator for the insertion of " all proper powers and authorities 
 
 for making leases, and otherwise, according to circumstances. "(b) 
 
 But it has been held on the construction of marriage articles, that a 
 power of sale and exchange was properly introduced into a settlement, 
 where the articles contained a direction for the insertion of " all usual 
 and proper powers, Spc." in the settlement. (c) In the case of Hill v. 
 Hill,(d) 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 par- 
 ties, such as powers to jointure, to raise money for any particular pur- 
 pose, &c. But powers of leasing, of sale and exchange, and (in certain 
 eases) 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 positive 
 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 intro- 
 
 (!/) 1 Sugd. Pow. 116. 
 
 (z) Ante, Pt III, Ch. II, Sect. 2, PI. II ; Wood v. White, 4 M. & Cr. 481, 2. 
 
 \b) Brewster v. Angell, U. & W. 625 ; Horn v. Barton, Jac. 43V, S. C. 
 
 (c) Peake v. Penlington, 2 Y.& B. 311 ; Hill v. Hill, 6 Sim. 136 ; see Williams v. 
 Carter, 2 Sugd. Pow. App. 23. 
 
 [d) 6 Sim. 144. 
 
 1 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 pur- 
 pose. 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 im- 
 practicable, implies a power to sell for the purpose. Winston v. Jones, 6 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. Moore v. Lockett, 2 Bibb, 69. And 
 see Clark v. Kiddle, 11 S.&R. 311. 
 
OF POWERS OF SALE. 707 
 
 duced into the settlement.(e) And even where there is a general direc- 
 tion 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, ac- 
 cording 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 occasionally arisen as 
 to the validity of the execution of the power after the death of the 
 original donees. Fpr instance, where a power is given to two or more 
 persons by name without any words of survivorship, it cannot be exer- 
 cised 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 per- 
 sons 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) 1 
 
 (e) 2 Sugd. Pow. 484, 6tli edit. (/) 1 Sugd. Pow. 141, 144, 6th edit. {g) Ibid. 
 (A) 1 Sugd. Pow. 141, 144, 6th edit. ; Co. Litt. 113 a, note 2. 
 
 1 Where a power of sale is given to several executors, virtute officii, or is given to 
 them by name, but is coupled with an interest or trust, the power may be exercised by 
 the survivor. Osgood v. Franklin, 2 J. C. E. 19 ; Zebach 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. Butherford, 1 Green. Ch. 360 ; Putnam Free School v. Fisher, 30 
 Maine, 526; Jackson v. Burtis, 14 Johns. 391 ; Sharp v. Pratt, 15 Wend. 610; Peter 
 v. Beverly, 10 Peters, 532; 1 How. U. S. 134; Robertson v. Gaines, 2 Humph. 367; 
 Miller v. Meetch, 8 Barr, 417 ; Muldrow v. Fox, 2 Dana, 79 ; 4 Kent's Comm. 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 Bxch. 580, and American note. The statute law of many of the States, 
 authorizes the survivor of several executors to exercise even naked powers given by will. 
 Dunlop, Penn. Dig. 519, Act of 1834, g 13 ; Act March 12, 1800, declared to be in force 
 by the Act of 19th April, 1856, Bright. Supp. 1170 ; Act of 3d May, 1855, % 2, Bright. 
 Supp., 1156; New Jersey Rev. Code, Tit. X, Ch. 7, Sect. 19; How. & Hutch., Mis- 
 sissippi Dig. 413 ; Rev. St. Arkansas, Ch. IV, I 144 ; Missouri, Rev. St., Ch. 3, Art. 3, 
 % 1 ; Alabama, Aik. Dig. 450 ; Lucas v. Price, 4 Alab. 683. In some, indeed, the pro- 
 vision is general, and applies to all trustees. New York Rev. St , P. II, Ch. 1, tit. 2, Art. 
 3, I 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 exe- 
 cute a power, where their co-executor has been discharged by the court, after accept- 
 ance ; it seems that the court must appoint. Matter of 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. Hobson, 3 
 A. K. Marsh. 381 ; and in South Carolina, Mallet v. Smith, 6 Rich. Eq. 22, in which it 
 was said that the 21 Henry 8, and the South Carolina statute, only applied to powers 
 of sale connected with the administrative functions of the executor. So in Mississippi, 
 
708 OF POWERS OP SALE. 
 
 Upon the same principle where a power of sale was reserved in a set- 
 tlement to three trustees by name and their heirs, it was held by the 
 
 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 
 Kentucky were dissented from, and the cases of Chanet v. Villeponteaux, 3 McCord's 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. Homer, 5 Metcalf, 
 462; and Ross v. Barclay, 18 Penn. St. 179. In Earl Granville v. McNeiel, 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 particular case, which was that of a power 
 of appointing new trustees, reserved by a settlement on trusts for sale, to one of the 
 parties, 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. 759, 17 Sim. 121. It seems clear in England, however, that 
 a purely discretionary power will not survive without express words. See post, 489 ; 1 
 Sugden on Powers, 7th Ed. 150, 152, 319. A power in a will to sell by executors is 
 exercisable by executors appointed by a codicil revoking the appointment of the will. 
 Pratt v. Rice, 7 Cush. 209. 
 
 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 ; HalLv. Irwin, 2 Gilm. 
 180 ; Hunt v. Holden, 2 Mass. 168; Wills v. Cowper, 2 Ohio, 124 ; Knight v. Loomis, 
 30 Maine, 208 ; Conklin v. 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 statute, with regard to powers of sale, in several of the States. See 
 Dunlop Penn. Dig. 530, Act of 1834, § 67; Acts of 1800, 1836, Bright. Supp. 1169; Com. 
 v. Forney, 3 W. & S. 357 ; Ohio Rev. St. Ch. 129, g 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, ? 1 ; How. & 
 Hutch. Miss. Dig. 413 ; Arkans. R. S. Ch. IV, g 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. 594; 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 personal trusts. Brown v. Hobson, 3 A. K. 
 Marsh, 381 ; Woodridge v. Watkins, 3 Bibb, 350 ; Montgomery v. Milliken, Sm. &M. 
 Ch. 498 ; 5 Sm. & M. 188. See Conklin v. Egerton, 21 Wend. 430 ; 25 Wend. 224; 
 Tainter v. Clark, 13 Metcalf, 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 administrator 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. But by the Act of March 12, 1800, \ 3, declared to be in force by the Act of 
 April 19, 1856, Bright. Supp. 1169, an administrator with the will annexed, is au- 
 thorized to sell and convey real estate, and otherwise act respecting the same, as fully 
 and completely as the executors might or could have done if living or if they had ac- 
 cepted the execution of the will. See Comm. v. Forney, 3 W. & S. 353. In Brown v. 
 Armistead, 6 Rand. 594, it was held that an administrator with the will annexed, 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 
 
OF POWERS OF SALE. 709 
 
 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 title under nM^o-i 
 somewhat similar circumstances. (k) 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 respective heirs and assigns" 
 should sell ; the Vice-Chancellor of England held, that on the construc- 
 tion of the will, the two survivors of the three devisees had power to sell, 
 and his Honor rejected the words "respective" as inconsistent with the 
 general intention. (Z) 1 
 
 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 
 settled, that the power may be well exercised by the only acting trustee 
 or his heirs, in case the others renounce the trust.(wi) 
 
 But where the power is confided to the trustees " and their heirs" 
 only, and not their assigns, it cannot be exercised by persons claiming 
 by assignment from the heirs of the original trustee.(w) And in a simi- 
 lar case, a devisee of the original trustee is equally incapable of exercis- 
 ing the power, for a devise is also an assignment, (o) 2 
 
 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 power of sale, or other powers, vested in his testator as trustee, 
 even where the power was limited to the trustee and his assigns : and 
 
 (i) Townsend v. Wilson, 1 B. & Aid. 608 ; S. C. 3 Mad. 261. 
 
 (k) Hall v. Dewes, Jac. 189. (I) Jones v. Price, 11 Sim. 557. 
 
 (m) Hawkins v. Kemp, 3 Bast, 410; Cooke v. Crawford, 11 Law Journ. N. S., 
 Chanc. 406, and 13 Sim. 91 ; and see Eaton v. Smith, 2 Beav. 239 ; Sharp v. Sharp, 2 
 B. & A. 405. [See ante, 226, 307, and notes.] 
 
 (n) Bradford v. Belfield, 2 Sim. 264. (o) Cooke v. Crawford, ubi supra. 
 
 a trustee named ; the power beiDg 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 of course be exercised by an administrator, c. t. a. Doolittle v. Lewis, 
 IS. C. R. 48. 
 
 The husband of an executrix, acting in her right, cannot exercise a power of sale 
 given to her. May's heirs v. Frazee, 4 Litt. 391. 
 
 1 In Lane v. Debenham, 17 Jur. 1005, there was a devise to two trustees in fee upon 
 trust as soon as convenient to raise a sum of £2000, for the benefit of the testator's 
 daughter, " by sale or otherwise at the discretion of my said trustees." One of the trus- 
 tees never accepted and died. It was held by V. Ch. Wood that the other could make 
 a good title. 
 
 A discretion to be exercised by "the aforesaid and undersigned trustees,'' one of 
 whom alone executes the instrument, is attached to the office, and may be exercised by 
 a substituted trustee. Byam v. Byam, 24 L. J. Ch. 209 ; 19 Beav. 58. 
 
 2 But see note (1) to page 283, ante. 
 
710 OF POWERS OF SALE. 
 
 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.(p) 
 
 The power of sale should he carefully framed so as to avoid any ques- 
 tion of this nature, and it should be conferred expressly on the trustees, 
 and the survivors or survivor of them, and the heirs, or executor, or ad- 
 ministrators 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 exe- 
 cutor or that other person will take the power of selling by implication, 
 unless any contrary intention appear from the will.(j) 1 
 
 The trustees of a power of sale are interposed principally for protect- 
 ing the settled estate against the tenant for life. It will therefore 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) 
 
 (p) Cooke v. Crawford, 13 Sim. 97; sed vide, How v. "Whitfield, 1 Ventr. 338; 1 
 Preem. 476; and see post, p. 541 [Disabilities of Trustees]. 
 
 (q) Newton v. Bennet, 1 Bro. C. 0. 135; Elton v. Harrison, 2 Sw. 276, n.; Blatch 
 v. Wilder, 1 Atk. 420 ; Bentham v. Wiltshire, 4 Mad. 44 ; Tylden v. Hyde, 2 S. & St. 
 238 ; Forbes v. Peacock, 11 Sim. 152 [S. C, 12 Sim. 528; 11 M. & W. 630 ; Curtis 
 v. Pulbrook, 8 Hare, 28 ; Watson v. Pearson, 2 Exch. 580 ; Gosling v. Carter, 1 Coll. 
 644 ; and see Doe v. Hughes, 6 Exch. 223] ; Ward v. Devon, 11 Sim. 160, stated; sed 
 vide Patton v. Randall, 1 J. & W. 189. 
 
 (r) Mortlock v. Buller, 10 Ves. 309, 313. 
 
 1 As a general rule, a direction in a will that real estate shall be sold for the pay- 
 ment 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. Cromwell, 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 ; Silverthorn v. McKinster, 12 Penn. St. 
 67 ; Putnam Free School v.- Fisher, 30 Maine, 523; Foster v. Craige, 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. 1 How. U. S. 134; Lockart v. Northington, 1 
 Sneed, 318; contra, in South Carolina, Drayton v. Drayton, 2 Desaus. 250; Shoolbred 
 v. Drayton, Id. 246. But in" Geroe v. Winter, 1 Halst. Ch. 655, on a devise to chil- 
 dren 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 executor. 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 ; Act of 1800, § 1, Bright. Supp. 1169; 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 ; see on this statute, Carroll v. Stewart, 4 Rich. 204. In 
 the last four States (ut supra), the provisions also extend to cases where a trustee 
 has been appointed by will to make sale, but has refused to act, or has died before ex- 
 ecution of the power. 
 
OF POWERS OF SALE. 711 
 
 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 
 hy *the tenant for life, who makes a contemporaneous purchase iit-m 
 of another estate, it will be held, that the tenant for life acted L -I 
 throughout as the agent of the trustees, both in the sale and the rein- 
 vestment, and the estate so purchased will therefore be treated as subject 
 to the trusts of the settlement, although the conveyance is taken abso- 
 lutely in the name of the tenant for life.(-s) 
 
 A trustee is not justified in delegating the power of sale to a 
 stranger,^) 1 although he may doubtless employ a solicitor or other agent 
 to conduct the usual details of the sale.(w) But the agent's authority 
 must be in writing,(a;) and signed by all the trustees. («/) 
 
 (s) Price v. Blakemore, 6 Beav. 507. (t) Hardwick v. Mynd, 1 Anst. 109. 
 
 (w) Ex parte Belchier, Ambl. 218; Ord v. Noel, 5 Mad. 498. 
 
 (x) Mortlook v.Buller, 10 Ves. 311 ; [or his act, ratified by an instrument in writing. 
 Newton v. Bronson, 3 Kern. 587.] 
 
 (y) Ibid. [Sinclair v. Jackson, 8 Cowen, 582.] 
 
 ' Black v. Erwin, Harper's Law B. 411 ; Pearson v. Jamison, 1 McLean, 199 ; Ber- 
 ger v. Duff, 4 J. C. E. 368 ; Newton v. Bronson, 3 Kernan, 587 ; or even to his co- 
 trustee : Berger 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 re- 
 stricted 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 at a distance from the place of resi- 
 dence of the trustees, subject to the ratification of the trustees ; . . and they may also 
 empower him to make and execute valid conveyances of the land thus sold, upon a com- 
 pliance with the terms of sale, after such sales have been so ratified by them. The pur- 
 chaser in such case, however, would probably be bound to show that this condition 
 precedent had been complied with. The better course in a case of this kind, therefore, 
 is to intrust the agent with a discretionary power to contract, subject to the ratification 
 of the trustees upon his report of the facts ; and that they should themselves execute the 
 conveyance, when the terms of sale have been complied with, and transmit it, pro- 
 perly acknowledged, to the agent, to be delivered to the purchaser." A coutract for 
 the sale of lands made by an agent, may, however, be ratified by a trustee or executor 
 with full knowledge of the facts, so as to bind the estate, provided the ratification be in 
 writing, so far adopting and referring to the contract as to be within the Statute of Frauds. 
 Newton v. Bronson, 3 Kern. 587. 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 Blight v. 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. Kobinson, 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 Pennsylvania, by Act 
 of March 14, 1850, Dunlop, 1072, \ 1, a trustee, executor, or other person acting in a 
 fiduciary character, with power to convey land in that State, may make conveyances 
 under the power, by attorney, and all previous conveyances so made bona fide, are con- 
 firmed; 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. 
 
712 OF POWERS OF SALE. 
 
 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 empowered 
 to sell "at such time as they may think fit." For by postponing the 
 sale indefinitely, they might materially affect the relative interest of the 
 cestui que trusts for life and in remainder, (z) 1 However, a direction to 
 sell " as soon as conveniently may be," does not render it more impera- 
 tive on the trustees to urge on the sale ; for the law implies that direc- 
 tion, (a) 
 
 A trust to reinvest is usually attached to the exercise of a discre- 
 tionary power of sale given to trustees. However, it does not appear to 
 be absolutely necessary, that the trustees should have another purchase 
 immediately in view before they sell, even where the settlement does 
 not contain the usual direction, that until a convenient purchase can be 
 found, the money shall be laid out at interest.(S) 2 But where a sale is 
 made without any immediate prospect of an advantageous reinvestment, 
 there must be some strong purpose of family prudence to justify the 
 conversion, such as an advantageous offer or the like, in order to absolve 
 the trustees from a breach of trust.(c) Every power of sale should con- 
 tain a direction that the money shall be invested until a convenient pur- 
 chase is found, for otherwise, if the trustees sold without any prospect 
 of immediate reinvestment, there might be a question, whether the sale 
 could be supported even in favor of a purchaser. (d) 
 
 The tenant for life of a settled estate frequently acquires the ultimate 
 remainder in fee through the failure of the intermediate limitations : 
 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 
 
 (z) Walker v. Shore, 19 Ves. 387, 391 ; see Hawkins v. Chappel, 1 Atk. 621, 3. 
 (a) Buxton v. Buxton, 1 M. & Cr. 80 ; see Fitzgerald v. Jervoise, 5 Mad. 29 ; Gar- 
 rett v. Noble, 6 Sim. 504. 
 
 (6) Mortlock v. Buller, 10 Ves. 309; 2 Sugd. Pow. 511, 12, 6th edit. 
 
 (c) Mortlock v. Buller, 10 Ves. 309; Lord Mahon v. Earl Stanhope, 2 Sugd. Pow. 
 512, n. ; and see Broadhurst v. Balguy, 1 N. C. C. 16, 28; Watts v. Girdlestone, 6 
 Beav. 190 ; Cowgill v. Lord Oxmantown, 3 Y. & Coll. 369. 
 
 (d) 2 Sugd. Pow. 511, 12. 
 
 1 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 manifest 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. 
 
 2 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 unlimited, 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 : 
 Wormeley v. Wormeley, 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 application of the money: Id. 443 ; see ante, 363, note. 
 
OP POWERS OF SALE. 713 
 
 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) 1 
 
 There can be still less question, as to the extinguishment of the power, 
 where it is expressly directed to be exercised only during the continu- 
 ance of the trusts, and this is usually done in the modern forms. But 
 *the power will subsist, unless the trusts have clearly deter- 1-^4.7 c-i 
 mined, 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 property, 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 testator'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 betng neces- 
 sary that the power should exist as to the whole, in order to preserve it 
 for the benefit of the other share, (cj) Hence, if it be intended that the 
 power of sale should continue only as to such parts of the estate as re- 
 main 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 during 
 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 per- 
 petuity.^) However, it is still unsettled how far the execution of an 
 
 (e) Mortlock v. Buller, 10 Ves. 292; Wheate v. Hall, 17 Ves. 80; 2 Sugd. Pow. 
 508, 6th edit. 
 
 (/) Wood v. White, 4 M. & Cr. 460, overruling S. C. 2 Keen, 664. 
 
 (g) Trower v. Knightley, 6 Mad. 134. 
 
 \h) Wood v. White, 4 M. & Cr. 480. 
 
 (i) Biddle v. Perkins, 4 Sim. 135 ; Powis v. Capron, lb. 138, n. ; Waring v. Coventry, 
 3 M. & K. 249. [Wallis v. Freestone, 10 Sim. 225.] 
 
 (k) Boyce v. Hannin^, 2 Cr. & Jerv. 334. 
 
 1 It is a general rule, that a power (except it he in trust) is merged both in law and 
 equity, when the legal and equitable estates are joined in the same person : MoWhorter 
 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 purposes, and as fully in every respect as under 
 the original conveyance, the power revived : Salisbury v. Bigelow, 20 Pick. 174. A 
 power of sale cannot be exercised by a trustee for the payment of debts after he has 
 released the estate to the grantor. Huckabee v. Billingsly, 16 Alab. 417. As to sales 
 after the purposes of the trust have ceased, see post, note to p. 478. 
 
714 OF POWERS OP SALE. 
 
 unlimited power of sale could be supported beyond those limits, and by 
 consequence for an indefinitely prospective period. (Z) 1 
 
 It is settled that a simple power of sale will not authorize a partition of 
 the estate. {mf 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 par- 
 tition ;(n) yet that decision has not been acted upon, and appears to be 
 of very doubtful authority.(o) However, it 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 sufficient 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 execu- 
 tion of the power.(p) 3 
 
 It has been decided, that trustees with a power of sale and exchange 
 may give money for owelty of exchange without any express authority 
 for that purpose. (q) 
 
 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) 4 But where the trusts declared of the purchase-money 
 
 (Z) 2 Sugd. Pow. 495, 6, 6th edit. (m) M'Queen v. Farquar, 11 Ves. 467. 
 
 {n) Abel v. Heathcote, 4 Bro. C. C. 278 ; S. C. 2 Ves. Jun. 98. 
 (o) Att.-Gen. v. Hamilton, 1 Mad. 214 ; 2 Sugd. Pow. 506, 6th edit. 
 (p) 2 Ves. Jun. 101 ; 1 Mad. 223 ; 2 Sugd. Pow. 507, 6th edit. 
 (q) Bartram v. Whiehcote, 6 Sim. 86 ; 2 Sugd. Pow. 507, 6th edit, 
 (r) Mills v. Banks, 3 P. Wma. 1 ; Ball v. Harris, 8 Sim. 485 ; 4 M. & Cr. 264; see 
 Holme v. Williams, 8 Sim. 557 ; 1 Sugd. Pow. 538. 
 
 1 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 : o 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 without 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 pur- 
 chaser under the power, objecting that it was "void as contravening the rule against 
 perpetuities," was nevertheless compelled to take the title ; counsel on both sides, as 
 well as the court, being of opinion that the objection could not be supported. 
 
 2 So a power to " sell and dispose of" an undivided share in real estate will not 
 authorize a partition. Brassey v. Chalmers, 4 De G. Macn. & G. 528 ; Aff'g S. C. 16 
 Beav. 223. And in Bradshaw v. Fane, 25 L. J. Ch. 413, Vice-Chancellor Kindersley, 
 after an examination of the authorities, considered that a title depending on a partition 
 made under the ordinary power of sale and exchange, would be too doubtful to force on 
 a purchaser ; though under the special words of the power, in the particular case, a dif- 
 ferent decision was made. A power to mortgage cannot be exercised by a sale, nor will 
 the court direct a sale under such a provision. Drake v. Whitmore, 5 De G. & Sm.619. 
 
 3 See as to the construction of powers of sale and exchange, Marshall v. Sladden, 7 
 Hare, 438 ; Lord Leigh v. Lord Ashburton, 11 Beav. 470. A power of sale will not of 
 itself authorize an exchange. Ringgold v. Ringgold, 1 H. & G. 11 ; Taylor v. Gallo- 
 way, 1 Hamm. 232. 
 
 4 See ante, 355, note. A power to sell or mortgage is not exhausted by a mortgage. 
 Asay v. Hoover, 5 Barr, 21 ; but see Piatt k. Oliver, 2 McLean, 309. 
 
OF POWERS OF SALE. 715 
 
 show, that the settlor contemplated an absolute conversion of the estate, 
 a mortgage *will he an improper execution of the power.(s) r ^. A7ft -i 
 Trustees with a power of sale, cannot grant leases.(if L -• 
 
 Where a mortgage is taken in the name of a trustee, who is expressly 
 empowered to sell the mortgaged estate in a certain event for the pur- 
 pose of paying off the mortgage debt, and it is declared, that the con- 
 currence 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 covenant on the 
 part of the mortgagor, that he will join in making the conveyance. (u) 
 
 The power of trustees for sale to give discharges for the purchase- 
 money will be considered more fully in the next Chapter.(a;) However, 
 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 di- 
 rection to employ the purchase-money generally for the benefit of the 
 cestui que trust in a manner requiring time and discretion, as where the 
 trust was to lay it out again in lands to the uses of the settlement, and 
 till that was done to invest in the funds ;(«/) or to employ the money in 
 payment of debts generally ;(z) or of certain specified debts, which could 
 not be ascertained until a future and distinct period ;(a) or where the 
 parties beneficially entitled to the purchase-money were infants or un- 
 born ;(b) it was settled, that the trustees 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 
 
 (s) Holdenby v. Spofforth, 1 Beav. 390. ' (t) Evans v. Jackson, 8 Sim. 217. 
 
 (u) Clay v. Sharpe, 18 Ves. 346, a. ; see Corder v. Morgan, 18 Ves. 344. 
 
 (x) Post, Ch. III. {y) Doran v. Wiltshire, 3 Swanst. 699. 
 
 (z) Ante, Pt. Ill, Div. I, Ch. II, Sect. 2, PI. II, 1 ; Forbes v. Peacock, 11 Sim. 152, 
 160 ; Jones v. Price, 11 Sim. 557 ; post, Ch. III. 
 
 (a) Balfour v. Welland, 16 Ves. 151, 156. 
 
 (6) Sowarsby v. Lucy, 4 Mad. 142 ; Lavender v. Stanton, 6 Mad. 46 ; Breedon v. 
 Breedon, 1 Russ. & M. 413. 
 
 ' 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 per- 
 sons 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. See Burr v. Sim, 1 Whart. 266. 
 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 to the executors to enter on the 
 land or to lease it. 
 
 2 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. 
 
716 OF POWERS OF SALE. 
 
 trust expressly absolved him from that liability, by providing that the 
 receipt of the trustee should be a sufficient discharge.(e) 
 
 The 10th section of the act 7 & 8 Vict. c. 76, has been already 
 stated,(<£) and its effect 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 before the 
 first of January, 1845, must render the practical application of the act 
 a matter of great difficulty in most cases. (e) 
 
 A trusteee with power to sell and give receipts has the complete 
 power of disposition over the trust estate, and he may compel a pur- 
 chaser to complete his contract without joining the cestui que trusts as 
 parties to a sujt for the specific performance^/) 
 T*4771 *^~ P ower f° r trustees to sell and purchase other lands to be 
 held on the same trusts, will not be well executed by a sale of 
 the trust estate for a rent-charge granted out of it by the purchaser.^) 1 
 And so a sale for an annuity cannot be supported under the ordinary 
 power.(A) 
 
 Where an estate is settled in trust for a tenant for life without im- 
 peachment for 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) 
 
 (c) 2 Sugd. V. & P. 30, et seq., 9th edit. ; ante, p. 342, 363 ; and see post, Ch. Ill, 
 of this Part. [Duffy v. Calvert, 6 Gill. 487.] 
 
 (d) Ante, Pt. Ill, Div. I, Ch. II, Sect. 2, PI. I, note. [This statute is repealed.] 
 («) See Post, Ch. III. 
 
 (/) Binks v. Lord Rokeby, 2 Mad. 227; Keon v. Magawly, 1 Dr. & W. 401 ; Dray- 
 son v. Pocock, 4 Sim. 283. [See Duffy v. Calvert, 6 Gill. 487.] 
 
 (g) Read v. Shaw, 2 Sugd. Pow. 512 ; App. 29. 
 
 (h) Raid v. Shergold, 10 Ves. 370, 381. 
 
 (i) Cholmeley v. Paxton, 3 Bing. 207 ; 5 Bing. 48 ; 3 Russ. 565 ; 2 Moore & P. 127; 
 10 B. & Cr. 564 ; Cookerell v. Cholmeley, 1 Russ. & M. 418 ; 1 CI. & Fin. 60 ; and 
 see "Waldo v. Waldo, 12 Sim. 107 ; Doran v. Wiltshire, 3 Sw. 699;oWolf v. Hill, 1 Sw. 
 149, n. 
 
 1 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. Now, by the Act of April 18, 1853, g 2, 
 (Bright. Purd. 699), it is provided that any power to sell in fee simple, shall be taken to 
 confer an authority to sell on ground-rent, and to release or convey the ground-rents so 
 reserved. 
 
OF POWERS OP SALE. 717 
 
 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 ;(Z) and even if the power 
 were determined before the conveyance could be made, yet if the trus- 
 tees 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 trustees 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 contract under circumstances of 
 haste and improvidence — if they make 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 en- 
 force the specific performance of the contract, however fair and justifiable 
 the conduct of the purchaser 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 
 him from the trustee, the Master of the Rolls (Lord Langdale) 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 r*4.7<n 
 themselves, *will be reserved for more convenient consideration 
 in a future chapter, (q) 
 
 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, (t) 
 
 A power of sale, like all other powers, can be exercised only in the 
 
 (k) Walter v. Maunde, 19 Ves. 424 ; 2 Sugd. Pow. 504. 
 
 (I) Mortlock v. Buller, 10 Ves. 315 ; 2 Sugd. Pow. 511. 
 
 (m) Mortlock v. Buller, tbi supra. 
 
 (n) Ord v. Noel, 5 Mad. 438 ; Wood v. Richardson, 4 Beav. 176 ; Mortlock v. Bul- 
 ler, 10 Ves. 311 ; Thompson v. Blackstone, 6 Beav. 470. [See Dawes v. Betts, 12 
 Jurist, 709.] 
 
 (o) Ord v. Noel, 5 Mad. 438, 440 ; et vide Wood v. Richardson, 4 Beav. 174, 176 ; 
 Mortlock v. Buller, 10 Ves. 311, 312. [Johnston v. Eason, 3 Ired. Eq. 334.] 
 
 (p) Thompson v. Blackstone, 6 Beav. 470. 
 
 (q) Post, Div. II, Ch. Ill, p. 535, and notes. [See ante, p. 158, and note.] 
 
 (r) Howard v. Ducane, T. & R. 81. (s) 2 Sugd. Pow. 517, 6th edit. 
 
 (i) T. & R. 81. 
 
718 OF POWERS OF SALE. 
 
 mode and subject to the conditions, if any, prescribed by the instrument 
 creating the power.(w) 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.^) 1 And so if the sale be directed 
 
 (m) See Wright v. Wakeford, 17 Ves. 454. (x) Blacklow v. Laws, 2 Hare, 40. 
 
 1 Sweigart v. Berk's Adm., 8 S. & R. 304; Davis v. Howcott, 1 Dev. & Batt. Eq. 
 460 ; Rodman v. Munson, 13 Barb. 63 ; Ervine's Appeal, 16 Penn. St. R. 266 ; Styer v. 
 Freas, 15 Penn. St. R. 339 ; and even where the tenant for life (widow of the testator) re- 
 nounces the provision under the will, and claims dower. Jackson v. Ligon, 3 Leigh, 
 161. So, where the sale is to take placeat the majority of a legatee. Loomisv. McClin- 
 tock, 10 Watts, 274. But if the person for whose benefit the sale has been postponed 
 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. & Batt. Eq. 460. 
 If, however, the postponement were with a view to a probable rise in value, it is other- 
 wise. Gast v. Porter ; Pearce v. Gardner, 10 Hare, 290 ; Cuff v. Hall, 19 Jurist, 973. 
 So, where by a provision in a will, trustees were authorized to postpone sales, but not 
 for a longer period than ten years, it was held that they might sell after that period, 
 but that the onus would then be on them, to show that the interests of the cestui que 
 trusts had not been injuriously affected by the delay. Cuff v. Hall, ut supr. In this 
 case the court, on bill filed, and on proof that a sale within the ten years would, under 
 the circumstances, be mischievous to the estate, ordered that the trustees should be at 
 liberty, notwithstanding the direction of the will, to postpone the sales until further 
 order. Where the sale is authorized upon the consent of the tenant for life, consent to 
 a decree of sale is sufficient. 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 assets," 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. Bron- 
 son 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 testa- 
 tor's estate, whenever they might think proper 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 Bloodgood v. Bruen, 2 Bradf. Surr. 8, and see also 
 Minot v. Prescott, 14 Mass. 495. Where, however, there is a power of sale expressly 
 for the payment of debts, such deficiency need not 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 personal estate be in fact insufficient, executors with 
 a power to sell " on insufficiency of personal assets," must sell, whether they deem it 
 expedient or not. Coleman v. McKinney, 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. Reynolds, 1 W. & S. 332. So 
 where there is a power of sale to discharge an instalment 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. 571, 7 Hill, 245. 
 
OF POWERS OP SALE. 719 
 
 to be made with the consent of the tenant for life, or of any other person, 
 that consent must be obtained hefore 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.(s) 1 
 
 Upon the same principle, where the power of sale is to be exercised 
 only on some conditional event — such as the deficiency of another estate 
 to answer certain charges(a) — or upon the purchase and settlement of 
 another estate to the same uses(6) — the power cannot be exercised with- 
 out the literal performance of those conditions.(e) 3 
 
 {y) Mortlook v. Buller, 10 Ves. 308; see Bateman v. Davis, 3 Mad. 98 ; Wright v. 
 Wakeford, 17 Ves. 454. (z) Adams v. Broke, 1 N. C. C. 627. 
 
 (a) Dike v. Ricks, Cro. Car. 335 ; Culpepper v. Aston, 2 Cha. Ca. 221 ; 2 Sugd. Pow. 
 497, 6th edit. ; 2 Sugd. V. & P. 48, 9th edit. 
 
 (6) Doe v. Martin, 4 T. R. 39 ; Cox v. Chamberlain, 4 Ves. 631 ; Burgoigne v. Pox, 
 1 Atk. 575 ; Hougham v. Sandys, 2 Sim. 95, 145. (c) 2 Sugd. Pow. 497, 6th edit. 
 
 Where a sale is directed to be made within a certain period, a sale before its expira- 
 tion, 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. 
 Though it would lie on the trustee to show as against his cestui que trusts, that their 
 interests had not suffered by the delay. Cuff v. Hall, 19 Jurist, 973. But even a dis- 
 cretionary power cannot be exercised after its object has ceased. Slocum v. Sloeum, 4 
 Edw. Ch. 613. So a power to sell given to an executor virtute officii becomes inopera- 
 tive when the estate is settled, or all claims are presumptively barred by lapse of 
 time, and so where no object remains to be' accomplished, or such object has become 
 impossible. Jackson v. Jansen, 6 Johns. 73 ; Sharpsteen v. Tillou, 3 Cow. 651 ; Ward's 
 Lessee v. Barrows, 22 Ohio, 241 ; see Stroughill v. Anstey, 1 De G. Macn. & G. 635. 
 In this view, the purposes of the testator must be ascertained from the whole of the will ; 
 and the objects of the power must be considered in connection with the power itself. 
 Ibid. Where the objects of the trust are accomplished, the trustee may be enjoined by 
 a court of equity from selling ; and an interlocutory injunction will be continued in 
 such a case, notwithstanding a denial in the answer, if the case is doubtful, on the 
 ground of irreparable injury. McNeely v. Steele, 1 Busb. Eq. 240. Though a pur- 
 chaser from an executor or trustee for payment of debts, is not bound to inquire, in 
 the first instance, as to the existence of debts, yet if the sale be made after a great lapse 
 of time, especially if the heirs or devisees have been in possession of the land and in re- 
 ceipt of the rents and profits, he will be held to see to the necessity of the sale and the 
 application of the money. Stroughill v. Anstey, 1 DeG. Macn. & G. 635. 
 
 1 Where a will gives a power to sell on the consent of the major part of the children 
 of the testator, the consent of the major part of those living at the time of sale is suffi- 
 cient. Sohier v. Williams, 1 Curtis, 479. But, in general, a power to sell with th; 
 consent of named or specified persons cannot be exercised after the death of any ons 
 of those persons ; otherwise, if the discretion or power of consent be given to them 
 in the character of executors or trustees, and virtute officii. Barber v. Cary, 1 Kern. 
 397; Byam v. Byam, 19 Beav. 58 ; 24 L. J. Ch. 209., This is not altered in New York 
 by the Revised Statutes. , Barber v. Cary, ut supr. The person in whom the discretioa 
 to consent is given, will not, however, be permitted to withhold his consent for merely 
 selfish reasons ; if he does, a court of equity would authorize a sale. Norcum v. 
 D'CEnch, 3 Benn. Mis. 98. 
 
 a See previous notes. 
 
720 OP POWERS OF SALE. 
 
 However, as regards purchasers from trustees under powers of this 
 description, there is a material difference, whether the condition, an- 
 nexed 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. 1 But where the condition is subse- 
 quent, the power of sale will attach independently of the performance of 
 the condition, and if the purchaser be expressly or constructively exo- 
 nerated 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 defi- 
 ciency of the personal estate or any other property, is the condition on 
 which the power is to be exercised, that is a precedent condition, which 
 must be satisfied before the power can arise ; consequently it will be in- 
 cumbent upon a purchaser from the trustees in any case to ascertain that 
 the required deficiency had arisen previously to the sale.(c2) But where 
 the reinvestment of the purchase-money is required, that is a subsequent 
 condition, 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*47on *However, the impolicy and inconvenience of these conditional 
 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 ad- 
 vised 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 opera- 
 tion 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 cha- 
 racter.^) But no relief will be given where the sale is fraudulent, or 
 contrary to the intention of the creator of the power; as in the cases 
 » already considered of a sale for a rent-charge or annuity, or a sale of the 
 estate deprived of the timber.(A) 
 
 (d) 2 Sugd. V. & P. 48, 9th edit. 
 
 (e) Roper v. Halifax, 2 Sugd. Pow. App. No. 3. (/) 2 Sugd. Pow. 503. 
 (g) 2 Sugd. Pow. 100, 135, 142, 517. [4 Kent's Comm. 344.] 
 
 (A) Read v. Shaw, 2 Sugd. Pow. App. 29 ; Reid v. Shergold, 10 Ves. 381 ; Cockerell 
 v. Cholmeley, 1 R. & M. 418 ; 2 Sugd. Pow. 517. [So where all do not join. McRae v. 
 Farrow, 4 H. & Munf. 444.] 
 
 1 A deed of trust made to secure a debt, contained a power of sale for the payment of 
 any balance that might be due them, "upon oath made before any justice of the peace 
 by both the trustees, or in case of the death of either by the survivor, as to the amount 
 of balance due." This provision was held to constitute a condition precedent, and to 
 be strictly complied with, and that the oath of one of the trustees, the other being alive, 
 was insufficient to justify a sale. Mason, v. Martin, 4 Maryl. 125. 
 
OE POWERS OF SALE. 721 
 
 Where the trustees take the legal estate of the property to be sold, 
 coupled with the power of sale, they alone are competent to contract, 
 and to take 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 revoking 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 execu- 
 tors take a power of sale by implication, from having the distribution of 
 the purchase-money. (I) 
 
 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 damp- 
 ing the sale by unnecessary restrictions in the conditions of sale.(w) 
 
 Although he may properly afiix 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.^) 1 And for this purpose, it will be proper for them to have the 
 estate previously valued. (q) 
 
 (i) Sowarsby v. Lacy, 4 Mad. 142; Keon v. Magawly, 1 Dr. & W. 401. 
 
 (k) Sugd. Pow. passim. 
 
 (1) Tylden v. Hyde, 2 S. & St. 238 ; Forbes v. Peacock, 11 Sim. 152 ; but see Blatcb 
 v. Wilder, 1 Atk. 420, where the heir was directed to join in the conveyance. 
 
 (m) In Downes v. Grazebrook, 3 Mer. 208. 
 
 (n) See Wilkins v. Pry, 1 Mer. 268 ; 2 Rose, 375. [See, as to the law of conditions 
 of sale, articles in 2 Engl. Law Review, 81.] 
 
 (o) Hobson v. Bell, 2 Beav. 17. 
 
 {p) Ord v. Noel, 5 Madd. 440 ; Mortlock v. Buller, 10 Ves. 309. 
 
 (q) Mortlock v. Buller, 10 Ves. 309 ; Conolly v. Parsons, 3 Ves. 628, n. ; see Camp- 
 bell v. Walker, 5 Ves. 680, 1. 
 
 1 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 the actual value at the time cannot be ascertained, they will be respon- 
 sible 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. The purchaser will not be affected by the fact that doubts were enter- 
 tained as to the power of the trustee to sell, so that the land brought a less price, and 
 though it would have been more prudent to apply to the court. Goodrich v. Proctor, 1 
 Gray, 567. In New York, it is held that, in general, a naked power to sell and rein- 
 vest, or to sell for a certain sum, can only be exercised by a sale for cash. Waldron v. 
 McComb, 1 Hill, 111 (see S. C, 7 Hill, 335) ; Ives v. Davenport, 3 Hill, 373. And a 
 sale on personal security, indeed, 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, 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 authorized 
 course in North Carolina. Stone v. Hinton, 1 Ired. Eq. 15 ; see Waring v. Darnall, 10 
 
 46 
 
722 OF POWERS OF SALE. 
 
 The contract for sale must not be entered into under circumstances of 
 haste or improvidence.(j-) And where there are several cestui que trusts 
 who have conflicting interests, as, for instance, the mortgagor and mort- 
 gagee (where the mortgaged estate is vested in a trustee with a power 
 of sale), it will be the duty of the trustee to act impartially for the 
 r*4801 *^ enent °f a H * ne P ar ties 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.(i) 1 
 
 (r) Ord v. Noel, 5 Mad. 440. 
 
 (s) Ord v. Noel, 5 Mad. 440 ; Anon. 6 Mad. 10 ; see Pechel v. Fowler, 2 Anstr. 550. 
 
 (t) Anon. 6 Mad. 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 surrendered 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 purchaser 
 who neglects to comply with his purchase. Campbell v. Johnston, 1 Sandf. Ch. 148. 
 
 1 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. New- 
 man v. Jackson, 12 Wheaton, 570. In McDermut v. Lorillard, 1 Edw. Ch. 273, it was 
 held, that the New York Revised Statutes, which formerly required 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. Wilkson, 10 Missouri, 75. Where due advertisement is re- 
 quired 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. Jones, 5 Leigh, 370. In Minuse v. Cox, 
 5 John. Ch. 447, however, Ch. Kent was of oprwten, that want of notice would not affect 
 the title 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 contract. 
 Greenleaf v..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. The trustee has the power to adjourn the sale from time to time, 
 if duly advertised. Richards v. Holmes, 18 How. U. S. 143. 
 
 A power to sell is well exercised by a parol sale, or by. a sale under articles. Silver- 
 thorn v. McKinster, 12 Penn. Stat. R. 67 ; Taylor v. Adams, 2 S. & R. 534. 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 Burton v. Smith, 13 Peters, 
 464. But it will not extend to lands acquired after the date of the will, in the absence 
 of any statutory provision which would enable such lands to pass by the will. Roney 
 v. Stiltz, 5 Whart. 381 ; Meador v. Sorsby, 2 Alab. 716 ; Peck v. Peck, 9 Yerg. 301 ; 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 
 jvill 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 Maintenance 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 POWERS OF SALE. 723 
 
 In the absence of any express directions in the power, the trustees 
 may sell, either by public auction, or private contract, as circumstances 
 may render it necessary, or most advantageous for the trust estate, (w) 
 And, after an ineffectual attempt to sell by auction, they may have re- 
 course to a sale by private contract. (x) This was decided with regard 
 to the assignees of an insolvent, who are expressly directed by the Insol- 
 vent Act (7 Geo. IV, c. 57, s. 20) to sell ly auction. The decision, 
 therefore, applies, d fortiori, to the case of trustees to whom no mode of 
 sale is expressly prescribed. 1 
 
 However, a sale by auction is the most usual, as it is unquestionably 
 the safest course for the trustees to adopt. For, in that case, no ques- 
 tion can be raised against them for the inadequacy of price ;(?/) whereas, 
 
 (u) Ex parte Dunman, 2 Rose, 66 ; Ex parte Hurly, 1 D. & Ch. 631 ; Ex parte Lad- 
 broke, 1 Mont. & A. 384 ; but see Ex parte Goding, 1 D. & Ch. 323. [See 3 Martin'* 
 Conveyan. 290, note (6).] 
 
 (a;) Mathers v. Prestman, 9 Sim. 352. 
 
 (y) Ord v. Noel, 5 Mad. 440 ; Taylor v. Tabrum, 6 Sim. 281. [See Johnson v. 
 Dorsey, 7 Gill, 269 ; Hintze v. Stingel, 1 Maryl. Ch. Dec. 283.] 
 
 of a bill to remove trespassers, in order to enable the trustee to sell. Henderson v. 
 Peck, 3 Humph. 247. See Rossett v. Fisher, 11 Gratt. 499. It is a breach of trust 
 , for a trustee for the payment of debts to sell, where his grantor had only an equitable 
 interest, but with the right to the legal title ; he ought first to procure a conveyance of 
 the latter. Rossett v. Fisher, 11 Gratt. 492. 
 
 A stranger, or wrong-doer, cannot object to irregularities in the sale. Hillegass v. 
 Hillegass, 5 Barr. 97 ; Gary v. Colgin, 11 Alab. 514. Wightman v. Doe, 24 Mississ. 
 675 ; Herbert v. Hanrick, 16 Alab. 581. 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. 
 
 1 In Pennsylvania, it has been held, that a private sale by a trustee, or executor, 
 under a power, is void. McCreery v. Hamlin, 7 Barr, 87 ; Ellet v. Paxson, 2 W. & S. 
 418 ; see Ashurst v. Ashurst, 13 Alab. 781 ; but see Burr 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 v. Queen, 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 par 
 eels, 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 unusual 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, exceeding 
 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), sales 
 under a power may be either public or private (unless otherwise directed) ; and on such 
 terms as shall be, in the opinion of the executor, most advantageous. As to the sales 
 of personal estate, in the absence of the property to be sold, see Foster v. Goree, 5 Alab. 
 428 ; Beebe v. De Baun, 3 Engl. Ark. 567. 
 
724 OF POWERS OF LEASING. 
 
 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 request of one 
 of the cestui que trusts, bought in the property, for which 6,000Z. had 
 been bid, and shortly afterwards they refused 6,600?. ; it was subse- 
 quently 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. (c) 1 
 
 Trustees for sale are chargeable with auction duty, in the same manner 
 as other vendors, (d) 
 
 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 
 
 (z) See Conolly v. Parsons, 3 Ves. 628, u. ; Mortlock v. Buller, 10 Ves. 292, 309. 
 
 (a) Taylor v. Tabrum, 6 Sim. 281. 
 
 (b) Ex parte Lewis, 1 Gl. & J. 69 ; Ex parte Buxton, lb. 355 ; Ex parte Baldock, 2 
 D. & Ch. 60. 
 
 (c) Ord v. Noel, 5 Mad. 438 ; Ex parte Lewis, 1 Gl. & J. 69 ; Co. Litt. 113 a. 
 
 (d) King v. Winstanley, 8 Price, 180. 
 
 (e) Bowes v. East London Waterworks Company, 3 Mad. 375, 383. 
 
 1 Stall v. Macalester, 9 Ohio, 19; Gray v. Shaw, 14 Missouri, 341 ; Delaplaine v. 
 Lawrence, 3 Comstock, 301 ; see Ewing v. Higby, 7 Ohio, 198. In Thomas v. Town- 
 send, 16 Jur. 736, trustees having power to sell land, in order to raise £600, and ex- 
 penses, 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, » sale of more than is necessary for the purpose, by the executor, 
 is void. Wakefield v. Campbell, 20 Maine, 393 ; see Davis' App., 14Penn. 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 number 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. Mockbee 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 OF LEASING. 725 
 
 fine or premium from the lessee, a reversionary lease, or one for ■which 
 a fine" is paid, is improper, and will he set aside by the court on the ap- 
 plication of the cestui que trustify 
 
 *And such a lease will not be confirmed by the acceptance of 
 the rent by the parties beneficially interested, though continued "- J 
 for several years, unless they were aware of the imperfection of the 
 lease, (g) 
 
 And although the whole legal estate is vested in the trustees, so that 
 the lease, taking effect 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.(^) 
 
 It scarcely comes within the scope of the present work to consider at 
 large the construction of the usual powers of leasing, and the nature and 
 terms of the leases, which are authorized by such powers ;(«") 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 apply prima facie only to such lands 
 as have been generally leased, (&) although that construction may be re- 
 laxed, where the general intention of the settlement requires \t.(Vf 
 
 (f) Bowes v. Bast London Waterworks Company, 3 Mad. 375 ; and S. C. Jac. 324. 
 [See Newcomb v. Kettletas, 19 Barb. 608, 613.] 
 
 (g) Ibid. [A void lease under a power is incapable of confirmation at law : Sinclair 
 v. Jackson, 8 Cowen, 588.] (7i) Ibid. 
 
 (i) 2 Sugd. Pow., chap. 17, p. 326, 6th edit. 
 
 (k) 2 Roll. Abr. 261, pi. 11, 12 ; 2 Sugd. Pow. 339 ; Earl of Cardigan v. Montague, 
 Id. App. 14 ; see Orby v. Mohun, 2 Vern. 531 ; S. C. Prec. Ch. 257. 
 (Z) Goodtitle v. Funucan, Dougl. 565 ; 2 Sugd. Pow. 349. 
 
 1 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. Courtenay, 
 11 Q. B. 702 ; Doe v. Hole, 15 Q. B. 848; Sheehy v. Lord Muskerry, 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. c. 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 post, 482. 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 exe- 
 cutors, the power of leasing was held to extend to the whole estate, on the determina- 
 tion of the life estate. Hoyle v. Stowe, 2 Devereux, R. 318. 
 
 Where a trustee by a fraudulent contrivance with a third person suffers a lease to 
 be forfeited, and such person to obtain a lease for himself, the latter will become a trus- 
 tee. Aspinall v. Jones, 2Benn. Mo. 209. 
 
 2 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, 
 
726 OF POWERS OP LEASING. 
 
 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 power.(m) 
 
 A power to lease for lives will not authorize a lease for years determi- 
 nable 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 
 gran ted. (o) 
 
 A power 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 concurrent.(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.(t) 
 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 lease for ten years, and a lease is 
 granted for twenty years, the grant will be good as a lease for ten 
 years, (w) 1 
 
 A general power of leasing authorizes the grant of a lease in posses- 
 sion only, and not one in reversion. (a;) 2 
 
 (m) Campbell v. Leach, Ambl. 740. [See Leigh v. Earl of Balearres, 6 Com. 
 Bench, 847.] (n) Whitlock's Case, 8 Rep. 69, b; 1 Sugd. Pow. 514; 2 Id. 354. 
 
 (o) 2 Sugd. Pow. 354. [p) Doe v. Hardwicke, 10 East, 549 ; 2 Sugd. Pow. 364. 
 \q) Raym. 263. 
 
 ()•) Doe v. Halcombe, 7 T. R. 13 ; 2 Sugd. Pow. 364. (s) 2 Sugd. Pow. 365. 
 
 (t) Isherwood v. Oldknow. 3 M. & S. 382 ; 1 Sugd. Pow. 520 ; 2 Id. 355. 
 (u) Pawcey v. Bowen, 1 Ch. Ca. 23 ; 3 Ch. Rep. 11. 
 (x) Ly. Sussex v. Worth, Cro. Eliz. 5 ; 2 Sugd. Pow. 370. 
 
 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 a power 
 to lease shall contain all " usual and reasonable covenants," the general rule is to take 
 as a guide the lease in existence at the time of the creation of the power : Doe v. Ste- 
 phens, ut supra. But where there has been an ancient and uniform custom, and a single 
 lease varying therefrom has been granted just before the creation of the power, the ex- 
 ceptional lease is not to govern merely because it is the latest : Doe v. Hole, 15 Q. B. 
 848. 
 
 1 It would, however, be bad at law, and it could not be set up in ejectment against 
 the holder of the legal title: Sinclair v. Jackson, 8 Cowen, 581. 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. 
 
 2 So in Sinclair v. 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 term 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. 
 
OF POWERS OF LEASING. 727 
 
 *Where the length of the term to be granted is not defined r*4g2] 
 by the power, the trustee must be guided by the consideration 
 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.(y) 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.(z) 1 
 
 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 effect out of the legal interest in the trustees, and indepen- 
 dently of any power in the trust instrument, and could only be impeached 
 on the ground that they are unreasonable or prejudicial to the interests 
 of the cestui que trusts.(a) Thus in Naylor v. Arnitt,(6) 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 ex- 
 ercise of a general indefinite power of leasing, or by virtue of their 
 interest only, without any express power? But any unusual lease, such 
 
 (y) Muskerry v. Chinnery, LI. & Gr. 185 ; 1 Sugd. Pow. 548. 
 (z) Sutton v. Jones, 15 Ves. 587, 8. 
 
 (a) Bowes v. East London Waterworks Company, Jac. 329. [See Newcomb v. 
 Kettletas, 19 Barb. 608.] 
 
 (6) Naylor v. Arnitt, 1 R. & M. 501. [See Newcomb v. Kettletas, 19 Barb. 630.] 
 
 ' 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 Desaus- 
 sure, and is disapproved by Chancellor 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 Bard. Ch. 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 alienation beyond the time allowed by law, it 
 is void, though the power of sale would not be affected. 
 
 2 In Newcomb v. Kettletas, 19 Barb. 608, it was held that trustees having the legal 
 estate in lands, with a duty to perform in respect to the rents and profits, and without 
 any express restriction on the right to lease, may lease vacant lots for twenty-one years ; 
 and covenant that the lessees may have a renewal for a further term of years, at a rent 
 
728 OP POWERS OF CHANGING SECURITIES. 
 
 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.(e) 
 
 A purchaser of a leasehold interest will be affected with constructive 
 notice of any circumstances appearing on the face of it, which may in- 
 validate it in equity.(d) As is the case of a party purchasing 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 authorizing 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 neces- 
 sarily be left very much to the discretion of the trustees ; but the court 
 will not suffer this discretion to be mischievously or ruinously exer- 
 cised.^) 
 
 Where any check is imposed upon the trustees by requiring the pre- 
 vious consent of the tenant for life, or his consent in writing, or the 
 l"*48«n observance * of an 7 otner formality, the power will be improperly 
 *- -I exercised, unless the required condition is strictly performed.(i) 
 
 A power of this description is given to the trustees for the security 
 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 in- 
 quiry and circumspection.(m) 1 Therefore the trustees should have an 
 
 (c) See Pearse v. Baron, Jac. 158. 
 
 (d) Walter v. Maunde, 1J.4W. 181 ; Cosaer v. Collinge, 3 M. & K. 283. 
 
 (e) Att.-Gen. v. Pargeter, 6 Beav. 150. 
 (/)Att.-Gen. v. Backhouse, IT Ves. 283, 293. 
 (g) Pearse v. Baron, Jac. 158. 
 
 (h) De Manneville v. Crompton, 1 V. & B. 354-9. 
 
 (i) 1 V. & B. 359 ; Cocker v. Quaile, 1 R. & M. 535 ; Greenwood v. Wakeford, 1 
 Beav. 579 ; Kelliway, v. Johnson, 5 Beav. 319. 
 .(k) Lord v. Godfrey, 4 Mad. 459. (I) Broadhurst v. Balguy, 1 N. C. C. 28. 
 (m) Hanbnry v. Kirkland, 3 Sim. 271. 
 
 to be appraised, or be paid for such buildings as they may erect, during the first year of 
 the term. 
 
 In Hedges v. Biker, 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 
 exectors " 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 in- 
 tentions of the testator, expressed in the will. 
 
 ' See Wormely v. Wormely, 1 Brocken. 330 ; 8 Wheat. 421, ante, page 474, note. 
 
OF P0WE11S OF CHANGING SECURITIES. 729 
 
 immediate and advantageous reinvestment in contemplation, before 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 reinvestment, and not to trust 
 blindly to the assurances of their acting co-trustees on these points. (p) 
 Pending the reinvestment of the fund, the trustee will be justified in 
 laying it out in the purchase of Exchequer bills.(g') 
 
 A general power of varying the securities does not enable the trustees 
 by the exercise of the power to vary or affect the relative rights of the 
 cestui que trusts. Thus where a testator made a specific 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 trustees to diminish the income of the 
 tenant for life, and increase the value of the gift to the remainderman, 
 by disposing of the long annuities, 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 personaHre- 
 presentatives, could not be affected by a change of real estate into per- 
 sonal, or vice versd.(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 discharges 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 discre- 
 tion. Thus in a recent case, certain sums of stock were vested in the 
 trustees of a marriage settlement upon the usual 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 consent. There was also a 
 proviso, declaring that it should be lawful for the trustees, with the con- 
 sent 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 *of leaseholds having not less than r *A SA -. 
 sixty years to run. The tenant for life applied to the trustees L -" 
 to invest in leaseholds having nearly ninety years to run. One of the 
 
 (ra) 1 N. C. C. 28, and see Watts v. Girdlestone, 6 Beav. 188, 190. 
 
 (o) Brice v. Stokes, 11 Ves. 324 ; Meger v. Montriou, 5 Beav. 146. 
 
 (p) Hanbury v. Kirkland, 3 Sim. 265 ; Broadhurst v. Balguy, 1 N. C. C. 16. 
 
 (g) Matthews v. Brice, 6 Beav. 239. 
 
 (r) Lord v. Godfrey, 4 Mad. 455. (*) See Walter v. Maunde, 19 Ves. 424. 
 
 (t) Wood v. Harman, 5 Mad. 368. 
 
730 OP POWERS OP CHANGING SECURITIES. 
 
 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 re- 
 moved, 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) 1 
 
 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 trustees 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 chil- 
 dren, 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 lease- 
 hold hereditaments for a term not less than sixty years. The tenants 
 for life required the trustees to invest in the purchase of certain lease- 
 holds of more than sixty years duration, 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 im- 
 perative 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 assistance and protection in ascertaining the 
 title to the proposed purchases, and in satisfying themselves that they 
 were not of precarious value or attended with any onerous or objection- 
 able obligations, (a;) 
 
 But even where the power is framed in such terms, that its exercise in 
 a proper case would be imperative on the trustees, yet they will not be 
 bound to exercise it, i£ there have been such a change of circumstances, 
 as could not have been in the contemplation of the parties at the time of 
 the creation of the trust. For instance, in a late case the trustees of a 
 
 («) Lee v. Young, 2 N. C. C. 532. 
 
 \x) Beauclerk v. Ashburnham, Rolls, loth and 26th Feb. 1845, MS. [8 Beav. 322]; 
 and see Boss v. Godsall, 1 N. C. C. 618, 19 ; [and Prendergast v. Prendergast, 3 H. 
 L. Cas. 195.] 
 
 1 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 Cotten- 
 ham, on bill filed by the annuitant, that the court could not exercise any discretion in 
 the matter, but must follow its common rule, and order the investment in the three 
 per cents. Prendergast v. Prendergast, 3 H. L. Cas. 195. 
 
OF DISCRETIONARY POWERS. 731 
 
 marriage settlement were empowered and required, 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-Chancellor (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 im- 
 proper conduct on *the part of the trustee in other respects, on r*4Qfi-] 
 which 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 articles which 
 direct the insertion of all usual and customary powers. (z) 
 
 IV. — OF 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 trus- 
 tees, 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 ex- 
 press terms of the trust, or by implication from the nature of the duty 
 imposed on them. 1 
 
 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 discretion." (c) Or, 
 
 (y) Boss v. Godsall, 1 N. C. 617. (z) Sampayo v. Gould, 12 Sim. 426. 
 
 (a) Maddison v. Andrew, 1 Ves. 53. 
 
 (6) Crossling v. Crossling, 2 Cox, 396 ; Kemp v. Kemp, 5 Ves. 849 ; Longmore v. 
 Broom, 7 Ves. 124 ; Pink v. De Thuisey, 2 Mad. 157. 
 
 (c) Morice v. Bishop of Durham, 9 Ves. 399 ; Keates v. Burton, 14 Ves. 434; Potter 
 v. Chapman, Ambl. 98 ; Gibbs v. Bumsey, 2 V. & B. 294. 
 
 1 In Downer v. Downer, 9 Vermont, 231, where there was a bequest to be applied 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 officially, and that no appeal lay from his decision in the matter. 
 
732 OF DISCRETIONARY POWERS. 
 
 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 in- 
 stance, where a trust fund is directed to be paid or distributed " when" 
 or "in such manner" or " proportions," (d) in favor of " one, "(e) or 
 " such one ormore"(f) of several objects, as the trustees shall appoint. 
 
 Again, a discretionary power may be created by necessary implication 
 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 in- 
 stance — 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 ;(h) or upon the necessity 
 or expediency of any particular act or payment.(i) Thus, in French v. 
 Davidson,(&) the trustees were directed to pay an annuity, " unless cir- 
 cumstances should render it unnecessary, inexpedient, and impracti- 
 cable ;" *and Sir J. Leach, V. C, said, that must mean " should, 
 L -■ in their opinion, render it unnecessary," &c. 
 
 In some of the earlier cases, where trustees neglected or refused to 
 exercise the discretionary powers vested in them, the court itself assumed 
 that discretion, and exercised the power in the manner which it con- 
 ceived 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.(ra) Although, where a trust is created for a certain class of objects, 
 and the discretionary power applies only to the selection from, or dis- 
 tribution amongst those objects, the court, while it disclaims the exercise 
 of the discretion reposed in the trustees, will, if necessary, enforce the 
 
 (d) Duke of Marlborough v. Godolphin, 2 Ves. 61 ; Walsh v. Wallinger, 2 R. & M. 78. 
 
 (e) Brown v. Higgs, 4 Ves. 708. 
 
 (/) Duke of Marlborough v. Godolphin, 2 Ves. 61 ; Grant v. Lynam, 4 Russ. 292. 
 
 {g) Brereton v. Brereton, 2 Ves. 87, cited ; Clarke v. Parker, 19 Ves. 1 ; Mortlock v. 
 Buller, 10 Ves. 314. 
 
 (h) Walker v. Walker, 5 Mad. 424 ; Robinson v. Smith, 6 Mad. 194 ; Eaton v. Smith, 
 2 Beav. 236. 
 
 (i) French v. Davidson, 3 Mad. 396 ; Gower v. Mainwaring, 2 Ves. 87. 
 
 (k) 3 Mad. 402. 
 
 [I) Wareham v. Brown, 2 Vern. 153 ; Warburton v. Warburton, Id. 420 ; 1 Bro. P. 
 C. 34; Carr v. Bedford, 2 Ch. Rep. 77 ; Hewit v. Hewit, Ambl. 508 ; Gower v. Main- 
 waring, 2 Ves. 87, 110 ; Clarke v. Turner. 2 Preem. 198 ; Wainwright v. Waterman, 1 
 Ves. Jun. 311 ; Flanders v. Clark, 1 Ves. 10. [See Armstrong v. Park, 9 Humph. 
 195.] 
 
 (m) Maddison v. Andrew, 1 Ves. 60 ; Alexander v. Alexander, 2 Ves. 640 ; Kemp 
 v. Kemp, 5 Ves. Jun. 849, 859 ; Keates v. Burton, 14 Ves. 437 ; 2 Sugd. Pow. 190, 
 6th edit. See Gower v. Mainwaring, 2 Ves. 88 ; Brereton v. Brereton, Bjid. cited ; 
 Potter v. Chapman, Ambl. 98 ; see Lee v. Young, 2 N. C. C. 532. [See Prendergast 
 v. Prendergast, stated ante, 484, note.] 
 
OF DISCRETIONARY POWERS. 733 
 
 performance of the trust by decreeing the distribution of the property 
 amongst all the objects equally, (w) 
 
 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 charities. (o) 
 
 A distinction was taken on one occasion by Sir J. Leach, V. C, be- 
 tween 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, administrators, and as- 
 signs, a freehold estate, upon trust to permit and suffer the plaintiff, 
 during his natural life, to receive and apply all the benefit and advan- 
 tage thereof to his own proper use and benefit, and " in case the conduct 
 and behavior of the plaintiff after the testator's decease should bej 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 years from and after the testator's decease," then, 
 and in that case, the testator gave the same estate to the plaintiff, his 
 heirs, and assigns forever. " But, should the conduct and behavior of 
 the plaintiff not be such as to merit and procure the confidence and good 
 opinion of" the said three trustees, the estate was given to the plaintiff 
 for life, with remainder to his children at the age of twenty-four, as 
 tenants in common in fee ; and the will *declared that if the rs|c .„ -. 
 plaintiff never should, by his conduct and behavior, merit and L J 
 entitle himself to the confidence and good opinion of the trustees, the 
 survivors, or survivor of them, and the executors, administrators, 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 plain- 
 tiffs conduct and behavior for the space of seven years from the testa- 
 tor's decease, and might convey the fee simple of the estate to the plain- 
 tiff, 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 dis- 
 cretion of the plaintiff, as to think it proper or conformable to the testa- 
 
 (n) Gibson v. Kinfen, 1 Vera. 66; Kemp v. Kemp, 5 Ves. 849; Longmore v. Broom, 
 7 Ves. 124 ; Brown v. Higgs, 4 Ves. T08 ; 5 Ves. 495 ; 8 Ves. 561. 
 
 (o) Gower v. Mainwaring, 2 Ves. 89 ; see Moggridge v. Thackwell, 1 Ves. 36 ; Mahon 
 v. Savage, 1 Sch. & Lef. 111. [See ante, p. 466 and note.] 
 
 (i?) Walker v. Walker, 5 Mad. .424. 
 
734 OF DISCRETIONARY POWERS. 
 
 tor'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 referring 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 testator'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 trus- 
 tees in this case was to be exercised on a matter of opinion and judg- 
 ment, 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 ob- 
 served, 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 sug- 
 gestion 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. Mainwaring.(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 was one of his daugh- 
 ters. 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 con- 
 sequence of the failure of the trustees to exercise it, his Lordship is re- 
 ported 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. That 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 evidence of the necessity, can judge what is equitable and just on 
 this necessity."^) His Lordship ultimately *decided, that the 
 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 di- 
 vided between a brother of the plaintiff and a son of a deceased sister 
 according to their necessities and circumstances, which the Master was 
 to inquire into and consider, how it might be most equitably and justly 
 divided.if) The circumstances of the case were very peculiar, and were 
 
 (g) Walker v. Walker, 5 Mad. 424. (r) 2 Ves. 87, 110. 
 
 (s) 2 Ves. 89. (t) 2 Ves. 110. 
 
 [*488] 
 
OF DISCRETIONARY POWERS. 735 
 
 moreover tainted with fraud. Lord Hardwicke's words as quoted above 
 are also somewhat unintelligible, if not inconsistent with themselves; 
 and on several other occasions,(w) and indeed in the course of his judg- 
 ment 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 distinction 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 pre- 
 sent time. 
 
 As a court of equity will not in general assume the exercise of a dis- 
 cretionary power vested in trustees, so it will not interfere to control the 
 trustees acting bona fide in the exercise of their discretion.(^) 1 Nor will 
 a suit be entertained to compel the trustees to exercise their power.(s) 2 
 
 (w) Brereton v. Brereton, 2 Ves. 8?, cited ; Potter v. Chapman, Ambl. 98 ; Maddison 
 v. Andrew, 1 Ves. 60. (x) See 2 Ves. 89. 
 
 (y) Potter v. Chapman, Ambl. 98 ; Pink v. De Thuisey, 2 Mad. 157, 162 ; French v. 
 Davidson, 3 Mad. 396 ; Clarke v. Parker, 19 Ves. 11 ; see Wood v. Richardson, 4 Beav. 
 177 ; Cowley v. Hartsronge, 1 Dow. 378. 
 
 (z) Brereton v. Brereton, 2 Ves. 87, cited ; Pink v. De Thuisey, 2 Madd. 157 ; Lee 
 v. Young, 2 N. C. C. 532. 
 
 1 A court of equity will not interfere with the exercise of a discretionary power while 
 trustees are acting in good faith and with ordinary prudence. Gochenauer v. Proelich, 
 8 Watts, 19 ; Arnold v. Gilbert, 3 Sandf. Ch. 556 ; Mason v. Mason, 4 Id. 623 ; Bunner 
 v. Storm, 1 Id. 357 ; Hawley v. James, 5 Paige, 485 ; Cloud v. Martin, 1 Dev. & Batt. 
 397 ; Cowles v. Brown, 4 Call, 477 ; Morton v. Southgate, 28 Maine, 41 ; Littlefield v. 
 Cole, 33 Id. 552; Cochran v. Paris, 11 Gratt. 356; Leavitt v. Beirne, 21 Conn. 2; 
 Prendergast v. Prendergast, 3 H. L. Cas. 195 ; Att.-Gen. v. Mosely, 2 De G. & Sin. 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. And it has been held that a court of law has no power in any case to control the 
 exercise of such a power. Cloud v. Martin, 1 Dev. & Batt. 397. 
 
 2 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 personal estate,, 
 and pay and apply the same to and for the use of herself and the children of their mar- 
 riage, agreeably and according to her own discretion," which it was held the court could 
 not interfere with, so long as it was reasonably and honestly 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 reason 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 ad- 
 ministration 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. In Sillibourne v. Newport, 1 Kay & Johns. 603, however, it" 
 
736 OF DISCRETIONARY POWERS. 
 
 And the refusal of a trustee to exercise a purely discretionary 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 motives 
 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 dis- 
 cretion committed to the trustee, but to check or relieve from the conse- 
 quences of an improper exercise of that discretion. (J) 1 
 
 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 
 exercisable only by will, an execution by deed will be improper, and vice 
 versa.(e) Although a technically defective execution 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 
 L J not devolve upon the heir or personal representatives 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, (gf 
 
 (a) Lee v. Young, 2 N. C. C. 532. 
 
 (6) Clarke v. Parker, 19 Ves. 12, 18 ; French v. Davidson, 3 Mad. 396 ; Kemp v. 
 Kemp, 5 Ves. 849 ; Dash wood v. Lord Bulkley, 10 Ves. 245 ; Mesgrett v. Mesgrett, 
 2 Vern. 580 ; 10 Ves. 243 ; D'Aguilar v. Drinkwater, 2 V. & B. 225 ; Peyton v. Bury, 
 2P.Wms. 628. 
 
 (c) Doe v. Thorley, 10 East, 438 ; Kennedy v. Kingston, 2 J. & W. 431 ; Walsh t. 
 Wallinger, 2 B. & M. 81. [4 Kent. Coram. 330, &c] 
 
 (d) 2 Sugd. Pow. 94, et seq. 6th edit. 
 
 (e) Cole v. Wade, 16 Ves. 44, and cases cited; Down v. Worrall, 1 M. & K. 561. 
 (/) Moor. 61, PI. 172 ; 16 Ves. 45 ; Townsend v. Wilson, 1 B. & Aid. 60'8. [Ante, 
 
 471, &c, and notes.] 
 
 (g) Hibbard v. Lambe, Ambl. 309 ; ante, p. 190. [See Newman v. Warner, 1 Sim. 
 N. S.457.] 
 
 was held that a discretionary power might be exercised by trustees, notwithstanding 
 they had filed a bill for the purpose of having the trusts of the will declared and carried 
 into effect. 
 
 1 Where the will gives tenant for life power to sell with the consent of the executor, 
 the latter will not be permitted to withhold his consent for a merely selfish reason ; but 
 a court of equity will authorize a sale. Norcum v. D'CEnch, 2 Benn. Mo. 98. 
 
 2 So where a power e. g. of sale is to be exercised with the consent of third per- 
 sons, the death of one of the latter before consent given, renders the execution of the 
 power impossible ; and this is not altered in New York by the Revised Statutes of that 
 State. Barber v. Cary, 1 Kern. 397. But in Sohier v. Williams, 1 Curtis, 479, a 
 power to sell " on the consent of the major part of the testator's children," was held to be 
 well executed on the consent of the major part of the children living at the time. 
 
 See on this subject, ante, pp. 184, 211, 226, 283, 303, 473, and notes. 
 
OF DISCRETIONARY POWERS. 737 
 
 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. 1 For instance, in a late case,(A) a 
 testator appointed three executors and trustees, and empowered his said 
 trustees and the survivor of them, and the executors 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 execu- 
 tors 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 authority 
 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. (I) Indeed, from the 
 observations of the Vice-Chancellor in the recent case of Cooke v. Craw- 
 ford,(m) it is very doubtful whether in any case it is competent for a 
 trustee to transfer the trust by will to a devisee. 2 
 
 If a discretionary power be well exercised on some points, an attempt 
 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.(w) 
 
 The discretionary powers usually given to trustees appear to fall under 
 four principal heads. 3 — 1st. Where it is left to the discretion of the trus- 
 tees 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. 4 — 3d. Where the discretion applies 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 personal judgment — as where the consent or ap- 
 probation of the trustees is required to a marriage, or to the conduct and 
 behavior of an individual. 6 
 
 (h) Baton v. Smith, 2 Beav. 236. 
 
 (i) See Flanders v. Clark, 1 Ves. 9; Clark v. Parker, 19 Ves. 19; Worthington v. 
 Evans, 1 S. & St. 165 ; Hawkins v. Kemp, 3 East, 410. [Ante, 471, and notes.] 
 
 (k) Alexander v. Alexander, 2 Ves. 643 ; Att.-Gen. v. Berryman, Ibid, cited ; Brad- 
 ford v. Belfield, 2 Sim. 264 ; Hitch v. Leworthy, 2 Hare, 200. 
 
 (I) Cole v. Wade, 16 Ves. 27 ; Cooke v. Crawford, 13 Sim. 91. [McKim v. Handy, 
 4 Mary. Ch. 236.] 
 
 (m) 13 Sim. 97. (») Hitch v. Leworthy, 2 Hare, 200. 
 
 1 See on this subject ante, pp. 184, 211, 226, 283, 303, 473, and notes. 
 
 2 But see ante, 283, and notes. 
 
 3 See on these powers, New York Rev. St., Part II, Ch. 1, Tit. 2, Article 3, \ 9, &c. 
 * Post, 492. 5 Post, 494. 6 Post. 495. 
 
 47 
 
738 OF DISCRETIONARY POWERS. 
 
 And first, where trustees have a discretionary power of making or 
 giving effect to a gift out of the trust property. 
 
 r*4Qfl1 *^ '* ^ e a con( lition precedent to a gift of a legacy or other 
 L J 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 refuse or neglect to ex- 
 ercise it, the gift cannot be enforced. (0) And in such cases the court 
 cannot decide upon the propriety or impropriety of the refusal by the 
 trustees to give their assent. (p) Unless the refusal be shown to proceed 
 from a vicious, corrupt, or unreasonable cause. And it will rest with the 
 other party to prove the existence of an improper motive, and not with 
 the trustees to show a reason for their refusal. (q) 
 
 In Pink v. De Thuisey,(r) a testator gave and bequeathed 1000Z. unto 
 J. B., adding that he made the said legacy " under the condition there- 
 inafter written," and in a subsequent part of the will, he requested his 
 executor to place that sum in the manner he should think most advanta- 
 geous, and to give every year the revenues of it to J. E., " and to give 
 him the principal only in case of an establishment or 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. JE. I, however, 
 leave my executor at liberty to give to the said J. B. the said sum of 
 1000Z. if he found the thing proper, although there should be found at 
 the moment neither establishment nor acquisition for the said J. E." J. 
 E. died, having disposed of the 1000Z. by his will, and the bill was filed 
 by persons claiming under the will of J7 E., to compel the payment of 
 the legacy of 100(M. : 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 condi- 
 tion 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 executor 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, 
 
 (o) Pink v. De Thuisey, 2 Mad. 157; see Walker v. Walker, 5 Mad. 424; Weller v. 
 Weller, 2 Mad. 160, cited ; French v. Davidson, 3 Mad. 396 ; see Brown v. Higgs, 4 
 Ves. 719 ; 5 Ves. 508 ; 8 Ves. 568, on the question as to the " Lower Swell Estate ;" 
 Duke of Marlborough v. Lord Godolphin, 2 Ves. 61. 
 
 (p) 2 Mad. 162. 
 
 (q) Clarke v. Parker, 19 Ves. 11, 18, 22 ; French v. Davidson, 3 Mad. 402. 
 
 (r) 2 Mad. 157. 
 
OP DISCRETIONARY POWERS. 739 
 
 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 exe- 
 cutor 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 dismissed. "(s) 
 
 *So in Weller v. Weller,(£) which was cited in the argument of 
 Pink v. De Thuisey, a testator gave his son a sum of money with <- J 
 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 pay- 
 ment of the additional sum, but the Master of the Rolls thought the bill 
 would not lie.(£) 
 
 Again, in French v. Davidson, there was a direction for trustees to 
 pay an annuity to a party, " unless circumstances should render it un- 
 necessary, inexpedient, and impracticable." And the same learned 
 Judge considered that the state of circumstances upon which the 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, inexpedient, and impractica- 
 ble, 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, inexpe- 
 dient, and impracticable. (u) It will doubtless be observed that in this 
 last case, the power of stopping 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 1)recedent and continuing 
 assent of the trustees. 1 
 
 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 trus- 
 tees, 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 execu- 
 
 {s) Pink v. De Thuisey, 2 Mad. 157, 162. 
 
 (t) Weller v. Weller, 2 Mad. 160, cited. 
 
 (u) French v. Davidson, 3 Mad. 396. (x) 1 Ves. Jun. 311. 
 
 1 This was the view taken of a condition annexed to the gift of an annuity in Webb 
 v. Grace, 2 Phillips, 701. See ante, p. 395. 
 
7-10 OF DISCRETIONARY POWERS. 
 
 tors to appoint his grandson John, a partner, and gave him a legacy of 
 4000Z. when he should become a partner. By a subsequent codicil he 
 declared that it should be entirely at his executors' discretion to appoint 
 John a partner, notwithstanding the former direction ; and if they should 
 not think proper to appoint him, the legacy of 4000Z. was to be void. 
 
 One of the executors, the father of John, wished to make him a part- 
 ner, the other two were against it. The Lord Chancellor (Lord Thur- 
 low) 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 4000Z." But as the 
 circumstances were, and as they made no such declaration, his Lordship 
 declared John to be entitled both to be admitted a partner, and to his 
 legacy, (x) 
 
 So in Keates v. Burton,(«/) a testator, after giving a legacy of 2000?. 
 
 to his natural son, added a discretionary power for his executors to pay 
 
 him the interest on the principal. The executors renounced probate, 
 
 and the legatee became insolvent. Sir Wm. Grant, M. R., held, that 
 
 as the *bequest was in the first instance absolute, and the execu- 
 T*4921 . . . 
 
 L J tors had not exercised their power, and having renounced, could 
 
 no longer exercise it, the legatee continued absolutely entitled. (y) 
 
 And the decision in the case of French v. Davidson, (z) 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 object 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 discre- 
 tionary powers, viz., those which are confined to the selection from, or 
 the distribution amongst, the objects of the trust. 1 
 
 Where a vested interest in trust property is given to a class of indivi- 
 duals, 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. (1) And so where 
 the power is, to fix the relative proportions or the time and mode of 
 
 {x) 1 Ves. Jun. 311. {y) Keates v. Burton, 14 Ves. 434. (z) 3 Mad. 396. 
 
 (a) Ante, Pt. I, Div. I, Ch. II, Sects. 2, 3, 4, [page 68, &c, and notes.] 
 (&) Ibid. 
 
 (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 considered. . 
 [4 Kent's Comm. 345.] 
 
 1 See, on these powers, in New York, Rev. Stat., Pt. ii, Ch. 1, Tit. 2, Art. 3, \ 95, &c. 
 
OF DISCRETIONARY POWERS. 741 
 
 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 re- 
 spects.^) 
 
 But if the power he not exercised, and until its exercise, the whole 
 class of objects will be entitled to the property in equal shares.^) 1 
 
 Where the trust is for the testator's " relations," or " family," with a 
 power of selection by the trustees amongst those objects, the trustees in 
 exercising that power may appoint to any persons coming within the 
 testator's description, although not within the degree of his next of Hn.(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 pozver.(f) 
 
 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 distributing 
 their several shares, he can give nothing to any one, except the testa- 
 tor's *next of kin ; and if the power be not exercised, the r^oo-i 
 testator's next of kin at the time of his death will be all equally 
 entitled.^) 9 
 
 Although the court may have acquired jurisdiction over the trust pro- 
 perty, 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 faci- 
 lity of exercising the power will be expressly reserved to them by the 
 decree.(A) 
 
 However, on one occasion, where the trust had come under the direc- 
 
 (c) Forbes v. Ball, 3 Mer. 440 ; 1 Rop. Legs. 96, 98, and cases Cited. 
 
 (d) Brown v. Higgs, 4 Ves. 708 ; 5 Ves. 495 ; Kemp v. Kemp, 5 Ves. 849 ; Long- 
 more v. Broom, 7 Ves. 124 ; Kennedy v. Kingston, 2 J. & W. 431 ; Keates v. Barton, 
 14 Ves. 434 ; Walsh v. Wallinger, 2 R. & M. 78 ; Brown v. Pocock, 6 Sim. 257 ; 2 
 Sugd. Pow. 179, 180, 6th edit. ; Fowler v. Hunter, 3 Y. & J. 506. [Withers v. Yeadon, 
 1 Rich. Eq. 324 ; Collins v. Carlisle, 7 B. Monr. 14 ; Bull v. Bull, 8 Conn. 47, ante, 68, 
 and notes ; 72, and notes.] 
 
 (e) Mahon v. Savage, 1 Sch. & Lef. Ill ; Hardyng v. Glyn, 1 Atk. 469 ; Bennett v. 
 Honeywood, Ambl. 708 ; Tytcher v. Byles, 1 T. R. 435 ; Cruwys v. Colman. 9 Ves. 
 435 ; Birch v. Wade, 3 V. & B. 198 ; Grant v. Lyuam, 4 Russ. 392 ; Supple v. Lowson, 
 Ambl. 728. 
 
 (/) Ibid. [Ante, 76, and notes ; see Bull v. Bull, 8 Conn. 47.] 
 
 (g) Cole v. Wade, 16 Ves. 2-7, 43 ; Pope v. Wichcombe, 3 Mer. 689 ; 1 Rop. Legs. 
 
 96, &c. 
 
 (h) Bennett v. Honeywood, Ambl. 708 ; Mahon v. Savage, 1 Sch. & Lef. 711 ; Waldo 
 
 v. Caley, 16 Ves. 206 ; Horde v. Earl of Suffolk, 2 M. & K. 59. [See Costabadie 
 
 v. Costabadie, stated, ante, 488, in note.] ' 
 
 1 See ante, p. 68, and notes. 
 
 2 But see ante, p. 79, note, contra, where it is shown that Pope v. Whichcombe, which 
 is cited as authority for this position, is incorrectly reported, and that the real decision 
 was the other way. 
 
742 OF DISCRETIONARY POWERS. 
 
 tion of the court, the decree fixed the period within which the power was 
 to be exercised. (t) 
 
 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.(k) 
 
 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 invested with any exclu- 
 sive 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 law, such a share could not have 
 been merely nominal or illusory ;(m) although now, by the act 1 Will. 
 IV, c. 46, any appointment in exercise 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.(w) 1 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 appointed 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 
 
 (t) Piper v. Piper, 3 M. & K. 159. 
 
 (k) Tomlin v. Hatfield, 13 Sim. 167. 
 
 (1) Bennett v. Honeywood, Ambl. 708; Att.-Gen. v. Price, 17 Ves. 371 ; Kemp v. 
 Kemp, 5 Ves. 849 ; 1 Sugd. Pow. 561, et seq., 6th edit. [See Cowles v. Brown, 4 Call, 
 477.] 
 
 (m) Maddison r. Andrew, 1 Ves. 57 ; Alexander v. Alexander, 2 Ves. 640 ; Kemp 
 v. Kemp, 5 Ves. 849 ; Butcher v. Butcher, 1 V. & B. 73 ; Moeatta v. Lousada, 12 Ves. 
 123. (n) 1 Sugd. Pow. 568, &c, 6th edit. 
 
 (o) Boyle v. Bishop of Peterborough, 1 Ves. Jun. 299 ; 3 Bro. C. C. 242 ; Butcher 
 Butcher," 1 V. & B. 89 ; "Woodcock v. Woodcock, Phill. 72. 
 
 1 As to the doctrine of illusory appointments, see notes to Alleyn v. Belchier, 1 Lead. 
 Cas. Eq. 290, 303 (1st Am. Ed.) ; 4 Kent's Comm. 342. In New York, by the Revised 
 Statutes (Pt. II, Ch. 1, Tit. 2, Art. 3 g§ 97, &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 proportion. But where the terms of the power import that 
 the fund is to be distributed between the persons so designated, in such manner or pro- 
 portions 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. 
 
OF DISCRETIONARY POWERS. 743 
 
 maintenance and benefit of the legatee, "in such manner" as the trus- 
 tees 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 appli- 
 cation, not *whether there should or should not be any applica- 
 tion at all."(p) Again, where the discretionary power of ap- *■ J 
 pointment is confined to a particular class of persons, it is almost need- 
 less 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.(g') 
 
 If a power of distribution or application be improperly exercised, the 
 objects of the power will take equally, as in default of any appoint- 
 ment.^) 
 
 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 exercise 
 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,(z) 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 expiration 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 gene- 
 ral 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) overruled 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 ex- 
 planation, why the lease has not hitherto been renewed. The trustees 
 are to renew as occasion may require, and as they may think proper ; 
 
 (p) Stephens v. Lawry, 2 N. C. C. 87. [See Cowles v. Brown, 4 Call. 477.] 
 
 (g) Harvy v. Harvy, 5 Beav. 134. 
 
 ()•) Gibson v. Knyven, 1 Vera. 66 ; Kemp v. Kemp, 5 Ves. 849 ; 1 Sugd. Pow. 579. 
 
 (s) 3 Mad. 491. [See Mortimer v. Watts, 14 Beav. 616.] 
 
 (i) 3 Mad. 491 ; see Hewit v. Hewit, Ambl. 508. [Ante, 433, &c, 480, &c] 
 
74 1 OF DISCRETIONARY POWERS. 
 
 by which it 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 discre- 
 tion." 
 
 Again, where trustees are invested with a discretionary power of ap- 
 pointing 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.(w) 
 
 So it has been already seen,(a;) that if there be a trust to invest at dis- 
 cretion on "some good or sufficient security," or " at discretion," the 
 *court will not allow the trustees to exercise any discretion as to 
 L ' J the nature of the security, but will decide upon the goodness or 
 sufficiency of the investment, according to its own rules, (y) And so it 
 has also been stated, that a trust to invest " with all convenient speed," 
 must in general be executed within a twelvemonth. (2) 
 
 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 im- 
 propriety of exercising such powers, (b) 
 
 However, in all these cases, if the trust instrument expressly declare, 
 that the power may be exercised by the trustee, at his uncontrolled dis- 
 cretion, 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.(c) 
 
 Powers of sale, of leasing, and of varying the securities, also come 
 within the class of discretionary powers which is now under consider- 
 ation ; but they have been discussed at large in the three preceding 
 heads of this section.(d) 
 
 The fourth and last class of discretionary powers is, where the discre- 
 
 (u) Webb v. Earl of Shaftesbury, 7 Ve3. 480, 487 ; Att.-Gen. v. Clack, 1 Beav. 467 ; 
 Imt see Cafe v. Bent, 3 Hare, 245. [See ante, 185, and note.] 
 
 (x) Ante [368, &c, and notes]. 
 
 (y) Booth v. Booth, 1 Baav. 125; see D3 Manneville v. Crompton, IV. & B. 359 ; 
 Pocoek v. Reddington, 5 Ves. 794. 
 
 (z) Parry v. Warrington, 6 Mad. 155. (a) See the last two preceding Sections. 
 
 (6) De Manneville v. Crompton, 1 V. & B. 359 ; Brice v. Stoke3, 11 Ves. 324; Lord 
 v. G.)ifrey, 4 Mad. 459 ; Broadhurst v. Balguy, 1 N. C. C. 28 ; see Hitch v. Leworthy, 
 2 Hare, 205, 208. 
 
 (c) Milsington v. Mulgrave, 3 Mad. 493 ; Lee v. Young, 2 M. C. C. 536 ; and see PI. 
 II, and III, of this section. [Cochran v. Paris, 11 Gratt. 356 ; Leavitt v. Beime, 21 
 Conn. 2.] 
 
 (d) Vide supra, PI. I, II, and III, of this section. 
 
OF DISCRETIONARY POWERS. 745 
 
 tion is to be exercised on a matter of pure personal judgment. For in- 
 stance, where the trustees are empowered to give their opinion on the 
 good, or ill conduct, or merits of an individual ;{e) or to determine the 
 propriety, or impropriety, of continuing the payment of an annuity ;(/)' 
 or to give their approbation to a settlement,^) &c. The trustees alone 
 are competent to exercise these powers, for they may have private and 
 peculiar grounds for arriving at a proper conclusion, into which the court 
 could not providently inquire, and which the trustees might refuse to 
 disclose. The exercise of such authorities cannot, therefore, in general, 
 be assumed, or even controlled by the court.(^) 
 
 A power for trustees to consent to a marriage, is obviously a discre- 
 tionary power of this last description, and it is one which has been a 
 fruitful source of litigation. From the nature of the subject, such autho- 
 rities are on a footing peculiar to themselves, and will, therefore, 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) Hence, if 
 *an interest in a legacy be vested in a party with a subsequent r*4qc-i 
 provision for divesting that interest, in case of the legatee's mar- 
 riage without the required consent, and there is no gift over to take 
 effect on the marriage without such consent, the condition will be treated 
 merely as one in terrorem, and will not be enforced. (&) But this doc- 
 
 (e) Cole v. "Wade, 16 Ves. 27 ; Walker v. Walker, 5 Mad. 424 ; Eton v. Smith, 2 
 Beav. 236. [Cocliran v. Paris, 11 Gratt. 356.] 
 
 (f) French v. Davidson, 3 Mad. 396. (g) Brereton v. Brereton, 2 Ves. 87, cited. 
 (h) Clarke v. Parker, 19 Ves. 11. 
 
 i (i) Stackpole v. Beaumont, 3 Ves. 96 ; Daley y. Desbouvierie, 2 Atk. 261 ; Long v. 
 Dennis, 4 Burr. 2052. 
 
 (k) Semphill v. Hayley, Prec. Ch. 562 ; Garret v. Pretty, 2 Vern. 293 ; S. C. 3 Mer. 
 120 ; Wheeler v. Bingham, 3 Atk. 364; Lloyd v. Branton, 3 Mer. 117 ; 1 Rop. Legs. 
 715 ; Harvey v. Aston, 1 Atk. 378, 9 ; Jervoise v. Duke, 1 Vern. 20. 
 
 1 In Mason v. Mason, 4 Sandf. Ch. 631, it was held, that a discretiouary power to in- 
 crease an annuity, which has been once exercised, will not authorize a fnrther execu- 
 tion 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. Boddington, 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 ap- 
 plying 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. 
 
746 OF DISCRETIONARY POWERS. 
 
 trine will be applied only to a pecuniary legacy, and will not extend to 
 a charge on real estate. (?) And even where the condition is subsequent, 
 yet if the legacy be given over on the failure of the donee to satisfy the 
 condition, the court will recognize 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 sufficient limita- 
 tion over, so as to give effect to a forfeiture arising from a condition sub- 
 sequent of this description. (n) But it is clear, that an express direction, 
 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) 1 
 
 However, where the consent of the trustees to a marriage is a condi- 
 tion precedent to a gift, so that nothing vests in the donee until his mar- 
 riage with that consent, — as where there is a limitation to a party upon 
 his marriage, or in case he should marry, with the proper consent — it 
 is clearly settled (though the law was once otherwise), (p) that the condi- 
 tion must be strictly complied with, and the donee will take nothing, 
 unless he marry with the required consent.^) And in such a case, it is 
 immaterial, whether there is,(r) or is not,(s) a limitation over in the 
 event of the condition not being performed. And the condition will be 
 equally valid, whether the consent to the marriage of the donee be re- 
 quired only until he attain a certain ,&ge,(t) or during his whole life.(w) 
 
 Where there was a devise to a party, if he should marry with the con- 
 sent of trustees, and a gift over upon his marriage against their consent, 
 
 (I) Harvey v. Aston, 1 Atk. 379 ; Reynel v. Martin, 3 Atk. 333 ; see Berkley v. 
 Ryder, 2 Ves. 535 ; Stackpole v. Beaumont, 3 Ves. 89. 
 
 {m) Garret v. Pretty, 2 Vera. 293; 3 Mer. 120; Harvey v. Aston, 1 Atk. 375; 
 Wheeler v. Bingham, 3 Atk. 364; Scott v. Tyler, 2 Bro. C. C. 431 ; Lloyd v. Branton. 
 3 Mer. 117 ; Stratton v. Grymes, 2 Vern. 357 ; Dashwood v. Lord Bulkeley, 10 Ves. 230. 
 
 (n) Harvey v. Aston, 1 Atk. 375 ; contra, Wheeler v. Bingham, 3 Atk. 364 ; see 
 Lloyd v. Branton, 3 Mer. 118. 
 
 (o) Wheeler v. Bingham, 3 Atk. 368 ; Lloyd v. Branton, 3 Mer. 118. 
 
 (p) Underwood v. Morris, 3 Atk. 184; Reynish v. Martin, 2 Atk. 330. 
 „ (q) Holmes v. Lysight, 2 Bro. P. C. 261 ; Hemmings v. Munckley, 1 Bro. C. C. 303; 
 Scott v. Tyler, 2 Bro. C. C. 489 ; 2 Dick. 712; Creagh v. Wilson, 2 Vern. 572; Gillet 
 v. Wray, 1 P. Wms. 284 ; Harvey v. Aston, 1 Atk. 375, 8 ; Knight v. Cameron, 14 
 Ves. 389. 
 
 (r) Hemmings v. Munckley, 1 Bro. C. C. 303; Clarke v. Parker, 19 Ves. 8, 9; Mal- 
 colm v. O'Callaghan, 2 Mad. 349; Long v. Ricketts, 2 S. & St 179. 
 
 (*) Stackpole v. Beaumont, 3 Ves. 89 ; Scott v. Tyler, 2 Bro. C. C. 431 ; Creagh v. 
 Wilson, 2 Vern. 572 ; Gillet v. Wray, 1 P. Wms. 286 ; 1 Rop. Legs. 658. 
 
 (t) Hemmings v. Munckley, 1 Bro. C. C. 303 ; Scott v. Tyler, 2 Bro. C. C. 489 ; 
 Stackpole v. Beaumont, 3 Ves. 89. 
 
 (u) Clarke v. Parker, 19 Ves. 1 ; Malcolm v. O'Callaghan, 2 Mad. 349', 354 ; Gillet 
 v. Wray, 1 P. Wms. 284; Lloyd 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. 
 
OF DISCRETIONARY POWERS. 747 
 
 "against" was held to mean "without" their consent, and the devise 
 over was established upon the first devisee's marriage without such con- 
 sent, *although it did not appear that the trustees opposed the 
 marriage. (a;) Where the limitation over is made to take effect •• ' 
 on the death of the first donee, without marrying with the required con- 
 sent, it is uncertain, whether the donee could entitle himself to the gift 
 by a second marriage with the proper consent, where he had been pre- 
 viously married without such consent.^/) Upon principle, it would seem, 
 that he might do so. However, it is clearly settled, that a condition, 
 requiring consent, will be satisfied by the first marriage with the re- 
 quired consent. And a second marriage without consent will not, there- 
 fore, 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 obtaining the 
 consent will cease, when the interest becomes vested. For instance, 
 where a legacy is given to a child at twenty-one, provided that if he 
 marry without the consent of the trustees, there should be a forfeiture. 
 The legatee will take, absolutely discharged from the condition, upon 
 attaining twenty-one. (a) It will doubtless be observed that this is in the 
 nature of a subsequent condition. 
 
 Where a testator, by his will, requires the consent of his executors 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 
 his approbation, the condition will be dispensed with ; nor will it be ap- 
 plicable 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.(e) 
 
 Having thus considered generally how far these provisions, requiring 
 the consent of the trustees to a marriage, will be enforced — we will now 
 
 (x) Long v. Ricketts, 2 S. & St. 179 ; but see Harvey v. Aston, 1 Atk. 375 ; Pollock 
 v. Croft, 1 Mer. 184. 
 
 (?/) Malcolm v. O'Callaghan, 2 Mad. 349. 
 
 (2) Hutcheson v. Hammond, 3 Bro. C. C. 128, 146 ; Crommelin v. Crommelin, 3 Ves. 
 227 ; Lowe v. Manners, 5 B. & Aid. 917; 1 Rop. Legs. 709, 10. 
 
 (a) Pullen v. Ready, 2 Atk. 587 ; Desbody v. Boyville, 2 P. Wins. 547 ; Knapp v. 
 Noyes, Ambl. 662 ; Osborn v. Brown, 5 Ves. 527 ; see Stackpole v. Beaumont, 3 Ves. 
 89 ; but see Malcolm v. O'Callaghan, 2 Mad. 354 ; and Lloyd v. Branton, 3 Mer. 108 ; 
 see Graydon.v. Hicks, 2 Atk. 18. 
 
 (6) Clarke v. Berkeley, 2 Vern. 720 ; Crommelin v. Crommelin, 3 Ves. 227 ; Parnell 
 v. Lyon, 1 V. & B. 479 ; Wheeler v. Warner, 1 S. & St. 304 ; Smith v. Cawdery, 2 S. 
 & St. 358 ; Coventry v. Higgins, 8 Jur. 182. 
 
 (c) Berkley v. Ryder, 2 Ves. 537 ; Burleton v. Humfrey, Ambl. 256. 
 
748 OF DISCRETIONARY POWERS. 
 
 proceed to examine in what manner a power to consent to a marriage 
 must be exercised by the trustees. 1 
 
 And first, What will be a sufficient consent by the trustees to a mar- 
 riage, 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 contempla- 
 tion ; but a general license, giving the party " free leave and consent to 
 marry whomsoever she choosed," will be sufficient, if acted upon.(cZ) And 
 where a consent in writing by the trustee was not expressly required by 
 the will, a general verbal consent, by him, for the legatee to marry 
 " whomsoever *she pleased," under which she afterwards mar- 
 .L -I ried, has been held to satisfy the condition. (e) 
 v And the court, in its anxiety to get rid of conditions of this descrip- 
 tion, has construed very loose and inconclusive expressions of the trus' 
 Jtee into an express consent. Thus, statements in a letter, that the 
 trusiee " would be obliged to consent ;(/) or that he would never stand 
 in the way of any arrangement by the co-trustees ;"(g) or " that he 
 should not oppose" the marriage ;(h) or " you know you have my con- 
 sent ;"(i) or that the trustees " were ready to consent ;"(&) had been held 
 sufficient. 
 
 It is settled that, if a consent in 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 discouraged the court- 
 ship. (to) And it will be an additional reason for adopting this construc- 
 tion, if the party by whom the consent is to be given, himself takes a 
 beneficial interest in the property in case of the forfeiture 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, ap- 
 pears to be this, viz., that it would amount to a constructive fraud on 
 the legatee, to hold that there was a want of 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 
 
 (d) Mercer v. Hall, 4 Bro. C. C. 328. (e) Pollock v. Croft, 1 Mer. 181. 
 
 (/) Daley v. Desbouverie, 2 Atk. 261 ; but see Clarke v. Parker, 19 Ves. 12; and 
 see Dashwood v. Lord Bulkeley, 10 Ves. 241. 
 
 (g) D'Aguilar v. Drinkwater, 2 V. & B. 225. (h) Merry v. Ryves, 1 Ed. 1. 
 
 (i) Worthington v. Evans, 1 S. & St. 165. (k) Le Jeune v. Budd, 6 Sim. 441. 
 
 (I) Harvey v. Aston, 1 Atk. 375 ; Mesgrett v. Mesgrett, 2 Vern. 581 ; Clark v. Parker, 
 19 Ves. 12, 24; O'Callaghan v. Cooper, 5 Ves. 126. 
 
 (m) Mesgrett v. Mesgrett, 2 Vern. 580 ; Daley v. Desbouverie, 2 Atk. 261 ; Campbell 
 v. Lord Netterville, 2 Ves. 534, cited ; Lord Strange v. Smith, Ambl. 263. 
 
 (n) D'Aguilar v. Drinkwater, 2 V. & B. 225 ; see Mesgrett v. Mesgrett, 2 Vern. 530. 
 
 1 See notes to Scott v. Tyler, 2 Lead. Cas. Eq., p. i, 315, &c. (1st Am. ed.) 
 
OF DISCRETIONARY POWERS. 719 
 
 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 misrepresen- 
 tation of another. (p) 
 
 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 in- 
 terpose, 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 instru- 
 ment, the condition will be satisfied by any writing, however informal 
 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 necessary, unless -expressly 
 required by the terms of the trust. And it is immaterial, that a regular 
 deed *of consent has been prepared for the signature of the r^qq-i 
 trustees, and that it was their intention to execute the more 
 formal instrument.(Z) 
 
 A distinction was once attempted to be established between the terms 
 "consent" and "approbation." In Burleton v. Humfrey,(w) a trust of 
 real and personal estate was declared in favor of the testator's daugh- 
 ter, if she married with the consent and approbation of the trustee, with 
 a devise over, if she married without such consent or approbation. The 
 daughter married without the trustee's consent or knowledge, but he 
 subsequently gave his approbation to the marriage ; and Lord Hard- 
 wicke determined, that the condition required only the consent or the 
 approbation of the trustee, and the subsequent approbation was there- 
 fore sufficient. (a;) However, his Lordship did not venture to rest his 
 decree on the distinction thus taken by him, which was afterward dis- 
 approved of both by Lord Thurlow and Lord Eldon.(t/) Again, in the 
 case of Berkley v. Ryder,(a) where the marriage was to be with the 
 consent and approbation of the trustees, Lord Hardwicke himself did 
 not attempt to maintain this distinction, and in several subsequent cases, 
 where the same expressions occurred, such a distinction has not been 
 
 ■ (o) Clarke v. Parker, 19 Ves. 12, 18, 19 ; Daskwood v. Lord Bulkeley, 10 Ves. 243 ; 
 D'Aguilar v. Drinkwater, 2 V. & B. 234. 
 
 (p) Clarke v. Parker, 19 Ves. 17, 18. 
 
 (j) Clarke v. Parker, 19 Ves. 12 ; D'Aguilar v. Drinkwater, 2 V. & B. 230. 
 
 (r) Lord Strange v. Smith, Ambl. 263 ; Clarke v. Parker, 19 Ves. 18, 19 ; see Farmer 
 v. Compton, 1 Rep. Ch. 1. 
 
 (s) Worthington v. Evans, 1 S. & St. 165 ; Daley v. Desbouverie, 2 Atk. 261 ; Merry 
 v. Ryves, 1 Ed. 1 ; D'Aguilar v. Drinkwater, 2 V. & B. 225 ; Le Jeune v. Budd, 6 Sim. 
 441. „ 
 
 (<) Worthtngton v. Evans, 2 S. & St. 165. («) Ambl. 256. 
 
 (x) Burleton v. Humfrey, Ambl. 256. \y) See 19 Ves. 21. 
 
 (z) 2 Ves. 533. 
 
750 OF DISCRETIONARY POWERS. 
 
 raised. (a) The dictum of Lord Hardwicke in Burleton v. Humfrey must 
 therefore 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 observed by 
 Lord Hardwicke in the case of Reynish v. Martin, (6) that if the legatee 
 tl married without the consent of the trustees, their consent or approba- 
 tion afterwards was immaterial, — because no subsequent approbation 
 could amount to a performance of the condition, or dispense with a 
 breach of it."(5) And as it was forcibly put by Lord Thurlow when re- 
 marking on the decision in Burleton v. Humfrey, '• If subsequent appro- 
 bation 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."(e) The only case opposed to this doctrine, 
 is that of Burleton v. Humfrey,(cZ) which has just been discussed, and 
 which has been completely overruled on this point by a series of subse- 
 quent decisions, (e) 
 
 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 actu- 
 ally approved of a marriage, and was prevented from executing a previ- 
 ous formal consent in writing by some accident, and not from any change 
 of purpose, the court would consider his consent to have been substan- 
 tially given according to the will. In that case the formal consent was 
 executed by the trustee a few hours after the solemnization of the mar- 
 riage, 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 
 L -■ doubt, that the court if necessary would act upon that principle, 
 and relieve from strict non-performance of the condition under similar 
 circumstances, on the ground that the condition was in fact substantially, 
 though not literally performed. And such a jurisdiction would depend 
 upon the broad equitable principle of relieving from the consequences of 
 innocent mistake or accident.(^) 
 
 If a trustee once gives his absolute consent to a marriage after full ' 
 information of all the circumstances connected with it, he cannot after- 
 wards withdraw that consent. (h) And the reason is, that the parties are 
 
 (a) See Hemmings v. Munckley, 1 Bro. C. C. 304; Malcolm v. O'Callaghan, 2 Mad. 
 349. 
 
 (6) Reynish v. Martin, 3 Atk. 331. (c) See Clarke v. Parker, 19 Ves. 21. 
 
 (d) Ambl. 25G. 
 
 (e) Reynish v. Martin, 3 Atk. 331 ; Berkley v. Ryder, 2 Ves. 532 ; Clarke v. Parker, 
 19 Ves. 1 ; Malcolm y. O'Callaghan, 2 Mad. 349 ; Long v. Ricketts, 2 S. & St. 179. 
 
 (/) 1 S. & St. 172. 
 
 iff) O'Callaghan v. Cooper, 5 Ves. 117, 125 ; ante, Pt. I, Div. II, Ch. II. 
 
 (h) lie Jeune v. Budd, 6 Sim. 441 ; Farmer v. Compton, 1 Rep. Ch. 1 ; Lord Strange 
 
OF DISCRETIONARY POWERS. 751 
 
 to be considered to have acted upon the license, and it would be doing 
 violence to their feelings, as well as to the intentions 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 retract their consent.(A) 
 
 So the consent may be given " conditionally," if there be nothing un- 
 reasonable or improper in the condition reserved. Thus an assent to a 
 marriage, provided the husband make a settlement according to a previ- 
 ous proposal ;{l) or, if the co-trustees will consent,(m) will be a conditional 
 assent. And if the parties afterwards fail or refuse to perform the con- 
 dition on which the consent was given, it may properly be withdrawn. (n) 
 But where the consent is given conditionally on the making of a settle- 
 ment, it is settled, that a settlement, made after the marriage in pursu- 
 ance 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 marriage, 
 the consent must be given by all who accept the trust, (p) Unless indeed 
 the dissenting trustee be actuated by an unreasonable or improper mo- 
 tive 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) 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 consent of three trustees 
 being required, the consent of two would do, the third not having L J 
 been at all consulted.(tf) 
 
 And it is immaterial, that the testator, by requiring the consent of 
 the trustees, or the survivors, or the representatives of the survivors, 
 
 v. Smith, Ambl. 263 ; Merry v. Rives, 1 Ed. 1 ; Dashwood v. Lord Bulkeley, 10 Ves. 
 242 ; D'Aguilar v. Drinkwater, 2 V. & B. 234. 
 
 (t) 1 Bop. Legs. 699 ; see 2 V. & B. 234. 
 
 \h) Clarke v. Parker, 19 Ves. 13 ; Dashwood v. Lord Bulkeley, 10 Ves. 242. 
 
 (1) O'Callaghan v. Cooper, 5 Ves. 117 ; Dashwood v. Lord Bulkeley, 10 Ves. 230. 
 
 \m) D'Aguilar v. Drinkwater, 2 V. & B. 235, 6. 
 
 (n) Dashwood v. Lord Bulkeley, 10 Ves. 230. 
 
 (o) 5 Ves. 117 ; 10 Ves. 244. (p) Clarke v. Parker, 19 Ves. 1. 
 
 (q) Peyton v. Bury, 2 P. Wma. 626, 8; Mesgrett v. Mesgrett, 2 Vern. 580 ; Clarke 
 v. Parker,' 19 Ves. 12, 18. 
 
 (r) 1 Atk. 375. {s) 19 Ves. 13, 24. 
 
 (t) Clarke v. Parker, 19 Ves. 17. 
 
752 OF DISCRETIONARY POWERS. 
 
 shows that he did not attach any importance to the consent of the par- 
 ticular parties who are named ; for if he have expressed that those per- 
 sons 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.(z:) For such an authority would be con- 
 strued 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 with- 
 holding 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 requi- 
 site.^) 
 
 If, however, it be evident, that the power is intrusted to the donee 
 from confidence in his personal discretion, and not merely in his charac- 
 ter 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 regards the deceased parties, will be dispensed with 
 by their death ; for the strict performance of the condition is rendered 
 impossible by the act of God. (b) 
 
 And it follows from the same principle, that on -the death of all the 
 persons whose consent is rendered necessary, the condition, though pre- 
 cedent, will be altogether gone, and the legatee will take absolutely. 
 
 And if the condition be subsequent, and the consent of the executors 
 or trustees in the plural number only be required, and one of the two 
 executors or trustees die, the condition is gone, inasmuch as it can no 
 longer be literally performed, and the consent of the surviving executor 
 or trustee will not be requisite, (c) A fortiori, therefore, the condition 
 wills 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 
 
 (u) Per Lord Eldon, 19 Ves. 15. 
 
 (x) Daley v. Desbouverie, 2 Atk. 261 ; Clarke v. Parker, 19 Ves. 17; D'Aguilar v. 
 Drinkwater, 2 V. & B. 225. 
 
 (y) 2 V. & B. 235, 6. 
 
 (z) Worthington v. Evans, 1 S. & St. 165 ; see Clarke v. Parker, 19 Ves. 16. 
 
 (a) Graydon v. Graydon, 2 Atk. 16, 19 ; as stated and explained, 1 Rop. Legs. 695, 
 696. (b) 1 Rop. Legs. 691. 
 
 (c) Peyton v. Bury, 2 P. Wms. 626 ; see Jones v. Suffolk, 1 Bro. C. C. 528. 
 
 \d) Graydon v. Hicks, 2 Atk. 16, 18; Aislabie v. Rice, 3 Mad. 256; 8 Taunton, 459. 
 
etc. 753 
 
 power of giving the required consent is extended by the trust instrument 
 to the surviving trustees, and the representatives of the survivor, (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 
 that *power to be abused, but will examine into the conduct and L -" 
 motives of the persons intrusted with it, in order to ascertain 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 equitable jurisdiction has been 
 characterized by Lord Eldon as a "dangerous 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 that 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 refused 
 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 engagement.(j) And Lord 
 Hardwicke rested his decision in Delay v. Desbouverie(&) upon the prin- 
 ciple now under discussion, rather than on the sufficiency of the actual 
 consent there given. (I) 
 
 Upon the same principle, where a trustee refuses to exercise his power 
 of giving his consent to a marriage, the court, contrary to the practice 
 in other cases, will itself assume the exercise of that discretion, 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 
 
 (e) See Clarke v. Parker, 19 Ves. 15. (/) 1 Rop. Legs. 697. 
 
 (g) See Dashwood v. Bulkeley, 10 Ves. 245 ; Clarke v. Parker, 19 Ves. 12, 18. 
 \h) Mesgrett v. Mesgrett, 2 Vern. 580 ; see 10 Ves. 243. 
 
 (i) Lord Strange v. Smith, Ambl. 264; seelO Ves. 242, 243; Merry v. Ryves, 1 Ed. 1 ; 
 see Peyton v. Bury, 2 P. Wms. 628. (ft) 2 Atk. 261. 
 
 {I) See 19 Ves. 19. . (m) Goldsmid v. Goldsmid, 19 Ves. 368 ; S. C. Coop. 225. 
 (a) Ante, p. 274, 316. 
 
 48 
 
754 POWERS AND DUTIES OP TRUSTEES 
 
 by them, or in their names. 1 And at law, the power of releasing or com- 
 promising the claim on which an action is founded, is commensurate 
 with that of bringing and maintaining the action. (b) 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 released 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 afterwards put in suit by the cestui que trust in the trus- 
 tee'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 represen- 
 tatives of the cestui que trust on a bill filed by them for that purpose.(c) 
 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 re- 
 leased a recognizance without any consideration, he was decreed on the 
 suit of the cestui que trust to repay the principal and interest.(d) 2 
 
 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 bold the party to his original 
 obligation. Even at law, a fraudulent release of an 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 trus- 
 tee's agent for the purpose 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 an 
 
 *action within the time fixed by the Statute of Limitation, the 
 
 - L J remedy as against the stranger will be barred ; and this though 
 
 the cestui que trust is an infant. (A) 3 And conversely from these de- 
 
 (6) Ante, ubi supra. 
 
 (c) Pritchard v. Langher, 2 Vera. 19?. [Ante, 449.] 
 
 \d) Jevon v. Bush, 1 Vera. 342. 
 
 (e) Legh v. Legh, 1 B. & P. 447 ; Danerman v. Radenius, 7 T. B. 670, b ; Payne v. 
 Rogers, Dougl. 407 ; Hickey v. Birt, 7 Taunt. 48 ; Anon. 1 Salk. 260 ; Manning v. Cox, 
 7 Moore, 617 ; Barker v. Richardson, 1 Y. & J. 362. [See ante, 274, note (1).] 
 
 (/) Lynch v. Clemence, 1 Lutw. 577 ; 7 Bac. Abr. 186 ; [contra, Chahoon v. Hol- 
 lenback, 16 S. & R. 425.] 
 
 (g) Tucker v. Tucker, 4 B. & Ad. 745. [Ante, 274, note (y).] 
 
 (h) Wyeh v. Bast India Company, 3 P. Wms. 309 ; and see Earl v. Countess of Hunt- 
 ingdon, lb. 310, n. ; sed vide Allen v. Sayer, 2 Vera. 368 ; see ante, p. 264, kc. 
 
 1 See ante, page 274, and notes. 2 See ante, page 274, note (1). 
 
 3 See ante, 264, &c, and notes. 
 
AS BETWEEN THEM AND THIRD PERSONS. 755 
 
 cisions it must follow, that the Statute of Limitation will not run as long 
 as ^he trustee, having the legal right of bringing an action, is under dis- 
 ability.^') And so on the other hand, the acknowledgment 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 Limitation in favor of the creditor. (A;) 
 
 In dealings between purchasers and trustees for sale, where the late 
 Act 7 & 8 Vict. c. 76 1 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 purchaser would have been 
 equally safe in dealing with the trustees, if there was a provision in the 
 trust instrument empowering the trustees 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 Rokeby,(wi) 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 necessary to decide the point in that case ; but it is conceived, 
 that a simple power for the trustees to give discharges is abundantly 
 sufficient 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. 2 For instance, where there was a general trust for 
 sale, and the purposes to which the money was to be applied, were un- 
 limited 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 capa- 
 ble of immediate satisfaction, as in the case of a trust for the payment 
 of debts to be ascertained at a future period,(p) or a trust for reinvest- 
 
 (i) Ante, ubi supra. 
 
 (k) St. John v. Boughton, 9 Sim. 219. [Toft v. Stephenson, 1 De G. Mac. & G. 28.] 
 
 (I) Binks v. Lord Rokeby, 2 Mad. 221 ; Drayson v. Poeock, 4 Sim. 283 ; Roper v. 
 Halifax, 2 Sugd. Pow. App. 3 ; Keon v. Magawly, 1 Br. & W". 401. 
 
 (m) 2 Mad. 238. (n) 4 Sim. 283. 
 
 (o) Culpepper v. Aston, 2 Ch. Ca. 115; Anon. Salk. 153; Dunch v. Kent, 1 Vera. 
 160 ; Jenkins v. Hiles, 6 Ves. 654, n. ; Williamson v. Curtis, 3 Bro. C. C. 96 ; Barker 
 v. Duke of Devonshire, 3 Mer. 310 ; Binks v. Lord Rokeby, 2 Mad. 238 ; Shay v. Borrer, 
 1 Keen, 559 ; Forbes v. Peacock, 11 Sim. 152, 160 ; Jones v. Price, lb. 557 ; Rogers 
 v. Skillicome, Ambl. 188 ; Ball v. Harris, 8 Sim. 485; 4 M. & Cr. 264 ; Bland v. Eland, 
 1 Beav. 235 ; 4 M. & Cr. 420 ; Page v. Adam, 4 Beav. 269 ; Glyn v. Locke, 3 Dr. & 
 W. 11. (oo) Smith v. Guyon, 1 Bro. C. C. 186. 
 
 (p) Balfour v. Welland, 16 Ves. 151, 156. 
 
 1 This act is repealed. 
 
 2 On the liability of a purchaser to see to the application of the purchase-money, see 
 notes, ante, 342, 363. 
 
756 POWERS AND DUTIES OF TRUSTEES 
 
 ment 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 
 j-^rnr-i stated,(s) *that under a trust for the payment of debts, a pur- 
 J chaser 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 exonerated from seeing to the application of the 
 money, although there might be also a trust to pay legacies,(w) or annui- 
 ties. (a;) 
 
 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 ex- 
 press 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.(y) Thus we have seen that 
 this equity has been enforced against a purchaser, where the trust 
 was for the payment of certain legacies, («) or of debts which were 
 scheduled or specified,(a) or where a decree had been made for the pay- 
 ment of debts. (b) Although according to the later practice, a purchaser 
 would have been exonerated 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.(c) And so where a trust for sale was created, by act of 
 
 [q) Doran v. Wiltshire, 3 Sw. 699. 
 
 (r) Sowarsby v. Lacy, 4 Mad. 142 ; Lavender v. Stanton, 6 Mad. 46 ; Breedon v. 
 Breedon, 1 R. & M. 413. (s) Ante, p. 397. 
 
 (t) Johnson v. Kennett, 3 M. & K. 631 ; 6 Sim. 384; Langley, v. E,arl of Oxford, 
 Ambl. 797 ; Forbes v. Peacock, 11 Sim. 152, 160 ; Eland v. Eland, 4 M. & Cr. 428; 1 
 Beav. 235; Page v. Adam, 4 Beav. 269, 283 ; Shaw v. Borrer, 1 Keen, 559. 
 
 (w) Rogers v. Skillieome, Ambl. 188 ; Jebb v. Abbott, and Benyon v. Collins, Co. 
 Litt. 290, b. ; Butl. note (1), Sect. 12. 
 
 (x) Johnson v. Kennett, 3 M. & K. 627 ; Eland v. Eland, 1 Beav. 241 ; 4 M. & Cr. 
 420; Page v. Adam, 4 Beav. 269, 284. 
 
 {y) 2 Sugd. V. & P. 30, et seq. 9th edit. ; ante p. 476 [Power of Sale]. 
 
 (2) Horn v. Horn, 2 S. & St. 448 ; Johnson v. Kennett, 3 M. & K. 630 ; ante, p. 
 [363, note; Duffy v. Calvert, 6 Gill, 487.] 
 
 (a) Dunch v. Kent, 1 Vern. 260 ; Spalding v. Shalmer, Id. 301 ; Abbott v. Gihbs, 
 1 Eq. Ca. Abr. 358 ; Binks v. Lord Rokeby, 2 Mad. 238 ; ante, p. [342, note ; Duffy v. 
 Calvert, 6 Gill. 487.] 
 
 (6) Lloyd v. Baldwin, 1 Ves. 173 ; Welker v. Smallwood, Ambl. 676; ante, p. 342. 
 
 (c) Binks v. Lord Rokeby, 2 Mad. 239 ; 2 Sugd. V. &. P. 34, 9th edit. 
 
 (1) There is a material distinction between a trust to sell for the benefit of infants, 
 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. 
 
AS BETWEEN THEM AND THIRD PERSONS. 757 
 
 Parliament, and the money -was directed to be applied to certain pur- 
 poses, 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 incum- 
 bent on a purchaser to see the money laid out and employed according 
 to the act.(d) 
 
 Hence, according to the law, as it stood prior to the late alteration, it 
 was essential to the security of the purchaser from trustees to obtain re- 
 leases 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 re- 
 sale. And where the amount of any charge was at all considerable, or 
 they were few in number, it was usual and convenient to make the per- 
 sons, 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 in- 
 vested by the trustees according to the trust, and procured them to exe- 
 cute *a declaration of the trust. It was the opinion of Mr. j-*™,,-. 
 Booth, and also of Mr. Wilbraham, that the liability of the pur- ■- J 
 chaser 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, (g) 
 
 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 be 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.(A) The principles upon which this prima facie liability of pur- 
 chasers 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 prac- 
 tical 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 convey- 
 ance.^") i 
 
 The law on this subject has been materially simplified, and the facili- 
 ties of dealing with trustees in the purchase of property increased, 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 express or implied trust, 
 
 (d) Cotterell v. Hampson, 2 Vern. 5. (e) 2 Sugd. V. & P. 49, 9th edit. 
 
 (/) 2 Sugd. V. & P. 49, 50, 9th edit. 
 
 \g) 2 Sugd. V. & P. 37, 9th edit. ; 2 Cas. & Op. 114. 
 
 \h) Forbes v. Peacock, 11 Sim. 152, 160. (i) Forbes v. Peacock, 12 Sim. 528. 
 
 1 This act is repealed. 
 
758 POWERS AND DUTIES OF TRUSTEES 
 
 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 contrary 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 reinvestment or distribution, &c. — the trustees are unques- 
 tionably 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 themselves, is not within 
 the benefit of the act ; and in such cases, according 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 overriding the other trusts.(&) 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. (Z) 1 
 
 . *And the conveyance itself may furnish intrinsic evidence of 
 
 L -1 the intended misapplication, so as to fix the purchaser with 
 notice of the breach of trust — as where the consideration is a personal 
 debt, due from the trustee,(ra) — or where it appears from the deed that 
 
 (k) Watkins v. Cheek, 2 S. & St. 199; Eland v. Eland, 4 M. & Cr. 427; see Thomp- 
 son v. Blackstone, 6 Beav. 470. 
 
 (I) See Johnson v. Kennett, 3 U. & K. 631 ; Ewer v. Corbet, 2 P. Wms. 149 ; Forbes 
 v. Peacock, 12 Sim. 528, 547 ; but see Page v. Adam, 4 Beav. 269. 
 
 (to) Watkins v. Cheek, 2 S. & St. 205 ; Eland v. Eland, 4 M. & Cr. 427 ; see Thomp- 
 son v. Blackstone, 6 Beav. 470. 
 
 1 The case of Forbes v. Peacock, 12 Sim. 528, in which this position was laid down, 
 was reversed on appeal by Lord Lyndhurst (1 Phillips, 717), and the rule established 
 in accordance with Page v. Adam, 4 Bear. 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. Norton, 21 Law J. Chanc. 15, 
 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 testator's 
 death, and the purchaser knew it. But in Stroughill v. Anstey, 1 De G. Mac. & G. 
 635, Lord St. Leonards disapproved of the distinction, and held that in both cases the 
 purchaser would be discharged ; and with this Mather v. Norton, 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 Brockenb. 238 ; 6 Call, 308. See 
 ante, notes to 342 and 363. 
 
AS BETWEEN THEM AND THIRD PERSONS. 759 
 
 the money is to be applied for the benefit of the trustee, and not upon 
 the purposes of the trust, (n) 
 
 But it must be shown by positive evidence, that the purchaser was 
 aware of the breach of trust committed, or intended, by the trustees ;(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 purposes of the 
 trust.(p) 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 affect a purchaser with constructive notice, 
 that the debts have been paid, or render it incumbent on him to inquire 
 as to the existence of any debts. (g) And it has even 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 testator's 
 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 circum- 
 stances, the debts must he 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 answer 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. (s) 1 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,(£) an estate was devised to trustees in trust to sell 
 for the payment of debts on the insufficiency of the personal and another 
 
 (») Watkins v. Cheek, 2 S. & St. 205, 6. (o) Eland v. Bland, 4 M. k Cr. 427, 8. 
 
 (p) Johnson v. Kennett, 3 M. & K. 624. 
 
 (q) Johnson v. Kennett, 3 M. & K. 631 ; Eland v. Eland, 4 M. & Cr. 429 ; Paige v. 
 Adam, 4 Beav. 283. 
 
 (r) Page v. Adam, 4 Beav. 283. 
 
 (s) Forbes v. Peacock, 13 Law. Journ. N. S., Chanc. 46 ; 12 Sim. 528. 
 ; \t) Pierce v. Scott, 1 Y. & Coll. 257. 
 
 1 But see note to the preceding page. 
 
760 POWERS AND DUTIES OF TRUSTEES 
 
 real estate. Fifteen years after the testator's death the trustees con- 
 tracted for the sale of this estate, and filed a bill to compel the perform- 
 r^ORI ance °^ * tnat contract, alleging the existence of debts. It was 
 J held, however, that the length of time was a reason for suspect- 
 ing the existence of debts, and that what was ground for suspicion might 
 be deemed notice to a purchaser ; and the relief was consequently re- 
 fused.^) 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 necessary to 
 call in any of the securities, the trustees, without any express authority, 
 are able to give sufficient discharges to the borrowers of the money with- 
 out the concurrence of the persons beneficially interested.(w) 
 
 Where the legal interest with the general power of management is 
 vested in the trustees, it is clear, that the tenants and persons indebted 
 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 dis- 
 charges 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 be- 
 yond the usual covenant that they have not incumbered.^) 1 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. (y) And trustees, 
 whilst in the legal possession of any real, or leasehold estate, will, of 
 course, be liable to strangers in respect of any covenants 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 lease- 
 hold property), they will be entitled to an indemnity from the cestui que 
 trusts in respect of those covenants ;(s) as will also be the case where a 
 trustee enters into personal covenants with the lessor on taking or re- 
 newing a lease. (a) But it seems, that the court will be anxious to relieve 
 trustees from the effect of any personal covenants which they may have 
 
 (t) Pierce v. Scott, 1 Y. & Coll. 257. 
 
 (u) Wood v. Harman, 5 Mad. 368 ; ante, p. 483 [Powers of Changing Securities]. 
 \x) 4 Cruis. Dig., Tit. 32, Ch. 26, s. 87 ; ante, Pt. II, Ch. IV, Sect. 1. 
 (y) See Att.-Gen. v. Morgan, 2 Russ. 306 ; and Wedgwood v. Adams, 6 Beav. 600. 
 (z) Simons v. Bolland, 3 Mer. 547; Cochrane v. Robinson, 11 Sim. 378; ante, p. 
 438. 
 
 (a) Marsh v. Wells, 2 S. & St. 90 ; ante, 432 [Trustees of Leaseholds]. 
 
 1 See ante, 281, note. 
 
AS BETWEEN THEM AND THIRD PERSONS. 761 
 
 entered into with third parties. And where trustees of a charity estate 
 had granted an improper 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 trus- 
 tees.^) 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 agree- 
 ment against the trustees, so as to compel them to exonerate the estate, 
 but left the purchaser to his action at law for damages, (e) 
 
 *We have already seen, that a contract of sale will not be rj fer ncn 
 specifically enforced by the court of equity where it is a breach <- J 
 of trust, and in such cases it is immaterial that the conduct of the pur- 
 chaser is perfectly fair and proper.(d) 
 
 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.(A) 1 
 
 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 purchaser 
 from the trustee for valuable consideration from the time of the convey- 
 ance. And the same principle would doubtless be applied a fortiori to 
 constructive trusts. In future therefore bona fide purchasers of real 
 estate from a trustee for valuable consideration cannot be called in ques- 
 tion 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 ;(i) 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 ;(&) 
 
 (6) Att.-Gen. v. Morgan, 2 Russ. 306. 
 
 (c) Wedgwood v. Adams, 6 Bear. 600. 
 
 (d) Mortlock v. Buller, 10 Ves. 311; vide supra [Powers of Sale]. Ante, 477, and 
 see 281. 
 
 (e) Ante, p. 164; Winged v. Lefebury, 1 Bq. Abr. 32 ; Mead v. Orrery, 3 Atk. 238 ; 
 Earl Brook v. Bulkeley, 2 Ves. 498 ; Taylor v. Stibbert, 2 Ves. Jun. 437 ; Crofton v. 
 Ormsby, 2 Sch. & Lef. 583 ; Adair v. Shaw, 1 Sch. & Lef. 262. 
 
 (/) Bovey v. Smith, 1 Vern. 145 ; Kennedy v. Daily, 1 Scb. & Lef. 379. 
 
 (g) Sanders v. Dehew, 2 Vern. 271; Pye v. George, 1 P. Wms. 128; Mansell v. 
 Mansell, 2 P. Wms. 681. 
 
 (h) Brook v. Bulkeley, 2 Ves. 498 ; Molony v. Kernan, 2 Dr. & W. 31 ; Butcher v. 
 Stapely, 1 Vern. 363. (i) See section 2. (k) Sect. 16. 
 
 1 Ante, 164, &c, and notes. 
 
762 POWERS AND DUTIES OF TRUSTEES 
 
 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 inte- 
 rested, 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 under 
 him ; and the remedies for the cestui que trusts against the trustee still 
 remain untouched by the statute.(wi) 
 
 The provisions of the act are confined to interests in land or real 
 estate, therefore a purchaser from a trustee with notice of chattels per- 
 sonal may still be called to account by the cestui que trusts notwithstand- 
 ing his length of enjoyment ; subject to the rule of equity against afford- 
 ing relief upon stale demands, (n) 
 
 But where a trustee, being in possession of the trust estate, makes a 
 lona 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 
 trust, and the *legal conveyance of course gives him the priority 
 L J at law.(o) And hence it is an important subject for considera- 
 tion, in dealings between trustees and third persons, to ascertain what 
 will be sufficient notice of a trust to a purchaser. 
 
 This notice may be either actual or constructive, and there is no dif- 
 ference between actual and constructive notice in its consequences.(p) 
 
 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 forgotten. (qY Thus in 
 
 (I) Sect. 17. (m) See Section 25. 
 
 (n) Ante, Pt. I, Div. II, Ch. II, Sect. 1 ; [p. 168, and notes]. 
 
 (o) Millard's case, 2 Freem. 43; Finch v. Earl of Winchelsea, 1 P. Wms. 278, 9; 1 
 Cruis. Dig., Tit. 12, Ch. 4, s. 12. 
 
 (p) Sheldon v. Cox, Ambl. 626 ; 2 Sugd. V. & P. 276, 9th edit. 
 (q) 2 Sugd. V. & P. 276, 9th edit. 
 
 ' See notes to Le Neve v. Le Neve, 2 Lead. Cas. Bq. p. i, 145, 1st Am. Ed. ; Kerns 
 v. Swope, 2 Watts, 78 ; Jaques v. Weeks, 7 Id. 267 ; Epley v. Witherow, Id. 163 ; 
 Lewis v. Bradford, 10 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. 225; Boggs v. Varner, 6 W. & S. 471 ; Butler v. Ste- 
 vens, 26 Maine, 484. But when the information is sufficiently clear to put the pur- 
 chaser on inquiry, it has been held immaterial whether it comes from the party inte- 
 rested or a stranger. Curtis v. Mundy, 3 Mete. 406 ; Jackson v. Cadwell, 1 Cowen, 
 622 ; Pearson v. Daniel, 2 Dev. & Batt. Eq. 360 ; Currens v. Hart, Hardin, 37. 
 
AS BETWEEN THEM AND THIKD PERSONS. 763 
 
 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 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 
 sufficient notice, then the inheritance of every man might easily be 
 slandered. So in a more modern case,(s) it was held not to be sufficient 
 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.(tf) However, according to 
 the advice of Sir E. 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, (w) 
 
 The notice will also be insufficient, unless it is given to the purchaser 
 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 occa- 
 sion :{x) and we shall presently see, that the same rule applies with even 
 greater force to persons acting as agents. («/) 
 
 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) 1 But this definition often leaves it 
 very difficult to say, what will or will not amount to constructive 
 notice,(J) and the decisions on this point are not universally satisfactory 
 or even consistent. 
 
 (r) Ibid. Goulds, 147, PI. 67 [but see the remarks on this case in Lewis v. Bradford, 
 10 Watts, 79 ; and Currens v. Hart, Hardin, 37], and Cornwallis's case, Toth. 254; and 
 see Jones v. Smith, 1 Hare, .43, 53 ; [1 Phill. 244.] 
 
 (*) Jolland v. Stainbridge, 3,Ves. 478, 486. (1!) 3 Ves. 486. 
 
 (u) 2 Sugd. V. & P. 277, 9th edit. ; see the remarks of Hale, C. B., in Pry v. Porter, 
 1 Mod. 300 ; and see Butcher v. Stapely, 1 Vern. 363. 
 
 (x) East Grinstead's case, Bridgm. Duke Char. Use, 638; Hamilton v. Royse, 2 Sch. 
 & Lef. 315, 327; 2 Sugd. V. & P. 276, 7, 9th edit. [See Parnsworth v. Childs, 4 Mass. 
 640 ; but see Bellas v. Lloyd, 2 Watts, 401 ; and remarks in 2 Lead. Cas. Eq. pt. i, 
 page, 154, 1 Am. Ed.] (y) Post. 
 
 (z) See Weymouth y. Boyer, 1 Ves. Jun. 425. [Mense v. McLean, 13 Missouri, 
 298 ; Nelson v. Sims, 1 Cushm. (Miss.) .383 ; Ingrem v. Phillips, 3 Strobh. R. 569.] 
 
 (a) 2 Sugd. V. & P. 278, 9th edit. [See Rogers v. Jones, 8 N. H. 264; Farnsworth 
 v. Childs, 4 Mass. 640 ; Griffith v. Griffith, 1 Hoff. Ch. 156.] 
 
 (6) See Jones v. Smith, 1 Hare, 43, 55 [affi'd, 1 Phill. 244] ; where the law and all 
 the authorities on the question of constructive notice are elaborately considered by V. 
 C. Wigram. 
 
 1 See post, note, page 515. 
 
764 POWERS AND DUTIES OF TRUSTEES 
 
 r *A public act of Parliament binds all mankind; therefore, a 
 
 L J trust created or noticed by such an act will be binding on a pur- 
 chaser for valuable consideration from the trustees in the absence of 
 any positive notice.(c) But a private act of Parliament does not, of 
 itself, amount to notice ;(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 lis pendens respecting a trust, will, of itself, be notice to a pur- 
 chaser^/) 1 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 lis pendens unless a bill be filed.(<y) The question in the suit 
 must relate to the estate itself, and not solely to money secured on 
 it,(A) 2 although a bill to perpetuate testimony, and to establish a will, is 
 
 (c) 2 Sugd. V. & P. 280, 9th edit. ; Earl of Pomfret v. Lord Windsor, 2 Ves. 480. 
 
 (d) 2 Ves. 480. 
 
 (e) 2 Sugd. V. & P. 280 ; see 3 Bos. & P. 578. 
 
 (/) Style v. Martin, 1 Ch. Ca. 150 ; Sorrell v. Carpenter, 2 P. Wms. 482 ; Worsley 
 v. Earl of Scarborough, 3 Atk. 392 ; Gore v. Stackpole, 1 Dow. 30; Bishop of Win- 
 chester v. Paine, 11 Ves. 194; Landon v. Morris, 5 Sim. 247. 
 
 (g) Anon. 1 Vern. 318. [See Lytle v. Pope, 11 B. Monr. 318; Drew v. Earl of 
 Norbury, 3 J. & Lat. 282 ; Center v. P. & M. Bank, 22 Alab. 743 ; Allen t. Mandaville, 
 26 Mississ. 397 ; Hayden v. Bucklin, 9 Paige, 512 ; Miller v. Kershaw, 1 Bail. Eq. 479. 
 Publication as to a non-resident defendant, is equivalent to service of subpoena. Chau- 
 dron v. Magee, 8 Alab. 570; see Hayden v. Bucklin, 9 Paige, 512.J 
 
 (h) Worsley v. Earl of Scarborough, 3 Atk. 392. 
 
 1 Murray v. Ballou, 1 J. C. R. 566 ; Murray v. Pinster, 2 Id. 155 ; Heatley v. Finster, 
 Id. 158; Murray v. Lylburn, Id. 441; Jackson v. Ketchum, 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 v. Heyward, Id. 208; 
 Walker v. Butz, 1 Yeates, 574 ; Griffith v. Griffith, 1 Hoffm. Ch. 153. Such purchase, 
 indeed, though bona fide, may be void at law, as champertous. Jackson v. Andrews, 7 
 Wend. 152 ; Jackson v. Ketchum, 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 subject in this country ; and in City Coun- 
 cil v. Page, Spear's Eq. 159, it was held that lis pendens would not supply the defect 
 of registry. A lis pendens in a chancery suit is notice of every fact contained in the 
 pleadings, which is material to the issue, and of the contents of exhibits which are pro- 
 duced and proved : Center v. P. & M. Bank, 22 Alab. 743. The general doctrine ap- 
 plies equally to choses in action, such as mortgages : Murray v. Lylburn, 2 J. C. B. 
 441; Center v. P. & M. Bank, 22 Alab. 743; see Scudder v. Van Amburgh, 4 Edw. 
 Ch. 29. But not to negotiable paper : Winston v. Westfeldt, 22 Alab. 760.- 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 SVrobh. Eq. 
 180 ; Green v. Slayter, 4 J. C. R. 38 ; Lodge v. Simonton, 2 Pa. Rep. 449 ; see Holt v. 
 Dewell, 4 Hare, 446. And lis pendens will not affect a prior legal or equitable right. 
 Stuyvesant v. Hone, 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. 
 
 2 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 ; see Carrington v. Didier, 8 Gratt. 260. But in Scudder v. 
 
AS BETWEEN THEM AND THIRD PERSONS. 765 
 
 a sufficient 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), (k) 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 pur- 
 chase, 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 constructive^ notice of the adverse title. (w)(l) 
 
 Decrees of courts of equity where there is no longer any lis pendens, 
 are not, of themselves, notice to a purchaser. (0) But it is otherwise, 
 where the decree does not put an end to the suit, as a decree 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 con- 
 
 (i) Garth v. Ward, 2 Atk. 174. 
 
 (k) See Bishop of Winchester v. Paine, 11 Ves. 200. 
 
 (I) Kinsman v. Kinsman, 1 R. & M. 617, 622 ; See Preston v. Tubbin, 1 Vern. 286 ; 
 Bishop of Winchester v. Paine, 11 Ves. 194; Landon v. Morris, 5 Sim. 260. [See 
 Clarkson v. Morgan, 6 B. Monr. 441 ; Shiveley v. Jones, Id. 274 ; Watson v. Wilson, 2 
 Dana, 406 ; Gibler v. Trimble, 14 Ohio, 323 ; Triable v. Boothby, Id. 116 ; Price v. 
 McDonald, 1 Maryl. R. 403.] 
 
 (m) Gore v. Stackpole, 1 Dow. 31 ; [Debell v. Foxworthy, 9 B. Monr. 228 ; Watson 
 v. Wilson, 2 Dana, 406.] 
 
 (») See 2 Sugd. V. & P. 282, 9th edit. 
 
 (o) Worsley v. Earl of Scarborough, 3 Atk. 332 ; 2 Sugd. V. & P. 283, 9th edit. 
 [Turner v. Crebill, 1 Ohio, 372.] 
 
 (00) Worsley v. Earl of Scarborough, 3 Atk. 392 ; Kinsman v. Kinsman, 1 R. & M. 
 622. [Turner v. Crebill, 1 Ohio, 372 ; Blake v. Heyward, Bail. Eq. 208 ; Price v. 
 White, Id. 244 ; see Winborn v. Gorrell, 3 Ired. Eq. 117.] 
 
 ( p) Harvey v. Montague, 1 Vern. 124. 
 
 (1) By 2 & 3 Vict. c. 11, s. 7, no lis pendens shall bind a purchaser or mortgagee 
 without express notice thereof, unless a memorandum or minute is duly registered as 
 directed by the act. [And see 18 Vict. c. 15. So in Pennsylvania, by act of 22d 
 April, 1856, \ 2, Bright. Supp. 1172, as to actions of ejectment, or to recover real estate, 
 or to compel a conveyance thereof.] 
 
 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. Huffa- 
 ker, 6 B. Monr. 18, of an action of partition, Baird v. Corwin, 17 Penn. St. 462 ; and of 
 a bill for foreclosure. Center v. The P. & M. Bank, 22 Alab. 743. But a suit for divorce 
 and for alimony out of the husband's land is not lis pendens, as against a bona, fide 
 purchaser of the land: Brightman v. Brightman, 1 Rhode Island, 120; Feigley v. 
 Feigley, 7 Maryl. 538. 
 
766 POWERS AND DUTIES OF TRUSTEES 
 
 structive notice of its trusts, (g-) 1 But it will be otherwise, if the pur- 
 
 (q) Moreeock v. Dickens, Ambl. 678 ; Cater v. Cooley, 1 Cox. 82 ; Williams v. Sorrel, 
 4 Ves. 389 ; Bushell v. Bushell, 1 Sch. & Lef. 90 ; Underwood v. Ld. Courtown, 2 Sch. 
 & Lef. 64 ; Wiseman v. Westland, 1T.4J. 117 ; Hodgson v. Dean, 2 S. & St. 221. 
 [Otherwise under the Irish Registration Act of 6 Anne, c. 2. Bushell v. Bushell, ut 
 supr. ; Mill v. Hill, 3 H. L. Cas. 828.] 
 
 1 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 contents, 
 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. Bq. p. i, 160 ; and cases cited, 
 among which are Cushing v. Ayer, 25 Maine, 383 ; McMechan v. Griffing, 3 Pick. 149; 
 Peters v. Goodrich, 3 Conn. 146 ; Parkist v. Alexander, 1 J. C.R. 394 ; Wendell v. Wads- 
 worth, 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; Sehults v. Moore, 1 
 McLean, 520 ; Hughes v. Edwards, 9 Wheat. 489 ; see Mundy v. Vawter, 3 Gratt. 518, 
 where a record of a deed of all the grantor's property,real and personal, was held not notice. 
 This does not, however, apply where the recording of the instrument is not legally re- 
 quisite, or it is defectively executed or acknowledged : Cases in notes to Le Neve v. Le 
 Neve, ut supra ; Moore v. Auditor, 3 Henu. & Munf. 235 ; Sumner v. Rhodes, 14 Conn. 
 135 ; Walker v. Gilbert, 1 Preem. Ch. 85 ; Harper v. Reno, Id. 323 ; Isham v. Ben- 
 nington Iron Co., 19 Verm. 230 ; Graham v. Samuel, 1 Dana, 166 ; Pitcher v. Barrows, 
 17 Pick. 361 ; Thomas v. Grand Gulf Bank, 9 Sm. & M. 201 ; Green v. Drinker, 7 W. 
 & S. 440; Sehults v. Moore, 1 McLean, 520 ; Brown v. Budd, 2 Carter (Ind.), 442; 
 Choteau v. Jones, 11 Illinois, 300 ; Johns v. Reardon, 3 Maryl. Ch. 58; Work v. Har- 
 per, 24 Mississ. 517 ; Pope v. Henry, 24 Verm. 560 ; Lally v. Holland, 1 Swan, 396; 
 nor where it is recorded in a different county from that in which the lands lie : Astor 
 v. Wells, 4 Wheat. 466 ; Kerns v.JSwope, 2 Watts, 75 ; or, a fortiori, in another State. 
 Hundley v. Mount, 8 S. & M. 387 ; Lewis v. Baird, 3 McLean, 56 ; Crosby v. Huston, 
 1 Tesas, 203. But in De Lane v. Moore, 14 How. U. S. 253 ; U. S. Bank v. Lee, 13 
 Peters, 107 ; Crenshaw v. Anthony, Mart. & Yerg. 110 ; Bruce v. Smith, 3 H. & J. 499 ; 
 Crosby v. Huston, 1 Texas, 203, it was held that the registration of a settlement of per- 
 sonal property in the State where the parties resided, and the property then was, is valid 
 as against creditors and purchasers in another State into which the property is after 
 wards removed ; but see Hundley v. Mount, 8 Sm. & M. 387. 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 ; Farnsworth v. Childs, 4 Mass. 637 ; Martin v. Sale, Bail. Eq. 1 ; 
 Correy v. Caxton, 4 Binney, 140 ; Solms v. McCulloch, 5 Barr, 473 ; Pike v. Arm- 
 stead, 1 Dev. Eq. 110 ; Van Meter v. McFaddin, 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 ; McCullough v. Wilson, 21 Penn. St. 436 ; Center v. P. & M. Bank, 22 
 Alab. 743 ; Gibbes v. Cobb, 7 Rich. Eq. 54 ; Knotts v. Geiger, 4 Rich. L. 32 ; Notes to 
 Le Neve v. Le Neve, ut supra. But see, in Ohio, as to mortgages, Mayham v. Coombs, 
 14 Ohio, 428. And in Tennessee it is held, that a purchaser does not acquire a perfect 
 legal title till recording. Roger's Lessee v. Cawood, 1 Swan, 142. 
 
 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 
 
AS BETWEEN THEM AND THIRD PERSONS. 767 
 
 chaser search the register, for in that case he will be deemed to „„„ 
 have had notice *of the deed ;(r) unless indeed the search be L ^ 
 expressly confined to a limited period, in which case it has been held 
 that the limited search will exclude the presumption of a general search, 
 and the purchaser will not be 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 instruments 
 appearing on the court rolls, so far back as a search is necessary for the 
 security of the title.(*) 
 
 (r) Bushell v. Bushell 1 Sch. & Lef. 103. 
 
 (s) Hodgson v. Deau, 2 S. & St. 221 ; affirmed by Lord Chancellor, July, 1825. 
 (t) Pearce v. Newlyn, 3 Mad. 186; 2 Sugd. V. & P. 296, 9th edit. ; but see Hansard 
 v. Hardy, 18 Ves. 462, and Bugden v. Bignold, 2 N. C. C. 300. 
 
 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. v. Ross, 2 Maryl. Ch. Dec. 
 35), on which alone, it is supposed, 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: Norcross v. Widgery, 2 Mass. 509 ; Bush v. Golden, 17 Conn. 
 594; Harris v. Arnold, 1 Rhode Island, 125 ; Prothingham v. Stacker, 11 Missouri, 
 77; Martin v. Sale, Bail. Eq. 1; Fleming v. Burgin, 2 Ired. Eq. 584; Ingrem v. 
 Phillips, 3 Strobh. R. 565 ; see Burt v. Cassety, 12 Alab. 734; McCaskle v. Amarine, 
 12 Alab. 17 ; Hopping v. Burnam, 2 Greene (Iowa), 39. 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 Massachusetts, there are statutory provisions to the same effect : Spofford v. 
 "Weston, 29 Maine, 140 ; Butler v. Stevens, 26 Maine, 489 ; Curtis v. Mundy, 3 Metcalf, 
 405 ; Hennessey v. Andrews, 6 Cush. 170. In Pennsylvania and New York, the deci- 
 sions 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 doctrine just stated. 
 But there is no doubt that in the former State, open and notorious possession is suffi- 
 cient notice of an unrecorded deed : Krider v. Lafferty, 1 Wharton, 303 ; Randall v. 
 Silverthorn, 4 Barr, 173. So in New York, Tuttle v. Jackson, 6 Wend. 213, has esta- 
 blished, contrary to Dey v. Dunham, 2 J. C. R. 182, and other cases, that constructive 
 notice is enough to postpone a subsequent purchaser : see Troup v. Hurlbut, 10 Barb. 
 S. C. 354 ; Pringle v. Phillips, 5 Sandf. 157 ; and in Grimstone v. Carter, 3 Paige, 421, 
 it was held, in general, that equities and agreements to convey, were not within the re- 
 cording acts. In Maryland, 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. ■/. Ross, 2 
 Maryl. Ch. Dec. 35, and Gill v. McAttee, Id. 268 ; Johns v. Reardon, 3 Id. 58, the Eng- 
 lish rule was supported and followed by Chancellor Johnson. That possession is notice, 
 has been also held in Webster v. Maddox, 6 Maine, 256 ; Kent v. Plummer, 7 Id. 464 
 (before the statute referred to above) ; Buck v. Holloway, 2 J. J. Marsh. 163 ; Hopkins 
 v. Garrard, 7 B. Monr. 312 ; Colby v. Kenniston, 4 N. H. 262 ; Griswold v. Smith, 10 
 Vermont, 452 ; Bell v. Twilight, 2 Foster, 500; Williams v. Brown, 14 111. 200 ; and 
 in Landes v. Brant, 10 How. U. S. 348, where indeed, the point was even considered 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. 
 
768 POWERS AND DUTIES OF TRUSTEES 
 
 Although the deed creating or giving notice of the trust was attested 
 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.(tt) 
 
 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.^) 1 And on this ground a purchase from a trustee, 
 who is not in actual possession of the estate, could rarely if ever be sup- 
 ported 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 purchaser would be bound 
 to ascertain. 3 And it would be extremely difficult to conclude a bona 
 fide purchase, without the fact of a third party's being in possession be- 
 coming known. (y) Indeed, it has been laid down by Lord Eldon, that 
 a plea of a purchase for valuable consideration without notice, must 
 always contain an averment, that the vendor was in possession,(z) from 
 which it would follow that the trustee's being in possession is in every 
 case essential to the validity of the sale by him of a present interest in 
 
 (m) Mocatta v. Murgatroyd, 1 P. Wms. 393 ; Welford v. Beezley, 1 Ves. 6 ; Beckett 
 v. Cordley, 1 Bro. C. C. 357 ; 2 Sugd. V. & P. 296, 9th edit. [Hugus v. "Walker, 12 
 Penn. St. 173. But see Boling v. Ewing, 9 Dana, 76.] 
 
 (x) Smith v. Low, 1 Atk. 489 ; Taylor v. Baker, 1 Dan. 71 ; 2 Sugd. Y. & P. 290, 9th 
 edit. 
 
 (y) Daniels v. Davidson, 17 Ves. 433 ; Taylor v. Stibbert, 2 Ves. Jun. 437 ; Allen t. 
 Anthony, 1 Mer. 282; Jones v. Smith, 1 Hare, 60; Hierne v. Mill, 13 Ves. 120; Powell 
 v. Dillon, 2 Ball. & B. 416. [Bailey v. Richardson, 9 Hare, 734.] 
 
 (z)Walwyn v. Lee, 9 Ves. 32 ; and see Jackson v. Rowe, 4 Russ. 523 ; Trevanian v. 
 Mosse, 1 Vern. 246. 
 
 1 Jackson v. Cadwell, 1 Cowen, 622 ; McGehee v. Gindrat, 20 Alab. 100 ; Barnes v. 
 McCliuton, 3 Pa. R. 69 ; Westervelt v. Haff, 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, 16 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; Knouffv. Thompson, 16 Penn. St. R. 357. But 
 lapse of time will exonerate a purchaser from making inquiry into circumstances con- 
 nected with a previous transaction based upon fraud, in the absence of any decided 
 traces to excite suspicion. Greenslade v. Dare, 24 L. J. Ch. 490. 
 
 a See Chesterman v. Gardner, 5 J. C. R. 29 ; Sailor t. Hertzog, 4 Wharton, 259 ; 
 Krider v. Lafferty, 1 Whart. 303 ; Hardy v. Summers, 10 G. & J. 316 ; Buck v. 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. Cas. Eq. pt. i, 150. See as to the effect of possession under the Recording Acts, 
 note, ante, p. 511. 
 
 It has been recently held in England, however, that though possession is notice of all 
 the equities which the person in possession could set up as against the vendor, yet that 
 notice of a tenancy is not notice of the title of the lessor ; and that a purchaser who 
 neglects to inquire into the title of the occupier is not affected by any other equities 
 than those which the occupier may insist on. Barnhart v. Greenshields, 28 Eng. L. & 
 Eq. 77. Privy Council. 
 
AS BETWEEN THEM AND THIRD PERSONS. 769 
 
 an estate ; although this rule of course cannot apply where the interest 
 is in reversion. (a) 
 
 So if the purchaser he aware that the title-deeds are in the possession 
 of the cestui que trust, he will he held to have constructive notice of the 
 interest claimed hy the possessor of the deeds.(6) But the mere absence 
 of title-deeds is not sufficient of itself to put him upon inquiry.(e) 1 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.(d) 
 However, the knowledge of the draft of a deed being *prepared, r*ci 3-1 
 will not affect a purchaser 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 purchaser is informed, that a settlement had been made on the 
 marriage 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.(/) 2 
 
 .Where the purchaser has actual or constructive notice of the existence 
 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.(^) 3 It has been decided, however, 
 
 (a) See Hughes v. Garth, 2 Ed. 168 ; Ambl. 421. 
 
 (6) Hierne v. Mill, 18 Ves. 114, 122 ; Jones v. Smith, 1 Hare, 61 ; [1 Phill. 244.] 
 
 (c) Plumb v. Fluitt, 2 Anstr. 432 ; Evans v. Bieknell, 6 Ves. 174 ; Jones v. Smith, 1 
 Hare, 63. [1 Phill. 244; see Allen v. Knight, 11 Jur. 527 ; affg S. C. 5 Hare, 272 ; 
 Rice v. Rice, 23 L. J. Ch. 293 ; Berry v. Ins. Co., 2 J. C. R. 603 (a).] 
 
 (d) Perrars v. Cherry, 2 Vern. 383 ; Dunch v. Kent, 1 Vern. 319 ; Kelsallv. Bennett, 
 1 Atk. 522 ; Taylor v. Baker, 5 Price, 306 ; Jackson v. Rowe, 2 S. & St. 472 ; Jones v. 
 Smith, 1 Hare, 55 ; Hall v. Smith, 14 Ves. 426 ; Eyre v. Dolphin, 2 Ball & B. 301. 
 [See Roddy v. Williams, 3 J. & Lat. 1 ; Price v. McDonald, 1 Maryl. R. 414.] 
 
 (e) Cothayy. Sydenham, 2 Bro. C. C. 391. 
 
 (/) Jones v. Smith, 1 Hare, 43. [Aff. 1 Phill. 244; see, however, the remarks in 
 Price v. McDonald, 1 Maryl. R. 414.] 
 
 (g) Bisco v. Earl of Banbury, 1 Ch. Ca. 287 ; Coppin y. Fernyhough, 2 Bro. C. C. 
 291 ; Mertins v. Joliffe, Ambl. 311 ; Davies v. Thomas, 2 Y. & Coll. 234; Jones v. 
 Smith, 1 Hare, 55 [1 Phill. 254] ; Neeson v. Clarkson, 2 Hare, 173; Pearce v. Newlyn, 
 3 Mad. 186 ; 2 Sugd. V. & P. 293, 9th edit. 
 
 ? A mortgagee who has obtained the legal title is not to be postponed to a subsequent 
 mortgagee or purchaser, merely because he had not possessed himself of the title-deeds. 
 In order to lose the advantage of priority, he must have been guilty of fraud or gross 
 negligence. Colyer v. Finch, 26 L. J. Ch. 65. H. Lds. Prima facie, however, a mort- 
 gagee, who, knowing that his mortgagor has title-deeds, omits to call for them or to make 
 any inquiry on the subject, must be considered as guilty of negligence. Ibid, per Ld. 
 Chancellor. See also Rice v. Rice, 23 L. J. Ch. 293. 
 
 2 A recital in a voluntary deed that it is made in pursuance of a trust reposed in the 
 grantor by the grantee, is no notice of a prior trust for any one else. Kaine v. Denniston, 
 22 Penn. St. 210. 
 
 3 See Wormely v. Wormely, 1 Brock. 330 ; 8 Wheat. 421 ; Hagthorp v. Hook, 1 G. & 
 
770 POWERS AND DUTIES OF TRUSTEES 
 
 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 conduct 
 would render him liable as a participator in the fraud of the trustee.(i) 
 And even in the absence of proof of a wilful blindness, he might be con- 
 sidered guilty of such eragsa negligentia, as in equity amounts to actual 
 fraud. (A;) 
 
 It will in general be presumed, that every purchaser has investigated 
 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 ;(f) unless, in- 
 deed, he can show why he had not inquired into the title with a view to 
 his protection. (m) And if the d«ed, which carries notice of the trust, be 
 found in the possession of the purchaser, that will prima facie be suffi- 
 cient to fix him with notice.(w) And so where a trust is noticed, by 
 recital or otherwise, on the face of the very conveyance 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 his agent,(p) 
 r 141 *or solicitor,^) or counsel.(r) And the same rule prevails, 
 <- -" although the agent, attorney, or counsel, be himself the 
 
 (h) Prosser v. Watts, 6 Mad. 59. 
 
 (i) Kennedy v. Green, 3 M. & K. 699 ; Whitbread v. Jordan, 1 Y. & Coll. 303 ; Jones 
 v. Smith, 1 Hare, 55 ; see Surman v. Barlow, 2 Kd. 165 ; Hiern v. Mill, 13 Ves. 120. 
 
 (h) Hiern v. Mill, 13 Ves. 119; Jones v. Smith, 1 Hare, 56. [1 Phill. 244; see 
 Doyle v. Teas, 4 Scamm. 202.] 
 
 (1) Moor v. Bennett, 2 Ch. Ca. 246 ; Mertins v. Joliffe, Ambl. 311 ; Jackson v. Rowe, 
 2 S. & St. 475; Neeson v. Clarkson, 2 Hare, 173. [Leiby v. Wolf, 10 Ohio, 83; 
 Woods v. Farmere, 7 Watts, 385 ; Oliver v. Piatt, 3 How. U. S. 333.] 
 
 (m) See Neeson v. Clarkson, 2 Hare, 173. 
 
 (n) Whitfield v. Pausset, 1 Ves. 387 ; Mertins v. Joliffe, Ambl. 313. 
 
 (o) Maples v. Aekland, 3 Russ. 273 ; Neeson v. Clarkson, 2 Hare, 172 ; Newstead v. 
 Searles, 1 Atk. 267 ; Kelsall v. Bennett, 1 Atk. 522. 
 
 (p) Alney v. Kendal, 1 Ch. Ca. 38; Brotherton v. Hutt, 2 Vern. 574; Jennings v. 
 Moore, 2 Vern. 609 ; Blenkarn v. Jennings, 2 Bro. P. C. 278 ; Maddox v. Maddox, 1 
 Ves. 61 ; Ashley v. Baillie, 2 Ves. 370 ; Downes v. Powers, 2 Ball & B. 491. [Knouff 
 v. Thompson, 16 Penn. St. R. 359 ; see Murray v. Ballou, 1 J. C. R. 566 ; White v. Car- 
 penter, 2 Paige, 217 ; Boggs v. Varner, 6 W. & S. 469.] 
 
 (q) Newstead v. Searles, 1 Atk. 267 ; Le Neve v. Le Neve, 1 Ves. 64 ; 3 Atk. 646 ; 
 Tunstall v. Trappes, 3 Sim. 301 ; Mountford v. Scott, 3' Mad. 34 ; T. & R. 280. 
 
 (r) Preston v. Tubbin, 1 Vern. 287 ; Le Neve v. Le Neve, 3 Atk. 646. 
 
 J. 301 ; Johnston v. Gwathmey, 4 Litt. 318 ; Scott v. MeCulloek, 13 Missouri, 14; 
 Leiby v. Wolf, 10 Ohio, 83 ; Honore v. Bakewell, 6 B. Monr. 73 ; Oliver v. Piatt, 3 
 How. U. S. 333 ; Woods v. Farmere, 7 Watts, 385 ; Christmas v. Mitchell, 3 Ired. Bq. 
 535 ; Nelson v. Allen, 1 Yerg. 360 ; McAteer v. McMullen, 2 Barr, 32. 
 
AS BETWEEN THEM AND THIRD PERSONS. 771 
 
 vendor,(8) or be employed for both vendor or purchaser. (t) And so 
 notice to the town agent of the purchaser's attorney has been held to be 
 notice to the purchaser.(tt) 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.^) 1 
 
 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 transaction was 
 followed so close by the other, as to render it impossible to give a man 
 credit for having forgotten it. (a) 
 
 Notice before actual payment of all the purchase-money (although it 
 be secured,(a) and the conveyance actually executed),(6) or before the 
 execution of the conveyance (notwithstanding that the money be paid),(c) 
 is equivalent to notice before the contract. 3 
 
 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 pretended to be 
 seised, at the time of the conveyance,(e) and, also, that he was then in 
 
 (s) Sheldon v. Cox, Ambl. 624 ; Dryden v. Frost, 3 M. & Cr. 620. [See Majoribanks 
 v. Hoveden, 1 Drury, 11.] 
 
 (t) Le Neve v. Le Neve, 3 Atk. 648; Toulmin v. Steere, 3 Mer. 210; Kennedy v. 
 Green, 3 M. & K. 699 ; Dryden v. Frost, 3 M. & C. 670 ; Fuller v. Benett, 2 Hare, 394 ; 
 Winter v. Lord Anson, 3 Russ. 493. 
 
 (u) Norris v. Le Neve, 3 Atk. 26. {x) Chandos v. Brownlow, 2 Ridg. P. C. 394. 
 
 (y) Fitzgerald v. Fauconberg, Fitz. 297 ; Warwick v. Warwick, 2 Atk. 294 ; Worsley 
 v. Earl of Scarborough, Id. 392 ; Lowther v. Carlton, 2 Atk. 242 ; Ashley v. Baillie, 2 
 Ves. 370; Hiern v. Mill,' 13 Ves. 120; Mountford v. Scott, 3 Mad. 34. [Bracken v. 
 Miller, 4 Watts & S. 102 ; Hood v. Fahnestock, 8 Watts, 489 ; Henry v. Morgan, 2 Bimi. 
 497.] 
 
 (z) 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. [Majoribanks v. 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 ; Harrison 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 
 
 1 See as to notice through agent, ante, 165, and note. In Howard Ins. Co. v. Halsey, 
 4 Sandf. S. C. 571, it was said that this rule is based on the duty of the agent to com- 
 municate 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 sud- 
 denly, before the inquiry was completed, this was not notice to his client. 
 
 8 See ante, 165, and notes. 
 
772 POWERS AND DUTIES OF TRUSTEES 
 
 possession, (/) (unless the estate be reversionary, in which case the state 
 of the title must be shown by the plea).(^) There must also be an 
 averment, that the consideration-money was bona fide and truly paid. (A) 
 However, a valuable consideration, such as that of marriage, will be 
 sufficient to support a plea of purchase 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 ;(&) 
 L J and this denial must be made, whether the notice is charged in 
 the bill or not.(Z) And if 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. (n) 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 de- 
 fendant,^) unless the evidence of the witness be corroborated by other 
 circumstances.(r) But the denial must be positive, and an answer as to 
 
 v. Lee, 9 Ves. 32 ; Jackson v. Rowe, 4 Russ. 514. [Snelgrove v. Snelgrove, ut supra ; 
 Tompkins v. Anthon, 4 Sandf. Ch. 97.] 
 (_/") Walwyn v. Lee, 9 Ves. 32 ; Jackson v. Rowe, 4 Russ. 523 ; Trevanian v. Mosse, 
 
 1 Vern. 246. [Snelgrove v. Snelgrove, ut supra.] 
 {g) Hughes v. Garth, 2 Ed. 168 ; Ambl. 421. 
 
 (h) Moore v. Mayhew, 1 Ch. Ca. 34; Maitland v. Wilson, 3 Atk. 814; Mqlony v. 
 Kerwan, 2 Dr. & W. 31 ; see 2 Atk. 241. [High v. Batte, 10 Yerg. 186 ; Bunnell 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 v. 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. Wins. 244, n. ; Brace v. Duke of Marl- 
 borough, 2 P. Wrns. 491, 6th Resolution. [Snelgrove v. Snelgrove, 4 Desaus. 274; 
 Scudder v. Van Amburgh, 4 Edw. Ch. 29 ; Bunnell v. Read, 21 Conn. 592 ; 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.] 
 
 (m) Meder v. Birt, Gilb. Eq. Rep. 185 ; Radford v. Wilson, 3 Atk. 815 ; Jerrard v. 
 Saunders, 2 Ves. Juu. 187; 4 Bro. C. C. 322; 6 Dow. 230. [Snelgrove v. Snelgrove, 
 ut supra.] 
 
 (n) Pennington v. Beechey, 2 S. & St. 282 ; Thring v. Edgar, Id. 274. 
 
 (o) Cason v. Round, Prec. Ch. 226. [Gallatian v. Erwin, 1 Cowen, 361 ; Frost v. 
 Beekman, 1 J. C. R. 288'; Walker v. Gilbert, 1 Freem. Ch. 85 ; Jenkins v. Bodley, 1 
 Sm. & M. Ch. 338.] 
 
 (p) Le Neve v. Le Neve, 3 Atk. 650 ; .1 Ves. 66. 
 
 (q) Alam t. Jourdon, 1 Vern. 161 ; Kingdome v. Boakes, Prec. Ch. 19 ; Le Neve v. 
 Le Neve, 3 Atk. 650 ; 1 Ves. 66 ; Howarth v. Deane, 1 Ed. 351 ; Mortimer v. Orchard, 
 
 2 Ves. Jun. 243 ; Evans v. Bicknell, 6 Ves. 174 ; Dawson v. Massey, 1 Ball & B. 234; 
 Cooke v. Clayworth, 18 Ves. 12. 
 
 (r) Walton v. Hobbs, 2 Atk. 19 ; Anon. 3 Atk. 270 ; Only v. Walker, 3 Atk. 407 ; 
 Pember v. Mathers, 1 Bro. C. C. 52 ; East India Company v. M'Donald, 9 Ves. 275 ; 
 Biddulph v. St. John, 2 Sch. & Lef. 521. [Mense v. McLean, 13 Miss. 298.] 
 
AS BETWEEN THEM AND THIRD PERSONS. 773 
 
 belief only "will not be sufficient, in contradiction to what has been posi- 
 tively sworn.(«) If the evidence of notice be not sufficiently clear for 
 the court to make a decree, it will be 1 sent to law to be tried. (£)' 
 
 The counsel, attorney, or agent of the purchaser, cannot be admitted 
 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 independently of that cha- 
 racter;^) 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 ;{x) although Lord Hardwicke, and also Sir J. 
 Strange, appear to have maintained a contrary doctrine on this last 
 point.(y) 
 
 We have already seen that possession of a deed is prima facie evi- 
 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 
 after the purchase. (a) 
 
 The evidence must distinctly show, that notice was actually received ; 
 for the court will not act upon' what amounts to mere suspicion :(b) and 
 a purchaser is not obliged to enter into the interpretation of doubtful 
 facts *or expressions, (c) But it is obviously very difficult to lay rs|s r-. fl -| 
 down any general rule as to what will amount to sufficient' proof ■- J 
 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. (d) 3 
 
 (s) Arnott v. Biseoe, 1 Ves. 97 ; Pilling v. Armitage, 12 Ves. 78. 
 {t) 1 Ves. 95 ; 2 Sugd. V. & P. 301, 9th edit. 
 (it) 2 Sugd. V. & P. 298, 4th edit. 
 
 (») 2 Sugd. V. & P. 299 ; Sandford v. Remington, 2 Ves. Jun. 189. 
 (y) Maddox v. Maddox, 1 Ves. 62 ; Bishop of Winton v. Pournier, 2 Ves. 445. 
 (z) Whitfield v. Pausset, 1 Ves. 392 ; Mertins v. Joliffe, Ambl. 313. 
 (a) Earl of Pomfret v. Lord Windsor, 2 Ves. 486. 
 
 (6) Hine v. Dodd, 2 Atk. 276 ; Howarth v. Deane, 1 Ed. 351. [See Port v. Burch, 
 6 Barb. S. C. 60.] 
 
 (c) Kenney v. Brown, 3 Bidg. P. C. 512 ; Warwick v. Warwick, 3 Atk. 291 ; Sen- 
 house v. Earle, Ambl. 285; 2 Ves. 450 ; Att.-Gren. v. Backhouse; 17 Ves. 293. 
 
 (d) Story Eq. Jur. I 400. 
 
 1 See, on the questions of pleading arising from this defence of purchaser without 
 notice, notes to Basset v. Nosworthy, ut supra. 
 
 1 It is now considered in England to be highly inexpedient to extend the doctrine of 
 constructive notice further than it has been already carried. " Where a person has not 
 actual notice," said the Lord Chancellor in Ware v. Lord Egmont, 24 L. J. Ch. 366 ; 
 19 Jur. 97, "he ought not to be treated as if he had notice, unless the circumstances are 
 such as enable the court to say that not only he might have acquired, but also, that 
 he ought to have acquired, the notice with which it is sought to affect him, and which 
 he would have acquired but for his own gross negligence in the conduct of the business 
 in question. The question, when it is sought to affect a purchaser with constructive 
 
774 POWERS AND DUTIES OP TRUSTEES 
 
 It has been already observed, tbat 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 conveyance of it to a 
 purchaser who has been made acquainted with the voluntary settle- 
 ment^/ y However, a purchaser who has notice of a voluntary settle- 
 ment, 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 iaet.(g) And parol evidence is admissible to prove the considera- 
 tion in support of the settlement.(A) 
 
 It has been already seen, that a purchaser who takes, by a voluntary 
 conveyance from a trustee, will be bound by the trust, although he may 
 have had no notice, (i) And this equity would, doubtless, be enforced 
 to the same extent where the consideration is merely nominal, or collu- 
 sive, or so inadequate as to amount to evidence of some fraudulent deal- 
 ing.^) But, if the consideration be valuable, the court will not enter 
 into the question of inadequacy, unless the disproportion be so gross as 
 in itself to suggest fraud. (Z) If the conveyance by the trustee be not 
 only voluntary, but also with notice, the party taking under it will, d 
 fortiori, be bound to execute the trust, (m) 
 
 Where a purchaser, with notice from a trustee, conveys for valuable 
 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.(w) 
 
 (e) Weymouth v. Boyer, 1 Ves. Jun. 425 ; ante, 510. 
 
 (/) Taylor v. Stile, 2 Sugd. V. & P. 159, 9th edit. ; Evelyn v. Templar, 2 Bro. C. C. 
 148; Buckle v. Mitchell, 18 Ves. 112; Pulvertoft v. Pulvertoft, lb. 84; Powell v. 
 Pleydell, 1 Bro. P. C. 124. [See ante, p. 90, and note.] 
 
 (g) Ferrars v. Cherry, 2 Vern. 384. 
 
 (h) Chapman v. Emery, Coop. 278 ; 2 Sugd. V. & P. 170, 9th edit. 
 
 (i) Pye v. George, 1 P. Wms. 128 ; Mansell v. Mansell, 2 P. Wms. 681 ; 1 Cruia. 
 Dig., Tit. 12, Ch. 4, s. 16 ; ante, Pt I. Div. II, Sect. 2 ; p. 172. 
 
 (k) Bullock v. Sadlier, Ambl. 776. [See Jackson v. Summerville, 13 Penn. St. B. 
 371 ; Hanly v. Sprague, 20 Maine, 431.] 
 
 (I) Bullock v. Sadlier, Ambl. 763 ; see Gwynne v. Heaton, 1 Bro. C. C. 8 ; Gibson 
 v. Heyes, 6 Ves. 273. 
 
 (m) Mansell v. Mansell, 2 P. Wms. 681. 
 
 (n) Ferrars v. Cherry, 2 Vern. 383 ; Mertins v. Joliffe, Ambl. 313. 
 
 notice, is not whether he had the means of obtaining, and might by prudent caution 
 have obtained knowledge, but whether the not obtaining it was an act of gross or cul- 
 pable negligence." 
 
 ' But see as to many of the United States, where a different rule exists, notes to Sex- 
 ton v. Wheaton, 1 Am. Lead. Cas. 62, where the authorities are collected. 
 
AS BETWEEN THEM AND THIRD PERSONS. 775 
 
 However, in such a case, the first purchaser will not be discharged from 
 his liability, but will be compelled to account with the cestui que trust 
 for the purchase-money which he has received. (o) 
 
 Where an estate has once been purchased for valuable consideration, 
 without notice of any trust, a subsequent purchaser will hold discharged 
 from the trust, though he purchased with notice ; for he will have the 
 benefit *of the want of notice by the intermediate vendor. The r* 51 17-1 
 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 repurchased by the 
 original trustee, or by a previous purchaser with notice ; for the con- 
 sciences 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. (qf 
 
 A purchase for valuable consideration, without nofice, 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 (al- 
 though 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) 2 
 
 But, although the purchaser has not secured the perfect legal title, 
 the court will not compel him to make any discovery which may hazard 
 
 (0) Ferrars v. Cherry, 2 Vern. 383. 
 
 (p) Harrison v. Forth, Prec. Ch. 51 ; Mertins v. Joliffe, Ambl. 313 ; M'Queen v. Far- 
 quhar, 11 Ves. 788 ; Lowther v. Carlton, 2 Atk. 242 ; Brandlyn v. Ord, 1 Atk. 571. 
 [Ante, 165, note.] 
 
 (9) Kennedy v. Daly, 1 Sch. & Lef. 379. 
 
 (r) See Brandlyn v. Ord, 1 Atk. 571. 
 
 [s) William v. Lamb, 3 Bro. C. C. 264 ; Collins v. Archer, 1 R. & M. 284. [Jenkins 
 v. Bodley, 1 Sm. & M. Ch. 338 ; Blake v. Heyward, 1 Bail. Eq. 208 ; Larrowe v. Beam, 
 10 Ohio, 498.] Vide contra, Burlass v. Cooke, 2 Freem. 84 ; Parker v. Blythmore, 2 
 Eq. Ca. Abr. 79 ; Jerrard v. Saunders, 2 Ves. Jun. 454. [Walwyn v. Lee, 9 Ves. Jun. 
 24 ; Joyce v. De Moleyns, 2 J. & Lat. 374 ; Flagg v. Mann, 2 Sumner, 486 ; Att.-Gen. 
 t. Wilkins, 17 Jur. 885 ; see 2 Lead. Cas. Eq. p. i, 84, 90 (1 Am. ed.) ; Story's Eq. 
 PI. \ 604 (a), 805.] See Payne v. Compton, 2 Y. & C. 457, 461. 
 
 1 A trustee who reacquires 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 trus- 
 tees personally liable for the breach of trust. Oliver v. Piatt, 3 How. U. S. 401. 
 
 2 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. 
 Chiles, 10 Peters, 177 ; Chew v. Barnett, 11 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 ; Maybin v. Kirby, 4 Rich. Eq. 105 ; Wailes v. 
 Cooper, 24 Mississ. 208. But it has been held in Pennsylvania, that a prior vendee of 
 an equitable interest, within the recording acts, will be postponed to a subsequent 
 
776 POWERS AND DUTIES OF TRUSTEES, ETC. 
 
 his possession, even on the suit of a person who claims hy 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 consi- 
 deration without notice, is regarded with favor in a court of equity, which 
 will not take the least step against him.(w) 
 
 A mortgagee,^) and for some purposes a lessee,(?/) will be considered 
 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 
 
 (t) Gait v. Obaldeston, 1 Russ. 154 ; overruling S. C, 5 Mad. 428 ; Jerrard v. Saun- 
 ders, 2 Ves. Jun. 458 ; see Wilkes v. Boddington, 2 Vern. 600. 
 (it) Jerrard v. Saunders, 2 Ves. Jun. 458. 
 
 {x) Brotherton v. Hutt, 2 Vern. 574. [See notes to Bassett v. Nosworthy, ubi sup.] 
 \y) Att.-Gen. v. Backhouse, 17 Ves. 293. 
 
 (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 hi\\ fully. 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, 118 ; and see, now, Rules in Equity, Sup. Ct. U. S., No. 
 39 ; and of Pennsylvania, No. 37.] 
 
 vendee of the same interest who first puts his deed on record. Bellas v. M'Carty, 10 
 Watts, 13. 
 
 It has been held in some eases in the United States, following certain of the English 
 decisions, such as Williams v. Lambe, 3 Bro. Ch. C. 264, and Collins v. Archer, 1 Russ. 
 & Mylne, 284, that a plea of a purchase for a valuable consideration is no defence in 
 equity to a claim on a legal title. Snelgrove v. Snelgrove, 4 Desaus. 274 ; Blake v. 
 Heyward, 1 Bail. Eq. 208 ; Larrowe v. Beam, 10 Ohio, 498 ; Jenkins v. Bodley, 1 Sm. & 
 M. Ch. 338 ; Wailes v. Cooper, 24 Mississ. 208 ; Brown v. Wood, 6 Rich. Eq. 155 ; 
 Daniell v. Hollingshead, 16 Geo. 190. But an opposite doctrine has been held in 
 many cases in England, principally in Wallwyn v. Lee, 9 Ves. 24 ; Joyce v. De Moleyns, 
 2 Jones & Lat. 374 ; Att.-Gen. v. Wilkins, 17 Jur. 885 ; see Plagg v. Mann, 2 Sumn. 
 486. In the recent case of Finch v. Shaw, 18 Jur. 935 ; 19 Beav. 500 ; aff. sub. nom. 
 Colyer v. Finch, 26 L. J. Ch. 65, in H. Lds., an attempt was made to reconcile the 
 conflicting authorities on this question, and the distinction was taken between a case 
 where the bill seeks to establish and enforce a legal title, against a bona fide purchaser ; 
 and where the legal title is perfectly clear and distinct, and the object of the bill is 
 merely to enforce an equitable remedy or right attached to that title, in which latter 
 case, it was considered the court could not refuse its aid. It was therefore held that a 
 plea of a bona fide purchase was no defence to a bill for foreclosure on a legal mortgage. 
 
 In the case of Rice v. Rice, 23 L. J. Ch. 289, Vice-Chancellor Kindersley, after suggest- 
 ing objections to the usual form in which the proposition with respect to priority among 
 equitable rights, is stated, said that he thought "that it should be stated in some 
 such form as this : ' as between persons having only equitable interests, if their equities 
 are in all other respects equal, priority of time gives the better equity, or qui prior est 
 tempore potior est jure.' " He therefore held in that case that where an unpaid vendor 
 left the deed in the hands of his vendee, an equitable mortgagee from the latter by de- 
 posit of the deeds, was to be preferred to the former with respect to his lien for the 
 purchase-money. 
 
 See also the remarks of Judge Hare in his note to Basset v. Nosworthy, 2 Lead. Cas. 
 Eq. p. i, 97. 
 
OF THE REMEDIES FOR BREACH OF TRUST. 777 
 
 a trustee ; yet, if the lease were within the scope of 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.(s) 
 We have already seen, that marriage is a sufficient consideration to sup- 
 port a purchase for valuable consideration within the principles that 
 have just been discussed.(a) 1 
 
 *DIVISION II. [*518] 
 
 OF THE LIABILITIES AND PRIVILEGES OF TRUSTEES. 
 
 CHAPTER I. 
 
 OF A BREACH OF TRUST, 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 discharge of a breach of trust. 
 
 And 1st. Of the remedies for a breach of trust. 3 
 
 A suit in equity is the usual and most effectual remedy for a breach 
 of trust. 3 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 
 
 (z) 17 Ves. 293. (a) Jackson v. Rowe, 2 S. & St. 475. 
 
 (1) An action at law for money had and received will not lie against a trustee, while 
 the trust is still open, although where a final account has been stated between the parties, 
 and the trust is closed, it seems that such an action may be maintained. Case v. 
 
 1 But a husband is not a purchaser for a valuable consideration, merely with respect 
 to his marital rights. Willis v. Snelling, 6 Eich. 288. 
 
 3 In charging trustees for a breach of trust, it is immaterial whether the trust was 
 created for a valuable consideration or from the voluntary gift of the trustees themselves. 
 Drosier v. Brereton, 15 Beav. 221. 
 
 3 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 exe- 
 cuted, so that it is cognizable at law, and nothing more remains to De done by the 
 trustee, equity will leave the parties 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. 
 
778 OF THE REMEDIES FOR BREACH OF TRUST. 
 
 the jurisdiction and machinery of those courts is so much better adapted 
 to meet the exigencies of every case by enforcing the restitution of the 
 trust property, and compelling an account against the guilty parties, 
 that any other remedy is rarely resorted to. 1 
 
 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 trustee'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 legabdebt :(b) 
 and it was immaterial that the trust was created by a deed, executed by 
 the trustee, and that the trust deed contained a provision, that the trus- 
 tees should be liable for the moneys actually received by them.(e) How- 
 ever, the assets of the trustee would be marshalled in equity in favor of 
 r*e-iq-| the claim of *the cestui que trusted) And there are authorities 
 L to show, that if the trustees bound themselves by a covenant or 
 
 engagement under seal to apply the trust fund according to the trusts 
 declared, any application of the fund in breach of that engagement 
 would create a specialty 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. 2 
 
 (a) Kirk v. Webb, Prec. 84 ; Heron v. Heron, lb. 163 ; Vernon v. Vawdry, 2 Atk. 
 11 ; Cox v. Bateman, 2 Ves. 19 ; Perry v. Phillipps, 4 Ves. 108 ; Lyse v. Kingdom, 1 
 Coll. 184, 188. [Adey v. Arnold, 2 De G. Mac. & G. 432 ; Benbury v. Benbury, 2 Dev. 
 & Batt. Eq. 235.] 
 
 (6) Bartlett v. Hodgson, 1 T. R. 42. [See Adey v. Arnold, ut eupr.] 
 
 (c) Ibid. [lb.] (d) Cox v. Bateman, 2 Ves. 19. 
 
 (e) Bartlett v. Hodgson, 1 T. R. 44 ; Gifford v. Manley, Com. Dig. Chancery, 4 W. 
 25 ; Forrest. 109. [Adey v. Arnold, 2 De G. Mac. & G. 432.] 
 
 (/) 3 & 4 Will. IV, c. 104. [See Cummins v. Cummins, 3 J. & Lat. 90.] 
 
 Roberts, Holt, N. P. C. 501 ; Edwards v. Bates, C. P. June, 1844 ; 13 Law Journ. N. 
 S. 156 [7 M. & G. 590 ; see Dias v. Brunell's Ex., 24 Wend. 9 ; McCrea v. Purmort, 
 16 Wend. 460 ; New York Ins. Co. v. Roulet, 24 Wend. 505 ; Hall v. Harris, 2 Ired. 
 Eq. 289 ; Brown v. Wright, 4 Yerg. 57 ; Blue v. Patterson, 1 Dev. & Batt. Eq. 457; 
 Beaches v. Dorwin, 12 Verm. 139. In Pennsylvania, 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. Stauffer, 3 Pa. R. 398 ; Aycinena v. Peries, 6 W. & 
 S. 243 ; so in Massachusetts : 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.] 
 
 1 A policy of insurance on his own life was effected by a defaulting trustee, with the 
 sanction of the Master, on a proposal to compromise a suit for restoring the trust fund, 
 but before the Master made his report, or finally approved of the proposal for a com- 
 promise, the trustee died. It was held that the proceeds of the policy were not general 
 assets of the trustee, but primarily applicable to compensate the loss by the breach of 
 trust. Ward v. Ward, 2 Sm. & Giff. 125. 
 
 2 In Wood v. Hardisty, 10 Jur. 486, 2 Coll. C. C. 542, in a deed to which A. and B. 
 were parties, there was contained a declaration that A., his executors, administrators, 
 
OF THE REMEDIES FOR BREACH OF TRUST. 779 
 
 A sSit in respect of a breach of trust may be instituted by all or any 
 
 and assigns, should stand possessed of certain specified funds in trust forB., her execu- 
 tors, &c, and Sir Knight Bruce, yielding " somewhat reluctantly," to authorities cited 
 for the plaintiff, held, subject to further 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-Chancellor. See the remarks on this decision in 
 Richardson v. Jenkins, 17 Jur. 446 ; 1 Drew. 4*77. In the recent case of Adey v. Arnold, 
 2 De G. Mac. & G. 432, the authorities were brought in review before Lord St. 
 Leonards. Where by deed of indorsement under seal, appointing new trustees, and 
 executed by them, a trust fund was assigned to the new trustees, " to hold unto them, 
 their executors, &c, 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 ; Cox v. Bate- 
 man, 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 will 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 Montford 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 cases it 
 constituted a specialty debt, because he had declared under seal, that he would not 
 apply the fund, as he ultimately did apply it." In the subsequent case of Richardson 
 v. Jenkins, 17 Jur. 446 ; 1 Drew. 477 ; S. C. sub. nom. Jenkins v. Robertson, 22 L. 
 J. Ch. 874, this subject was considered in several aspects by V. Ch. Kindersley. There, 
 in a creditor's suit, A., B., and C. claimed against a testator's estate for misappropria- 
 tion of trust funds. A. claimed to be a specialty creditor under a trust deed, which 
 was never executed by the testator, though he acted in the trust. It was held that A. 
 was only a simple contract creditor. B. claimed under a trust deed, by which it was 
 " declared" by the parties that the money should be on certain trusts. It was held 
 that the omission of the word " agreed," did not prevent B. from being a specialty 
 creditor. C. claimed under a trust deed by which the testator was a trustee jointly 
 with another person who survived him. The testator's estate was held liable for a 
 breach of trust committed by him ; and that C. was a specialty creditor. In another 
 case before the same Judge, Wynch v. Grant, 23 L. J. Ch. 834, by a deed under which 
 new trustees of a settlement were appointed in the place of the original trustees, it was 
 recited that they had " consented and agreed" to become such trustees for the purposes of 
 the settlement. The trust property was then assigned to them in the usual manner, to be 
 held upon the trusts of the settlement. A breach of trust was committed, and it was 
 held that there were no words in the deed appointing new trustees which would import 
 a covenant to perform the trusts, and that the claim against the trustees did not con- 
 stitute a specialty debt. 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 Pennsylvania, 
 and in many of the States, the distinction between the two classes of debts in the adminis- 
 tration 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 stated in the text, " become of little practical importance." But where 
 the general distinction in the administration of personal estate is retained, the rules 
 above stated still apply. Cummins v. Cummins, 3 J. & Lat. 90 ; 2 Wms. Executors, 
 170; Benbury v. Benbury, 2 Dev. & Batt. Eq. 238. 
 
780 OP THE REMEDIES FOR BREACH OF TRUST. 
 
 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 be- 
 half of the plaintiffs, and all other persons interested in the debt created 
 by the breach of trust.(<7) • 
 
 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 with- 
 out joining the other cestui que trusts as parties.(A) Indeed 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.(z) 
 
 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 trustees 
 without joining the cestui que trusts as parties. (k) And if one or more 
 of the cestui que trusts have concurred in, and benefited by, the commis- 
 sion of the breach of trust, a bill may be filed against them by the inno- 
 cent trustee to compel them to reinstate the fund, and also to account 
 for the benefit received. (Z) And the representatives 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.(m) 8 
 
 (g) Alexander v. Mullins, 2 R. & M. 568 ; Munch v. Cockerell, 8 Sim. 219, 231. 
 [Piatt v. Oliver, 2 McLean, 307 ; McKinley v. Irvine, 13 Alab. 682 ; Cassiday v. Mc- 
 Daniel, 8 B. Monr. 519 ; Story, Eq. Plead. Ch. IV ; see ante, p. 338, note ; and Phil- 
 lipson v. Gatty, 6 Hare, 26.] 
 
 (A) Smith v. Snow, 3 Mad. 10; Hutchinson v. Townsend, 2 Keen, 675; Perry v. 
 Knott, 5 Beav. 293, 297 ; [Piatt v. Oliver, 2 McLean, 307. But this, it seems, applies 
 only where the fund is in existence, and forthcoming. Lenaghan v. Smith, 2 Phill. 302. 
 See now, in England, under the 15 & 16 Vict. c. 86, s. 42 ; McLeod v. Annesley, 22 
 L. J. Ch. 657 ; 17 Jur. 612.] See Montgomerie v. Lord Bath, 3 Ves. 560. 
 
 (i) Smith v. Snow, 3 Mad. 10. 
 
 (k) Franco v. Franco, 3 Ves. 75 ; May v. Selby, 1 N. C. C. 235. [In Meyer v. Mon- 
 triou, 9 Beav. 521, a decree was made against a trustee, though it was alleged the 
 tenant for life concurred in the breach of trust.] 
 
 (I) Greenwood v. Wakeford, 1 Beav. 576; see Payne v. Collier, 1 Ves. Jun. 170; 
 Fuller v. Knight, 6 Beav. 205. [McGachen v. Dew, 15 Beav. 84.] 
 
 (m) Greenwood v. Wakeford, ubi supra. 
 
 1 One of three trustees, who was alleged to have participated in a breach of trust, 
 clearly committed by the others, was also executor of a cestui que trust. It was held, 
 that a legatee of the cestui que trust was entitled to maintain a bill against the three 
 trustees to recover the fund lost by the breach of trust. Sandford v. Jodrell, 2 Sin. & 
 Giff. 176. 
 
 2 In Shook v. Shook, 19 Barb. 653, however, it was held that where a surviving 
 trustee is insolvent, or there are other circumstances rendering him unfit to act, relief 
 can be only had by the cestui que trusts ; and that the executors of a co-trustee have 
 no right to interfere by application for security or removal. 
 
 In a suit to restore trust property, instituted by the legal representatives of a trustee 
 
OF THE REMEDIES FOR BREACH OF TRUST. 781 
 
 But the cestui que trusts cannot be properly joined as co-plaintiffs in 
 a suit by a trustee or his representatives against a co-trustee, who haa 
 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 hearing, 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 de- 
 fendant, on giving security for the costs of the application. (0) 
 
 *A11 parties implicated in a breach of trust are equally liable, r*cofl-i 
 without any priority between them ;(p) and this liability 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 conveyance 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, instituted for enforcing that responsi- 
 bility.^) 1 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 in- 
 stituted against him to enforce that liability.(«) 
 
 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 
 
 (n) Jacob v. Lucas, 1 Beav. 436. [Griffith v. Vanheythuysen, 9 Hare, 85.] 
 
 (o) Hall v. Lack, 2 N. C. C. 631. 
 
 lp) Wilson v. Moore, 1M.4K. 127, 143. [Att.-Gen. v. Wilson, Cr. & Ph. 28.] 
 
 (q) Vandebende v. Livingston, 3 Sw. 625 ; Burt v. Dennet, 3 Bro. C. C. 225. 
 
 (r) Trafford v. Boehm, 3 Atk. 440 ; Greenwood v. Wakeford, 1 Beav. 576 ; Fuller v. 
 Knight, 6 Beav. 205 ; Lord Mountford v. Lord Cadogan, 17 Ves. 485. [See Meyer v. 
 Montriou, 9 Beav. 521.] 
 
 (s) Palmer v. Wakefield, 3 Beav. 227. [Moone v. Henderson, 4 Desaus. 459 ; see 
 Carrol v. Connet, 2 J. J. Marsh. 195 ; Elliott v. Lewis, 3 Edw. Ch. 40 ; Redwood v. 
 Riddick, 4 Munf. 222.] 
 
 against a co-trustee, both of whom had, with the concurrence of the cestui que trusts, 
 committed breaches of trust, such cestui que trusts were held to be necessary parties. 
 Jesse v. Bennett, 26 L. J. Ch. 63. 
 
 ' 1 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; Pelton v. Lang, 8 Ired. Eq. 224; 
 Bateman v. Margerison, 6 Hare, 496 ; Lund v. Blanshard, 4 Hare, 28, and note, where 
 the rules on the subject are laid down. See Hutchinson v. Reed, Hoff. Ch. 317. These 
 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, with his mortgagee, were held necessary parties. 
 
782 OP THE REMEDIES FOR BREACH OT TRUST. 
 
 intestate in his lifetime ; and this liability may be enforced by suit.(<)' 
 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 trustees, or their represen- 
 tatives, if they are dead.(w) It is almost superfluous 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 might 'properly be made defen- 
 dants 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 de- 
 fendants was at one time far from being conclusively established. The 
 doubt on this point was strongly countenanced by Lord Eldon's observa- 
 tions 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 transac- 
 tion was neither authorized nor adopted by him, may proceed against 
 either or all of the trustees." And there are other cases, both before 
 and since that of Walker v. Symonds, 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 a trust, without joining the 
 others as defendants. (z) However, the general rule of the court requires 
 that all persons who are jointly liable to satisfy the plaintiff's demand, 
 
 (t) Lyse v. Kingdom, 1 Col. 184; Knatchbull v. Fearnhead, 3 M. & Cr. 122. [See 
 Pharis v. Leachman, 20 Alab. 683.] 
 
 (u) Ibid. (x) 32d Order of August, 1841. 
 
 (y) 3 Swans. 75. 
 
 (s) Ex parte Angle, Barnard, 425 ; 2 Atk. 162 ; Routh v. Kinder, 3 Swanst. 114, n.; 
 Wilkinson v. Parry, 4 Euss. 274 ; Wilson v. Moore, 1 M. A K. 126, 146. 
 
 1 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 representatives 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. Beattie v. Johnstone, 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, 9 Hare, 39, as to a general administra- 
 tion 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. Spofforth, 9 Beav. 195. 
 
 A cestui que trust may claim as specialty creditor against the estate of a deceased 
 trustee, for a breach of trust committed by him, though there be also a surviving trustee. 
 Richardson v. Jenkins, 17 Jur. 446 ; 1 Drew, 477 ; S. C, sub nomine Jenkins v. 
 Robertson, 22 L. J. Ch. 874. 
 
OP THE REMEDIES E0R BREACH OF TRUST. 783 
 
 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 
 exception to the general rule with *regard to trustees. In Munch r*co-i-| 
 v. Cockerell,(J) 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- Chancellor (Sir L. Shad- 
 well), 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. 1 
 
 However, where the breach of trust is such as amounts to a wrongful 
 act, as, for instance, where there has been a fraudulent alienation of 
 the trust estate, every trustee is separately liable, and there is no con- 
 tribution between them ; but each case is distinct, depending upon the 
 evidence against each party.(cZ) 
 
 Although the rule of the court requires the presence of all parties im- 
 plicated in an alleged breach of trust, before it will make a decree ; yet 
 the decree, when made, will be against all the defendants severally, as 
 well as jointly, and the plaintiffs at their option may proceed against 
 any one or more of the co-defendants, and recoyer 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 impli- 
 cated in a breach of trust, was found to occasion considerable difficulty, 
 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 
 aB principals or sureties, it shall not be necessary to bring before the 
 
 (a) 1 Dan. Pr. 339 ; 4 Russ. 274, u. ; Perry v. Knott, 4 Beav. 103. 
 (6) Munch v. Cockerell, 8 Sim. 219. 
 
 (c) 4 Beav. 179. [Fowler v. Reynall, 2 De G. & Sm. 749 ; 13 Jur. 650, in note ; 
 see Hall v. Austin, 2 Coll. C. C. 570 ; Wyllie v. Ellice, 6 Hare, 505 ; but see McGachen 
 v. Dew, 15 Beav. 84.] 
 
 (d) Att.-Gen. v. Wilson, Cr. A Ph. 1, 28 ; see Char. Corporation v. Sutton, 2 Atk. 
 400, 406 ; Att.-Gen. v. Brown, 1 Sw. 265, 306. [Cunningham v. Pell, 5 Paige, 612.] 
 
 (e) Ex parte Shakeahaft, 3 Bro. C. C. 198 ; Knatchbull v. Fearnhead, 3 M. & Cr. 
 124. 
 
 1 Where two classes of trustees had committed a breach of trust, it was held that the 
 cestui que trusts might proceed against one class without making the other class parties. 
 McGachen v. Dew, 15 Beav. 84. 
 
784 OF THE REMEDIES FOR BREACH OF TRUST. 
 
 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 per- 
 sons 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 conceived 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 twofold. 1 
 First, it is retrospective, in order to remedy the mischief already done ; 
 and secondly, prospective, with a view to the prevention of further 
 injury. 
 
 *The court in the first place endeavors as far as possible to 
 ■- J replace the parties in the same situation as they would have been 
 in, if no breach of trust had been committed. And for this purpose, 
 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, {gf 
 
 But in general, trust property cannot be followed, unless it has actu- 
 ally 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 specific 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 
 
 (/") Perry v. Knott, 5 Beav. 293 ; Kellaway v. Johnson, Id. 319. [Norris v. Wright, 
 14 Beav. 310; Hall v. Austin, 2 Coll. 570 (on the authority of Perry v. Knott, merely). 
 But see Penny v. Penny, 9 Hare, 39 ; Fowler v. Reynall, 2 De G. & Sm. 749, contra. 
 The 5 2d rule in Equity of the U. S. courts ; and the 49th in Penna., are the same as 
 the above order.] 
 
 (g) Mansell v. Mansell, 2 P. "Wms. 681 ; Georges v. Pye, 7 Bro. P. C. 221 ; 1 P. 
 Wins. 128. 
 
 (h) Kirk v. Webb, Prec. Ch. 84 ; Perry v. Phillips, 4 Ves. 108. [See Roberts v. 
 Broom, 1 Harringt. 57 ; Pharis v. Leaehman, 20 Alab. 663.] 
 
 1 In Goodwin v. Gosnell, 2 Coll. C. C. 457, it was held that a solicitor advising a 
 breach of trust, and profiting thereby, might be stricken off the rolls. 
 
 2 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 pur- 
 chase-money, with interest. 
 
OF THE REMEDIES FOR BREACH OF TRUST. 785 
 
 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 actu- 
 ally proved by means of the checks or otherwise, that the payment was 
 made with trust-money, that will unquestionably be the best evidence for 
 this purpose. (I) 1 
 
 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 afterwards, 
 make a purchase of another estate, this will be regarded as one trans- 
 action. (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 
 
 (i) Lowden v. Lowden, 2 Bro. C. C. 583. 
 
 (k) Ibid. ; and see Small v. Attwood, Younge, 507. 
 
 (I) Price v. Blackmore, 6 Beav. 507, 513. (m) Price v. Blackmore, 6 Beav. 507. 
 
 1 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; Moffit v. 
 McDonald, 11 Humph. 457 ; Garrett v. Garrett, 1 Strob. Bq. 96; Brothers v. Porter, 6 
 B. Monr. 106 ; Martin v. Greer, 1 Geo. Dec. 109 ; Bomar v. Mullins, 4 Bioh. Bq. 80 ; 
 Cheshire v. Cheshire, 2 Ired. Bq. 569 ; see Blaisdell v. Stevens, 16 Verm. 179 ; 1 Greenl. 
 Cruise, 357. The cestui que trust has the election to take the land, or the securities for 
 it : Murray v. Lylburn, * J. C. R. 441 ; Bonsall's Appeal, 1 Rawle, 274 ; Kaufman v. 
 Crawford, 9 Watts & Serg. 134; Sollee v. Croft, 7 Rich. Bq. 34. In Oliver v. Piatt, 
 3 How. U. S. 333, the rule is thus laid down by Judge Story: "It is a clearly esta- 
 blished 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 suoh property into the hands 
 of such third person, unless he stands in the predicament of a bona Jide purchaser, for 
 a valuable consideration, without notice. And if the trustee has invested the trust pro- 
 perty, 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 subsequent 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 himself of his own wrong ; and if he had made a profitable 
 investment of the trust fund, to appropriate the profit to his own benefit, and by a re- 
 purchase of the trust fund to charge the loss of deterioration in value, if any such there 
 had been, in the mean time, to the account of the cestui que trust, — whereas, the rule 
 in equity is, that all the gain made by the trustee, by a wrongful application of the 
 trust fund, shall go to the cestui que trust, and all the losses shall be borne by the trus- 
 tee himself." Seealso, Ex parte Montefiore, De Gex, Bankr. R. 171. So in Thorn- 
 ton v. Stokell, 19 Jur. 751, where it was held that where trust moneys are followed into 
 land, the' cestui que trust may either take the land for the whole, or may have a decree 
 for a sale, and if there should be any deficiency, then prove on the estate of the trustee. 
 
 A cestui que trust has no right, however, to be subrogated to the claims of creditors, 
 to the payment of whose debts the trust fund has been misapplied. Winder y. Diffen- 
 derffer, 2 Bland Ch. 198 ; see ante, 364, and note. 
 
 50 
 
786 OP THE REMEDIES FOR BREACH OF TRUST. 
 
 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) 1 
 
 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 payment of a sum 
 equal to the value of the trust property, or by purchasing other property 
 of equal value for their benefit, (o) And in all cases he will further be 
 decreed to account for all rent and interest 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 might 
 have been received from the trust estate, if no breach of trust had been 
 p^oo-i *committed.(g r ) 2 For instance, where the trust was 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 purchase 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 
 
 (re) 6 Beav. 507. 
 
 (o) Mansell v. Manaell, ubi supra ; Earl Powlett v. Herbert, ^ Ves. Jun. 297 ; Pocock 
 T. Reddington, 5 Ves. 794 ; French v. Hobson, 9 Ves. 103 ; Byrchall v. Bradford, 6 
 Mad. 235 ; Fyler v. Fyler, 3 Beav. 550. [Freeman v. Cook, 6 Ired. Eq. 379 ; Norman 
 v. Cunningham, 5 Gratt. 72 ; Oliver v. Piatt, 3 How. U. S. 333; though all the money 
 be not paid. Flagg v. Mann, 2 Sumn. 486.] 
 
 (p) Kaye v. Powell, 1 Ves. Jun. 408 ; Vandebende v. Levingston, 3 Swanst. 625 ; 
 Forrest v. Elwes, 4 Ves. 497 ; Pocock v. Reddington, 5 Ves. 794 ; Bate v. Scales, 12 
 Ves. 402 ; Crawshay v. Collins, 15 Ves. 226 ; Docker v. Somes, 2 M. & K. 655. 
 
 (g) Shepherd v. Twogood, T. & R. 379 ; Pride v. Fooks, 2 Beav. 430 ; Roche v. 
 Hart, 11 Ves. 60. 
 
 (r) Byrchell v. Bradford, 6 Mad 235, 240 ; Pride v. Fooks, 2 Beav. 430 ; see Dimes 
 v. Scott, 4 Russ. 195 ; ut supra, p. 371. 
 
 1 A guardian indebted to his ward, being insolvent, and desiring to protect the latter, 
 made an agreement for the purchase of certain land to be conveyed to the ward, trans- 
 ferring property of his own in part payment, the rest of the purchase-money remaining 
 due. There .was no collusion. It was held that the ward could either repudiate the 
 purchase, and hold the guardian's estate liable, or go on with the contract, but that in 
 this latter case he must pay the rest of the purchase-money. Yerger v. Jones, 16 How. 
 U.S. 36. 
 
 2 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, in 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, 1 Bradf. 
 Suit. 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 Rainsford v. Rainsford, Rice's Eq. 369. 
 
OP THE REMEDIES FOR BREACH OF TRUST. 78T 
 
 application of this doctrine might be adduced, (s) 1 Wherever a prima 
 facie case%f misconduct is made out against trustees, the plaintiff is en- 
 titled 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.(tf) 
 
 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. ;(u) 
 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 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, interest.^) 2 
 
 Where a strong case of corrupt or improper conduct is established 
 against the trustee, or if he has acted in direct contravention of an ex- 
 press trust to accumulate, he will be charged in addition with annual or 
 half yearly rests, in the nature of compound interest.(g) In Walker v. 
 Woodward,(a) the husband of an administratrix had carried on a farm- 
 ing business with the assets of the intestate, and in his answer he ad- 
 mitted, 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 account was ordered 
 to be taken against him, with annual rests, and interest at five per cent. 
 
 (*) French v. Hobson. 9 Ves. 103 ; Pocock v. Reddington, 5 Ves. 794. 
 
 (t) Shepherd v. Twogood, T. & R. 379; see Pybus v. Smith, 1 Ves. Jun. 193. [See 
 on this point, Coope v. Carter, 2 De G. Mae. & G. 292.] 
 
 (u) Hicks v. Hicks, 3 Atk. 274; Denton v. Shellard, 2 Ves. 239 ; Lincoln v. Allen, 
 1 Bro. P. C. 553 ; Perkins v. Bayntun, 1 Bro. C. C. 375 ; Newton v. Bennett, lb. 359 ; 
 Littlehales v. Gascoigne, 3 Bro. C. C. 73 ; Franklin v. Frith, lb. 433 ; Younge v. Combe, 
 4 Ves. 101 ; Longmore v. Broom, 7 Ves. 124; Roche v. Hart, 11 Ves. 58 ; Tebbs v. 
 Carpenter, 1 Mad. 290 ; Mousley v. Carr, 4 Beav. 49 ; Hosking v. Nicholls, 1 N. C. C. 
 478. [See Merrick's Est., 1 Ashm. 305.] 
 
 (x) Treves v. Townsend, 1 Bro. C. C. 384 ; Forbes v. Ross, 2 Bro. C. C. 430 ; Piety 
 v. Stace, 4 Ves. 620 ; Pocock y. Reddington, 5 Ves. 794; Roche v. Hart, 11 Ves. 60 ; 
 Dornford v. Dornford, 12 Ves. 127 ; Ashburnham v. Thompson, 13 Ves. 402; Bate v. 
 Scales, 12 Ves. 402; Crackelt v. Bethune, 1 J. & W. 586; Heathcote v. Hulme, lb. 
 122; Att.-Gen. v. Solly, 2 Sim. 518 ; Brown v. Sansome, 1 M'Clel. & Y. 427; Sutton 
 v. Sharp, 1 Russ, 146 ; Mousley v. Carr, 4 Beav. 49 ; supra, PI. [Investment.] 
 
 (y) Roche v. Hart, 11 Ves. 58. 
 
 (z) Stackpole v. Stackpole, 4 Dow. 209 ; Brown v. Southouse, 3 Bro. C. C. 107 ; Ra- 
 phael v. Boehm, 11 Ves. 92, 13 Ves. 407, 590 ; Dornford v. Dornford, 12 Ves. 127 ; 
 Walker v. Woodward, 1 Russ. 107 ; vide supra [Investment], p. 379. 
 
 (o) 1 Russ. 107. 
 
 1 See, on this subject, notes, ante, p. 371, 374 ; and the note to Selleck v. French, 1 
 Am. Lead. Cas. 529. 
 
 2 On the subject of interest against trustees, see ante, note to p. 374. 
 
788 OP THE REMEDIES FOR BREACH OF TRUST. 
 
 on those annual rests. However, it has been laid down, that interest is 
 r never given on *the rents of real estate :(b) and it is flso against 
 
 L -■ the general practice to direct interest to be calculated on the 
 arrears of an annuity, (c) 1 
 
 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 onlj from the time of filing the bill.(e) How- 
 ever, 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 investigation of the claim.(/) 
 
 So interest has been refused on account of the staleness of the demand ;(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, however, that the discretion of 
 the court has most frequently been exercised in refusing to direct a re- 
 trospective 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.(z') 
 
 It may be observed that interest will not be given against a trustee, 
 unless it be prayed by the bill.(A;) And the question must be disposed 
 of at the hearing on further directions, and cannot regularly be brought 
 forward by petition. (I) 
 
 A trustee, against whom a decree is made with interest, will not 
 necessarily be fixed with the costs, if the suit be not occasioned entirely 
 by his misconduct.(m) But where his breach of trust is the sole occa- 
 sion 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 
 
 (6) Macartney v. Blackwood, 1 Ridg. L. & S. 602. 
 
 (c) Robinson v. Cumming, 2 Atk. 409 ; Crewze v. Hunter, 2 Vea. Jun. 157 ; Tew v. 
 Earl of Winterton, 1 Ves. Jun. 451 ; Booth v. Leycester, 3 M. & Cr. 459; Martin v. 
 Blake, 2 Dr. & W. 125. But see Hyde v. Price, 8 Sim. 578. 
 
 (d) Bruere v. Pemberton, 12 Ves. 386 ; Massey v. Banner, 4 Mad. 419 ; Hooper v. 
 Goodwin, 1 Sw. 485, 493 ; O'Brien v. O'Brien, 1 Moll. 533. 
 
 (e) Lee v. Brown, 4 Ves. 369. 
 
 (/) See Att.-Gen. v. Caius College, 2 Keen, 150, 167 ; Att.-Gen. v. Prettyman, 4 
 Beav. 462. 
 
 (g) Merry v. Ryves, 1 Ed. 1. 
 
 (h) Bone v. Cooke, 13 Price, 343 ; 1 M'Clel. 168. 
 
 (i) Ante, Pt. Ill, Div. II, Ch. II, Sect. 2, XIII, p. 470, and cases cited. 
 
 (k) Weymouth v. Boyer, 1 Ves. Jun. 426 ; Bruere v. Pemberton, 12 Ves. 389 ; see 
 Hooper v. Goodwin, 1 Swanst. 493. 
 
 (Z) Crewze v. Lowth, 4 Bro. C. C. 316 ; Bruere v. Pemberton, 12 Ves. 391. 
 
 (to) Newton v. Bennett, 1 Bro. C. C. 362 ; Raphael v. Boehm, 11 Ves. Ill ; Ash- 
 burnham v. Thompson, 13 Ves. 404 ; overruling Seers v. Hind, 1 Ves. Jun. 294. 
 
 (n) Crackelt v. Bethune, IJ.tW. 589 ; Tebbs v. Carpenter, 1 Mad. 308 ; vide 
 supra, Pt. Ill, Div. I, Ch. II, Sect. 2, V, p. 368. 
 
 1 As to compound interest, see ante, 374, and note. 
 
OF THE REMEDIES FOR BREACH OF TRUST. 789 
 
 the conduct of the trustee in each individual case. But the further con- 
 sideration of the subject will be reserved more conveniently for a future 
 place, (o) 
 
 The relief against a breach of trust is, in the second place, prospec- 
 tive, in order to prevent further injury. And with this view, the old 
 trustees will be dismissed from their office, and others appointed in their 
 room.(^) 1 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 duties.(g') And where the failure ' „., 
 in duty has proceeded from misunderstanding ;(r) or from fol- *- J 
 lowing the long uninterrupted practice 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 trustee, 
 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. (t) 2 
 
 A receiver will also be appointed of the trust property, for its imme- 
 diate and temporary protection against any further breaches of trust by 
 the existing trustees, wherever the circumstances of the case render such 
 a precaution advisable.(w) 
 
 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 cir- 
 cumstances alleged, if proved, must necessarily and at all events con- 
 stitute a breach of trust. Therefore, if certain payments by the trustees 
 are complained of as illegal, but under certain circumstances, which 
 are not negatived by the bill or information, the payments in question 
 
 (o) Vide post (Costa), p. 551. [All parties concurring are liable in costs without 
 regard to the degree of culpability. Lawrence v. Bowie, 2 Phill. 140.] 
 
 (p) Att.-Gen. v. Mayor of Coventry, 1 Bro. P. C. 235 ; Ex parte Greenhouse, 1 Mad. 
 92 ; Att.-Gen. v. Shore, 1 Sim. 309, n. ; Att.-Gen. v. Drummond, 1 Dr. & W. 353 ; 3 
 lb. 162. 
 
 (?) 2 Story, Bq. Jur. {! 1289. 
 
 (r) Att.-Gen. v. Coopers' Company, 19 Ves. 192. 
 
 (*) Att.-Gen. v. Caius Coll., 2 Keen, 150 ; vide supra, p. 166. 
 
 (t) Packwood t. Maddison, 2 S. & St. 232. 
 
 {«) Ante, p. 212. [Calhoun v. King, 5 Alab. 523 ; see a learned discussion of this 
 point in Beverley v. Brooke, 4 Gratt. 208.] 
 
 1 See ante, p. 190, 191, and notes ; Parsons v. Winslow, 6 Mass. 169 ; Cooper v. 
 Day, 1 Rich. Eq. 26 ; Gibbes v. Smith, 2 Id. 131 ; Thompson v. Thompson, 2 B. 
 Monroe, 161 ; Johnson's Appeal, 9 Bait, 416 ; Matter of Mechanics' Bank, 2 Barb. S 
 C.446. 
 
 2 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 t. Ross, 12 Beav. 89. See post, p. 550. 
 
790 OP THE DISCHARGE OF A BREACH OF TRUST. 
 
 might be justifiable, a demurrer to the bill for want of equity will be 
 allowed.(a;) 1 
 
 2d. Of the discharge of a breach of trust. 2 
 
 A trustee may be exonerated from the consequences of a breach of 
 trust, either by an express release from the cestui que trusts, or by their 
 having concurred or acquiesced in its commission. 3 
 
 A deed of release by cestui que trusts to their trustees, must be 
 made with full information of all the circumstances, and of the full ex- 
 tent 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. Symonds,(#) 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 per- 
 fectly worthless, if obtained by any suppression of facts, or fraudulent 
 representations, or other undue practice on the part of the trustee :(z) 
 
 (a;) Att.-Gen. v. Mayor of Norwich, 2 M. & Cr. 406, 4-22. 
 
 (y) 3 Swanst. 1 ; see 59. 
 
 (z) Leonard v. Leonard, 2 Ball & B. 171 ; Jarvis v. Duke, 1 Vera. 19 ; Broderick v. 
 Broderick, 1 P. Wms. 239 ; Cann v. Cann, lb. 727, 8; Gordon v. Gordon, 3 Swanst. 
 400 ; Underwood v. Stevens, 1 Mer. 713. 
 
 1 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. 
 Cromwell, 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 v. 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, 2 De G. Mac. & 
 G. 292. 
 
 2 Though, in general, none but the cestui que trust can interfere to set aside a pur- 
 chase by the trustee of the trust property : Wilson v. Troup, 2 Cow. 195 ; Beeson v. 
 Beeson, 9 Barr, 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. 
 
 3 See ante, notes top. 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. 
 Stump v. Gaby, 22 L. J. Ch. 352 ; 2 De G. Macn. & G. 623. As to when a legacy 
 will be in satisfaction of a breach of trust, see Bensusan v. Nehemias, 20 Law J. Chanc. 
 536 ; 4 De G. & Sm. 381. Where real estate sold by a trustee has been bought in for 
 him, and afterwards resold, an acceptance of part of the purchase-money by the cestui 
 que trusts, though it might confirm the title as to a purchaser, will not deprive them of 
 the right to insist on the benefit of the profit on the resale. Kosenberger's App., 26 
 Penn. St. 67. 
 
OP THE DISCHARGE OF A BREACH OE TRUST. 791 
 
 and for this purpose imperfect information will be regarded as equivalent 
 to concealment.(a) 
 
 In the late case of Wedderburn v. Wedderbum,(5) 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 L ^ 
 partnership business, without taking out and investing 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 respectively came of age ; but, in account- 
 ing 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 trus- 
 tees, 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 obtained by the trustees without affording due information 
 to the cestui que trusts as to the real nature and effect of the transac- 
 tion.^) 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 sui juris. 1 Any such instrument, executed by 
 a person under disability, as by an infant or feme coverte, will be merely 
 inoperative. (c) And the protection, in respect of infancy, will be con- 
 tinued after the infant has attained his full age, and until he has 
 obtained all the information which might have been had in; adult 
 years.(d)* 
 
 (a) 3 Swanst. 73. [See Ringgold v. Ringgold, 1 Har. & Gill, 11 ; Briers. v. .Hack- 
 ney, 6 Geo. 419.] 
 
 (6) Wedderburn v. Wedderburn, 2 Keen, 722, 749 ; S. C, 4 M. & Cr. 41, 52. 
 
 (e) See Bateman v. Davis, 3 Mad. 98 ; Ryder v. Bickerton, 3 Swanst. 82, n. [But 
 see ante, 144, note, as to fraud.] 
 
 (d) Walker v. Symonds, 4 Swanst. 69 ; Overton v. Banister, 3 Hare, 503 ; Wedder- 
 burn v. Wedderburn, 4 M. & Cr. 41, 50. 
 
 1 So where the interest of the cestui que trust is made inalienable (under the New 
 York statute), his assent will not relieve the trustees 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. Eliott, 5 Binn. 8 ; Say v. Barnes, 4 S. & R. 114; Luken's Ap- 
 peal, 7 W. & S. 48 ; Stanley's Appeal, 8 Barr, 431 ; Waller v. Armistead, 2 Leigh, 11 ; 
 Fish v. Miller, 1 Hoff. Ch. 267 ; Brewer v. Vanarsdale, 6 Dana, 204 ; Johnson v. John- 
 son, 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, misrepresentation, or undue practices, would be valid. 
 
792 OF THE DISCHARGE OP A BREACH OP TRUST. 
 
 However, it has been decided, that where unsettled demands between 
 a trustee and his cestui que trust have been referred to arbitration, 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 t© 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 reason- 
 ing, unsatisfactory as it appears, was adopted and approved of by Lord 
 Eldon in affirming the decision of Sir Thomas Plumer in the case re- 
 ferred 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.(Z) 1 Indeed, his participation in the 
 improper act will render him primarily liable to make good any loss to 
 the other cestui que trusts to the extent of his interests in the 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, (h) 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. {i) For instance, where a tenant for life had permitted the 
 fund *to remain in the hands of one of two- co-trustees alone for 
 "- J ten years without any complaint, he was not suffered to charge 
 the other trustee with the interest. (k) And acquiescence for six years 
 has been held a sufficient bar.(Z) And where a party lies by for twenty- 
 five^) 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 
 
 (e) Auriol v. Smith, T. & K. 121, 136. 
 
 (/) Walker v. Symonds, 3 Swanst. 64; Brice v. Stokes, 11 Ves. 326 ; Nail v. Punter, 
 5 Sim. 555. 
 
 {g) Booth v. Booth, 1 Beav. 125, 130 ; Greenwood v. Wakeford, lb., 576 ; Kellaway 
 v. Johnson, 5 Beav. 319; Lord Montfort v. Lord Cadogan, 17 Ves. 490; Lincoln v. 
 Wright, 4 Beav. 427 ; [McGachen v. Dew, 15 Beav. 84.] 
 
 (h) Walker v. Symonds, 3 Sw. 64 ; Buckeridge v. Glasse, Cr. & Ph. 135, 6. 
 
 (i) Brice v. Stokes, 11 Ves. 319; Langford v. Gascoigne, lb. 333; Walker v. Sy- 
 monds, 3 Sw. 64 ; Harden v. Parsons,'l Ed. 145 ; Walmesley v. Booth, 2 Atk. 25. 
 
 (k) Brice v. Stokes, 11 Ves. 326. (1) Walmesley v. Booth, 2 Atk. 25. 
 
 (m) Blennerhasset v. Day, 2 Ball. & B. 128. [Villines v. Norfleet, 2 Dev. Eq. 167.] 
 
 (n) Gregory v. Gregory, Coop. 201 ; Jac. 631. 
 
 1 A cestui que trust, having an absolute power of appointment over property settled 
 to her separate use, who induces and concurs in a breach of trust by the trustees, can- 
 not, by appointing the fund to a third person, enable the latter to maintain a suit 
 against the trustees, to make good the breach of trust. Brewer v. Swirles, 2 Sm. & 
 Giff. 219. 
 
OF THE DISCHARGE OP A BREACH OF TRUST. 793 
 
 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 cestui 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) 1 
 
 It has been already stated, that no acquiescence will prejudice a per- 
 son who is ignorant of his rights :(p) and equity has repeatedly relieved 
 against a breach of trust, notwithstanding the length of express or im- 
 plied acquiescence, where the cestui que trust has not had due informa- 
 tion of the circumstances. (q) 
 
 It lies upon the trustee, who 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.(j-) 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 reference will 
 not be directed where the defence of acquiescence is not raised by the 
 answer, and is not satisfactorily provided by the evidence.(£) 
 
 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 infor- 
 mation 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 oc- 
 count to the time of filing the bill, and by refusing the plaintiff his costs 
 of the suit.(w) 
 
 The acquiescence must be by persons competent to bind themselves 
 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 trus- 
 
 (o) "Wedderburn v. Wedderburn, 2 Keen, 749 ; 4 M. & Cr. 52. 
 
 (p) Walker v. Symonda, 3 Swanst. 64; Cholmondley v. Clinton, 2 Mer. 362; Blen- 
 nerhasset v. Day, 2 Ball & B. 137 ; ante, p. 168, 265. [Prevost v. Gratz, Pet. C. C. 
 367 ; 6 Wheat, 487 ; Mellish's Est., 1 Pars. Eq. 486 ; Beeson v. Beeson, 9 Barr, 300.] 
 
 (j) Ryder v. Bickerton, 3 Sw. 80, n. ; Underwood v, Stevens, 1 Mer. 712 ; Adams v. 
 Clifton, 1 Buss. 207 ; Bowes v. London Waterworks Company, 3 Mad. 375 ; Jac. 324 ; 
 Randall v. Errington, 10 Ves. 423; Wedderburn v. Wedderburn, 2 Keen, 749; 4 M. & 
 Cr. 52; ante, p. 143, 250. 
 
 (r) Randall v. Errington, 10 Ves. 428 ; Lincoln v. Wright, 4 Beav. 427 ; Downes v. 
 Grazebrook, 3 Mer. 208 ; ante, p. 169. 
 
 (*) Walker v. Symonds, 3 Swanst. 44; Broadhurst v. Balguy, 1 N. C. C. 16. 
 
 {t) Lincoln v. Wright, 4 Beav. 427. 
 
 (u) Bowes v. East India Waterworks Company, 3 Mad. 384; [ante, p. 169, &c] 
 
 1 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. 
 
794 OP THE DISCHARGE OF A BREACH OF TRUST. 
 
 r g tees.(a;) Although *the case may be different, where the act of 
 L -I infants or femes coverte amounts to fraud by them on their trus- 
 tee.^) 
 
 The acquiescence of a cestui que trust entitled in remainder after an 
 existing life interest, will not be binding on him during the continuance 
 of the preceding life estate ; for until his own title accrues in possession, 
 he has no immediate right to interfere in the administration of the trust 
 property.(;z) 
 
 The Statutes of Limitation are no bar to the remedy of a cestui que 
 trust against his trustee for a breach of trust, (a) 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 length- 
 ened period, after notice of the breach of trust.(S) 1 
 
 The usual clause in trust deeds, providing for the indemnity of the 
 trustees, does not extend to exonerate them from the consequences of a 
 breach of trust. (c) a 
 
 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 created 
 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^/) 3 But where the 
 
 (x) See Ryder v. Bickerton, 3 Swanst. 82, n.; Bateman v. Davis, 3 Mad. 98; Kella- 
 way v. Johnson, 5 Beav. 319 ; Buckeridge v. Glasse, Cr. & Ph. 136 ; Wedderburn v. 
 Wedderburn, 4 M. & Cr. 41, 50 ; March v. Russell, 3 M. & Cr. 31, 42. 
 
 (y) See Ryder v.- Bickerton, 3 Sw. 82, n. ; Cory v. Gretchken, 2 Mad. 40 ; [See 
 Davis v. Tingle, 8 B. Monr. 539 ; Hall v. Timmons, 2 Rich. Eq. 120 ; Stoolfoos v. 
 Jenkins, 12 S. & R. 399 ; Wright v. Snowe, 2 De G. & Sm. 321; ante, p. 144, note.] 
 
 (z) Bennett v. Coley, 5 Sim. 181 ; 2 M. & K. 225 ; ante, p. 266. 
 
 (a) Milnes v. Cowley, 4 Price, 103 ; ante, p. 264. 
 
 (6) Ante, p. 264, and see Smith v. Clay, 3 Bro. C. C. 639, n. 
 
 (c) Mucklow v. Puller, Jac. 198 ; see Langston v. Olivant, Coop. 33. 
 
 (d) Buckeridge v. Glasse, Cr. & Ph. 126. 
 
 (e) Buckeridge v. Glasse, Cr. & Ph. 127, 132 ; Gibbons v. Hawley, 2 Hare, 246, 7, n. 
 (/) Samuel v. Jones, 2 "Hare, 246 ; see Wall v. Atkinson, 2 Rose, 196. 
 
 1 See ante, p. 264, and note ; and Scott v. Haddock, 11 Geo. 258. 
 
 2 Nor will it protect an executor who neglects to take the necessary steps to secure 
 the fund. Dix v. Burford, 19 Beav. 409. Such a clause in an assignment for creditors 
 renders it void, as it varies the responsibilities and duties of the assignee. Litchfield v. 
 White, 3 Selden, 438. 
 
 3 Under the United States Bankrupt law of 1840, however, debts created by breach 
 
OP THE DISCHARGE OF A BREACH OP TRUST. 795 
 
 extent of the bankrupt's liability, if any, still remains to be determined, 
 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 interest, 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 forward *- -■ 
 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 proceedings 
 against the trustee for a breach of trust.(i) 
 
 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 suit, will not 
 
 be precluded from instituting a subsequent suit of his own, charging the 
 
 trustee with a breach of trust.(fc) 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.(Z) 
 
 l 
 [g) See Ex parte Mare, 8 Ves. 335. 
 
 (h) Morecroft v. Dowling, 2 P. Wms. 314. 
 
 (i) Guidici v. Kinton, 6 Beav. 517. (k) Ibid. (2) Ibid. 
 
 of trust in the misapplication of trust funds before the passage of the act, were not 
 discharged if not proved under the commission ; but if created after that period, they 
 deprived the bankrupt of his right to a discharge. Matter of Tebbetts, 5 Bost. Law Rep. 
 259 ; Pinkston v. Brewster, 14 Alab. 322. 
 
796 OP THE BANKRUPTCY AND 
 
 [*530] ^CHAPTER II. 
 
 OF THE BANKRUPTCY AND INSOLVENCY OF TRUSTEES. 
 
 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) 1 How- 
 ever, 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. (J) 
 
 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 assignees 
 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 sufficient evidence of the title 
 of the cestui que trusts, and will exclude any claim by the assignees of 
 the trustee, (d) 
 
 The distinction between property, belonging beneficially to a bank- 
 rupt or insolvent, and that which is vested in him as a trustee, is recog- 
 nized and acted upon by courts of law. Therefore where a debt or 
 other chose in action has been assigned for a valuable consideration, and 
 the assignor afterwards becomes bankrupt, it has been held that the 
 legal title did not pass to his assignees, but remained 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) 
 
 (a) Copeman v. Gallant, 1 P. Wms. 314 ; Joy v. Campbell, 1 Sch. & Lef. 328 ; 
 Winch v. Keeley, 1 T. E. 619 ; Ex parte Gillett, 3 Mad. 28; Garder v. Rowe, 2 S. & 
 St. 346 ; 5 Russ. 258 ; Pinkett v. Wright, 2 Hare, 120 ; Ex parte Kensington, 2 V. & 
 B. 79. - 
 
 (6) Taylor v. Wheeler, 2 Vern. 564 ; Bennet v. Davis, 2 P. Wms. 316 ; Carpenter v.- 
 Marnell, 3 B. & P. 40 ; see Waring v. Coventry, 2 M. & K. 406. 
 
 (c) Pinkett v. Wright, 2 Hare, 120. 
 
 (d) Gardner v. Rowe, 2 S. & St. 346 ; 5 Euss. 258. 
 
 (e) Winch v. Keeley, 1 T. R. 619 ; Carpenter v. Marnell, 3 B. & P. 40 ; Dangerfield v. 
 
 1 Kip v. Bank of N. Y., 10 John. 63; Blin v. Pierce, 20 Verm. 25; Ontario Bank v. 
 Mumford, 2 Barb. Ch. 596; Hynson v. Burton, 5 Pike, 496 ; Price v. Pollard, 2 Dallas, 
 60 ; Kennedy v. Strong, 10 John. 289 ; Clarke v. Minot, 4 Mete. 346 ; see Ingraham 
 on Insolvency, 64. As to the effect of a discharge under the United States Bankrupt 
 Law of 1840, on debts created by breach of trust, see note to p. 528, ante. 
 
INSOLVENCY OF TRUSTEES. 797 
 
 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 a view of determining that question. (<?) 
 
 Trust property may be followed into the hands of the bankrupt or in- 
 solvent trustee whenever it is of a tangible nature ; and this right exists 
 not only with respect to lands, or other real estate,(A) but also as to such 
 *personal and movable effects as are capable of being identified.(i) 
 For instance, money or goods that are ear-marked ;{k) or plate, *• J 
 &c. ;(l) or furniture ;(m) or a sum of stock standing in the bankrupt's 
 name ;(n) 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 property of the same nature belonging 
 beneficially to the trustee, (q) However, where a sum of stock, or a 
 number of shares, part of which are held in trust, are standing in a per- 
 son'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 repur- 
 chases other stock or shares, and there are no means of identifying 
 the repurchased property with that originally held by him as trustee, 
 the court would have great difficulty in fastening the trust specially on 
 the property so repurchased, (r) But in the case suggested above, if a 
 part only of the stock or shares, standing generally in the trustee's 
 name, were disposed of by him, the court will presume that the, dispo- 
 sition 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 
 dealing with the part held by him as trustee. For instance, if one sum 
 of 20,0007. consols were standing in the name of A., who was trustee of 
 one moiety and beneficial owner of the other moiety, and A. were to sell 
 and transfer 10,000?. of the stock, the court, as against A. and his as- 
 signs in bankruptcy or insolvency, would hold, that the 10,0007. trans- 
 ferred was the property of the bankrupt, and the remaining 10,0007. 
 continued subject to the trust.(«) 
 
 Thomas, 9 Ad. & E. 292. [Hynson v. Burton, 5 Pike, 496 ; Blin v. Pierce, 20 Verm. 
 25 ; Clarke v. Minot, 4 Metcalf, 346 ; see Ontario Bank v. Mumford, 2 Barb. Ch. 616.] 
 
 (/) Ex parte Gillett, 3 Mad. 28. {g) Gardner v. Eowe, 2 S. & St. 346. 
 
 (A) Ibid. 
 
 (t) Copeman v. Gallant, 1 P. Wms. 314; Ex parte Smith, 4 Deac. & Chiit. 579. 
 [Kip v. Bank of N. Y., 10 John. R. 65 ; Kennedy v. Strong, Id. 289.] 
 
 (k) Ex parte Smith, 4 Deac. & Ch. 579. [Kip v. Bank of N. Y. 10 John. 65.] 
 
 (I) Ex parte Marsh, 1 Atk. 158. (m) Ex parte Martin, 19 Ves. 491. 
 
 (n) Ex parte Gillett, 3 Mad. 28 ; Pinkett v. Wright, 2 Hare, 129. 
 
 (o) Bozon v. Bolland, 1 Mont. & Bl. 67 ; 11 Sim. 124; Duncan v. Chamberlaine, 11 
 Sim. 121. (p) Pinkett v. Wright, 2 Hare, 120. (g) Ibid. 
 
 (r) 2 Hare, 128. [But see Kip v. Bank of N. Y., 10 John. B. 65.] 
 
 (*) 2 Hare, 129. 
 
798 OP THE BANKRUPTCY AND 
 
 Where the trust property doea not remain in specie, but it has been 
 actually Bold 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,(w) or appearing to be due from him on the balance of his ac- 
 counts,^) or for which he has been declared liable by a decree of the 
 court,(#) or a legacy,(s) or a sum of stock :(a) for such claims amount to 
 good *equitable debts.(6)(l) And interest on the amount of the 
 L J original 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 existing 
 debt, which can be proved under the bankruptcy or insolvency, or dis- 
 charged by the certificate, but the cestui que trusts may still prosecute 
 
 (t) Ex parte Shakeshaft, 3 Bro. C. C. 196 ; Keble v. Thompson, lb. Ill ; Ex parte 
 Watson, 2 Ves. & B. 414; Ex parte Fairfield, 1 Gl. & J. 221. 
 
 (m) Keble v. Thompson, 3 Bro. C. C. Ill ; Bick v. Motley, 2 M. & K. 312. 
 
 (as) Ex parte Watson, 2 Ves. & B. 414 ; Ex parte Richardson, 3 Mad. 138. 
 
 (y) See- Samuel v. Jones, 2 Hare, 246 ; Gibbons v. Hawley, lb. n. ; Wall v. Atkin- 
 son, 2 Rose, 196. 
 
 (z) Ex parte Heald, 12 Law Jour. N. S., Bankr. 37. 
 
 (a) Ex parte Shakeshaft, 3 Bro. 0. C. 196 ; Ex parte Fairfield, 1 Gl. & J. 221. 
 
 (6) Arch. Bankrupt Law, 99, 9th ed. 
 
 (c) Bick v. Motley, 2 M. & K. 312; Moons v. De Barnales, 1 Russ. 301. 
 
 (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 
 Tonge, 3 V. & B. 40 ; Ex parte Williamson, 2 Ves. 252. 
 
 1 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 assignees. 
 Kip v. Bank of New York, 10 Johns. R. 65. 
 
 In Sinclair v. Wilson, 19 Jurist, 967, the owner of certain negotiable notes allowed 
 the partners of a fir'm, one of whom was her trustee, to deposit them with a bank, as 
 security for advances. They were afterwards redeemed, and without the knowledge of 
 the owner, deposited with another bank as security for a loan. On the eve of bank- 
 ruptcy the trustee out of the partnership funds, paid off the debt, and withdrew the 
 notes. The notes had been treated by the firm as partnership property, but while not 
 deposited they were kept in the possession of the trustee alone. It was held that the 
 notes remained trust property, and were not in the order and disposition of the bank- 
 rupts, within the 1 & 2 Vict. c. 110 ; and also that being trust property there was no 
 fraudulent preference. 
 
INSOLVENCY OF TRUSTEES. 799 
 
 and establish their claim against him by any subsequent proceedings, 
 notwithstanding his certificate or discharge.(d) 1 
 
 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, with- 
 out 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, (g) 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 occasion 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.(fc) 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. (I) 
 
 In some cases the bankrupt himself has been allowed to prove against 
 his own estate for a debt due to himself as trustee. (m) s But an order 
 must be obtained to sanction that course ;(n) and the court will guard 
 against the possibility of any misapplication of the dividends, by order- 
 
 {d) Buckeridge v. Glasse, Cr. & Ph. 126. 
 
 (e) Ex parte Shakeshaft, 3 Bro. C. C. 197; Ex parte Fairfield, 1 Gl. & J. 221 ; Ex 
 parte Vine, 1 Deac. & Ch. 357 ; Ex parte Beilby, 1 GI. & J. 175. 
 
 (/) See Ex parte Saunders, 2 Gl. & J. 132 ; Ex parte Inkersole, Id. 230; 
 
 (g) Ex parte Harris, 11 Law Journ. N. S., Bank. 16 ; Ex parte Vine, 1 Deac. & 
 Ch. 357. 
 
 (A) Ex parte Heaton, Buck. 386. (i) Ex parte Vine, 1 Deac. & Ch. 357. 
 
 (k) Ex parte Heald, 12 Law Journ. N. S., Bankr. 37 ; Ex parte Snowlton, Id. 
 
 (1) Ex parte Harris, 11 Law Journ. N. S., Bank. 16. 
 
 (to) Ex parte Snowlton, 12 Law Journ. N. S., Bank. 37; Ex parte Richardson, 3 
 Mad. 138; Ex parte Watson, 2 V. & B. 414; Ex parte Atkins, Buck. 479; sed vide 
 Ex parte Moody, 2 Rose, 413. 
 
 (») Ex parte Shaw, 1 Gl. & J. 127, see 163 ; Ex parte Collindon, 1 Mont. & Ch. 156 ; 
 Ex parte Thring, 1 M. & Cr. 75. 
 
 1 Where an executor improperly pays over to the father of infant legatees, their lega- 
 cies, 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 rjrove against the father's estate, and the amount of benefit is to be 
 ascertained by the Commissioner: Ex parte Montefiore, De Gex. Bank. R. 171. 
 
 2 In Orrett v. Corser, 19 Jurist, 882, it was held that a bankrupt trustee was bound to 
 prove under his own commission, and was liable for the amount of dividend which he 
 might have received, had he so proved, notwithstanding his discharge. 
 
800 OF THE BANKRUPTCY AND 
 
 ing them to be paid into court,(o) or to the credit of the cause, if any be 
 pending, for the administration of the assets. (p) 
 
 l^coo-i * 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.(j') 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-trus- 
 tees, without the concurrence of the rest, and that one becomes bank- 
 rupt, the solvent trustees may prove for the amount against the estate 
 of the defaulting trustee.(t) 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.(w) 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 notwithstand- 
 ing be entitled to his costs incurred subsequently to the bankruptcy or 
 insolvency, to be paid to him out of the trust estate, although the costs 
 incurred before he became bankrupt or insolvent will be set off against 
 the debt ; for the previous debt is extinguished by the bankruptcy or in- 
 solvency, 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 pro- 
 perty, and he may be made bankrupt, and proceeded against in the same 
 manner as any other trader.(z) And it is immaterial, that the trade is 
 
 (o) Ex parte Leake, 2 Bro. C. C. 596 ; Ex parte Brooks, Cook. 163. 
 
 (j>) Ex parte Colman, 2 Deac. & Ch. 584. 
 
 (q) Ex parte Shakeshaft, 3 Bro. C. C. 197. 
 
 (r) Keble v. Thompson, 3 Bro. C. C. 111. (*) Ex parte Beilby, 1 Gl. & J. 175. 
 
 \t) Ex parte J. Shakeshaft, 3 Bro. C. C. 198; Ex parte Beaumont, 1 Deac. & Ch. 
 360 ; Ex parte Stettel, 1 M. & Cr. 165. 
 
 («) Ex parte Harris, 11 Law Journ. N. S., Bank. 16. 
 
 (x) Lincoln v. Wright, 4 Bear. 427. 
 
 (y) Samuel t. Jones, 2 Hare, 246 ; Gibbons v. Hawley, Id. n. 
 
 (a) Ex parte Garland, 10 Ves. 119 ; Ex parte Richardson, 3 Mad. 157. [See Ex 
 parte Butterfield, De Gex, 572.] 
 
INSOLVENCY OF TRUSTEES. 801 
 
 carried on by him in consequence of an express 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 dis- 
 charge of the liabilities.^) 1 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 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 could 
 be advised, under any circumstances, to undertake the responsi- L ^ 
 bility 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 becom- 
 ing bankrupts, as well as the mode in which that jurisdiction will be ex- 
 ercised.^) 
 
 No power of appointing new trustees has been conferred by the legis- 
 lature on the Insolvent Debtors' Court in case of the insolvency of trus- 
 tees; 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.^) And in the meantime, 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 appoint- 
 ing him, knew that the commission 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 
 
 (a) Ex parte Garland, 10 Ves. 110, 119 ; Ex parte Richardson, 3 Mad. 138, 157. 
 
 (6) Ex parte Garland, 10 Ves. 110 ; Ex parte Richardson, 3 Mad. 157 ; Thompson 
 v. Andrews, 1 M. & K. 116 ; Cutbush v. Cutbush, 1 Beav. 184. 
 
 (c) Ante, Pt. I, Div. Ill, Chap. I. [See Ex parte Congreve, De Gex, 267 ; Ex 
 parte Cousen, Id. 451.] 
 
 {d) 3 Mad. 100. (e) Mansfield v. Shaw, 3 Mad. 100. 
 
 (/) Langley v. Hawk, 5 Mad. 44. 
 
 1 But in Ex parte Butterfield, De Gex, 572, where a particular sum was authorized 
 by a testator to be employed in his trade, to be carried on after his death by his execu- 
 trix, 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 of the amount could not be made by the cestui que trusts. 
 
 51 
 
802 OF THE DISABILITIES OF TRUSTEES. 
 
 two solvent trustees only.(^) And in case of the bankruptcy of a sole 
 trustee, under similar circumstances, the appointment 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. 1 
 
 It is one of the settled principles of courts of equity, that trustees 
 shall not take advantage of their situation to obtain any personal benefit 
 to themselves at the expense of their cestui que trusts. 
 
 However, this rule does not extend to prevent a trustee from enjoying 
 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 thai trust.(S) And it is immaterial that the 
 trustee is prevented from acting by age or infirmity.(e) But if the 
 legacy be given to the trustee personally, without regard to the office 
 imposed on him, he will be entitled irrespectively of his acceptance of 
 the office. (d) And where a testator appointed two trustees, and gave 
 them 100?. 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 1001. to each of the substituted 
 trustees, " as a mark of his respect for them," the legacies to the first 
 trustees were held not to be revoked by implication by the codicil, (e) 
 
 (g) Gage v. 'Watmough, 10 Law Jour. N. S., Chanc. 234. 
 
 (a) Vide post, Ch. [Allowances], p. 575. 
 
 (6) Harrison v. Eowley, 4 Ves. 216 ; Stackpole v. Howell, 13 Ves. 421 ; Bead v. De- 
 vaynes, 3 Bro. C. C. 95 ; Dix v. Reed, 1 S. & St. 239 ; Barber v. Barber, 3 M. & Cr. 
 688 ; Pigot v. Green, 6 Sim. 72 ; Calvert v. Sebon, 4 Beav. 222. 
 
 (c) Hanbury v. Spooner, 5 Beav. 630. 
 
 (d) Humberston v. Humberston, 1 P. Wms. 333 ; Cockerell v. Barber, 2 Russ. 585 ; 
 Griffith v. Pruen, 11 Sim. 202 ; Christian v. Devereaux, 12 Sim. 264. 
 
 (e) Burgess v. Burgess, 1 Coll. N. C. C. 367. 
 
 1 A trustee, after acceptance of a trust, cannot protect himself from liability for a 
 a breach of his duties, by denying the title of his cestui que trusts, or the validity of the 
 deed creating the trust. Godwin v. Yonge, 22 Alab. 553; Duncan v. Bryan, 11 Geo. 
 63. See post, p. 543, note ; State v. Merrill, 1 Chand. 258. 
 
OF THE DISABILITIES OF TRUSTEES. 803 
 
 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 himself — and 2dly, Where the purchase is effected by con- 
 tract or agreement between the trustee and the cestui que trust. 1 
 
 In the first case, the disability is much more strictly enforced than in 
 the other. Indeed, it was laid down by Lord Erskine, with regard 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 shown, that the r^coc-i 
 fiduciary relation of the purchaser had absolutely ceased previ- 
 ously to the purchase,(A) or that the purchase was made with the full 
 concurrence and consent of the persons beneficially interested (who, in 
 that case must, of course, have been competent 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.^) 
 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 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,(w) or in the name of another per- 
 
 (/) In Morse v. Royal, 12 Ves. 372. [See Chronister v. Busfcey, 7 W. & S. 152 ; 
 McConnell v. Gibson, 12 Illin. 128 ; Lewis v. Hillman, 3 H. L. Gas. 628.] 
 
 (g) See Ex parte Lacey, 6 Ves. 625 ; Downes v. Grazebrook, 3 Mer. 208. [See ante, 
 159, note.] 
 
 (h) Ex parte Bennett, 10 Ves. 393 ; Ex parte Lacey, 6 Ves. 626 ; Downes v. Graze- 
 brook, 3 Mer 208. [Ball v. Carew, 13 Pick. 28 ; De Bevoise v. Sandford, 1 Hoff. C& 
 192.] 
 
 (i) Downes v. Grazebrook, 3 Mer. 208 p Randall v. Errington, 10 Ves. 428. [Sea- 
 Worthy v. Johnson, 8 Geo. 236 ; ante, 169, note.] 
 
 (k) Campbell v. Walker, 5 Ves. 678. [See ante, 159, note; 168, note.] 
 
 {I) See Campbell v. Walker, 5 Ves. 681, 2. [See Miehoud v. Girod, 4 How. U. S; 
 555.] 
 
 (m) Campbell v. Walker, 5 Ves. 678 ; Ex parte Lacey, 6'Ves. 625 ; Lister v. Lister, 
 lb. 631 ; Downes v. Grazebrook, 3 Mer. 200. [Ante, 158, 159, notes.] 
 
 (») Campbell v. Walker, 5 Ves. 678 ; Lister v. Lister, 6 Ves. 631 ; Sanderson v. 
 
 1 See ante, 158, 159, notes. 
 
 Where real estate in which the widow of a testator, who was one of his executors, 
 was entitled to a life estate, was sold by the executors under the provisions of an Act of 
 Assembly, and bought in for the widow, it was held that she was chargeable with the 
 actual value of the property at the time of the sale, and not the price reported, and that 
 her estate was liable for interest on such value from the time of her death. Holman's 
 Appeal, 24 Penn. St. 175. 
 
804 OF THE DISABILITIES 01 TRUSTEES. 
 
 son as his agent. (o) 1 Moreover, it is unnecessary for the cestui que trust 
 to show, that the trustee has obtained any profit or advantage by the 
 purchase,(p) although that would, of course, be an additional 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 circum- 
 stances 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 knowledge re- 
 specting 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 made.(r) 
 
 On the other hand, a purchase of this nature, though voidable at the 
 option of the cestui que trusts, will be enforced against the trustee, 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 addi- 
 tional price will be for the benefit of the trust estate, but if there be no 
 advance, the trustee will be held to his bargain.(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 con- 
 sequently he will not be disabled from purchasing the trust property.(f) 
 
 Walker, 13 Ves. 601 ; Downes v. Grazebrook, 3 Mer. 200; [Beeson v. Beeson, 9 Barr, 
 279; Bostwick v. Atkins, 3 Comst. 53; Campbell v. Penn. Ins. Co., 2 Wharf. 53; 
 Michoud v. Girod, 4 How. U. S. 557.] 
 
 (o) Whelpdale v. Cookson, 1 Ves. 9 ; Campbell v. Walker, 5 Ves. 678 ; 13 Ves. 601 ; 
 Downes v. Grazebrook, 3 Mer. 200 ; Randall v. Errington, 10 Ves. 423. 
 
 (p) Ex parte James, 8 Ves. 348 ; Ex parte Bennett, 10 Ves. 393 ; Ex parte Lacey, 
 6 Ves. 627. 
 
 (q) Pox v. Mackreth, 2 Bro. C. C. 400 ; Whichcote v. Lawrence, 3 Ves. 740. 
 
 [r) Ex parte Lacey, 6 Ves. 226 ; Ex parte Bennett, 10 Ves. 394; [post, note (a;).] 
 
 (s) Ex parte Beynoler, 5 Ves. 707 ; Ex parte Hughes, 6 Ves. 617 ; Ex parte Lacey, 
 lb. 630 ; Lister v. Lister, lb. 631 ; Sanderson v. Walker, 13 Ves. 601. [McClure v. 
 Miller, 1 Bail. Ch. 107 ; Thorp v. McCullum, 1 Gilm. 624 ; Ex parte Wiggins, 1 Hill's 
 Eq. 354; Pitt v. Petway, 12 Ired. R. 69. Sollee v. Croft, 7 Rich. Eq. 34; Mason v. 
 Martin, 4 Maryl. 124.] 
 
 (t) Chambers v. Waters, 3 Sim. 42 ; Stacey v. Elph, 1 M. & K. 195. 
 
 1 Davoue v. Fanning, 2 J. C. R. 252 ; Hawley v. Cramer, 4 Cow. 717 ; Hunt t. Bass, 
 2 Dev. Eq. 292 ; Paul v. Squibb, 12 Penn. St. 296 ; Buckles v. Lafferty, 2 Rob. Va. 
 294; 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 absolutely void ; but that it did so only 
 where there was actual fraud, as where it was used as a means of deceiving or mislead- 
 ing the cestui que trust. 
 
OF THE DISABILITIES OP TRUSTEES. 805 
 
 *The same principles apply, although not with quite the same r* 5 Q 7 -i 
 stringency, to contracts between the trustee and his cestui que ^ ^ 
 trust, for the purchase of the trust estate. 1 
 
 In Coles v. Trecothick,(w) Lord Eldon said : " I agree the cestui que 
 trust may deal with his trustee, so that the trustee may become the pur- 
 chaser of the estate. But though permitted, it is a transaction 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 trans- 
 action." 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 informa- 
 tion acquired by him in the character of trustee." But " it is a diffi- 
 cult 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 confirmation, 
 the court will carefully inquire into and sift all the circumstances, in 
 order to ascertain the perfect fairness and propriety of the transaction ; 
 and it will rest with the trustee to establish in evidence, 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.(g) But it is 
 almost needless to add, that if any unfair advantage has been taken by 
 the trustee, by withholding information, or other fraudulent dealing, 
 the purchase will 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,(J) 
 though the purchase will not necessarily be set aside on that account 
 alone.(e) 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 trus- 
 tee, as the knowledge of that fact might put him more on his guard ; 
 and on this ground, where the trustee purchased and too.k the convey- 
 
 («) 9 Ves. 244. 
 
 {x) 9 Ves. 246, 7 ; and see Morse v. Royal, 12 Ves. 373 ; Ayliff v. Murray, 2 Atk. 
 59. [Boyd v. Hawkins, 2 Dev. Eq: 195, 329 ; Schwarz v. Wendell, "Walker, Ch. 267; 
 Bryan v. Duncan, 11 Geo. 77; Parr v. Farr, 1 Hill's Eq. 390; Stuart v. Kissam, 2 
 Barb. S. C. 494; but see S. C. 11 Barb. S. C. 271 ; Allen v. Bryant, 7 Ired. Eq. 276.] 
 
 (y) See Hunter v. Atkins, 3 M. & K. 135. 
 
 (2) Coles v. Trecothick, 9 Ves. 234; Clarke v. Smith, 2 Ed. 134 ; Morse v. Royal, 12 
 Ves. 355. 
 
 (a) Heme v K Meeres, 1 Vern. 465 ; Fox v. Mackretb, 2 Bro. C. C. 400 ; Scott v. 
 Davis, M. & Cr. 87. 
 
 (6) Morse v. Boyal, 12 Ves. 373. [Pugh v. Bell, 1 J. J. Marsh. 406.] 
 
 (c) Coles v. Trecothick, 9 Ves. 234. 
 
 1 See ante, 156, 159, and notes. 
 
806 OF THE DISABILITIES OF TRUSTEES. 
 
 ance 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.(<2) 
 
 For the same reason, a purchase by a trustee of an estate put up to 
 pullie sale by the cestui que trust, might not be so easily supported, 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 infor- 
 P^-qo-i mation ; consequently the same principle does not apply to mere 
 *- dry trustees — *such as those for preserving contingent remain- 
 
 ders — 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 him- 
 self 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 other at arms' length, and will give effect to the sale, though made 
 for an inadequate price. (g) 2 
 
 It is almost superfluous to add, that the rule of equity, interdicting 
 the purchase of the trust estate by trustees, applies as much to one of 
 several trustees as to a sole trustee. (h) 
 
 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. 
 
 (d) Eandall v. Errington, 10 Ves. 423. 
 
 (e) See Att.-Gen. v. Lord Dudley, Coop. 146. 
 
 (/) Parkes v. White, 11 Ves. 226 ; and see Nayler v. Winch, 1 S. & St. 567. 
 (g) Coles v. Treeothick, 9 Ves. 248. 
 (h) Whichcote v. Lawrence, 3 Ves. 740. 
 
 1 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. Groom, 11 CI. & F. 684; Dobson 
 v. Racey, 4 Selden, 216. 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 implication, 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. 
 
 2 In Monro v. Allaire, 2 Caines' Cas. 183, however, it was held that a Court of Equity 
 will never aid a trustee, under any circumstances, to enforce such a purchase, though 
 it might refuse to annul it. But this distinction, though unquestionably a valid one in 
 general, can hardly be considered as one of universal application, in view of the modern 
 authorities. See Salmon v. Cutts, 4 De G. & Sm. 131. 
 
OF THE DISABILITIES OF TRUSTEES. 807 
 
 Where the person, beneficially entitled, is sui juris, and has knowledge 
 of the fraud committed against him, a purchase by the trustee may un- 
 questionably be supported by a subsequent confirmation.(i) But, it has 
 been said by Lord Eldon, that where the original fraud is clearly esta- 
 blished, 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 transac- 
 tion, the effect of which is to ratify that, which in justice ought never to 
 have taken place.(A) 1 
 
 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.(Z) 
 *However, the nature and effect of acquiescence and laches as a p^rgn-i 
 bar to relief in equity have already been considered, and need •- * 
 not again be discussed, (mf 
 
 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 
 trust, (n) 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 pur- 
 chaser with notice, will have to account to the cestui que trusts for the 
 rents and profits of the estate :{j>) and if he has been in actual occupa- 
 tion of the property, he will be also charged with an occupation rent.(g) 
 
 If the trustee have expended money in substantial repairs, and im- 
 provements of the property, he will be allowed the amount, which will 
 De added to the purchase-money.(r) 3 And if, on the contrary, the pro- 
 
 (i) Clarke v. Swaile, 2 Ed. 134; Morse v. Royal, 12 Ves. 373, 4 ; Roche v. O'Brien, 
 1 Ball & B. 353. 
 
 (k) Morse v. Royal, 12 Ves. 373, 4; see Carpenter v. Heriot, 1 Ed. 338. 
 
 (I) Campbell v. Walker, 5 Ves. 680; Parkes v. White, 11 Ves. 221; Gregory v. 
 Gregory, Coop. 201 ; Chalmer v. Bradley, U. & W. 59; Morse v. Royal, 12 Ves. 374. 
 
 (m) Ante, p. 168, n. 
 
 (») York Buildings Company v. Mackenzie, 8 Bro. P. C. 42 ; Lord Hardwicke v. 
 Vernon, 4 Ves. 411 ; Ex parte James, 8 Ves. 351 ; Ex parte Bennett, 10 Ves. 400 ; 
 Att.-Gen. v. Dudley, Coop. 146 ; Punbar v. Tredenuick, 2 Ball & B. 304. [See ante, 
 164, notes.] 
 
 (o) Whelpdale v. Cookson, 5 Ves. 682, stated; Hall v. Hallett, 1 Cox, 134, 139 ; Ex 
 parte James, 8 Ves. 351; Watson v. Toone, 6 Mad. 153. 
 
 (p) Ex parte Lacey, 6 Ves. 630 ; Ex parte James, 9 Ves. 351 ; Watson v. Toone, 
 6 Mad. 153. (q) Ex parte James, 8 Ves. 351. 
 
 (r) York Buildings Company v. Mackenzie, 8 Bro. P. C. 42 ; Campbell v. Walker, 5 
 Ves. 682 ; Ex parte Hughes, 6 Ves. 624; Ex parte James, 8 Ves. 352 ; Ex parte Ben- 
 nett, 15 Ves. 400 ; Robinson v. Ridley, 6 Mad. 2 ; [Pratt v. Thornton, 28 Maine, 355 ; 
 Beck v. Uhrich, 16 Penn. St. R. 499.] 
 
 L " See ante, 159, notes. 2 See ante, 159, note ; 168, 169. notes. 
 
 3 That the trustee is entitled to reimbursement of the purchase-money paid by him, 
 
808 OF THE DISABILITIES OP TRUSTEES. 
 
 perty 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.^) 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 improvements. if) 
 
 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 purchase by him, 
 under such circumstances, will be regarded as an improper dereliction 
 of duty.(a;) The delay in filing the bill may also be material in con- n 
 sidering the question of costs, (y) 
 
 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.^) 1 
 
 (*) Ex parte Bennett, 10 Ves. 401. 
 
 (t) Baugh v.Price, 1 Wils. 320 ; see Kenney v. Browne, 3 Ridg. 518. [McKennan v. 
 Pry, 6 Watts, 138.] 
 
 (m) Downes v. Grazebrook, 3 Mer. 209, where the trustee received his costs. 
 
 (x) Saunders v. Walker, 13 Ves. 601. 
 
 (y) Att.-Gen. v. Dudley, Coop. 148 ; ante, p. 169 ; post, p. 564, [Costs.] 
 
 (z) Ker v. Lord Dungannon, 1 Dr. & W. 509, 541 ; Killick v. Flexney, 4 Bro. C. C. 
 161 ; Parker v. Brooke, 9 Ves. 583; James v. Dean, 11 Ves. 392; 15 Ves. 236 ; Griffin 
 v. Griffin, 1 Sch. & Lef. 352 ; Ex parte Hughes, 6 Ves. 617 ; Att.-Gen. v. Clarendon, 
 17 Ves. 500 ; [Davoue v. Fanning, 2 J. C. R. 258 ; Holridge v. Gillespie, Id. 30; Re 
 Heager's Executors, 15 S. & R. 65 ; Galbraith v. Elder, 8 Watts, 94; Fisk v. Sarher, 
 6 Watts & S. 31 ; Wallington's Est., 1 Ashm. 310 ; Huson v. Wallace, 1 Rich. Eq. 7 ; 
 McClanahan v. Hendersons, 2 A. K. Marsh. 388 ;] vide supra, p. 438. 
 
 and for substantial repairs, see Davoue v. Fanning, 2 J. C. R. 252 ; Ward v. Smith, 3 
 Sandf. Ch. 592 ; Quaekenbush v. Leonard, 9 Paige, 344; McClanahan v. Hendersons, 
 2 A. K. Marsh. 388 ; Matthews v. Dragaud, 3 Desaus. 25 ; TBuckles v. Lafferty, 2 Rob. 
 Va. 294 ; Scott v. Freeland, 7 Sm. & M. 410 ; Mill v. Hill, 3 H. Lds. Cas. 828; Spindler 
 v. Atkinson, 3 Maryl. 410 ; Mason v. Martin, 4 Id. 124; 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 ; Gunn v. Brantley, 21 Alab. 633. 
 
 ' 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 doDe for the benefit of 
 the cestui que trust, and not for the benefit of the trustee. Davoue 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 McCord'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. Mc- 
 Coll, 5 Alab. 314; Butler v. Hicks, 11 Sm. & M. 78; Davis v. Wright, 2 Hill, S. C. 
 560 ; Vorhees v. Stoothof, 6 Halst. 145 ; Saeger v. Wilson, 4 Watts & S. 501 ; Heager's 
 Exrs., 15 S. & R. 65 ; Leisenring v. Black, 5 Watts, 303 ; Oeslager v. Fisher, 2 Barr, 
 467 ; Conger v. Ring, 11 Barb. S. C. 356 ; Miller v. Holcombe, 9 Grattan, 665. See Stuart 
 v. Kissam , 1 IBarb. S. C. 271 ; notes to Keach v. Sandford, 1 Lead. Cas. Eq. 55, 1 st Am. Ed.] 
 If, therefore, the trustee makes any contract, or does any act connected with the trust 
 estate for his own benefit, he will nevertheless, be decreed responsible for all advantages 
 to his cestui que trust, as upon an implied trust. Thus if a trustee should purchase a 
 
OF THE DISABILITIES OF TRUSTEES. 809 
 
 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 reasons 
 for this rule : 1st, That his holding that situation would he inconsistent 
 with the duty of a trustee, who ought to check and control the receiver 
 in his management of the estate, and 2d, That a trustee is hound to give 
 his ^services for the benefit of the trust estate without any 
 emolument. (a) And the same rule applies to one of several L J 
 trustees.(J) 
 
 However, where there are any special circumstances recommending 
 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 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.(e) 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 requiring the appointment of either of 
 the trustees. According to the report of the case, however, the atten- 
 tion of the court does not seem to have been drawn to the objection 
 
 (a) Anon. 3 Ves. 515 ; v. Jolland, 8 Ves. '72 ; Sykes v. Hastings, 11 Ves. 363 ; 
 
 Sutton v. Jones, 15 Ves. 584; see Morison v. Morison, 4 M. & Cr. 216. [But see post, 
 p. 574, note.] 
 
 (6) v. Jolland, 8 Ves. 72. (c) Hibbert v. Jenkins, 11 Ves. 363, cited. 
 
 lien or mortgage on the trust estate at a discount, he would not be allowed to avail 
 himself of the difference ; but the purchase would be held a trust for the benefit of the 
 cestui que trust: Green v. Winter, 1 Johns. Ch. E. 26 ; Van Horn v. Fonda, 5 Johns. 
 Ch. R. 409 ; Bvertson v. Tappen, Id. 514 ; [Matthews v. Dragaud/3 Desaus. 25 ; Me- 
 Clanahan v. Hendersons, 2 A. K. Marsh. 388; Butler v. Hicks, 11 Sm. & M. 78 ; Gid- 
 dings v. Eastman, 5 Paige, 561 ; Matter of Oakley, 2 Edw. Ch. 478 ; Irwin v. Harris, 
 6 Ired. Eq. 221 ; Strong v. Willis, 3 Florid. 124; Crutchfield v. Haynes, 14 Alab. 49. 
 A creditor, who afterwards becomes trustee, may, however, buy 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 proceeeding by the cestui 
 que trust against himself: Att-Gen. v. Hardy, 1 Sim. N. S. 338. See South Baptist 
 Society v. Clapp, 18 Barb. 35.] 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. Hol- 
 ridge 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. I 324, &c. : [partners, Anderson v. 
 Lemon, 4 Selden, 236 ; tenants in common, parent and child, husband and wife ; 
 Weaver v. Wible, 25 Penn. St. 270 ; Church v. Church, Id. 278.] 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 tribunal of 
 Justice. See, also, the case of Delamater's Estate, 1 Wharton's Rep. 362. — T. [A 
 trustee can obtain no advantage by a confusion of the trust funds with his own ; it then 
 becomes his duty to show clearly how much is his own. Seaman v. Cook, 14 Illinois, 
 505.] 
 
810 OP THE DISABILITIES OE TRUSTEES. 
 
 against the appointment of a trustee to such an office.(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. (/)' 
 But he may with his own consent be examined by a defendant, on an 
 order being obtained for that purpose.^) But a defendant trustee, who 
 has no personal interest in the event of the suit, is a competent witness, 
 and it is a motion of course to examine him as such.(A) And in this 
 respect there is a difference between trustees and executors, who can- 
 riot be examined as witnesses in a cause relating to their testator's 
 estate.(i) 2 
 
 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.(fc) 3 And for the same rea- 
 son the testimony of a trustee's wife will be equally inadmissible under 
 similar circumstances. (I) 
 
 The disability of trustees to delegate the office to another comes also 
 within the subject now under consideration. The administration 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 con- 
 tinue responsible for all the acts of the person so substituted, (m) 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 
 
 (d) Tait v. Jenkins, 1 N. C. C. 492. (e) Sutton v. Jones, 15 Ves. 587. 
 
 (/) Phillips v. Duke of Buckingham, 1 Veru. 230 ; v. Fitzgerald, 9 Mod. 330. 
 
 {g) Armiter v. Swanton, Ambl. 393. 
 
 (h) Man v. Ward, 2 Atk. 228 ; Goss v. Tracey, 1 P. Wins. 290 ; Goodtitle v. Wel- 
 ford, 1 Dougl. 140; Bettison v. Bromley, 12 East, 250; Phipps v. Pitcher, 6 Taunt. 
 220 ; see 1 Ball & B. 100, 414. [Hawkins v. Hawkins, 2 Car. L. Rep. 627 ; Hodges v. 
 Mullikin, 1 Bland. 503 ; Neville v. Demeritt, 1 Green, Ch. 321.] 
 
 (i) Croft v. Pike, 3 P. Wms. 182 ; Fotherby v. Pate, 3 Atk. 604. 
 
 (k) Frank v. Mainwaring, 2 Beav. 126; see Smith v. Duke of Chanios, Barn. 416. 
 
 (1) Frank v. Mainwaring, 2 Beav. 126. 
 
 (m) Chalmers v. Bradley, 1 J. & W. 68 ; Adams v. Clifton, 1 Russ. 297 ; Wilkinson 
 v. Parry, 4 Buss. 272 ; Hulme v. Hulme, 2 M. & K. 682. [See ante, 175.] 
 
 1 See ante, 277, and note ; and Hardwiek v. Hook, 8 Georgia, 354 ; Southard v. 
 Cushing, 11 B. Monr. 344. 
 
 1 See Cochran v. Cochran, 1 Yeates, 134; DehufFv. Turbett, 3 Id. 157; Vansant v. 
 Boileau, 1 Binn. 444 ; Hunt v. Moore, 2 Barr, 105 ; Osborn v. Black, Spear's Bq. 431 
 Mclntyre v. Middleton, 1 Sm. & M. Ch. 91 ; Abbott v. Clark, 19 Verm. 444; Fort v, 
 Gooding, 9 Barb. S. C. 371. But where an administrator plaintiff releases his commis 
 sions, and is released from costs, and there is no suggestion of the possibility of a devas 
 tavit, he is a competent witness, in Pennsylvania. Anderson v. Neff, 11 S. & B. 208 ; 
 King v. Cloud, 7 Barr, 469. 
 
 3 Donalds v. Plumb, 8 Conn. 447. As to the necessity of a release of commissions, 
 where such are allowed by law, see King v. Cloud, 7 Barr, 467. 
 
OP THE DISABILITIES OE TRUSTEES. 811 
 
 will not be justified in committing the entire management of the trust 
 to *him.(») And we have already seen, that even as between pe^i-i 
 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 ministerial acts — such as the sale (^f 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 retains 
 the supervision and control over the person so employed.(p) Although, 
 if the trustees suffer 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') 
 
 Erom 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 as- 
 signment inter vivos. 1 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 beneficial thing to devise 
 an estate, which is vested in him in that character. 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 accordance with the devise made to him. If 
 he devises the estate, I am 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 be borne by the assets of the trustee. I see no substan- 
 tial distinction between a conveyance by act inter vivos and a devise, for 
 the latter is nothing but a post-mortem conveyance : and if the one is 
 unlawful, the other must be unlawful." In the case in which these ob- 
 servations 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 execute the trust for sale, as 
 it was not limited to the assigns of the original trustees. It will be ob- 
 served, that his Honor's observations, which have been stated above, as 
 to the general incapacity of trustees to devise the trust estate, were not 
 required for the decision of the case, and are therefore clearly extraju- 
 
 (m) Chambers v. Minchin, 7 Ves. 196 ; Ex parte Townsend, 1 Moll. 139 ; Turner v. 
 Corney, 5 Beav. 515. 
 
 (o) Ante, p. 309, [but see in note.] 
 
 (p) Ex parte Belchier, Amb. 219 ; Bacon v. Bacon, 5 Ves. 335 ; Clough v. Bond, 3 
 M. & Cr. 497. [See ante, p. 474, and note.] 
 
 {q) Ex parte Townsend, 1 Moll. 139. (r) Cooke v. Crawford, 13 Sim. 97. 
 
 1 But see ante, p. 283, note (1). 
 
812 OF SUITS BY TRUSTEES. 
 
 dicial. 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 settled that a general devise 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 jonly to the devise of a mere dry legal 
 estate, and not to active and discretionary duties and powers. More- 
 over, with great deference to his Honor's opinion, which within the writer's 
 r*<U9T knowledge is supported by *that of some most eminent members 
 *- -"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 ab 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 unquestionably 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. 
 
 [*543] *CHAPTEE IV. 
 
 OF SUITS BY AND AGAINST TKUSTEES. 
 
 I. Of Suits and Actions by Trustees III. Of the Effect of Suits instituted 
 
 [543]. by or against Trustees [548]. 
 
 II. Of Suits and Actions against Trus- IV. Of Costs [551]. 
 
 TEES [545]. 
 
 I.— OP SUITS AND ACTIONS BY TRUSTEES. 
 
 Trustees have an undoubted right to come to the court for its assis- 
 tance and protection in all cases of doubt or difficulty in the administra- 
 tion of the trust 5(a) 1 and the personal representatives of a deceased 
 
 (s) Ante, p. 283. 
 
 (a) See Curteis v. Candler, 6 Mad. 123; Coventry v. Coventry, 1 Keen, 758 ; Talbot 
 v. Earl of Radnor, 3 M. & K. 252 ; Hearn v. Wells, 1 Coll. N. C. C. 323. 
 
 1 Bowers v. Smith, 10 Paige, 193; Lorillard v. Coster, 5 Paige, 172; Hawley v. 
 James, Id. 318; Jones v. Stockett, 2 Bland, 409 : Trotter v. Blocker, 6 Porter, 269; 
 Dimmock v. Bixby, 20 Pick. 374 ; Bowditch v. Banuelos, 1 Gray, 220, 233 ; Hayden's 
 Bx'rs v. Marmaduke, 4 Bennett, Mo. 403 ; Wayinan v. Jones, 4 Mary. Ch. 501 ; see 
 Harrison v. Rowan, 4 Wash. C. C. 202. So, if any portion of the trust estate is mis- 
 applied or destroyed, it is not only the right, but the duty of the trustee to communicate 
 
OF SUITS BY TRUSTEES. 813 
 
 trustee are entitled to the same privilege. (J) 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 meantime. (c) And if a suit be pending between the parties 
 at the time, the application may be made by a petition in that suit.(d) 1 
 
 (6) Greenwood v. Wakeford, 1 Beav. 576. 
 
 (c) Edgecombe v. Carpenter, 1 Beav. 173. (d) 1 Beav. 171. 
 
 the fact to the court, and ask its sanction of the measures adopted by him to obtain 
 redress. If he act on his own responsibility, he will be obliged to put the transaction 
 in such a position that its character can be clearly understood ; otherwise he will ren- 
 der himself liable for any injurious consequences. Wayman v. Jones, 4 Maryl. Ch. 501 . 
 The trustee, in thus asking the advice and assistance of the court, is bound to give it all 
 the information in his power. Trotter v. Blocker, 6 Porter, 269. The court in such 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, 11 Gill & 
 J. 185 ; Rogers v. Robs, 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 representatives of parties not 
 in esse. Lorillard v. Coster, 5 Paige, 172. A decree for carrying into execution the 
 trusts of a will, does not imply that all the trusts are valid. GooCh v. Gooch, 22 L. J. 
 Ch. 1089. 
 
 In the recent case of Neale v. Davies, 23 L. J. Ch. 744, before the Lords Justices of 
 Appeal, it was held by L. J. Turner, in accordance with a decision of V. Ch. Wood, 
 that where a trustee accepts the trust of a fund with the knowledge that it is doubtful 
 whether it ought to be held upon such trust, he is nevertheless entitled to come into 
 court for its directions whether the trusts ought to be executed. L. J. Knight Bruce, 
 however, dissented, on the ground, that after the trustee had accepted, and was then 
 called upon by the cestui que trust to part with the fund, in accordance with the trusts, 
 he was bound to do so ; and if he did, could not be made personally liable to third per- 
 sons for so doing. This latter appears the sounder reasoning, and more consistent 
 with the duties arising from the relation of trustee and cestui que trust, which prohibit 
 the former from denying the title of the latter, or the validity of the trust under which 
 he acts. Godwin v. Yonge, 22 Alab. 553; Duncan v. Bryan, 11 Geo. 63 ; State v. 
 Merrill, 1 Chandl. 258. 
 
 In Tayloe v. Bond, 1 Bnsbee Eq. 5, it was held that the jurisdiction of a court of 
 equity to declare the construction of a will, applied only to trusts and not to legal 
 estates, and is limited to such matters as are necessary for the present action of the 
 court, and on which it can enter a decree, or direction in the nature of a decree. It will 
 not advise as to the future or contingent rights of legatees. 
 
 1 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 (11 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, 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 : 
 ReBiggs, 11 Beav. 27 ; Re Joseph's Will, 11 Beav. 625 ; Re Everett, 12 Beav. 485 ; Re 
 Lorimer, Id. 251 ; Re Cawthorne, Id. 56 : Re Money, 13 Beav. 109 ; Re Bloye's Trust, 
 
814 OF SUITS BY TKUSTEES. 
 
 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 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 plaintiff has been recog- 
 nized 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.(Z) 1 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.((jr) 
 
 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 purchasers ;-r— for such 
 a provision will be treated as a declaration by the author of the trust, 
 r^rAA-, that *the presence of the parties beneficially interested shall not 
 ■- -! be necessary in a suit by the trustees to enforce a sale.(A)(l) 
 
 (e) Cook v. Fryer, 1 Hare, 498, 504. 
 
 (/) Kirk v. Clark, Prec. Ch. 275 ; Calverley v. Phelp, 6 Mad. 232 ; Douglas v. 
 Horsfal, 2 S. & St. 184 ; 1 Dan. Ch. Pr. 311 ; Morse v. Sadler, 1 Cox, 352 ; Bifield v. 
 Taylor, 1 Beatt. 93. 
 
 {g) Talbot v. Earl of Radnor, 3 M. & K. 252. [But see Whelan v. Whelan, 3 Cowan, 
 587.] 
 
 (h) Calverley v. Phelps, 6 Mad. 232 ; see "Wakeman v. Rutland, 8 Bro. P. C. 145. 
 [Van Vechten v. Terry, 2 J. C. R. 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 
 
 1 Mac & G. 488 ; 3 H. L. Cas. 606 ; Re Upfull's Trust, 3 Mac & Gord. 28^; Re 
 "Wood's Settlement, 15 Sim. 469 ; Re Sharp's Trustees, Id. 470 ; Re Parry, 6 Hare, 
 306 ; Re Staples' Settlement, 13 Jur. 273 ; Re Bartholomew's Will, Id. 380 ; Ex parte 
 Fletcher, 12 Jur. 619 ; Ex parte Peart, Id. 620 ; Re Croyden's Trust, 14 Jur. 54 ; Re 
 Ross's Trust, 1 Sim, N. S. 196; Goode v. West, 9 Hare, 378 ; Re Magawley's Trust, 5 
 De G. & S. 1 ; Re Masselin's Will, 15 Jur. 1073; Re Knowles, 1 De G. Mac. & G. 60; 
 Re Spencer, 9 Hare, 410 ; Re Dalton's Settlement, 1 De G. Mac. & G. 265 ; Re Hey's 
 Will, 9 Hare, 221 ; Re Waring, 16 Jur. 652 ; Re Fields' Settlement, 16 Jur. 770 ; Re 
 Bangley's Trust, 16 Jur. 682 ; Ex parte Bradshaw, 2 De G. Mae & G. 900. As to the 
 mode of proceeding by claim, recently introduced into England, 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 competent to 
 proceed in equity by bill to protect the franchise committed to them from violation. 
 Lucas v. McBlair, 12 G. & J. 1. 
 
 1 Malin v. Malin, 2 J. C. R. 238 ; Fish v. Howland, 1 Paige, 20 ;' Schenck v. Elling- 
 wood, 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. 537. 
 It is, however, in the discretion of the court to dispense with the strict rule on this sub- 
 ject, 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. 815 
 
 And an important alteration has recently been made in the practice 
 of the court on thia point, where real estate is devised by 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 exe- 
 cutors or administrators represent 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. (I) 1 
 
 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 ;(i) although a contrary doctrine 
 has been countenanced by Lord Redesdale in his Treatise on Pleading. (A) 
 
 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 
 
 (i) Morse v. Sadler, 1 Cox, 352; 1 Dan. Ch. Pr. 314. 
 
 (k) Mitf. PI. 174, 4th edit. 
 
 (I) Franco v. Franco, 3 Ves. 75 ; May v. Selby, 1 N. C. C. 235 ; 1 Dan. Ch. Pr. 312. 
 [See Hallett v. Hallett, 2 Paige, 15 ; Fish v. Howland, 1 Paige, 20 ; Todd v. Sterrett, 
 6 J. J. Marsh. 432 ; Brown v. Eicketts, 3 J. C. E. 553.] 
 
 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 ; Osborne v. Fallows, 1 E. & 
 M. 741. 
 
 (1) 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 trusts, 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. Chanc. 457. 
 
 Where the persons beneficially interested had been joined with the trustees as parties 
 to a suit, instituted before the making of the Wth order of August, 1841, they may pro- 
 perly be dismissed at the hearing. Tarbuck v. Greenall, 6 Beav. 358. 
 
 [Where the suit involves the administration of the estate and distribution of the resi- 
 due, the devisees in trust do not, under the order, sufficiently represent the persons 
 beneficially interested. Jones v. How, 7 Hare, 270. See Chamberlain v. Thacker, 13 
 Jur. 785.] 
 
 1 The 47th Eule 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. 
 
816 OF SUITS AGAINST TRUSTEES. 
 
 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) 1 
 
 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 trustees ; 
 *and in that case, a bill so framed will be dismissed with costs.(w) 
 *■ J 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 interest 
 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 notice of by a court of 
 law.(^?) 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, (q) 
 
 II.— 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 suffi- 
 cient, 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 espe- 
 cially where they are infants.(s) But the exceptions to this rule in the 
 
 (m) Bridget v.-Hames, 1 Coll. 72 ; see Robinson v. Evans, 7 Jur. 738. 
 
 (n) Jacob v. Lucas, 1 Beav. 426. [Griffith v. Van Heythuysan, 9 Hare, 85.] 
 
 (o) Hall v. Lack, 2 N. C. C. 631. (p) Ante, pp. 274, 316, and notes. 
 
 (q) Lethbridge v. Mytton, 2 B. & Ad. 772. 
 
 (r) Whistler v. Webb, Bunb. 53 ; Calverley v. Phelps, 6 Mad. 231 ; Osbourn v. Fal- 
 lows, 1 R. & M. 741 ; Holland v. Baker, 3 Hare, 68 ; 1 Dan. Ch. Pr. 348 ; Calvert, 
 Parties, 207 ; Faithfull v. Hunt, 3 Anst. 751 ; Pinkus v. Peters, 5 Beav. 253. [Cald- 
 well v. Taggart, 4 Peters, 202 ; Whelan v. Whelan, 3 Cowen, 538 ; Haughton v. Davis, 
 23 Maine, 28 ; Phillipson v. Gatty, 6 Hare, 26 ; Story'3 Eq. Plead. \ 207, &c. ; see 
 Mann v. Butler, 2 Barb. Ch. 362.] 
 
 (s) Orrok v. Binney, Jac. 523. 
 
 1 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 v. Forsyth, Walk. Ch. 465 ; Horsley v. Fawcett, 11 
 Beav. 565 ; Sherman v. Burnham, 6 Barb. S. C. 414 ; Alexander v. Cana, 1 De Gr. & 
 Sm. 415; but their joinder is not, it seems, objectionable. Jennings v. Davis, 5 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. 
 
OF SUITS AGAINST TRUSTEES. 817 
 
 case of suits hy trustees as plaintiff s,(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,(w) applies equally 
 to suits by or against trustees. (x)(l) 
 
 Although the trustees have no active duties to discharge in the man- 
 agement 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.(^) 1 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 must be brought before the court by a r*E4c-i 
 supplemental bill. (2) 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 respecting the trust, unless., there is some sufficient 
 reason to the contrary.(a) But where a mere trustee, having no other 
 interest, cannot be discovered, the 24th section of Sir Edward Sugden's 
 Act (1 Will. IV, c. 60), empowers the court, on proof by affidavit that 
 diligent 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. 2 
 
 (t) Preceding section, p. 544. [See Piatt v. Oliver, 2 McLean, 307.] 
 
 («) Ibid. 
 
 (x) Osborne v. Foreman, 2 Hare, 656 ; 13 Law Journ. N. S. Chanc. 123. 
 
 (y) Hobson v. Staneer, 9 Mod. 80 ; Jones v. Jones, 3 Atk. 110 ; Dormer v. Portescue, 
 lb. 133 ; Bagg v. Forster, 1 Ch. Ca. 188 ; Att.-Gen. v. Green, 2 Bro. C. C. 493 ; Gif- 
 ford v. Hart, 1 Sch. & L. 386 ; Bromley v. Holland, 7 Ves. 14 ; Wood v. Williams, 4 
 Mad. 186. 
 
 (z) Att.-Gen. v. Forster, 2 Hare, 81. 
 
 (0) Weatherby v. St. Giorgio, 2 Hare, 624. 
 
 (1) Under the 30th 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, bat 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. 
 
 1 See Malin v. Malin, 2 J. C. R. 238 ; Cassiday v. McDaniel, 8 B. Monr. 519 ; Fish v. 
 Howland, 1 Paige, 20; Carter v. Jones, 5 Ired. Eq. 196 ; Bank of America v. Pollock, 4 
 Edw. Ch. 315 ; Everett v. Winn, 1 Sm. & M. Ch. 67 ; McKinley v. Irvine, 13 Alab. 
 681 ; see Story's Eq. Plead., \ 207, &c. ; Ellison v. Cookson, 2 Coll. C. C. 52 ; Peppard 
 v. Kelly, 2 J. & Lat. 558. 
 
 On a bill against a trustee and cestui que trust in a deed, the bill is taken pro confesso 
 against the cestui que trust, but the trustee answers and puts the allegations of the deed 
 in issue. The answer of the trustee protects the cestui que trust, and the plaintiff must 
 prove his case as to both. Johnston v. Zane's trustees, 11 Gratt. 552. 
 
 2 See ante, p. 192. 
 
 52 
 
818 OF SUITS AGAINST TRUSTEES. 
 
 The onerous character of this rule of pleading, -which required the pre- 
 sence of the trustees in every case, has also been much alleviated by the 
 recent general orders of the court.(i) 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. (c) x 
 
 On the other hand, in suits by cestui que trusts against strangers re- 
 specting the trust estate, the rule of practice, requiring the presence of 
 the trustees as parties, is equally imperative, (d)(1) And where all the 
 cestui que trusts do not join as co-plaintiffs in a suit, those, who are not 
 
 (6) Ord. Gen. August, 1841, XXIII, XXIV, XXV. 
 
 (c) See Lloyd v. Lloyd, 1 N. C. C. 181. 
 
 (d) Harrison v. Pryse, Barn. 325 ; Vandebende v. Livingston, 3 Swanst. 625 ; Cooke 
 v. Cooke, 2 Vern. 36 ; Att.-Gen v. Green, 2 Bro. C. C. 493 ; Cope v. Parry, 2 J. & W. 
 538. [Neilson v. Churchill, 5 Dana, 341.] 
 
 (1) But where all the cestui que trusts are before the court in a suit for the adminis- 
 tration 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. 
 
 ' See on these orders, generally, Salmon v. Green, 8 Beav. 457 ; Thomas v. Selby; 
 9 Id. 194; Boreham v. Bignall, 4 Hare, 633; Duncombe v. Levy, 5 Id. 232 ; Boyd v. 
 Moyle, 2 Coll. C. C. 316 ; Anon., 1 De G. & Sm. 321 ; Layv. 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. 248. 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 per- 
 sons who had been in possession of the estate, praying for an account of the rent 
 received by these persons, for the appointment of new trustees, and that the estates 
 might be conveyed to them by the heir of the last trustee, it was held that the defen- 
 dant 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 corresponding rule in the United States Courts in Equity (liv), and in Pennsyl- 
 vania (Hi), 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 subpoena upon him, need not appear and answer the bill, unless the plaintiff spe- 
 cially 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, he shall be bound by all the pro- 
 ceedings in the cause. If the plaintiff shall require 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." 
 
OF SUITS AGAINST TRUSTEES. 819 
 
 plaintiffs, must be brought before the court as defendants. Although it 
 has been decided, that in the case of several cestui que trusts, who are 
 entitled to certain aliquot parts of an ascertained 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 parties.(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 trustee are account- 
 able *and may be sued for any breach of trust committed by their 
 testator in his lifetime.(A) L 547 j 
 
 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, (i) 1 
 
 But if a person named trustee in an instrument, have not disclaimed 
 he must be joined as a party, and on putting in his disclaimer, 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.(&) 
 
 However, there will be an exception to this rule, where the object of 
 the suit is merely to obtain the accounts of the trust : for in that case, 
 if a trustee have 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. (I) 
 
 Where an estate is subject to several distinct trusts, created by the 
 same instrument, and the execution of each trust rests with distinct sets 
 of trustees, each set of trustees may be sued separately, in respect of 
 their separate trust. 2 For instance, where a term is created out of the 
 inheritance for particular purposes, and a suit is brought to carry into 
 execution the particular trusts of the term, it will be sufficient to bring 
 before the court the trustees of the term and the cestui que trusts, with- 
 
 (e) Smith v. Snow, 3 Mad. 10; Hutchinson v. Townsend, 2 Keen, 675; Perry v. 
 Knott, 5 Beav. 293 ; ante, 519, n. (h). 
 
 (/) Ante, Ch. I. [Remedies for Breach of Trust], p. 518. 
 
 (g) Palmer v. Wakefield, 3 Beav. 227. [See ante, 520, note (s).] 
 
 (h) Thayer v. Gould, 1 Atk. 615 ; see Greenwood v. Wakeford, 1 Beav. 576 ; Wilkin- 
 son t. Parry, 4 Russ. 272, 275. [Ante, 520, note.] 
 
 (»') Richardson v. Hulbert, 1 Anst. 65. 
 
 (k) Norway v. Norway, 2 M. & K. 278; Bray v. West, 9 Sim. 429. 
 
 (I) See Selyard v. Harris, 1 Eq. Ca. Abr. 74; Ex parte Angell, 2 Atk. 162 ; Walker 
 v. Symonds, 3 Sw. 1, 75 ; Routh v. Kinder, lb. 144, n. 
 
 ' So where the trustee has fully executed the trust, and delivered up the trust pro- 
 perty, he need not be made a party. Swan v. Ligan, 1 McCord, Ch. 231. 
 2 See McGachen v. Dew, 15 Beav. 84. 
 
820 OP THE EFFECT OF SUIXS INSTITUTED 
 
 out making an intermediate trustee of the equitable interest a party to 
 the proceedings.(m) s 
 
 Where trustees enter into any personal covenants with strangers, re- 
 specting the trust property, such as covenants for title or quiet enjoy- 
 ment, 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, (w) 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 circumstances (not 
 negatived by the bill), a demurrer for want of equity will be allowed.(p) 
 
 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 
 lie.fe)' 
 
 [*548] *HI.— OF THE EFFECT OF SUITS INSTITUTED BY OE 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 ad- 
 ministration 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 discretionary power of 
 investment cannot lay out money on mortgage after a decree for an ac- 
 count in an administration suit without an application to the court, (i) 
 
 (m) Head v. Teynham, 1 Cox, 57. 
 
 (n) Att.-Gen. v. Morgan, 2 Russ. 306. (o) Ibid. 
 
 (p) Att.-Gen. v. Mayor of Norwich, 2 M. & Cr. 406, 422. 
 
 (q) -Case v. Roberts, Holt, N. P. C. 501 ; Kdwards v. Bates, C. P. June, 1844; S. C. 
 13 Law Journ. N. S. 156 ; [7 Mann. & Gr. 590.] 
 
 (r) Walker v. Smallwood, Ambl. 676 ; Webb v. Earl of Shaftesbury, 7 Ves. 480 ; 
 Att.-Gen. v. Clack, 1 Beay. 467 ; Underwood v. Hutton, 5 Beav. 36 ; Widdowson v. 
 Duck, 2 Mer. 498, 494; see Shewen v. Vanderhost, 2 R. & M. 75. 
 
 (s) Walker v. Smallwood, Amb. 676 ; and see Drayson v. Pocock, 4 Sim. 283. , 
 
 (t) Widdowson v. Duck, 2 Mer. 494. 
 
 1 See McGachen v. Dew, 15 Beav. 84. * See ante, 518, note (1). 
 
ET OR AGAINST TRUSTEES. 821 
 
 And after a decree in a creditor's suit, a trustee for the payment of debts 
 cannot pay any debt,(w) or bring an action for recovery of a claim(a;) of 
 his own authority. So it has been already stated, that trustees of equi- 
 table interests belonging to a married woman, are not at liberty to make 
 them over to the husband, after a bill has been filed on her behalf claim- 
 ing a settlement out of the property, although they would be fully justi- 
 fied in so doing previously to the institution of the suit.(y) Again, a 
 trustee having the most ample discretionary power to appoint new trus- 
 tees, will not be suffered 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.^) However, if the appointment and conveyances to the new trus- 
 tees under such circumstances, be actually made and completed, it will 
 not necessarily be void, nor will it be declared at once a contempt 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, (J) the surviving trustees of a 
 charity, with a power of appointing new trustees, exercised that power 
 and appointed new trustees, pending an information, which had been filed 
 for the appointment of new trustees ; 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 de- 
 fendants.^) 
 
 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, which are 
 *necessary to the due execution of the trust; for non constat, r*c4q-i 
 that the suit will ever be prosecuted further. 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 persons as new trustees, after 
 the institution of a suit against him for the appointment of new trustees. 
 However, the court held the appointment valid, and refused an injunc- 
 tion to restrain the transfer of the trust stock into the names of the new 
 trustees.(c) It does not appear 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) ad- 
 fa) Mitchelson v. Piper, 8 Sim. 64. (*) Oldfield v. Cobbett, 6 Beav. 515. 
 (y) Macauley v. Phillips, 4 Ves. 18; Murray v. Lord Elibank, 19 Ves. 90; De la 
 Garde v. Lempriere, 6 Beav. 344, 347 ; vide supra [Trustees for Married Women, p. 
 413]. («) Webb v. Earl of Shaftesbury, 7 Ves. 480. 
 (a) Att.-Gen. v. Clack, 1 Beav. 472, 3. (6) 1 Beav. 467. 
 (c) 3 Hare, 245. 
 
822 OF THE EFFECT OF SUITS INSTITUTED 
 
 verted to, and expressly recognized, the cases of Webb v. Earl of Shaftes- 
 bury, 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 de- 
 prive the trustees of the exercise of their discretion, but only requires 
 them to act under the control of the court, (d) However, this is a dis- 
 tinction to which it appears somewhat difficult to give any practical 
 effect. 
 
 It has been already stated, that new trustees, when aotually appointed 
 pendente lite, must be brought before the court by supplemental bill. 
 This was so decided in the late case of Attorney-General v. Foster,(e) 
 and it is remarkable that no question as to the propriety of the appoint- 
 ment was there raised against the old trustees, although the circuna- 
 stances 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 posses- 
 sion 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 satis- 
 fying 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 prosecu- 
 tion, or it will have no effect in controlling the trustees in the exercise of 
 their ordinary powers. Thus where a suit was commenced 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.(0) 
 
 Where the answer of a trustee to a bill alleging a breach of trust con- 
 tains 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) 1 And a similar order will be 
 
 (d) 3 Hare, 249. 
 
 (e) Att.-Gen. v. Foster, 2 Hare, 81. [Greenleaf v. Queen, 1 Pet. S. C. 143.] 
 (_/*) Underwood v. Halton, 5 Beav. 36. 
 
 (g) Drayson v. Pocoek, 4 Sim. 283. 
 
 (h) Rothwell.v. Rothwell, 2 S. & St. 217 ; Richardson v. Bank of England, 4 M. & 
 Cr. 184 ; Meyer v. Montriou, 4 Beav. 343. 
 
 1 See Contee v. Dawson, 2 Bland. 293 ; Hosack v. Rogers, 9 Paige, 468 ; Clagett v. 
 Hall, 9 Gill & J. 81 ; Nokes v. Seppings, 2 Phillips, 19 ; Bourne v. Mole, 8 Beav. 177. 
 
BY OR AGAINST TRUSTEES. 823 
 
 *made, where a defendant trustee mates the same admission in r#ccA-i 
 his examination upon interrogatories before the Master.(i) And 
 an admission by the trustee that the trust-money is in the hands of his 
 banker,(ifc) 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. 1 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 application 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 any other unusual security, and he has no 
 express authority for making such an investment, he will be ordered on 
 motion to pay the amount into court.(m) And again, where a trustee 
 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.(w) z 
 
 But a trustee will not be ordered to pay money into court on an in- 
 terlocutory 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 pay- 
 ment 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 
 
 (*) Hinde v. Blake, 4 Beav. 597. (k) Johnson v. Aston, 1 S. & St. 73. 
 
 (l) Ibid. ; see Freeman v. Pairlie, 3 Mer. 39. 
 
 (m) Vigrass v. Binfield, 3 Mad. 62 ; Collis v. Collis, 2 Sim. 366 ; Wyatt v. Sharratt, 
 3 Beav. 498 ; See Widdowson v. Duck, 2 Mer. 494. 
 
 (n) Hinde v. Blake, 4 Beav. 597 ; see Meyer v. Montriou, lb. 348 ; Futter v. Jackson, 
 6 Beav. 424. 
 
 (o) Beaamont v. Meredith, 3 V. & B. 180 ; Freeman v. Fairlie, 3 Mer. 24, 39. [See 
 Boschetti v. Power, 8 Beav. 98 ; Hopkins v. McEldery, 4 Maryl. Ch. 23.] 
 
 (p) Dubless v. Flint, 4 M. & Cr. 302. 
 
 A contingent interest is sufficient in a proper case to entitle the party to move. Bart- 
 lett v. Bartlett, 4 Hare, 631 ; Marryat v. Marryat, 23 L. J. Ch. 876 ; Ross v. Ross, 12 
 Beav. 89. There must be some allegation of danger, however : Ross v. Ross, ut supr. 
 But in Marryat v. Marryat, 23 L. J. Ch. 876, following Bartlett v. Bartlett, ut supr., it 
 was held that trustees might on motion be compelled, in a suit to administer the trusts 
 of a will, to pay stock into court, though there is no allegation of misconduct or want of 
 confidence in the trustees. 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, 
 cannot be taken into the account, though they may be equally inadmissible with others 
 specified. Nokes v. Seppings, 2 Phillips, 1 9. 
 
 1 But the amount must be specified, or the motion will not be allowed, and the admis- 
 sion must be that of all the trustees. Boschetti v. Power, 8 Beav. 98. 
 
 2 The order in such cases proceeds on the admissions of the defendant, and evidence 
 cannot be resorted to. Boschetti v. Power, 8 Beav. 98. The order cannot be made on 
 motion #fter 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. 
 
824 EFFECT OF SUITS INSTITUTED, ETC. 
 
 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, but denied having received any of the 
 money, or having joined in any misapplication of it, Lord Langdale, M. 
 R., refused to make an interlocutory order for the payment of the money 
 into court by that trustee. (q) 
 
 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 state- 
 ment that " he had temporarily invested the produce in other securities," 
 Lord Langdale, M. R., 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 circumstances of 
 each particular case. Thus where there is any danger of the property 
 r*W\ being lost, from the trustees being insolvent or in embarrassed 
 circumstances *or otherwise, immediate payment will be re- 
 quired.^) If no such, danger be apprehended, any reasonable time 
 will be allowed for makjng the payment.(i) 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.(w) And 
 if the money be invested on improper securities, time will be given'for 
 calling them in ;{x) and a longer period will be allowed where the money 
 is abroad.^) 1 
 
 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, (s) 
 
 There has already been occasion to consider the cases, in which a re- 
 
 (g) Meyer v. Montrioii, 4 Beav. 343. (r) Futter v. Jackson, 6 Beav. 424. 
 
 (s) Vigrass v. Binfield, 3 Mad. 63 ; see Payne v. Collier, 1 Ves. Jun. 170. 
 
 (t) See Vigrass v. Binfield, 3 Mad. 63 ; Collis v. Collis, 2 Sim. 368. 
 
 (u) Hinde v. Blake, 4 Beav. 599. 
 
 (a;) Wyatt v. Sharratt, 3 Beav. 498 ; Hinde v. Blake, 4 Beav. 599. 
 
 (y) Johnson v. Aston, 1 S. & St. 73. 
 
 (z) Francis v. Collier, 5 Mad. 75. [See Hosack v. Rogers, 9 Paige, 468.] 
 
 1 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 loss occurred, it was held that the loss must be borne by the defen- 
 dant. De Peyster v. Clarkson, 2 Wend. 78. A trustee who has paid money into court 
 under an order, is not liable for interest. Wayraan v. Jones, 4 Maryl. Ch. 500. 
 
op costs. 825 
 
 ceiver 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 conside- 
 ration 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 executor, 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 in his own right.(c) 1 And where a 
 
 (a) Ante, Pt. I, Div. Ill, Ch. II, Sect 3 ; p. 212. 
 (6) Post [Discharge of Trustees], 
 
 (c) Westley v. Williamson, 2 Moll. 458 ; Edwards v. Harvey, Coop. 40, 3 Dan. Ch. 
 Pr. 7, 57 ; see Brodie v. St. Paul, 1 Ves. Jun. 326. 
 
 1 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's Exrs. 1614. 
 When defendant, however, the costs follow the ordinary rule, and he will be personally 
 liable if there are no assets. Id. 1690. This has been followed in several of the States, 
 Jamison v. Lindsay, 1 Bail. R. (S. C.) 79 ; Buckels v. Carter, 6 Rich. 106; Hanson v. 
 Jacks, 22 Alab. 549 ; Farrier v. Cairns, 5 Ohio, 45 ; Caperton v. Callison, 1 J. J. Marsh. 
 (Ky.) 396; Harrison 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 lawrule, 2R.S. 615, § 17 ; see Finley v. Jones, 6 Barb. S. C. 229. So formerly 
 in Virginia ; but by statute the rule has been changed, and executors are made liable 
 for costs. 2 Lomax Exrs. 38. So in Massachusetts, by statute. See Hardy v. Call, 
 16 Mass. 530. In Pennsylvania, it was formerly held that there was no distinction be- 
 tween executors and other plaintiffs, with respect to their liability to costs on failure. 
 Muntor v. Muntor, 2 Rawle, 180; Show v. Conway, 7 Barr, 136 ; Ewing v. Purness, 13 
 Penn. St. 532. But these cases are now overruled, and the opposite doctrine esta- 
 blished. Calender's Adm. v. Keystone Mut. Ins. Co., 23 Penn. St. 471. A judgment 
 against an executor plaintiff for costs, when not properly liable, is irregular, not void. 
 Buckels v. Carter, 6 Rich. 106. 
 
 In Alabama, it is held that a guardian heedlessly bringing suit is liable for costs ; but 
 otherwise not. Alexander v. Alexander, 5 Alab. 517 ; Savage v. Dicksen, 16 Id. 260. 
 
 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. Murga- 
 troyd, 1 J. C. R. 473; Arnoux v. Steinbrenner, 1 Paige, 82; Roosevelt v. Ellithorp, 10 
 Paige, 415 ; Dyer v. Potter, 2 J. C. R. 152 ; though it is otherwise where the suit (if by 
 the executors), is groundless and vexatious. Roosevelt v. Ellithorp, 10 Paige, 415 ; 
 Getman, v. Beardsley 2 J. C. R. 274. The law was so laid down, also, in Williams v. 
 Mattocks, 3 Verm. 189 ; Beauchamp v. Davis, 3 Bibb, 111 ; Long v. Israel, 9 Leigh, 
 
826 op costs. 
 
 trustee for a mortgagee makes an unsuccessful opposition to a suit by 
 the mortgagor for the recovery of the estate, and the delivery of the 
 title deeds, the decree against him will be with costs.(d) 
 
 And in such suits the costs, whether paid or received by the trustee, 
 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 re- 
 imbursed 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.(/) 1 
 
 *The case of a mortgagee is an exception to the general rule, 
 
 [*552] 
 
 that the costs of a suit follow its result; for a mortgagee is en- 
 
 titled to his costs of a suit either for redemption or foreclosure. And a 
 trustee for a mortgagee has also the same privilege, whether his interest 
 be created at the time and as part of the mortgage 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 mortgagee to trustees on certain trusts, and those trus- 
 tees are made defendants in a suit either for redemption or foreclosure, 
 
 (d) Earl of Scarborough v. Parker, 1 Ves. Jun. 267. 
 
 (e) Mohun v. Mohun, 1 Sw. 201 ; Norway v. Norway, 2 M. & K. 278 ; Edenborough 
 v. Archbishop of Canterbury, 2 Russ. 112. 
 
 (/) See 3 Dan. Ch. Pr. 58 ; Hill v. Magan, 2 Moll. 460 ; vide post. 
 (g) Brown v. Lockhart, 10 Sim. 426. 
 
 556 ; Garner v. Strode, 5 Litt. 314. But where the executor comes into equity to aid 
 a defence at law, it is otherwise. Manny v. Phillips, 1 Paige, 472. 
 
 1 Ex parte Croxton, 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. 92 ; Delafield v. Colden, 1 Paige, 139 ; 
 Collins v. Hoxie, 9 Paige, 81 ; Day v. Day, 2 Green's Ch. 549 ; Miles v. Bacon, 4 J. J. 
 Marsh. 468 ; Peyton v. McDowell, 3 Dana, 314; 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 afterwards removed, were allowed him. But where the executor, or 
 trustee, has unreasonably 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. R. 
 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 sustain 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 Townshend 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, 250. 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. 
 
of costs. 827 
 
 they will have their costs of the suit.(A) And the decree in such cases 
 will he for the trustees' costs, to be, paid by the mortgagee, and added 
 to the mortgage debt.(«) 
 
 We have seen that the trustees must, in general, be made parties to 
 suits instituted by their cestui que trusts against third persons, 1 and in 
 such cases, although the plaintiffs obtained a decree in their favor, they 
 will usually be bound to pay the trustees their costs, (k) 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 abide his own costs as de- 
 fendant.^) 3 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,(w) where a suit for foreclosure was brought by a mortgagee 
 against the mortgagor, 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 recognized 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 miscon- 
 duct.^) And this rule applies equally, whether the trustee comes be- 
 fore 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 only 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 
 
 (h) Wetherell v. Collins, 3 Mad. 255 ; Bartle v. Wilkin, 8 Sim. 238. 
 
 (t) Bartle v. Wilkin, 8 Sim. 238 ; Browne v. Lockhart, 10 Sim. 426. [k) Ibid. 
 
 (I) Reade v. Sparks, 1 Moll. 8. And in a case where a co-executor liad refused to 
 join as plaintiff in a suit by the other executors, and he had been made a defendant, Sir 
 William Grant refused to give him costs. Collyer v. Dudley, T. & C. 422 ; see Blount 
 v. Burrow, 2 Bro. C. C. 90. 
 
 (m) 10 Sim. 426. 
 
 (n) Att.-Gen. v. City of London, 1 Ves. Jun. 246 ; Taylor v. Glanville, 3 Mad. 116. 
 [Post, 565, note.] 
 
 (o) Curteis v. Candler, 6 Mad. 123; see Coventry v. Coventry, 1 Keen, 758. 
 
 1 Ante, p. 545, note. 
 
 2 In Guyton v. Shane, 1 Dana, 498, a trustee refusing to join in a suit, and resisting 
 the equity of his cestui que trusts, was struck from the bill as complainant, made a 
 defendant, and subjected to costs. 
 
828 of costs. 
 
 P^.-o-. of the court as to the *application of a trust fund, and the ques- 
 L -* tion was as to the 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.(p) 
 
 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. 1 
 
 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 defen- 
 dants in respect of their joint fiduciary character only, they ought to 
 appear by the same solicitor, and answer and defend together ; 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) 2 
 
 But distinct sets of costs will be allowed where there is sufficient rea- 
 son for the severance. (s) And it has been considered a sufficient reason 
 for the trustees to sever, where pne of them has a personal interest, 
 which conflicts with his duty as trustee ;(t) 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 together ;(w) or if the trus- 
 tees have never admitted a common interest in themselves, by accepting 
 
 (p) Hicks v. "Wrench, 6 Mad. 93. 
 
 (?) Packwood v. Maddison, 2 S. & St. 232. 
 
 (r) Nicholson v. Faulkner, 1 Moll. 559 ; Gaunt v. Taylor, 2 Beav. 347 ; Aldridge v. 
 Westbrook, 4 Beav. 214 ; Att.-Gen. v. Cuming, 2 N. C. C. 156 ; Allen v. Thorp, 13 Law 
 Journ. N. S., Chanc. 5. 
 
 (s) Reade v. Sparkes, 1 Moll. 10. 
 
 (0 Gaunt v. Taylor, 2 Beav. 346. (u) lb. 347. 
 
 1 The trustees of a fund, who appeared without necessity, and without being served, 
 were refused their costs: Bennett v. Biddies, 10 Jurist, 534. 
 
 2 Executors who severed in defence, were allowed but one counsel fee, in Davis v. 
 McNeil, 1 Ired. Bq. 344. In Farr v. Sheriffe, 4 Hare, 512, 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. Where one of two trustees, not the 
 acting trustee, took a power of attorney from one of the cestui que trusts, and acted on 
 her behalf, and claimed a payment in her right ; and afterwards, on a suit being insti- 
 tuted by another cestui que trust, severed in his defence from the acting trustee, alleg- 
 ing that he knew nothing of the accounts, it was held that only one set of costs could 
 be allowed. Hodsen v. Cash, 19 Jur. 864. 
 
of costs. 829 
 
 the joint trust, or acting in common in its performance ;(x) or where they 
 reside at a distance from each other.(y) 
 
 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 principle. (s) 
 
 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.(J) 
 
 *A trustee who puts in a full answer to the whole bill, will [-*cc4t 
 not be deprived of the costs of the answer, upon its being after- J 
 
 wards objected to as unnecessarily long and vexations, if he was required 
 to answer the whole bill ;{c) for it is competent for the plaintiff 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 trustees 
 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 unsuccessful^/) 
 
 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 severer infliction, the 
 decree will be for the payment of the costs of both sides personally by 
 
 (x) Aldridge v. Westbrook, 4 Beav. 213. 
 
 (y) Aldridge v. "Westbrook, ubi supra; Slaughter v. Perry, Id. cited. [But see note 
 1 below.] 
 (z) Gaunt v. Taylor, 2 Beav. 347 ; Greenhow v. Etheridge, Bolls, 4th July, 1843, MS. 
 (a) Young v. Scott, stated, Lew. Trust. 450. 
 (6) Att.-Gen. v. Cuming, 2 N. C. C. 57. 
 
 (c) Aldridge v. Westbrook, 4 Beav. 213 ; but see Martin v. Perrse, 1 Moll. 146. 
 
 (d) See 16th Order of August, 1841. (e) See Martin v. Perrse, 1 Moll. 146. 
 
 (/) Att.-Gen. v. Earl of Mansfield, 2 Russ. 501, 519. [Att.-Gen. v. Mayor of Nor- 
 wich, 12 Jur. 424; 16 Simons, 225 ; see Att.-Gen. v. Andrews, 2 Mac. & G. 225; 14 
 Jur. 905.] 
 
830 OF COSTS. 
 
 the trustees. We will proceed to consider first those cases in which the 
 court has contented itself with depriving the trustee of hi* costs. 
 
 A trustee, who has accepted the trust, must not capriciously and with- 
 out reason refuse to act : and if by so doing he render necessary a suit 
 for the appointment of a new trustee, he will be refused his costs.^) 1 
 
 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 trus-t property had been re- 
 peatedly 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,(«) unless all parties agree that the costs shall be borne 
 by the trust fund.(A) So the age and infirmities 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 contained 
 in the trust instrument, and that power is made to take effect on the re- 
 tirement, or refusal to act, of the existing trustees, it is conceived that 
 a trustee might retire from the trust without assigning any reason, inas- 
 much 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 ap- 
 pointment under their power, that refusal, and not the conduct of the 
 
 (g) Howard v. Rhodes, 1 Keen. 581 ; Greenwood v. WakefArd, 1 Beav. 581. [Porter 
 v. Watts, 21 Law J. Chanc. 211 ; Cruger v. Halliday, 11 Paige, 314; Ee Molony, 2 J. 
 & Lat. 391 ; Jones v. Stockett, 2 Bland, 409.] 
 
 (h) Coventry v. Coventry, 1 Keen, 758 ; Greenwood v. Wakeford, 1 Beav. 576. 
 
 (i) Coventry v. Coventry, 1 Keen, 760. 
 
 (/c) Greenwood v. Wakeford, 1 Beav. 582. 
 
 (I) Be Warwick Charities, cor. Lord Lyndhurst, Ch., 22d November, 1844, MS. 
 
 1 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. Sturgis, 10 Jur. 215, 5 Hare, 97, as follows : 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, whether 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, 11 Beav. 369, a trustee put in a dis- 
 claimer, 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 removed on another ground : Stanes v. Parker, 9 Beav. 385. 
 
OF COSTS. 831 
 
 retiring trustee, would *be the real occasion of the suit. The 
 point in question, however, does not appear to have been ever *- J 
 actually decided. 
 
 In like manner if a trustee without sufficient reason refuse to convey 
 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 Gilford, M. R., refused the 
 plaintiff his costs out of the fund.(wi) 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 bis costs of the suit, although he had acted bond 
 fide under the advice of a conveyancer 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 adviser. 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 
 him, being of his own choice, I cannot give him the costs of the suit."(p) 
 However, in a subsequent case, where a trustee of a term, acting under 
 the advice of a conveyancing counsel, refused to assign the term without 
 the concurrence of certain parties, and on a bill filed, the court held those 
 parties to be unnecessrry, the trustee was, notwithstanding, allowed his 
 costs of the suit, and other charges and expenses, (q) 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 entitled to his 
 costs, although that advice turns out to be erroneous.(r) 1 
 
 (to) Ellis v. Ellis, 1 Russ. 368. 
 
 (n) Knight v. Martin, 1 R. & M. 70 ; and see Campbell v. Home, 1 N. C. C. 664, 670. 
 
 (0) Angier v. Stannard, 3 M. & K. 566 ; but see Poole v. Pass, 1 Beav. 600. 
 
 {p) 3 M. & K. 572. (q) Poole v. Pass, 1 Beav. 600. 
 
 (r) See Vez v. Emery, 5 Ves. 144; Hampson v. Bramwood, 1 Mad. 392, 395. 
 
 (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. Hiscox, 4 M. & Cr. 
 197 ; Thorby v. Yeats, 1 N. C. C. 438. 
 
 1 In Devey v. Thornton, 9 Hare, 233, where trustees had unnecessarily raised doubts 
 
832 of costs. 
 
 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 devolution, or the 
 obscurity of the trust, or from other circumstances, is not perfectly 
 
 ' clear,(s) or *the deed under which the plaintiff claims is not 
 L -I free from suspicion ;(t) or the determination of the trust is not 
 distinctly proved ;(«) or if the trustee might reasonably imagine, that 
 it would be wrong to accede to. the request, as where he is required to 
 transfer a trust fund to a married woman, and thus in effect to give it to 
 her husband(a;) — 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,(y) or where the 
 conveyance tendered for their execution, contains a different description 
 from that by which the estate was conveyed to them.(s) 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 improperly retained 
 
 (*) Groodson v. Bllisson, 3 Russ. 593-6 ; and see Poole v. Pass, 1 Beav. 600. 
 
 (/) Whitmarsh v. Robinson, 1 N. C. C. 715. 
 
 («) Holford v. Phipps, 3 Beav. 434 ; 4 Beav. 475. 
 
 (x) Taylor v. Glanville, 1 Mad. 176 ; but see Thorby v. Yeats, 1 N. C. C. 438. 
 
 (y) 3 Russ. 594. (z) Ibid. 
 
 (a) See Goodson v. Bllisson, 3 Russ. 588 ; Poole v. Pass, 1 Beav. 604 ; Holford v. 
 Phipps, 3 Beav. 434. 
 
 (6) O'Callaghan v. Cooper, 5 Ves. 129 ; Massey v. Banner, 4 Mad. 413 ; and see 
 Newton v. Bennett, 1 Bro. C. C. 362 ; Mousley v. Carr, 4 Beav. 49. 
 
 (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.) 
 
 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 statements such advice was given, nor can I venture to hold 
 that the opinion of counsel will, in all cases, entitle trustees to their costs of suit." 
 No costs, however, were given against the trustees. 
 
 Where the trustee of a will acting on an erroneous construction thereof, though under 
 the advice of eminent counsel, undertook to distribute the fund himself, he was held 
 liable to the costs of suit by a cestui que trust, whose rights had been mistaken, the latter 
 having been, by the voluntary action of the trustee, deprived of the right of having the 
 costs of the construction of the will thrown on the general fund. Boulton v. Beard, 27 
 Eng. L. & Eq. 421. 
 
of costs. 833 
 
 in the hands of the trustee, that will he a ground for refusing him his 
 costs.(c) And where the trustees of a settlement, by which 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 difficulty, they were deprived of the costs of the 
 suit.(c?) 
 
 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) 1 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, not- 
 withstanding 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 trustee, 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 in- 
 stance, where a trustee of a settlement insisted, contrary 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) 3 
 
 *However, the court is not eager to punish trustees by de- 
 priving them of their costs,(i) and in many instances, where there ■- J 
 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 
 
 (c) Dawson v. Parrot, 3 Bro. C. C. 236. [See post, 559, note (1).] 
 
 (d) England v. Downs, 6 Beav. 279. 
 
 (e) Att -Gen. v. Brewers' Company, 1 P. Wins. 376 ; Dawson v. Parrot, 3 Bro. C. C. 
 236. 
 
 (/) Rashley v. Martin, 1 Ves. Jun. 205. (g) Bennett v. Going, 1 Moll. 529. 
 (h) Ball v. Montgomery, 2 Ves. Jun. 191. (i) See Hall v. Hallett, 1 Cox, 134, 141. 
 
 ' 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 ; Raybold v. Raybold, 20 Id. 308 ; Worrell's App,, 23 Id. 44 ; 
 Holman's App., 24 Id. 175 ; Wham v. Love, Rice's Eq. 51 ; Ralston v. Telfair, 2 Dev. 
 & Batt. Eq. 414; Ingram v. Kirkpatrick, 8 Ired. Eq. 62. 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. And in Atcheson v. Robertson, 4 Rich. Eq. 44, it was held that where 
 the aid of the court appears to have been necessary and proper, trustees will be entitled 
 to their costs, though there may arise on the settlement of their accounts or adjustment 
 of the equities between themselves and their cestui que trusts, questions in which their 
 interests are antagonistic. Atcheson v. Robertson, 4 Rich. Eq. 44. 
 
 2 Where a trustee had been participant in a fraud, he was refused costs. Turquand 
 v. Knight, 14 Sim. 643. So where, though a bill alleging fraud against an adminis- 
 trator was dismissed, there being reason for believing the charges true. Wade v. Dick, 
 1 Ired. Eq. 313. 
 
 53 
 
83-4 OF COSTS. 
 
 breach of trust. Thus, where the misapplication extended only to a 
 small part of the trust fund, and the suit had been instituted for other 
 purposes, and there was no imputation against the trustee, he was 
 allowed his costs of the suit.(Ai) And if the suit be instituted with un- 
 necessary haste, and without any previous application 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 6,600Z. 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. (h) 
 
 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 con- 
 siderable hesitation, allowed the college their costs of the suit out of 
 the accumulated fund, (a - ) 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 pre- 
 decessors, whom they do not in any respect represent, (kk) However, the 
 question of costs is peculiarly within the discretion of the court, which 
 will be governed by the particular 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 en- 
 title 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 depriving 
 trustees of their costs, it will, under certain circumstances, go further, 
 and decree the whole or part of the costs to be paid personally by 
 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 miscon- 
 
 (k) Fitzgerald v. Pringle, 2 Moll. 534 ; and see Sammes v. Rickman, 2 Ves. Jun. 36. 
 
 (/) Bennett v. Atkins, 1 Y. & Coll. 249. 
 
 Iff) Taylor v. Tabrum, 6 Sim. 281. (h) Bennett v. Going, 1 Moll. 529. 
 
 (») Att.-Gen. v. Caius College,/ -2 Keen, 150, 170. 
 
 (kk) Att.-Gen. v. Caius College, 2 Keen, 169. (I) See 3 Dan. Ch. Pr. 51, et seq. 
 
of costs. 835 
 
 duct or neglect of a trustee, the decree against him will be made with 
 
 costs to be paid ^personally by him.(m) And this rule applies 
 
 to corporations being trustees, as well as to private indi- L 568 ] 
 
 viduals.(n) 
 
 Thus, if a trustee have acted in a fraudulent manner, either by falsify- 
 ing, 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 state- 
 ments in his bill or answer(o) — or suppressed a material fact, such as the 
 sufficiency of the personal estate, for the payment of debts(p) — or had 
 made an unfair valuation of the trust property^) — or concealed evidence 
 relating to the trust(r) — or had refused an offer for the purchase of the 
 estate, unless the purchaser would concede a personal benefit to him- 
 self^) — 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(w) — in all these cases, the court has marked its dis- 
 approbation of the conduct of the trustees by decreeing them to pay the 
 costs of the suit. In like manner, where an executor and trustee pro- 
 cured 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 de- 
 creed to pay the whole costs of the suit for his improper conduct.(?/) 
 And so where a trustee for the sale of estates took undue advantage of 
 the confidence reposed in him, in order to purchase them himself at an 
 undervalue, and subsequently resold them at a considerable profit, he 
 was decreed by the Master of the Rolls 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 (Lord Thurlow), and ultimately by 
 the House of Lords.(s) Indeed, fraud is looked upon with such odium 
 
 (to) Fell v. Luthdwidge, Barn. 319 ; Caffrey v. Durby, 6 Ves. 497 ; Crackelt v. Be- 
 thune, 1J. & W. 589 ; Tebbs v. Carpenter, 1 Mad. 308. 
 
 (n) Att.-Gen. v. Haberdashers' Company, 2 Bro. P. C. 370 ; Att.-Gen. v. Drapers' 
 Company, 4 Beav. 67 ; Att.-Gen. v. Christ's Hospital, lb. 73 ; see Att.-Gen. v. Caius 
 College, 2 Keen, 169 ; Borough of Hertford v. Poor of Hertford, 2 Bro. P. C. 377 ; 
 Att-Gen. v. East Retford, 2 M. & K. 35. 
 
 (o) Vaughan v. Thurston, Colle's P. C. 175 ; Mallabar v. Mallabar, Ca. Temp. Talb. 
 71 ; Shepperd v. Smith, 2 Bro. P. C. 372. 
 
 (p) Mallabar v. Mallabar, ubi supra. (g) Shepperd v. Smith, 2 Bro. P. C. 372. 
 
 (r) Borough of Hertford v. Poor of Hertford, 2 Bro. P. C. 377 ; Att.-Gen. v. East 
 Retford, 2 M. & K. 25. 
 
 (*) Hide v. Haywood, 2 Atk. 126. (t) Reech v. Kennegal, 1 Ves. 126. 
 
 («) Crackelt v. Bethune, 1J. & W. 586 ; see Stackpole v. Stackpole, 4 Dow. 209. 
 
 (x) Horseley v. Chaloner, 2 Ves. 83 ; S. C. lb., Belt's Supplement, 281. 
 
 (y) Henley v. Phillips, 2 Atk. 48. (z) Fox v. Mackreth, 2 Bro. C. C. 400, 406. 
 
836 of costs. 
 
 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 great negligence, 
 L " J though without corruption, they were decreed to pay part of the 
 costs.(S) 1 
 
 And so where a decree was made against trustees, who had neglected 
 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. (c) 
 
 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 the 
 
 (a) See Hardwick v. Vernon, 14 Ves. 504 ; Ayliff v. Murray, 2 Atk. 61. 
 
 (b) Bast v. Ryal, 2 P. Wms. 284. 
 
 (c) Caffrey v. Darby, 6 Ves. 488 ; and see Lowson v. Copeland, 2 Bro. C. C. 156 ; 
 Mucklow v. Fuller, Jac. 198, 200. [Byrne v. Norcott, 13 Beav. 336 ; Fenwick v. Green- 
 way, 10 Beav. 412.] 
 
 (d) Troves v. Townsend, 1 Bro. C. C. 384 ; Littlehales v. Gascoigne, 3 Bro. C. C. 73 ; 
 Franklin v. Frith, lb. 433 ; Seers v. Hind, 1 Ves. Jun. 294 ; Piety v. Stace, 4 Ves. 620 ; 
 Roche v. Hart, 11 Ves. 58, 62; Mosley v. Ward,' lb. 581; Ashburnham v. Thompson, 
 13 Ves. 402 ; Tebbs v. Carpenter, 1 Mad. 290, 308 ; Crackelt v. Bethune, 1 J. & W. 
 586. 
 
 (1) However, in a case in Ireland, it was said by Sir A. Hart, L. C, that he had 
 often heard it stated as a principle; by some of the greatest Judges, that an executor, 
 though in the result made answerable for default by reason of loss incurred 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. 199, a trustee, who had not miscon- 
 ducted himself, was held entitled to his general costs, though made to pay interest, but 
 his account being greatly reduced in the Master's office, he was not allowed the costs of 
 his account in the office. So in Cotton v. Clark, 16 Jur. 879, 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 Dunscomb v. Dunscomb, 1 
 J. C. R. 508, 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.] 
 
 ' Generally, where trustees are guilty of a breach of trust, they must pay the costs of 
 a suit to repair it, however innocent their intentions may have beeu. Byrne v. Norcott, 
 13 Beav. 336 ; and it is not material that the trust has been created by the voluntary 
 gift of the trustees themselves. Drosier v. Brereton, 15 Beav. 221. 
 
OE COSTS. 837 
 
 costs of the suit. For instance, where a trustee without a sufficient 
 authority sells out the trust stock, he will be decreed to replace the 
 stock, and pay the costs of the suit.(e) 1 And so the trustees of a eharity 
 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 instrument, or warranted by the prac- 
 tice 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. (A) 2 
 
 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. (/') 
 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 auction, and was perfectly fair and bona fide, and there had been 
 no resale or subsequent profit.(&) 
 
 Formerly, where an account was directed against a trustee with inte- 
 
 (e) Earl Powlett v. Herbert, 1 Ves. Jun. 297 ; Whistler v. Newman, 4 Ves. 129; 
 Adams v. Clifton, 1 Russ. 297 ; Kellaway v. Johnson, 5 Beav. 319 ; Crackelt v. Bethune, 
 1J. & W. 586 ; Pocock v. Reddington, 5 Ves. 794, 9; Hosting v. Nieholls, 11 Law 
 Journ. N. S., Chanc. 230. 
 
 (/) Att.-Gen. v. Haberdashers' Company, 2 Bro. P. C. 370. 
 
 (g) Pocock v. Reddington, 5 Ves. 794, 9 ; Walker v. Symonds, 3 Sw. 1, 89 ; Bateman 
 v.Davis, 3 Mad. 98 ; Pride v. Fooks, 2 Beav. 430 ; Kellaway v. Johnson, 5 Beav. 319, 
 325; Challen v. Shippam, 4 Hare, 555. [Hale v. Franck, 13 Jur. 718 ; Jones v. Fox- 
 all, 15 Beav. 388.] 
 
 (h) Anon., 4 Mad. 273 ; Collyer v. Dudley, T. & R. 271. [Att.-Gen. v. Gibbs, 1 De 
 G. & S. 156.] 
 
 (i) Fox v. Mackreth, 2 Bro. C. C. 400 ; Whichcote v. Lawrence, 3 Ves. 740. [See cases 
 cited ante, note to p. 522.] 
 
 (fc) Sannderson v. Walker, 13 Ves. 601. 
 
 1 But where this is done at the request of the cestui que trust, a married woman, Ihe 
 court will not give costs, on her bill to replace the stock. Mant v. Leith, 15 Beav. 
 524. 
 
 2 But the mere fact that an executor has neglected to render accounts when re- 
 quested, will not in itself make him liable for costs in an administration suit. White 
 v. Jackson, 15 Beav. 191 ; 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 de- 
 duct his costs out of the assets, though they may be insufficient to repair the breach of 
 trust. Haldenby v. Spofforth, 9 Beav. 1 95. 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. 
 
 In Norman v. Storer, 1 Blatch. C. C. 596, where a trustee resisted a suit for an ac- 
 count, the balance due being contested, and it was decided in his favor as to a large 
 amount of the balan.ce claimed, it was held that he was nevertheless liable to the costs 
 of the litigation. 
 
838 of costs. 
 
 rest it was considered, that the costa of the suit must also be given 
 against him as a matter of course. (I) However, this never seems to have 
 been adopted *as a general rule ;{m) and in Ashburnham v. 
 L J Thompson,(n) the propriety of such a rule was expressly denied 
 by Sir Win. Grant, M. R., who said, that there might be many cases, 
 in which executors might pay interest, which would riot be cases for costs. 
 And according to the modern practice it is clear, that the mere fact of 
 interest being given against trustees, will not of itself govern the ques- 
 tion of costs. (o) m 
 
 Again, where trustees, from obstinacy or caprice, refuse to act without 
 a decree of the court, they will in general be ordered to pay the costs.(p) 1 
 Thus where a bill for the specific performance of an agreement was oc- 
 casioned 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 obtained 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 
 the estate from their cestui que trust, whom they considered a lunatic, 
 
 (I) Seers v. Hind, 1 Ves. Jun. 294 ; Roche v, Hart, 11 Ves. 62 ; Mosley v. Ward, lb. 
 583. 
 
 (m) Newton v. Bennett, 1 Bro. C. C. 362 ; Forbes v. Ross, 2 Bro. C. C. 430 ; Lee v. 
 Brown, 4 Ves. 369 ; Raphael v. Boehm, 11 Ves. Ill ; Sammes v. Riekman, 2 Ves. 
 Jun. 36. (n) 13 Ves. 404. 
 
 (o) See Tebbs v. Carpenter, 1 Mad. 308 ; Fletcher v. Walker, 3 Mad. 73, 4; Mousley 
 v. Carr, 4 Beav. 49, 53 ; Mackenzie v. Taylor, Rolls, 7 Beav. 467. [Fozier v. Andrews, 
 2 J. & Lat. 199 ; Cotton v. Clark, 16 Jur. 879.] 
 
 (p) Taylor v. Grlanville, 4 Mad. 176 ; see G-oodson v. Ellisson, 3 Russ. 589. 
 
 \q) Jones v. Lewis, 1 Cox, 199. (r) Willis v. Hiscox, 4 M. & Cr. 197. 
 
 (*) Thorby v. Yeats, 1 N. C. C. 438. 
 
 1 See Moore v. Prance, 9 Hare, 299 ; Hutchins v. Hutchins, 15 Jur. 869 ; Firmin v. 
 Pulham, 12 Jur. 410 ; 2 De G. & Sm. 99 ; Curtis v. Robinson, 8 Beav. 242 ; Hampshire 
 v. Bradley, 2 Coll. C. C. 34; Brinton's Est., 10 Barr, 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 pedigree before the trustees, 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. 
 
of costs. 839 
 
 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. (t) And where the trustees of an estate, charged 
 with two annuities, had refused to pay the annuities, upon an insufiicient 
 pretence, that the annuitants had incurred a forfeiture under a clause 
 in the will, the decree was made against them with costs, (u) In Good- 
 son v. Ellisson,(a:) the legal estate had been vested in a trustee by a set- 
 tlement 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 offer had been made to them to satisfy them as to the plaintiff's 
 title by the inspection of instruments, or the use of professional assis- 
 tance 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.(?/) However, this r*Kfi-n 
 decree as to the costs was reversed on appeal by the Lord Chan- 
 cellor (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 supposed 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 
 completely 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, the 
 only question was, by whom the costs of the suit were to be paid : and 
 Sir K. Bruce, V. C, held, that there was not at any moment any rea- 
 sonable doubt as to the title of the plaintiff, and his Honor decreed for 
 
 (t) Brown v. How, Barn. 354. («) Lloyd v. Spillett, 3 P. Wms. 344. 
 
 (*) 3 Russ. 583. (y) 3 Russ. 587. («) 3 Russ. 592. 
 
 (a) Lyse v. Kingdom, 1 Coll. 184. 
 
840 op costs. 
 
 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 be- 
 longing to a, feme sole, refused to transfer it to the trustees of the settle- 
 ment made on her marriage, and compelled the parties to file a bill to 
 obtain the payment, they were decreed to pay the costs, (b) 
 
 But wherever there is sufficient reason for a trustee's refusing to act 
 without the direction of the court, he will unquestionably be entitled to 
 the costs of a suit instituted to obtain that direction, (e) 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 dis- 
 cussing 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 appointment of 
 a receiver, in consequence of a quarrel among 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. (g) 
 
 And so if the trustees have supported an erroneous or improper claim 
 *made by one of the cestui que trusts adversely to the other, 
 L ""'-' and have thus driven the injured party to file a bill for the pro- 
 tection and assertion of his rights, the trustees will be decreed to pay 
 the costs of the suit.(/i) 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 divested 
 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 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 sur- 
 plus of the estate for his own benefit, he was made to pay the costs of 
 
 (a)Lyse v. Kingdom, 1 Coll. 184. 
 
 (6) Penfold v. Bouch, V. C. Wigram [4 Hare, 211]. 
 
 (e) Goodson v. Ellisson, 3 Buss. 592. [Duslaa v. Dustan, 1 Paige, 509 ; Arm- 
 strong v. Zane, 12 Ohio, 287.] 
 
 (d) Vide supra. [See Bobertson v. Wendell, 6 Paige, 322.] (e) Ibid. 
 
 (/) Wilson v.,Wi!son, 2 Keen, 249 ; and see Bagot v. Bagot, 10 Law Joura. N. S., 
 Chanc 116. 
 
 (g) 2 Keen, 252. 
 
 (h) Baggot v. Baggot, 10 Law Journ. N. S., Chanc. 116. (i) Ibid. 
 
op costs. 841 
 
 the suit.(Ai) 1 And in two very recent cases, where a corporation, being 
 trustees for a charity, raised a claim to the surplus arising from the in- 
 creased value of the property for their own benefit, to the exclusion of 
 the objects of the charity, Lord Langdale, M. B,., fixed them with the 
 costs of the information.(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 sub- 
 mission to the court.(m) 
 
 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 disposi- 
 tion to obstruct and retard the course of justice, by misstating or refusing 
 to deliver proper accounts ;(<?) or making false statements in his an- 
 swer ;(p) or by stating his ignorance of facts, the truth of which after- 
 wards appears from the documents scheduled in the answer ;(q) 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 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 
 
 (fc) Bayly v. Powell, Prec. Ch. 92 ; 2 Vern. 361 ; and see Lawson v. Copeland, 2 
 Bro. C. C. 156 ; Willis v. Hiscox, 4 M. & Cr. 197. 
 
 (1) Att.-Gen. v. Drapers' Company, 4 Beav. 67 ; Att.-Gen. v. Christ's Hospital, Id. 73. 
 (m) Vide supra ; and Rashley v. Martin, 1 Ves. Jun. 205. 
 
 (») Lloyd v. Spillett, 3 P. Wms. 346. 
 
 (o) Shepperd v. Smith. 2 Bro. P. C. 372 ; Avery v. Osborne, Barn. 349 ; Flanagan 
 v. Nolan, 1 Moll. 86 ; Norbury v. Calbeck, 2 Moll. 461. 
 
 [p) Vaughan v. Thurston, Colle's P. C. 175 ; Mallabar v. Mallabar, Ca. T. Talb. 79; 
 Beech v.'Kennegal, 1 Ves. 126. 
 
 (2) Att.-Gen. v. East Retford, 2 M. & K. 35. 
 
 (r) Borough of Hertford v. Poor of Hertford, 2 Bro. P. C. 377. 
 (*) Westover v. Chapman, 1 Coll. 379, 383. 
 
 1 See ante, 556, note. 
 
 2 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. 137; Waterman v. Cochran, 
 12 Verm. 699 ; see Spencerv. Spencer, 11 Paige, 159, 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 resulting trust : Lem- 
 mond v. Peoples, ut supra ; see Turquand v. Knight, 14 Simons, 643. 
 
842 of costs. 
 
 r have other *parties brought before the court, by appointing new 
 
 L J trustees after the institution of the suit, they were ordered to 
 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, in- 
 cluding the costs of their innocent co-trustees. (u) 1 
 
 However, it has been already shown, (x) that the court in the exercise 
 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 instances, an excep- 
 tion will be made to the general rule charging trustees with the costs of a 
 suit occasioned by their^breach of trust, and they will even be allowed their 
 costs, where their conduct has proceeded from mistake or accident, with- 
 out any corrupt or improper motive ; as where an erroneous claim for 
 his own benefit had been raised bona fide by a trustee ;(y) or where 
 through a venial mistake or misapprehension of their duty, there had 
 been an incorrect application, or retention of, or other dealing with, the 
 trust funds,(z) (more especially if the question relates only to a small 
 portion of the property), (a) or where the suit is instituted with unne- 
 cessary haste,(5) 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,(cZ) and their accounts are correct and satisfactory 
 in 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. (/) 
 
 (i) Att.-Gen. v. Clack, 1 Beav. 467 ; Cafe v. Bent, 3 Hare, 249 ; S. C. 13 Law Journ. 
 N. S. Chane. 169. 
 
 (m) Bagot v. Bagot, 10 Law Journ. N. S., Chanc, 116. [See Webb v. Webb, 16 
 Sim. 55.] 
 
 (x) Vide supra. 
 
 (y) Bennett v. Going, 1 Moll. 529 ; vide supra. 
 
 (z) Parrot v. Treby, Prec. Ch. 254 ; Travers v. Townsend, 1 Moll. 496 ; Flanagan v. 
 Nolan, lb. 84 ; Taylor v. Tartrum, 6 Sim. 281 ; Mousley v. Can*. 4 Beav. 49. 
 
 (a) Fitzgerald v. Pringle, 2 Moll. 534 ; Sammes v. Eiekman, 2 Ves. Jun. 36. 
 
 (6) Bennet v. Atkins, 1 Y. & Coll. 249. 
 
 (c) Att.-Gen. v. Dudley, Coop. 146 ; Pearce v. Newlyn, 3 Mad. 189. 
 
 (d) Att.-Gen. v. Drapers' Company, 4 Beav. 71. 
 
 (e) Mackenzie v. Taylor, [7 Beav. 467.] 
 
 (/) Att.-Gen. v. Caius College, 2 Keen, 169 ; Att.-Gen. v. Drapers' Company, 4 
 Beav. 71 ; Att.-Gen. v. Drummond, 3 Dr. & W. 162. 
 
 1 But where several defendants are involved in a breach of trust, the court gives costs 
 against all, without regard to the decree of culpability, on the principle of giving greater 
 security for their payment. Lawrence v. Bowie, 2 Phill. 140. 
 
of costs. 843 
 
 But trustees will not meet with this indulgence, unless they have 
 given every possible facility to the court to do complete justice, by deliver- 
 ing their accounts, arid 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 pay the costs of the 
 suit :(«') *we have already had occasion to consider how far he r#r«4-i 
 would be entitled to receive his costs under such circum- 
 stances.^) 
 
 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 doubt- 
 ful, and she had acted through ignorance, the decree was made against 
 her without costs. (m) And a decree ha8 been made without costs against 
 a trustee, on the ground of the delay on the part of the plaintiffs in pro- 
 secuting their claim. (ri) 
 
 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 trustees 
 all the costs not actually occasioned by their breach of trust. 1 The rule 
 has been thus stated by Sir Thos. Plumer, V. C. : " 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 miscon- 
 ducted himself ; but if the misconduct of the executor was the sole occa- 
 
 {g) See Parrot v. Treby, Prec. Ch. 254 ; Att.-Gen. v. East Retford, 2 M. & K. 40. 
 
 (A) Att.-Gen. v. East Retford, 2 M. & K. 36. 
 
 (i) Angier v. Stannard, 3 M. & K. 572. [Devey v. Thornton, 9 Hare, 222. But see 
 Boulton v. Beard, stated ante, note to page 555.] 
 
 (Jc) Vide supra, p. 555. 
 
 (I) O'Callaghan v. Cooper, 5 Ves. 117 ; Raphael v. Boehm, 13 Ves. 592 ; Forbes v. 
 Ross, 2 Bro. C. C. 431 ; Fletcher v. Walker, 3 Mad. 74 ; Mousley v. Carr, 4 Beav. 49 ; 
 Massey v. Banner, 4 Mad. 413. 
 
 (m) Mousley v. Carr, 4 Beav. 49. 
 
 (n) Att.-Gen. v. Dudley, Coop. 146 ; Pearce v. Newlyn, 3 Mad. 189 ; ante, p. 144. 
 
 1 In Fozier v. Andrews, 2 Jones & Lat. 199, a trustee who had not misconducted 
 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 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. 
 
844 of costs. 
 
 sion 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 misapplied 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,^) 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 taken, 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 necessary 
 to determine the construction of a will, but in the course of the suit, 
 r ^inquiries were directed as to arrears of rent and balances re- 
 
 L -I tained by the trustees in breach of their trust, the trustees 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 princi- 
 ple, where an executor had refused to render his account, but upon a bill 
 filed, set out the account correctly in his answer, and the plaintiff, not- 
 withstanding, took a decree for account, the Vice-Chancellor gave the 
 plaintiff the costs up to the decree, but he allowed the defendant the 
 costs of the subsequent proceeding s.{t) So in the recent case of Pride 
 v. Fooks,(w) which was a suit to charge a trustee 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, although he was decreed to pay so much of 
 the costs as had been caused by his breach of trust.(u) 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 remedy- 
 ing 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 
 
 (o) Tebbs v. Carpenter, 1 Mad. 308 ; and see Crackelt v. Bethune, 1 J. & W. 589. 
 
 (p) Pocock v. Reddington, 5 Ves. 794, 800 ; see Lowson v. Copeland, 2 Bro. C. C. 
 156. 
 
 (g) 13 Ves. 601, 604; and see Raphael v. Boehm, 13 Ves. 590 ; Ayliff v. Murray, 2 
 Atk. 61. 
 
 (r) See Campbell v. Walker, 5 Ves. 678. 
 
 («) Tebbs v. Carpenter, 1 Mad. 290, 309. 
 
 (i) Anon. 4 Mad. 273. (u) Pride v. Fooks, 2 Beav. 43Q, 437. 
 
OF COSTS. 845 
 
 the costs of any subsequent proceedings, that may be taken for the con- 
 venience or benefit of the cestui que trusts. For instance, in a late case 
 in the Rolls,(a;) 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 ascertain 
 certain facts requisite for clearing and distributing the trust fund, and 
 Lord Langdale, M. E.., without hearing counsel for the trustees, held, 
 that they were not liable for the costs of these subsequent proceedings.(a;) 
 
 So if the plaintiff, in a suit against trustees enter into any unnecessary 
 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 in- 
 curred, although he succeeds in the suit, and obtains a decree with costs 
 against the defendants.^) 
 
 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 solicitor and client, 
 and not like ordinary costs, as between party and party ;{zf and these 
 are emphatically termed trustees' costs. (a) And in addition to their 
 costs of the suit, they will also be allowed their charges and expenses, if 
 properly incurred.(i) 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 
 
 (x) Hewett v. Poster, 8 Jurist, 759. 
 
 (y) Thorby v. Yates, 1 N. C. C. 469 ; and see Westover v. Chapman, 1 Coll. 379, 
 383. _ 
 
 (z) Amand v. Bradbourne, 2 Cha. Ca. 138 ; Pride v. Fooks, 2 Beav. 437; Whitmarsh, 
 v. Robertson, 1 N. C. C. 717 ; Mohun v. Mohun, 1 Sw. 201. 
 
 (a) See Poole v. Pass, 1 Beav. 604; Holford v. Pliipps, 4 Beav. 475; Cough v. 
 Andrews, 8 Jurist, 307 ; York v. Brown, 1 Coll. N. C. C. 260. 
 
 (6) Hall v. Laver, 1 Hare, 577 ; Amand v. Bradbourne, 2 Ch. Ca. 138 ; et vide post ; 
 and Worrall v. Harford, 8 Ves. 8. 
 
 1 Hosaek 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 Capehart v. Huey, 1 Hill's Eq. 405 ; Day v. Day, 2 Green's Ch. 
 549 ; Scott's Est., 9 W. & S. 98. Hester v. Hester, 3 Ired. Eq. 9 ; Jewett v. "Wood- 
 ward, 1 Edw. Ch. 200 ; Glass v. Ramsey, 9 Gill, 459 ; Townshend v. Brooke, 9 Gill, 
 90 ; Burr v. McEwen, 1 Baldw. C. C. 154 ; Morton v. Barrett, 22 Maine, 257 ; McKim 
 v. Handy, 4 Maryl. Ch. 234 ; Bendall v. Bendall, 24 Alab. 295 ; Atcheson v. Robert- 
 son, 4 Rich. Eq. 39; Stephens v. Lord Newborough, 11 Beav. 403 ; 12 Jur. 319. But 
 see in New York, in the Surrogate's Court, where there is a fixed fee bill, Halsey v. 
 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. Hosaek v. Rogers, 
 ut supr. A trustee cannot charge the estate with a counsel fee paid to himself. Mayer 
 v. Galluchat, 6 Rich. Eq. 1. As to what costs may be allowed, see Stephens v. Lord 
 Newborojugh, ut supr. ; Ex parte Croxton, 5 De G. & Sm. 432. 
 
846 of costs. 
 
 *strictly costs. Therefore, the decree should always go on to 
 
 •■ J allow the trustee his charges and expenses.(c) The distinction 
 
 between costs taxed as between party ard 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.(^) 
 
 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 Lis 
 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) 1 However, the 
 decree, or order, must contain an express direction to tax the costs of 
 the trustee as between solicitor and client ; for, otherwise, the taxation 
 will be made in the ordinary way, as between party and party ;{g) 
 although if the decree contain the usual direction for just allowances, he 
 would be entitled to his extra expenses under that head. (h) 
 
 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 ordinary scale, 
 as between party and party. (f) Therefore, where a bill 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. (k) 3 However, 
 
 (c) See Fearns v. Young, 10 Ves. 184 ; et post, 470, Ch. [Allowances.] 
 
 (d) Ibid. 
 
 (e) Poole v. Pass,! Beav. 604 ; Holford v. Phipps, 3 Beav. 442 ; 4 Beav. 475 ; Hamp- 
 son v. Branwood, 1 Mad. 392, 395. 
 
 (/) York v. Brown, 8 Jurist, 567 ; 1 Coll. N. C. C. 260. [See post, p. 575, note.] 
 ((/) Fearns v. Young, 10 Ves. 184. (h) Ibid. 
 
 (i) Dunlop v. Hubbard, 19 Ves. 205 ; Edenborough v. Archbishop of Canterbury, 2 
 Buss. 94, 112. (k) Mohun v. Mohun, 1 Sw. 201. 
 
 1 But a solicitor, one of three trustees, appointing another solicitor to act for him on 
 agency terms, does so for the benefit of the trust, although it be done with the consent 
 of his co-trustees, and any advantage which may arise to him by the contract is for the 
 benefit of the trust estate. In such case the taxation of the solicitor's costs must be made 
 as between principal and agent, and not as between solicitor and client. Re Taylor, 23 
 L. J. Ch.857. 
 
 2 So in McKim v. Handy, 4 Maryl. Ch. 234, it was held that costs as between solici- 
 tor and client, or counsel fees, could not be allowed where the contest was as to the 
 right to administer the trust. 
 
OF COSTS. 847 
 
 in a late case, it was held by Lord Langdale, M. E., that a trustee, 
 acting bond 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 entitled 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 disclaim- 
 ing is continued as a party up to the hearing of the cause.(ra)(l) 
 
 *However, where a trustee in a suit with strangers has ob- r*r«7"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. (0) 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. (q) 
 
 The costs, as well as the charges and expenses of trustees, when pro- 
 perly incurred, constitute a charge or lien on the trust estate in 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 
 
 (I) Edgecombe v. Carpenter, 1 Beav. 171. 
 
 (m) Norway v. Norway, 2 M. & K. 278 ; Bray v. West, 9 Sim. 429 ; overruling Sher- 
 ratt v. Bentley, 1 R. & M. 655. 
 (n) Bray v. West, 9 Sim. 429. 
 
 (0) Amand v. Bradburne, 2 Ch. Ca. 138; Ramsden v. Langley, 2 Vern. 536; see 
 Pearns v. Young, 10 Ves. 184 ; Hill v. Magan, 2 Moll. 460 ; Edgecombe v. Carpenter, 
 1 Beav. 171. 
 
 (p) See Edgecombe v. Carpenter, 1 Beav. 174. 
 (q) Mohun v. Mohun, 1 Sw. 201 ; Adair v. Shaw, 1 Sell. & Lef. 280. 
 (r) Worrall v. Harford, 8 Ves. 4, 8 ; Hall v. Laver, 1 Hare, 577 ; see Ex parte James, 
 1 D. & Ch. 272. [Jones v. Dawson, 19 Alab. 675 ; Noyes v. Blakeman, 2 Selden, 567.] 
 
 (1) A consignee, or agent, who receives and holds property for the benefit of others, 
 but who 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. 
 
 1 Jones v. Dawson, 19 Alab. 675 ; Cecil v. Korbman, stated 1 Binn. 134; Barker v. 
 Parkenhorn, 2 Wash. C. C. 142. Not where their estate has terminated : Bellinger 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 which 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 
 
848 of costs. 
 
 extend to solicitors, or other persons, employed by the trustees ; and 
 such persons will be confined to their personal remedy against the trus- 
 tee, by whom they were employed. (s) 1 However, 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.(tf) 
 
 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.(w) 
 
 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 prin- 
 ciple of taxation will in general be followed in the subsequent proceed- 
 ings, although a different state of circumstances may then exist.(2;) And 
 a different principle of taxation will never be adopted upon a subsequent 
 application by petition.{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 by 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 defrayed 
 
 [*568] 
 
 out of the *testator's general residuary personal estate, (a) 2 And 
 
 ' (s) Ibid. ; and see Lawless v. Shaw, 1 LI. & G. 154 ; 5 CI. & Fin. 129.- [Jones v. 
 Dawson, 19 Alab. 675.] 
 
 (t) Bozon v. Bolland, 4 M. & Cr. 354; Hall v. Laver, 1 Hare, 578. 
 
 (u) Gordon v. Trail, 8 Price, 416. 
 
 (x) Trevevant v. Prazer, 2 Dan. Ch. Pr. 971 ; Massie v. Drake, 4 Beav. 433; and 
 see Gaunt v. Taylor, 2 Beav. 347. 
 
 (y) Massie v. Drake, 4 Beav. 433. (z) 2 Dan. Ch. Pr. 971 ; 3 Id. 76. 
 
 (a) Studholme v. Hodgson, 3 P. Wins. 303 ; Joliffe v. Bast, 3 Bro. C. C. 27 ; Nisbet 
 v. Murray, 5 Ves. 158 ; Commissioners of Char. Donations v. Cotter, 1 Dr. & W. 498 ; 
 Fergusson v. Ogilvy, 2 Dr. & W. 555 ; Shuttleworth v. Howarth, Cr. & Ph. 228 ; Tho- 
 mason v. Moses, 5 Beav. 77. 
 
 costs ; and a petition of his representatives, that his costs might be taxed, was refused. 
 In Carow v. Mowatt, 2 Edw. Ch. 57, the costs of an administrator, who was removed 
 after a suit commenced against him, were allowed out of the estate. It would seem 
 that where a trustee has a lien on a fund for costs, the court will not direct it to be paid 
 in. Chaffers v. Headlam, 17 Jurist, 754. 
 
 1 But in Noyes v. Blakeman,^ Selden, 567, it was held, that notwithstanding under the 
 provision of the Revised Statutes of New York, a cestui que trust cannot charge or assign 
 the future income of a trust estate, yet that the trustee had a lien thereon for his costs and 
 expenses, and that he might assign it so as to create a lien thereon in favor of counsel, 
 for his costs, and the necessary expenses of litigation. See Ex parte Plitt, 2 "Wall. Jr. 
 453. 
 
 2 Floyd v. Barker, 1 Paige, 480 ; Bryant v. Blackwell, 1 5 Beav. 44 ; Butts v. Genung, 
 5 Paige, 254. See under the Trustee Relief Acts (ante, p. 543, note), Re Ham's Will, 
 2 Sim. N. S. 106. It has been held under those acts that the costs of an application 
 by the tenant for life, come out of the corpus. Ross's Trust, 1 Sim. N. S. 196 ; Fields's 
 Settlement, 16 Jur. 770. Contra: Bangley's Trust, 21 Law J. Chanc. 875. The 
 general rule does not, however, apply to a suit under an appointment, so as to throw 
 
of costs. 849 
 
 the same rule applies, although the difficulty concerns the real estate 
 only.(J) 
 
 But if the question affect solely a f articular 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.(c) 1 
 
 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 debt.(c?) But as we have already seen, the bankruptcy 
 of a trustee will not disentitle him to his costs as against the cestui que 
 trusts.fe) 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 certi- 
 ficate, the costs incurred before the bankruptcy will be set off against the 
 debt due from him, but he will be entitled to receive his costs subse- 
 quently to the bankruptcy, without any deduction or set-off in respect of 
 the debt, for the debt was extinguished by the proof under the bank- 
 ruptcy 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 ;(h) and the power to 
 
 (6) Ripley v. Moysey, 1 Keen, 579. 
 
 (c) Jenour v. Jenour, 10 Ves. 562; and see Shaw v. Pickthall, Dan. 92; Duke of 
 Manchester v. Bonham, 3 Ves. 61 ; King v. Tayler, 5 Ves. 809. 
 
 (d) Harmer v. Harris, 1 Russ. 155 ; Samuel v. Jones, 2 Hare, 246 ; Gibbons v. Haw- 
 ley, Id. note. 
 
 (e) Samuel v. Jones, 2 Hare, 246 ; Gibbons v. Hawley, Id. note ; Ex parte Gibbs, 8 
 Jurist, 266; ante [Bankruptcy of Trustees], p. 533. 
 
 (/) Ibid. [Cotton v. Clark, 16 Jur. 879.] 
 
 (g) Ex parte Cant, 10 Ves. 554; Re Bedford Charity, 2 Sw. 532 ; Ex parte Pearse, 
 T. & R. 225 ; Ex parte Whitley, 1 Deac. 478 ; Re King, 10 Sim. 605 ; vide supra, p. 
 187, 290. (h) Re Bedford Charity, 2 Sw. 532. 
 
 the costs on the unappointed share; they are to be apportioned between the two. 
 Trollope v. Routledge, 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 Amringe, 6 Paige, 18. The 
 trustees are always, in doubtful cases, entitled to their costs on a bill for the construc- 
 tion of a will. Irving v. De Kay, 9 Paige, 521 ; Rogers v. Ross, 4 J. C. R. 608 ; see 
 ante, note to page 543. 
 
 1 A general direction in a will, that costs shall be paid out of a particular fund pro- 
 vided for the purpose, is applicable only to costs which relate to the office of executor. 
 Where there are several estates subject to trusts for different persons, each must bear 
 the particular charge affecting it, notwithstanding that such a fund has been created 
 for payment of costs. But costs incurred for purposes necessarily applicable to the 
 whole of the trusts contained in a will, must be borne proportionably by the several 
 estates affected by the will. Lord Brougham v. Lord W. Powlett, 24 L. J. Ch. 233 ; 
 19 Jurist, 151. 
 
 54 
 
850 OF COSTS. 
 
 give the trustees their costs, exists only where expressly provided by the 
 statute,(i) although a summary application, which the court has no juris- 
 diction to entertain, may be refused with costs. (k) 
 
 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 application would 
 exist, if the payment of the bill had been made by the cestui que trust 
 himself.(Z) 1 But after the cestui que trust has acquiesced for a con- 
 siderable 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.(ra) And now, the recent act 6 & 7 
 Vict. c. 73, s. 41, precludes the court in any case whatever, from order- 
 on ing the *taxation of a bill of 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 subse- 
 quent taxation of the costs as against the solicitor.(o) However, if a 
 trustee pay a solicitor'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 pay- 
 ment 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 sub- 
 ject 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 ulti- 
 mately brought before the court, by exceptions to the Master's reporter) 
 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. (s) 
 
 (i) Ee Isaac, 4 M. & Cr. 14. {h) Ibid. 
 
 if) Hayard v. Lane, 3 Mer. 291 ; Groves v. Sansom, 1 Beav. 297 ; and see 6 & 7 
 Viet. c. 73, s. 39. 
 (to) Groves v. Sansom, 1 Beav. 297 ; see Johnson v. Telford, 3 Russ. 477. 
 (n) Binns v. Hey, 5 Beav. 429, stated. (o) Re Downes, 5 Beav. 427. 
 
 (p) Per Lord Langdale, M. R., 5 Beav. 429. 
 
 (q) Pountaine v. Pellet, 1 Ves. Jun. 337, 343 ; Johnson v. Telford, 3 Russ. 477. 
 (r) Ibid. (s) Johnson v. Telford, 3 Russ. 477. 
 
 1 The trustee is not a proper party to the taxation of the bill. Re Mole, 22 L. J. Ch. 
 455. 
 
OF ALLOWANCES TO TRUSTEES. 851 
 
 The application for the taxation of a bill of costs may be made by one 
 of two executors or trustees. (t) 
 
 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.(w) 
 
 *CHAPTER V. [*570] 
 
 OF ALLOWANCES TO TRUSTEES. 
 
 Trustees have an inherent right to be reimbursed all expenses pro- 
 perly incurred in the execution of the trust, and no express declaration 
 in the trust instrument is requisite to create that right. 1 Lord Eldon 
 has said, that " it is in the nature of the office of trustee, whether ex- 
 pressed in .the instrument or not, that the trust property shall reimburse 
 him all the charges and- expenses incurred in the execution of the 
 trust."(a) And in a modern case,(6) Lord Cottenham stated it "to be 
 quite clear, according to the rule, which applies to all cases of trust, 
 that if necessary expenses are incurred in 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 
 
 {t) Hayard v. Lane, 3 Mer. 285 ; see Lockhart v. Hardy, 4 Beav. 224. 
 
 («) Hoskingv. Nicholls, 11 Law Journ. N. S., Chanc. 230. 
 
 (a) Worrall v. Harford, 8 Ves. 8. 
 
 (6) Att.-Gen. v. Mayor of Norwich, 2 M. & Cr. 406, 424. 
 
 1 Burr v. McEwen, Baldwin, C. C. 154 ; Pennell's App., 2 Barr, 216 ; Hatton v. 
 Weems, 12 Gill & John. 83; Myers v. Myers, 2 McCord's Ch. 214; Perkins v. Kershaw, 
 1 Hill's Eq.350 ; Morton v. Adams, 1 Strobh. Eq. 76 ; Miller v. Beverleys, 4 Henn. & 
 Munf. 415 ; Miles v. Bacon, 4 J. J. Marsh, 457 ; Ames v. Downing, 1 Bradf. Surr. R. 
 321 ; Egbert v. Brooks, 3 Harrington, 110 ; Morton v. Barrett, 22 Maine, 257 ; Lowe 
 v. Morris, 13 Geo. 165 ; Jones v. Dawson, 19 Alab. 672. So though the trust be sub- 
 sequently 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, 1 Devereux Eq. 392. 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 expenditures, the 
 lowest estimate will be put on them in remunerating him therefor. McDowell v. Cald- 
 well, 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. And on a reference to a Master, he may reject 
 an imperfect or inaccurate aceount, and restate it on the whole evidence presented, at 
 his discretion. Miller v. Whittier 36 Maine, 577. 
 
852 OF ALLOWANCES TO TRUSTEES. 
 
 express provision for that purpose, 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."(e) 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 ex- 
 penses which he may have incurred, in the conduct of the trust, and he 
 requires "no order for that purpose, (d) 
 
 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 sanction that 
 step, and the absence of the clause, usually inserted in the trust instru- 
 ment for the reimbursement and indemnity of the trustees, is also per- 
 fectly 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 can- 
 not make such allowances without that direction, (e) But under a direc- 
 tion 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 procuring 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 commission 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 
 w powers of management, the nature of the trust property, and 
 L -I the relative position *of the cestui que trusts ; these, and a 
 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 on this point. 
 
 Where a trustee is expressly authorized to incur certain specified ex- 
 penses, no question can of course arise as to his right to have such payments 
 allowed. And where no such special power is conferred by the trust in- 
 strument, a trustee under a will of real estate, who has general discre- 
 tionary powers to let and manage or superintend, will be entitled to' all 
 
 (c) See Rex v. Inhabitants of Essex, 4 T. R. 591 ; Rex v. Commissioners of Sewers, 
 1 B. & Adolph, 232. 
 
 (d) Broeksopp v. Barnes, 5 Mad. 90. 
 
 (e) Howell v. Howell, 2 M. & Cr. 478. (/) Fearns v. Young, 10 Ves. 184. 
 (g) Crump v. Baker, 18 Ves. 285. 
 
 (A) Webb v. Earl of Shaftesbury, 7 Ves. 480 ; Wilkinson v. Wilkinson, 2 S. & St. 
 237 ; Pountaine v. Pellet, 1 Ves. Jun. 337. 
 
OF ALLOWANCES TO TRUSTEES. 853 
 
 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.(i) 1 And sums expended in building farm-houses, and in drain- 
 ing and manuring, and other improvements of that nature, will also be 
 allowed to a trustee, who is invested with similar general powers of 
 management.(&) 
 
 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 defray- 
 ing those expenses out of the general trust fund ; and if they do so, it 
 will be at the. risk of having the payments disallowed. (Z) 2 
 
 Where a trustee resides in the mansion-house by the testator's direc- 
 tion, he will be allowed the rates and taxes, although he has the benefit 
 of residing in the house.(m) However, a trustee who employs 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. (n) And so a trustee, 
 with the most ample powers of management, cannot of his own- autho- 
 rity 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 establishment be necessary. (0) A 
 trustee acting without an express authority will not be allowed the ex- 
 pense of pulling down and rebuilding a house.(p) 
 
 A payment made by a trustee upon his own responsibility will be 
 allowed to him in his accounts, although it was of a doubtful character, 
 if it be ultimately approved of by the court. And this is in accordance 
 with the general rule, that what the court would allow upon a suit, shall 
 be good without suit.(^) 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, (r) 3 And a payment by trustees of their own 
 
 (i) Pountaine v. Pellet, 1 Ves. Jun. 337 ; Webb v. Earl of Shaftesbury, 7 Ves. 480 ; 
 Bridge v. Brown, 2 N. C. C. 181, 191. 
 
 (Jc) Bowes v. Earl of Strathmore, 8 Jurist, 92. 
 
 {I) Pountaine v. Pellet, 1 Ves. Jun. 342 ; Bostock v. Blakeney, 2 Bro. 0. C. 653 ; 
 Hibbert v. Cooke, 1 S. & St. 552 ; Nairn v. Majoribanks, 3 Buss. 582 ; Caldeeott v. 
 Brown, 2 Hare, 144; ante, p. 394, 395, and notes. [Jones v. Dawson, 19 Alab. 673.] 
 
 (m) Pountaine v. Pellet, ubi supra. (n) 1 Ves. Jun. 343. 
 
 (o) Webb v. Earl of Shaftesbury, 7 Ves. 480, 488. 
 
 (p) Bridge v. Brown, 2 N. C. C. 191. 
 
 (g) See Balsh v. Higham, 2 P. Wms. 453. [Hatton v. Weems, 12 G. & J. 83; Gray 
 v. Lynch, 8 Gill, 403.] (r) 1 Ves. Jun. 343. 
 
 1 Ante, 395, 429, and notes. 2 See ante, 394, 395, and notes. 
 
 3 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 ; Mathews v. Dragaud, 3 Desaus. 25 ; 
 Pennell's App., 2 Barr, 216 ; Freeman v. Tompkins, 1 Strobh. Eq. 53. 
 
854 OF ALLOWANCES TO TRUSTEES. 
 
 authority for the *maintenance of an infant will be allowed, if 
 L J afterwards approved of by the court.(s) 1 
 
 And so it seems, that a payment, made by trustees upon the opinion 
 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 200Z. 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 lidble.(t) 
 
 All payments, properly made by trustees out of their own pockets in 
 discharging the duties of their office, will unquestionably be allowed 
 them, — such as postage, travelling expenses, &c.,(w) and the usual ex- 
 penses attending a sale required by the trust, (x) 
 
 And where the fines, and other necessary expenses attending the re- 
 newal of leaseholds or copyholds, have been paid by the trustees, they 
 will of course be entitled to a repayment,(y) and they will have 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. (z) And so where a 
 trustee has advanced money out of his own pocket, in order to relieve the 
 trust estate from charges bearing heavy interest, 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.(6) Although it is contrary to the practice to allow interest on 
 
 (s) Barlow v. Grant, 1 Vern. 255 ; Franklin v. Green, 2 Vera. 137 ; ante, p. [395, 
 note ; 399, note 2.] 
 
 (0 Vez v. Emery, 5 Ves. 141, 144. 
 
 (u) Webb v. Earl of Shaftesbury, 7 Ves. 484 ; Brocksopp v. Barnes, 5 Mad. 90 ; see 
 Ex parte Lovegrove, 3 Deac. & Ch. 763. 
 
 (x) Crump v. Baker, 18 Ves. 285. 
 
 (y) James v. Dean, 11 Ves. 396 ; Randall v. Russell, 3 Mer. 196. 
 
 (z) Trott v. Dawson, 1 P. Wms. 780 ; 7 Bro. P. 0. 266 ; see Fearns v. Young, 10 Ves. 
 184 ; supra, p 439. 
 
 (a) Small v. King, 5 Bro. P. C. 72. [See note to the preceding page.] 
 
 (6) Small v. King, 5 Bro. P. C. 72. 
 
 1 In Nelson v. Duncombe, 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 com- 
 mission 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. 
 
OF ALLOWANCES TO TRUSTEES. 855 
 
 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 payments by them 
 will be allowed.(ctf) 
 
 And we have also seen, that a trustee under the head of " just allow- 
 ances" will be entitled to retain out of the trust fond 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 as- 
 sistance and guidance in the administration of the trust. (/) And 
 also *in case of any doubt or difficulty to take the opinion of r*ci7q-] 
 counsel ;(g) and they will be allowed those expenses out of the 
 trust estate. 
 
 And where the accounts are of an intricate and complicated character, 
 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 col- 
 lector 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 :(i) 
 or where there were outstanding debts to a large amount to be got in,(&) 
 or the trustee resided at a considerable distance from the trust pro- 
 perty,^) and trustees have been allowed the expense of an agent and 
 collector, although an annuity was given them for their trouble in exe- 
 cuting the trust.(m) 
 
 However, it seems that they will not be allowed any payment for com- 
 mission to an accountant or collector, exceeding two and a half per 
 cent. :(n) and in the case alluded to, Sir J. Leach, M. E.., had some 
 
 (c) Gordon v. Trail, 8 Price, 416. 
 
 (d) See preceding Chapter, Sect. [Costs], p. 568. 
 
 (e) Ibid. ; Amand v. Bradbourne, 2 Ch. Ca. 138 ; Ramsden v. Langley, 2 Vern. 536 ; 
 Hill v. Magan, 2 Moll. 460 ; see Fearns v. Young, 10 Ves. 184 ; 3 Dan. Ch. Pr. 58. 
 
 (/) Macnamara v. Jones, Dick. 587 ; Johnson v. Telford, 3 Russ. 477 ; see Burge v. 
 Brutton, 2 Hare, 373, 378. 
 
 (g) Fearns v. Young, 10 Ves. 184; Poole v. Pass, 1 Beav. 604. [See ante, p. 565, 
 note.] 
 
 (h) Henderson v. M'lver, 3 Mad. 275. 
 
 (t) Wilkinson v. Wilkinson, 2 S. & St. 237 ; see Davis v. Dendy, 3 Mad. 170. 
 
 (k) Hopkinson v. Roe, 1 Beav. 180 ; Weiss v. Dill, 3 M. & K. 26 ; see Turner v. 
 Corney, 5 Beav. 515. 
 
 (Z) Davis v. Dendy, 3 Mad. 170 ; Godfrey v. Watson, 3 Atk. 518. 
 
 (m) Wilkinson v. Wilkinson, 2 S. & St. 237. [Kennedy's App., 4 Barr, 150 ; Cairns 
 v. Chaubert, 9 Paige, 164; Whitted v. Webb, 2 Dev. & Batt. Bq. 442.] 
 
 (w) Weiss v. Dill, 3 M. & K. 26. 
 
85'3 OP ALLOWANCES TO TRUSTEES. 
 
 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 ac- 
 ceptance of the trust, and which they will not, except under special cir- 
 cumstances, he allowed to put upon another, (p) 
 
 The usual brokerage charges for the necessary transfer of stock, &c, 
 to the cestui que trusts, will also he allowed to the trustees ;(q) but not 
 a charge for a transfer which is not required. (r) 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 em- 
 ployed 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 keeping 
 any part of the trust property in his possession, and without any negli- 
 gence on his part, it it lost by robbery, he will not be held responsible 
 for the loss, but will be allowed the amount in passing his accounts, and 
 this amount may be proved by the' trustee's own affidavit, for it would 
 frequently be difficult to obtain any other proof, (tf) 1 And so where the 
 trust funds are properly deposited with a banker or agent, who fails, the 
 trustee will be allowed the sum so lost.(w) More especially if the 
 *author of the trust himself directs the trustees to employ the 
 
 [*574] 
 
 person by whose failure the loss is occasioned. (a;) 
 
 (o) 3 M. & K. 27 ; and see Stackpoole v. Stackpoole, 4 Dow. P. C. 226. 
 
 (p) See Weiss v. Dill, 3 M. & K. 26. (q) Jones v. Powell, 6 Beav. 488. 
 
 (r) Hopkinson v. Roe, 1 Beav. 183. (s) Hopkinson v. Roe, ubi supra. 
 
 (t) Morley v. Morley, 2 Ch. Ca. 2 ; Knight v. Earl of Plymouth, 3 Atk. 480 ; Jones 
 v. Lewis, 2 Ves. 240 ; 2 Fonbl. Bq. B. 2, Ch. 7, S. 4 ; 2 Story's Eq. Jur. <| 1269. [fur- 
 man v. Coe, 1 Caines, C. E. 96. If the trustee be dead, his representative may set up 
 the defence, though it want the corroboration of the trustee's oath. Ibid.] 
 
 (u) Knight v. Earl of Plymouth, 3 Atk. 480 ; Jones v. Lewis, 2 Ves. 240; Routh v. 
 Howell, 3 Ves. 564 ; Belcher v. Parsons, Ambl. 219 ; Massey v. Banner, 4 Mad. 416; 
 see Clough v. Bond, 3 M. & Cr. 490, 6 ; Adams v. Claxton, 6 Ves. 626 ; Freme v. 
 Woods, 1 Taml. 172. 
 
 (x) Kilbee v. Sneyd, 2 Moll. 199 ; see Doyle v. Blake, 2 Sch. & Lef. 239, 245. 
 
 1 So a trustee is not responsible for the escape of slaves, or for an injury to them by 
 their own fault, unless negligence is shown on his part. Chaplin v. Givens, Rice's Eq. 
 132 ; Mikell v. Mikell, 5 Rich. Eq. 221. In Pennsylvania, it has been held that where 
 a trust has been accepted on the terms of receiving a stipulated reward, 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. 
 Russell, 23 Pickering, 546 ; and Sollee v. Croft, 7 Rich. Eq. 46, 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. But in Litchfield v. White, 3 Seld. 444, it 
 was held that trustees are liable for ordinary negligence, and that a clause in an assign- 
 ment relieving the assignees from all but wilful default or neglect made the assignment 
 void. 
 
OF ALLOWANCES TO TRUSTEES. 857 
 
 Every payment by a trustee out of the trust funds, 'which is not ex- 
 pressly authorized by the trust instrument, or sanctioned by necessary 
 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 pass- 
 ing 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; (j/) or the application of the trust 
 funds on an improper investment, (z) or a payment to a person not autho- 
 rized to receive,(a) or incapable of giving a discharge,^) 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,(c) or in short any other mis- 
 application 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 per- 
 sonal profit out of the trust estate. And on this principle, a trustee 
 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 in- 
 strument expressly empowers him to make such a charge.(cZ)(l) 1 
 
 And where he is in any business or profession, he will not without a 
 similar authority be allowed any charge or remuneration for his profes- 
 sional 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 
 
 (y) Davies v. Austen, 3 Bro. C. C. 178 ; Lee v. Brown, 4 Ves. 362 ; Walker v. Weth- 
 erell, 6 Ves. 473 ; Andrews v. Partington, 3 Bro. C. C. 60. [Ante, 395, 399, notes ; 
 Bredin v. Dwen, 2 Watts, 95.] 
 
 fz) Earl of Winchelsea v. Norcliffe, 1 Vern. 434. 
 
 (a) Hodgson v. Hodgson, 2 Keen, 704. 
 
 (6) Dagley v. Talferry, 1 P. Wms. 285 ; Phillips v. Paget, 2 Atk. 80 ; Davies v. Aus- 
 ten, 3 Bro. C. C. 178; Lee v. Brown, 3 Ves. 369. 
 
 (c) Howe v. Earl of Dartmouth, 7 Ves. 151 ; Dimes v. Scott, 4 Russ. 195, 206. 
 
 (d) Robinson v. Pett, 3 P. Wms. 249 ; Brocksopp v. Barnes, 5 Mad. 90 ; Re Ormsby, 
 1 Ball & B. 189. 
 
 (1) Trustees of real estate in the West Indies, who reside there for the management 
 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 executor and trustee in India will 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 In the United States, in general, commissions are allowed to trustees, executors, 
 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. Rawle's note to 
 Robinson v. Pett, 2 Lead. Cas. Eq. pt. i, 353 (1st Am. ed), that it will be sufficient 
 here to refer the reader thereto, for a full statement of the law on the subject. 
 
858 OF ALLOWANCES TO TRUSTEES. 
 
 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 for services performed in the testa- 
 tor's Ufetime.(h) And so a surviving partner being executor, is not 
 entitled, *without express stipulation, to any allowance for carry- 
 •- -■ ing on the business for the benefit of the estate.(i) And the 
 same rule applies with equal force to attorneys and solicitors, being trus- 
 tees, 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.(&)(l) And it is immaterial that the trustee is only one of a 
 
 (e) Scattergood v. Harrison, Mos. 128 ; Sheriffe v. Axe, 4 Russ. 33 ; New v. Jones, 
 9 Jarm. Byth. Conv. 338 ; Moore v. Frowd, 3 M. & Cr. 45 ; Ee Sherwood, 3 Beav. 338 ; 
 Collis v. Carey, 2 Beav. 128. 
 
 (/) Scattergood v. Harrison, Mos. 128. 
 
 (g) Sheriffe v. Axe, 4 Russ. 33; Hoveyv. Blakeman, 4 Ves. 596. [So of an auctioneer, 
 Kirkman v. Booth, 11 Beav. 273.] 
 
 (Ji) Sheriffe v. Axe, 4 Russ. 33. 
 
 (i) Burden v. Burden, 1 Ves. & B. 170 ; Stocken v. Dawson, 6 Beav. 371. 
 
 (7c) New v. Jones, 9 Jarm. Byth. Conv. 338 ; Moore v. Frowd, 3 M. & Cr. 45 ; Re 
 Sherwood, 3 Beav. 338 ; Burge v. Brutton, 2 Hare, 373 ; Fraser v. Palmer, 4 Y. & 
 Coll. 515. [ReWyche, 11 Beav. 209; Christophers v. White, 10 Beav. 523; Todd v. 
 Wilson, 9 Beav. 486 ; New v. Jones, 1 Macn. & G. 668, note.] 
 
 (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-trus- 
 tees, 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 bene- 
 ficial to the trust estate, with a view to awarding him compensation ; and a petition, 
 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, 9 Hare, 
 158, that the rule in Cradock v. Piper was confined to suits respecting the trust pro- 
 perty, and did not apply to the case of a solicitor acting for himself and his co-trustees 
 in the general administration of the trust, without the intervention of the court. This 
 case was followed and approved in Broughton v. Broughton, 5 De Gr. M. & G:. 160 ; 
 and Cradock v. Piper disapproved. There, one of two trustees, who was a solicitor, 
 acted as such in the administration of the trust at the request of his co-trustee, and he 
 was held only entitled to costs out of pocket. Though there be an express agreement 
 that professional charges shall be allowed between the solicitor 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 release : Stanes v. Parker, 9 Beav. 385 ; Todd 
 v. Wilson, Id. 486 ; Re Wyche, 11 Beav. 209. See, on this subject, articles in 14 Jur. 
 pt. ii, p. 45 ; 14 Law Mag. N. S. 297. Though the rule above stated, so far as it is 
 founded on that which in England refuses any compensation to trustees, would at first 
 
OF ALLOWANCES TO TRUSTEES. 859 
 
 partnership or firm of solicitors, but the costs out of pocket only will be 
 allowed, although the bill be made out in the name of the firm.(Z) How- 
 ever, where the trustees, being solicitors, are resident and practise in 
 the country, and employ their London agent in professional business re- 
 lating 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. (m) Moreover, the rule in question 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.(n) 
 
 But trustees are unquestionably entitled to any benefit or profit, which 
 is expressly given to them by the testator ; as where a commission of 
 five per cent.,(o) or an annuity,^) or legacy,^) 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 institution of a suit by him for the 
 administration of the trust, for his services as a ministerial person are still 
 necessary. («) 
 
 And where the testator expressly declares, that the trustees shall be 
 entitled to their charges, and remuneration for professional services, or 
 trouble, and loss of time, the general rule of the court will be excluded, 
 and those charges will be allowed the trustees in their accounts : for 
 such a direction amounts to a legacy to the trustees.(tf) 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 re- 
 
 (Z) Collis v. Carey, 2 Beav. 128. (m) Burge v. Brutton, 2 Hare, 373, 378. 
 
 (n) York v. Brown, 1 Coll. N. C. C. 260. 
 
 (0) Webb v. Earl of Shaftesbury, 7 Yes. 480. 
 
 (p) Fountaine v. Pellet, 1 Ves. Jun. 337 ; "Wilkinson v. Wilkinson, 2 S. & St. 337. 
 
 (q) Robinson v. Pett, 3 P. Wms. 249. 
 
 (r) Fountaine v. Pellet, 1 Ves. Jun. 342. (*) Baker v. Martin, 8 Sim. 25. 
 
 (t) Ellison v. Airey, 1 Ves. 115. 
 sight seem to be less applicable in the United States, where an opposite doctrine in 
 general obtains, yet it stands also on other grounds, which are of equal importance here. 
 " The good sense of the rule," said Lord Cranworth, in Broughton v. Broughton, ut 
 supra, " is obvious, because it is one of the important duties of a trustee placed in a 
 fiduciary character, to take care that no improper charges are made for the performance 
 of the business." The ordinary allowance for commisions in this country, ought, indeed, 
 to be considered to merge all charges of this nature made by a trustee in his personal 
 character. It was therefore held in Mayer v. Galluchat, 6 Rich. Eq. 1, that a trustee 
 could not charge the estate with counsel fees paid to himself.] 
 
 (1) The effect of a legacy to a trustee for his trouble, has already been considered. 
 Ante, Ch. [Disabilities of Trustees, p. 535.] 
 
860 OF ALLOWANCES TO TRUSTEES. 
 
 ceive out of the trust-moneys, all costs, charges, and expenses, fees to 
 counsel, and for professional assistance, and loss of time, that might he 
 r paid, incurred, *sustained, or occasioned in the execution of the 
 
 "- -J trusts. One of the trustees was a land agent and surveyor, who 
 took upon himself the active management and sale of the trust estates, 
 and he presented a petition, 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 entitled to remuneration for his loss of time, and his Lord- 
 ship referred it to the Master to settle the amount.(w) And the same 
 rule applies to solicitors, who are made trustees of a will, and who are 
 empowered hy the testator to charge for their professional services. (a;) 
 
 So, where the trust is created by deed, the trustees may, by express 
 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. B,., 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 improper 
 means, it will undoubtedly be set aside. Thus, where executors and trus- 
 tees 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 2001. to the other, in ad- 
 dition 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 
 hy the execution of the trust, or he will not be suffered to take any 
 benefit from it. As where an executor and trustee consented to act on 
 payment of 1007., and he died before the trust was completely executed, 
 his executors were not allowed the 1007. out of the trust-moneys in their 
 hands. (5) 
 
 And where the trustee is the solicitor of the cestui que trust, an agree- 
 ment between them, that the trustee shall be entitled to his professional 
 charges or any other benefit, is looked upon with equal or even greater 
 suspicion.(c) And the circumstance of the client being a woman would 
 
 (u) Willis v. Kibble, 1 Beav. 559 ; and see Ellison v. Airey, 1 Ves. 115. 
 
 (x) See Re Sherwood, 3 Beav. 341. 
 
 (y) Moore v. Frowd, 3 M. & Cr. 48 ; Ayliff v. Murray, 2 Atk. 60. 
 
 (z) Re Sherwood, 3 Beav. 338. (a) Ayliff v. Murray, 2 Atk. 58, 60. 
 
 (6) Gould v. Fleetwood, 3 P. Wms. 251, n. (c) See Ayliff v. Murray, 2 Atk. 60. 
 
OF ALLOWANCES TO TRUSTEES. 861 
 
 be an additional argument against the validity of such an agreement. (d) 
 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 agreement itself should, in its terms, explain all those 
 *circumstances, and that it should be approved of by counsel, r*znn-] 
 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.(^) 
 Upon this subject, Lord Cottenham, in a late case, said, " The agreement 
 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 respecting contracts between soli- 
 citors and their clients, a solicitor could maintain such a contract, made 
 with his client, for his own benefit, the client having no other profes- 
 sional 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."(/i) 
 
 Moreover, the terms of the instrument must clearly and unequivocally 
 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 incur- 
 red, sustained, or borne by the trustees, or any of them, either in pro- 
 fessional 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 be put unto, as between solicitor 
 and client, it was held by Lord Cottenham, that these provisions applied 
 merely to expenses actually paid by the trustees, and that they did not 
 authorize any charge or remuneration to the trustees for their profes- 
 sional services as solicitors.(j) 
 
 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 by petition, he will be decreed to pay the costs of the 
 petition, although the court allows the claim. (&) 5 
 
 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. (I) And wherever circumstances 
 
 (d) See 3 M. & Cr. 48. (e) Ibid. 
 
 (/) Ibid. \g) Re Sherwood, 3 Beav. 339. 
 
 (A) Moore v. Prowd, 3 M. & Cr. 48. (t) Moore v. Prowd, 3 M. & Cr. 45. 
 
 (k) Willis v. Kibble, 1 Beav. 560. (Z) Morison v. Morison, 4 M. & Cr. 224. 
 
862 OF ALLOWANCES TO TRUSTEES. 
 
 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, before he accepts the 
 trust.(m) And the practice upon such an application 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 office 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 allow- 
 r*<V781 ance to *^ e trustee f° r P ast an£ l future services.(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. (p) 
 
 However, the application for an allowance must be made by the trustee 
 before his acceptance of the trust, for after he has once accepted, the 
 court will refuse to allow him any compensation, however arduous the 
 duties may be. (q) 
 
 Where an account is decreed against a trustee, the court will not de- 
 termine, 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 allowances. 1 
 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) 
 
 It is of course incumbent on trustees to keep a regular account of 
 their payments, in order that the amount may be allowed them. 2 How- 
 ever, in an early case, where a trustee had incurred large expenses 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 2500Z. to cover 
 these expenses, the court, under these circumstances, allowed him 2000?. 
 although it was of opinion, that he might have well deserved the whole 
 2,500Z.(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 per- 
 formance of the trust. And this remedy may be enforced by a suit in 
 equity.^) 
 
 (m) Brocksopp v. Barnes, 5 Mad. 90. (n) Marshall v. Holloway, 2 Sw..453. 
 
 (o) Marshall v. Holloway, ubi supra ; see Brown v..De Tastet, Jae. 284. 
 
 (v) Morison v. Morison, 4 M. & Cr. 216. 
 
 (q) Brocksopp v. Barnes, 5 Mad. 90. (r) 2 Dan. Ch. Pr. 887. 
 
 (*) Hethersell v. Hales, 2 Ch. Rep. 158. \t) See Balsh v. Higham, 2 P. Wms. 453. 
 
 1 Though the usual course in a suit by a cestui que trust against his trustee, for an 
 account of the trust fund, is to order a reference, yet such a reference will not be 
 ordered, where it satisfactorily appears on the hearing that there is nothing due. Nail 
 v. Martin, 4 Ired. Eq. 159. 
 
 2 See ante, 570, note. 
 
OF THE DISCHARGE OF TRUSTEES. 863 
 
 "CHAPTER VI. [*579] 
 
 OF THE DISCHARGE AND RELEASE OF TRUSTEES. 
 
 The last subject for our consideration naturally is — the termination of 
 the office 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 lia- 
 bilities. 
 
 There seems 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 termination 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 been already considered, the reconveyance or 
 surrender of a dry legal estate, which has remained unnoticed in a trustee 
 after the determination of the trusts, will be presumed in aid of the title 
 after a sufficient lapse of time.(6) n 
 
 {a) Goodson v. Ellisson, 3 Buss. 593 ; Holford v. Phipps, 3 Beav. 434 ; [ante, p. 229, 
 &c; 236, 278, 279, and notes; Tavenner v. Eobinson, 2 Rob. Va. 280.] 
 (6) Ante, Pt. II, Ch. II, Sect. 4 ; [p. 253, &c, and notes.] 
 
 1 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 convey- 
 ance 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. So a release by 
 the trustee, under an assignment for creditors, to the assignors, puts an end to the trust, 
 and the trustee cannot afterwards sell. Huckabee v. Billingsly, 16 Alab. 414. Where 
 a trustee's powers are denned, he can make no other disposition of the property than 
 such as is directed by the trust. A trustee for the payment of a debt, which has been 
 satisfied from another source than the trust property, cannot divest himself of the trust, 
 otherwise than by a surrender or reconveyance to the grantor or his legal representa- 
 tives, where the property is personalty. If the grantor be dead before an administrator 
 is appointed, the equitable title is in abeyance, and is not the subject of levy and sale. 
 Hence, the trustee under such circumstances cannot put an end to the trust by sur- 
 rendering the property to the sheriff on an execution against the grantor, after his death 
 and before administration taken out. Richardson v. Cole, 2 Swan. 100. 
 
 A trustee of a mortgage, after the trusts were at an end, executed a reconveyance, 
 
864 OF THE DISCHARGE AND 
 
 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.(e) 
 
 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 essen- 
 tial 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 appoint- 
 ment of another in his place, under a power contained in the trust instru- 
 ment. The appointment of new trustees under a power is a subject 
 which has been already considered at some length in a previous chap- 
 tered) and it is unnecessary to pursue it further on the present occasion. 
 r*K n *The death of one of several co-trustees also operates as a 
 L J discharge from the trust. We have already seen that the whole 
 trust estate, with its attendant powers and duties, will pass to the sur- 
 viving 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 any future responsibility respecting the trust, although, until pro- 
 perly released, it will remain liable for post 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 of the trust. 
 This is a subject which has undergone discussion in a previous chap- 
 ter.(/) The effect of a decree of the court, in releasing a trustee from 
 liability for fast transactions, will be presently considered. 
 
 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 retrospective 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 ob- 
 
 (c) Vide post, [p. 580.] 
 
 (d) Ante, Pt. I, Div. Ill, Chap. I, [p. 175.] (e) Ante, [p. 303.] 
 (/) Ante, Pt. I, Div. Ill, Chap. II, [p. 190.] 
 
 the mortgage debt being paid off, but the money was actually received by the executor 
 of the cestui que trust who was absolutely entitled. It was held that the trustee was not 
 liable for a misapplication of the money by the executor. Waugh v. Wyche, 23 L. J. 
 Ch. 833. 
 
RELEASE OP TRUSTEES. 865 
 
 served in the preparation and execution of the release, it may be safely 
 affirmed, that such a release will secure the trustees from any further 
 molestation or question respecting 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 trus- 
 tee cannot refuse to make a conveyance or transfer, until a general 
 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 con- 
 ditions ; a,nd upon the refusal of the trustees to pay the money without 
 such a release, she was justified in taking proceedings to obtain pay- 
 ment. (g)(1) 1 
 
 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 pro- 
 priety of *the conveyance or transfer by the trustee, he will r,.,^-, 
 doubtless be justified in requiring a sufficient 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 de- 
 cision of the Court of Chancery. (A) But it would doubtless be consi- 
 dered 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 pro- 
 perty to other trustees, upon trusts subsequently created by the act of 
 the cestui que trusts, and in such cases the old trustees are naturally 
 
 (g) Fulton v. Gilmour, Rolls, 15th Feb., 1845. MS. [8 Beav. 154.] 
 (h) See Goodson v. Ellisson, 3 Russ. 583. 
 
 (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 will 
 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 
 lull of all demands, in respect of the estate of which the defendant is executor and trus- 
 tee, 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 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-Chancellor KinderslSy, that the trustee might 
 lawfully insist on a release under seal : King v. Mullin, 1 Drewry, 308. 
 
 55 
 
OF THE DISCHARGE AND 
 
 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 trustees 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 ac- 
 counts reaching over a period anterior to the commencement of their 
 interests in the property. 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 advantage of his in- 
 fluence, 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. (Jc) Thus in Wedderburn v. Wedderburn, (Z) an 
 infant cestui que trust, on the third day after his coming of age, exequted 
 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 circumstances the release, although most 
 ample and conclusive in its terms, was held not to be binding on the 
 infant. (I) 
 
 It has been already stated, [m) 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.(n) And it would unquestionably be vitiated by 
 any concealment, or withholding of information, or other fraudulent con- 
 duct, on the part of the trustee. (0) 
 
 Therefore, a fujl statement of all the accounts and other transactions 
 of the trustee should unquestionably be furnished to the cestui que trusts, 
 together with all the information requisite for explaining and under- 
 standing them. And it is peculiarly desirable, that those and all the 
 
 (i) A release by an infant is merely void. Overton v. Banister, 8 Jurist, 996 ; S. C, 
 3 Hare, 503. [But see as to fraud on the part of the infant, ante, p. 144, note (1).] 
 
 (k) Walker v. Symonds, 2 Sw. 69. (1) "Wedderburn v. "Wedderburn, 4 M. & Or. 50. 
 
 (l) "Wedderburn v. "Wedderburn, 4 M. &. Cr. 50. 
 
 (m) Ante, p. 525, and notes. [Discharge of Breach of Trust.] 
 
 \n) 3 Sw. 68 ; Wedderburn v. Wedderburn, 2 Keen, T22 ; S. C. 4 M. & Cr. 41 ; see 
 Charter v. Trevelyan, Dom. Proc. 8 Jurist, 1015; [1 H. L. Cas. 714.] 
 
 (o) Walker v. Symonds, 3 Sw. 13 ; Wedderburn v. Wedderburn, ubi supra. 
 
RELEASE OF TRUSTEES. 867 
 
 other material *facts should be distinctly stated or referred to in r*cooi 
 the instrument itself ;(p) and this precaution should more espe- 
 cially be observed, wherever the release is intended to apply to any 
 transaction which amounts to a breach of trust, (q) 
 
 Again, although the accounts are clearly stated or referred to on the 
 face of the release, which is founded on the result of those accounts, 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, who credited themselves with the amount of 
 that valuation, and thus became themselves the purchasers of the testa- 
 tor'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 depended on the account, was not binding on him.(j') 
 
 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 the pro- 
 perty, or of some of the transactions of the trustees respecting the estate, 
 the cestui que trust will not be precluded from advancing claims not in- 
 cluded in the releasees) 
 
 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 trustees. 1 
 
 A release, taken without the observance of all the preliminary circum- 
 stances and precautions above stated, cannot be relied upon by a trustee 
 as a discharge from the claims of the cestui que trusts. 2 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, notwithstanding the exe- 
 cution 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 deliberation, 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 circumstances, or considerable 
 
 (p) See Wedderburn v. Wedderburn, 4 M. & Cr. 41, 50. 
 
 (g) Walker v. Symonds, 3 Sw. 69 ; ante, p. 525. [Discharge of Breach of Trust.] 
 
 (r) Wedderburn v. Wedderburn, 4 M. & Cr. 41, 49. 
 
 (a) 2 Keen, 740 ; 4 M. & Cr. 48. 
 
 (0 2 Keen, 742 ; 4 M. & Cr. 41 ; ante, p. 527. [Discharge of Breach of Trust.] 
 
 1 See ante, p. 575, note (1), ad fin. ! See ante, p. 525, note. 
 
868 OF THE DISCHARGE AND 
 
 errors, must be shown to exist, in order to induce the court to inter- 
 fere, (m) 
 
 And a deed of release properly executed is prima facie valid and 
 binding on the parties executing it, and it will rest with them to esta- 
 blish in evidence the facts upon which it may be set aside ; especially 
 where many years have been suffered to elapse without questioning its 
 validity.(a;) 
 
 It has been already stated,(y) 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 cestui 
 L J que trust as against his co-trustee, and to claim from him the 
 amount which he has been thus compelled to pay. If, therefore, the 
 cestui que trust, with full knowledge of all the circumstances, and of the 
 relative rights and liabilities of himself and the trustees, makes a compro- 
 mise or release of his claim against the defaulting 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) The case is very analogous to that of 
 a creditor who releases a surety by making a compromise with the prin- 
 cipal 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 explanation 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 acquies- 
 cence or delay on the part of the cestui que trust will preclude him from 
 bringing forward a claim against the trustee for past acts of mal-adminis- 
 tration, 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 conceived that a very few years would suffice to 
 protect the trustee ; and probably six years, from analogy to the statu- 
 tory 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 
 
 («) Re Sherwood, 3 Beav. 338 ; see Portloek v. Gardner, 1 Hare, 594 ; and see Mil- 
 lar v. Craig, 6 Beav. 433. 
 
 (x) Portloek v. Gardner, 1 Hare, 594. [y) Ante, p. 306. 
 
 (z) See Walker v. Syinonds, 1 Sw. 1, 77. 
 
 (a) See Wedderburn v. Wedderburn, 2 Keen, 722, 749 ; 4 H. & Cr. 52. 
 
RELEASE OF TRUSTEES. 869 
 
 period of acquiescence in suet cases will commence only from the time 
 when the party is made acquainted with his rights.(S) The actual num- 
 ber 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 particular 
 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) 1 
 
 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 discharging him 
 from the trust duly obtained in a suit, to which all 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?) a 
 
 *From what has been already said in considering the effect of r^roA-i 
 a release from the cestui que trusts, it will have been seen that *- ■* 
 such an instrument (however apparently ample and conclusive), 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 circum- 
 stances 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 recognize the right of trus- 
 tees to place themselves under its guidance and protection ;(/) and that 
 they will be allowed the costs of a suit instituted by them for that pur- 
 pose. (?) 
 
 (6) Ante, Pt. I, Div. II, Ch. II, Sect. 1 ; and Ch. I, Sect. 3, of this Division ; March 
 v. Russell, 3 M. & Cr. 31, 42 ; Wedderburn v. Wedderburn, 2 Keen, 722 ; S. C. 4 M. 
 & Cr. 41, 50. 
 
 (c) Ante, Pt. I, Div. II, Ch. II, Sect. 1 ; and Ch. I, Sect. 3, of this Division. 
 
 [d) Knatchbull v. Fearnhead, 3 M. & Cr. 122 ; Low v. Carter, 1 Beav. 426. 
 («) See Wedderburn v. Wedderburn, 2 Keen, 722 ; 4 M. & Cr. 41. 
 
 (/) Ante, p. 543, notes, Ch. IV, Sect. 1, this Division ; Coventry v. Coventry, 1 Keen, 
 758 ; Greenwood v. Wakeford, 1 Beav. 576. 
 (g) Low v. Carter, 1 Beav. 426. [Ante, pp. 543, 568, and notes.] 
 
 ] See ante, 168, 169, notes. 2 See Moore's App.,10 Barr, 435. 
 
INDEX. 
 
 [N. B. THE REFERENCES ARE TO THE STAB PACING IK 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 t 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 — Mis- 
 take/] 
 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 for charities. 
 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 Thelluson 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 — Limi- 
 tation, 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. 
 
872 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 Executor.] 
 
 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. Quaere? 99. 
 purchase in names of father and son as tenants in common will be, ib. 
 or purchase of copyholds innames 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 in the name of a child of one of them, ib. 
 whether good against the then creditors of a purchaser. Qucere ? 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. 
 effect 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 maintenance, 
 
 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 followed, 
 
 399. 
 whether given out of capital, where the fund is limited 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 nominating, ib. 
 
 trust of, for 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. 
 
 rights 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 all the 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 
 AGENT : 
 
 not a trustee within the scope of this work, 41. 
 
 gifts to, from his principal, raise a constructive trust. When ? 160, 161. 
 
 notice of a trust to, binds the principal, 165. 
 
INDEX. 873 
 
 AGENT.— Continued. 
 
 trustees for payment of debts must not commit the execution of the trust to, exclu- 
 sively, 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, 4T. 
 
 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 expression will create such a restriction. [See Married Woman.] id., 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, 511. 
 expenses of management of estate, ib. 
 payments under legal advice, 572. 
 payments out of pocket, when properly 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. 
 Quaere? [See Estate, Duration op.] 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 Conversion.] 386. 
 apportionment of, on death of tenant for life, under 4 & 5 Will. IV, c. 22 ; 394. 
 
 ANSWER: • 
 
 admission of trust by, sufficient to satisfy Statute of Frauds, 60. 
 trustee who 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 seve- 
 rance, 553. 
 
874 INDEX. 
 
 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 annuities, &c, 
 
 429. 
 liability of trustees for suffering rents to fall into arrear, ib. 
 power of trustees to release, ib. 
 
 ASSETS : 
 
 not 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 pay- 
 ment of debts, 358. 
 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 trustee to 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 entitled himself by express contract, 576. 
 
 difficulty of supporting such a contract, ib. 
 
 ATTORNEY, POWER OP: 
 
 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, 173. 
 
 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-proprie- 
 tors, 445. 
 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. 
 
 checks 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 of final discharge, 53. 
 
 trustee who becomes, is unfit to act within the usual power of appointing new trus- 
 tees, 179. 
 
 jurisdiction of the court to appoint new trustee in place of a bankrupt trustee, now 
 exercised by Court of Review, 192. 
 
 may be exercised on petition. [See New Trustees, Appointment of.] 199, 
 200. 
 
INDEX. 875 
 
 BANKRUPT AND INSOLVENT.— Continued. 
 
 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 trus- 
 tee 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 may be set off against costs to which he is 
 entitled, 533. 
 
 how far a debt by breach of trust discharged by bankruptcy or insolvency of trus- 
 tee, 530. 
 
 liability of a trustee to bankruptcy, who trades with the trust assets, 534. 
 
 effect 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 OP TRUST : 
 the remedies for, 518. 
 
 extent 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. 
 account decreed with interest. [See Interest.] 523. 
 at what rate? ib. 
 compound interest. When ? 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 Removal— 
 „ 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. 
 
876 INDEX. 
 
 BREACH OF TRUST.— Continued. 
 
 recovering on a bond given by trustee for the performance of the trust, is not 
 a discharge of, 528. 
 
 waiver of relief against, by cestui que trust, from his abstaining to bring for- 
 ward 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 may be, 51, 2. 
 
 CHANCERY— COURT OP : [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, 128, 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. 
 girt 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. 
 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 cypres, 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. 
 
INDEX. 877 
 
 CH ARIT Y.— Continued. 
 
 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 Advancement 
 
 — Resulting trust.] 97. 
 gifts or sales by, to parent, raise a constructive trust. When ? [See Fraud.] 157. 
 
 CHOSE IN ACTION : 
 
 may be 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. 
 
 COMPROMISE : 
 
 trustees have no general power to make, of claims, 344. 
 CONCEALMENT : 
 
 effects of, in converting a person taking under an instrument into a constructive 
 trustee. [See Fraud.] 148. 
 
 CONCURRENCE : 
 
 of cestui que trust in a breach of trust by trustee, a bar to his right to relief, 526. 
 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 Marriage.] 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 Trust.] 112. 
 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 trustee, 171. 
 executor, who is indebted to his testator, ib. 
 
878 INDEX. 
 
 CONSTRUCTIVE TRUST.— Continued. 
 
 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 a fee to trustees to preserve, restricted to an estate pur autre vie, 240. 
 
 devise to trustees to preserve', without any words of limitation, gives them an estate 
 
 pur 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 ? ibl 
 no conversion of property where the trusts fail by lapse or otherwise, 142. 
 secus, if testator's intention is to effect 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, 386. 
 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, 395. 
 
 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 immedi- 
 ate 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, 289. 
 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. 
 
INDEX. 
 
 879 
 
 CONVEYANCE.— Continued. 
 
 as to covenants for title by trustees in, 281. 
 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— Luna- 
 tic] 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. 
 
 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 trustee 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 petition, 301, 568. 
 of investing trust-moneys, how to be paid, 383. 
 of raising portions, 368. 
 
 trustee who disclaims, has his costs only as between party and party, 547. 
 liability of trustees to, in suits with strangers, 551. 
 
 entitled to their costs only as between party and party in such suits, ib. 566. 
 
 extra costs, how recovered by the trustees, 552, 567. 
 right of trustees to, in suits by cestui que trusts, 552. 
 
880 INDEX. 
 
 COSTS.— Continued. 
 
 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 unsucessful 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 suit 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 party 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. 
 
 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 ^cepted 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 checks 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, 310, 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 receives part of the trust-money, liable for the whole, 313. 
 
 liability of one, who acts on false representations of co-trustees, ib. 
 
 where they 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. 
 
INDEX. 881 
 
 \ 
 CO-TRUSTEES.— Continued. 
 
 liability of, for the other's acts discharged by acquiescence of cestui que trust, 
 314. 
 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. 
 
 trustees 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 title in cestui que trust, 65. 
 direct fiduciary expressions requisite for the, ib. 
 
 what expressions will be sufficient, ib. 6,6. 
 by the effect of precatory words. [See Precatory Words.] VI. 
 by voluntary dispositftn. [See Voluntary Creation of Trust.] 82. 
 by implication or construction of law. [See Resulting Trust, and Constructive 
 
 Trust.] 91. 
 by substitution in the place of those already created. [See New Trustees.] 190. 
 CREDITORS: 
 
 voluntary conveyance in trust for, how far binding, 82. 
 
 transaction between one, and the debtor in fraud of the'other creditors, raises a con- 
 structive trust. [See Fraud.] 163. 
 constructive trust in favor of, not barred by acquiescence, 168. 
 trust deeds for benefit of. [See Debts.] 336. 
 may be trustees under a deed for payment of grantor's debts, 343. 
 doctrine of election does not apply to, 349. 
 
 by specialty have no preference over those by 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 cypres, 333. 
 
 trusts for charity executed cypres. When ? 462. 
 
 D. 
 
 DEBTS : [See Chose in Action — Creditor.] 
 
 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. QucereP '242. 
 proof of, by one of several co-trustees, 308. 
 trust deed for the payment of, when binding on all parties, 336. 
 not within Stat, of Fraudulent Devises, ib. n. 
 
 56 
 
882 INDEX. 
 
 DEBTS.— Continued. _ _ 
 
 trust deed, not within stat. 13 Bliz. 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 payments 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. 
 effects 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 payment of, created by will, 344. 
 
 can only be treated as to real estate, ib. 
 real estate charged with debts by a general direction for their payment. When 1 
 
 ib. 344. 
 a charge so created, rebutted. When ? 345. 
 
 effect of devisees of the realty being also appointed executors, 347. 
 1 effect of a particular part of the realty being expressly charged, 346. 
 devises for the 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 estates primarily liable notwithstanding a trust for payment of, out of real 
 estate, 350. 
 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 personably 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, 358. 
 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. 
 
INDEX. 888 
 
 DEEDS : [See Title-Deeds.] 
 
 made through mistake or ignorance, relieved against. When ? 149. _ 
 
 persons fraudulently preventing the execution of, will be constructive trustees. 
 
 [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 must be 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 OP A TRUST : 
 
 disability of trustees to make, 175, 540. 
 
 where the delegation is made by devise in a will, 541. 
 
 DEVISE : 
 
 effects 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. Qucere ? 
 
 284. 
 whether personal estate held in trust will pass by a general gift, 287. 
 whether trustees may delegate a subsisting trust by devise. Qumre ? 283 n., 473, 
 
 541. 
 
 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 — Lunatic — 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 Removal.] 
 
 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 feme coverie trustee may disclaim by deed. Qicceref 223. 
 how it may be 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. 
 
#84 INDEX. 
 
 DISCLAIMER.— Continued. 
 
 a deed-poll the proper mode of making 1 , 224. 
 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. 
 secus, 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. 
 
 unless there is mala fides, ib. 
 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 — Securities- 
 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 a person 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. 
 
INDEX. 885 
 
 ESCHEAT.— Continued. 
 
 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 personalty as 
 
 against the heir, 271. 
 though the estate has been actually converted, the crown will not take, ib. 
 
 ESTATE OP 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 uses, ib. 
 3d, by construction, in order to tfie due performance of the trusts. [See Legal 
 
 Estate.] 231. 
 extent and duration of, when created by will, 239. 
 
 duration of trustee's estate coextensive 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. 
 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. 
 
 where 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 will not prevent the restriction 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, administrators, 
 and assigus, ib. 
 whether a devise to trustees without words of limitation, trust to pay 
 
 debts, &c, passes a fee or a chattel interest. Qucere ? 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, followed 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 constructively re- 
 stricted to a smaller interest. Qucere f 248. 
 whether an estate given them without words of limitation, may be enlarged. 
 
 Quaere? 251. 
 a partial estate expressly given cannot be enlarged. Semble, ib. 
 reconveyance or surrender of, presumed. When ? [See Reconveyance — Sur- 
 render — 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. 
 
8SB INDEX. 
 
 ESTATE OP TRUSTEES.— Continued. 
 
 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. 
 not 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, Disability.] 287. 
 of the legal devolution of, 303. 
 
 on death of sole or last surviving, devolves on heir or personal representative, 
 ib. 
 EVIDENCE : [See Parol Evidence.] 
 
 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. 
 1 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 him a trustee of residue undisposed of, 
 
 123. 
 secus, if the residue were expressly given to him, ib. 
 effect of 1 Will. IV, c. 40, on the claim of, to residue undisposed of, ib. 
 purchaser from, with knowledge of its being a devastavit, affected with a construc- 
 tive 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, ibi 
 
 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 unteehnical 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. 
 
INDEX. 887 
 
 FATHER: [See Parent.] 
 
 FELON : [See Attainder — Escheat — Forfeiture.] 
 
 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. 
 
 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 conveyance 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 estate 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 op.] 
 
 parol trust of land established in case of. [See Parol Trust.] 59. 
 parol evidence admissible to prove trust in cases of, 60. 
 effect of, in creating a constructive trust, 144. 
 four classes of, 145. j 
 
 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 ignorance, 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, 147. 
 
 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. Quaret 
 
 149. 
 conveyance to bona fide purchaser not set aside for_mistake 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.J 153. 
 purchases of reversions generally. Quceref [See Reversion.] ib. 
 
888 INDEX. 
 
 FRAUD. — Continued. 
 
 3d, fraud arising from the circumstances and condition of the contracting parties, 
 153. 
 transactions with persons non compotes mentis, 154. 
 or with persons of weak intellect, ib. 
 
 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. J ib. 
 conveyances by a woman on point of marriage. [See Husband.] ib. 
 transactions contrary to law or public policy, 1 64. 
 
 terms on which relief is granted, ib. 
 gifts upon a secret trust for illegal purposes, ib. 
 purchases from a trustee with notice of a 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 against a claim, ib. 168. 
 delay in prosecuting a claim founded on, not favored. [See Acquiescence — 
 
 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, 6>1. 
 
 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, 42& 
 
 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. 
 
odex. 889 
 
 FUNDS: 
 
 investment in. [See Investment — Stock.] 376. 
 
 G. 
 
 GUARDIAN. [See Infant— Ward.] 
 
 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, 142. 
 
 unless it be testator's intention to effect an absolute conversion. [See Conver- 
 sion — 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 ; 205, 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 funds ,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 reduction, 
 
 416. 
 nor an assignment for valuable consideration of reversionary interests, ib. 
 effect of assignment for valuable consideration of interests not reversionary, 
 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 children, 
 418. 
 effect of a decree for a settlement 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. 
 
890 INDEX. 
 
 HUSBAND.— Continued. 
 
 disposition by wife of separate estate in his favor, good, 425. 
 payment by trustees of wife's income to Mm, 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 — Mistake.] 
 149. 
 
 ILLEGAL PURPOSE : 
 
 trust 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 be sufficient 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 right to require an, when requested to convey, 580, 581. 
 
 clause of, in deeds of trust, 314, 528. 
 
 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 op.1 
 
 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 Will. 
 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. 
 
 Qucere f 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 fuud 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. 
 
 except for necessaries. Semble, 399. 
 power of trustees to make advancements for. [See Advancement.] ib. 
 
INDEX. 891 
 
 / 
 
 INFANT.— Continued. 
 
 power 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 improvements, 
 404. 
 duty of trustees for, to accumulate income. [See Accumulation.] 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 Fraud,] 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 trusts 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 soy ib. 
 
 three per cents, the proper investment, ib. 
 
 whether real securities are proper. Quaere ? 377. 
 
 purchase of land improper, unless specially authorized, ib. 
 
 investment on leaseholds improper, 378. 
 
 or in South Sea, Bank, or India stock, ib. 
 
 or in canal or railway 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. 
 
 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. 
 
892 INDEX. 
 
 INVESTMENT.— Continued. 
 
 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 trustee to give information as to the investments, ib. 
 
 IRELAND : 
 
 effect of 4 & 5 Will. IV, c. 29, authorizing investment on real securities in, 370. 
 
 J. 
 
 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, 150. 
 appointment of new trustees in place of one out of the, 202. 
 
 who considered 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 Resulting Trust.] 134. 
 
 LEASE : 
 
 a trust to, gives trustees the legal estate, 232. 
 
 secus a mere power to lease, ib. 
 a devise in trust to, requires the legal fee to be invested in the trustees, 242. 
 a devise in trust to lease, without any words of limitation, enlarged to a fee, ib. 
 power of trustee 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 term to be granted, ib. 
 
 leases for lives when supported, ib. 464. 
 
 or for long term of years, or in reversion, or with covenants for renewal, 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 must 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. 
 
 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 lifev Duties of trustees to convert. [See Conversion.] 386, 
 
 437. 
 trustees of, how far liable for rents and covenants, 432. 
 
INDEX. 
 
 893 
 
 LEASEHOLDS.— Continued. 
 
 duty of trustee to renew, where there is no express trust to do so, 432. 
 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. Quaere f ib. 436. 
 by insuring lives of cestui que vie, 436. 
 relative liabilities of cestui que trusts, for life and in remainder to contribute 
 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 the payment of. When 1 363. 
 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. 
 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 Reconvey- 
 ance.] 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 pok Life.] 
 
 LIMITATION, STATUTES OP: [See Delay— Time.] 
 
 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. 
 
894 INDEX. 
 
 LIMITATION, STATUTES OF -.—Continued. 
 their application to constructive trusts, 265. 
 
 cestui que trust 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, 319, 504. 
 trust in a deed or will for payment of debts prevents, from running, how far? 
 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, 511. 
 
 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. 
 right 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, Quaere, 402. 
 
 payments by a trustee for, of infant without an express power when allowed, ib. 
 
 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 td ascertain the propriety of allowing, 402. 
 
 MAJORITY : [See Co-Trustees.] 
 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. 
 
INDEX. 
 
 895 
 
 MARRIAGE— Continued. 
 
 proof of, unnecessary in a suit by a feme to obtain a conveyance from the trustee 
 of ber 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 sufficient 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. Quaere? 223. 
 
 conveyance by a trustee, how to be executed, 287, 296. 
 
 her trust estate vests iu 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. 
 
 where property under value of 2002., or 102. 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. 
 
 exceptions to that rule, 412. 
 equitable right of, to a settlement not applied to foreigners, ib. 
 husband entitled to her income, though he refuses to make a settlement, 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 coverture, ib. 
 effect of a decree for a settlement upon her title to take by survivorship, 418. 
 nature and effeet 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. 
 
896 INDEX. 
 
 MARRIED WOMEN.— Continued. 
 
 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 followed, 
 • 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 a trustee, ib. 
 trustees need not join in a disposition by her, separate estate, 425. 
 disposition by her in favor of her husband,^ood, ib. 
 
 payment by trustees of her separate income to her husband, how far good, 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 Fraud.] 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 constructive 
 trustee. [See Fraud.] 146. 
 MISTAKE : 
 
 instruments executed through, relieved against. When ? 148. 
 
 where of law and not of fact. Qucere f [See Deeds — Fraud — Ignorance.] 
 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 sufficient interest to redeem, 277. 
 
 trust to invest in, how to be executed, 368. 
 
 whether investment in, is proper without a special authority. Qucere ? 377. 
 
 when it \s 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, 
 
 objects to be regarded in framing it, ib. 
 
INDEX. 
 
 897 
 
 NEW TRUSTEES.— Continued. 
 
 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 other trustee, 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 maybe appointed in the place of a large 
 
 number. Quaere t 1801 
 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 num- 
 ber, 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. 
 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 trus- 
 tees, 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, c. 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 apppintment of new trustees, ib. 195. 
 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. 
 
 57 
 
898 INDEX. 
 
 NEW TRUSTEES.— Continued. 
 
 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 proceeding 
 in that case, ib. 
 
 II. On infancy of existing trustee, 201. 
 
 extent and application of the act, and the mode of proceeding 
 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 stated 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 proceeding 
 by petition under it in these cases. [See Petition.] ib. 
 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. 
 QuazretlU. 
 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 OP KIN : 
 
 no conversion as between, and heir-at-law claiming by resulting trust. [See Con- 
 version — 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 without 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. 
 
INDEX. 899 
 
 OUTLAW: 
 
 may create a trustee. How far ? 47. 
 
 P. 
 
 PATENT : 
 
 purchase by, in name of a child on advancement. When? [See Advancement — 
 
 Resulting Trust.] 97. 
 gifts to, 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 Advow- 
 son.] 442. 
 
 PARLIAMENT, ACT OP : 
 
 jurisdiction of Court of Chancery over trustees created by, 61. 
 trustees created by, removed by tbe 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 pur- 
 chases. Quaere? 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. 
 admissible in favor of the grantee to rebut the trust, 113. 
 in cases of gifts upon trusts, which are ineffectually declared, 
 
 admissible to support the beneficial claim of the trustee in opposition to a re- 
 sulting 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 resulting trust, ib. 
 contemporaneous 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 tbe 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. nr 
 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. 
 
900 INDEX. 
 
 PAROL TRUST.— Continued. 
 
 what may be the subject of a parol {rust, 55. 
 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. 
 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 sufficient proof to satisfy the Statute of Frauds. [See Frauds, Sta- 
 tute 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 an allowance for carrying on the 
 
 business, 574. 
 must not continue to employ the trust assets in the business without a special autho- 
 rity, 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 — Conversion- 
 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.] 
 
INDEX. 901 
 
 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. i 
 
 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. 
 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? 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. Quaere f ib. 
 distinction, where the donee of the power takes an absolute estate, and where 
 only a partial beneficial 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. 
 a 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. 
 not enforced as a 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 Reconveyance*] 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 ? [See Re- 
 sulting 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 acquiescence, 
 ib. 539. 
 
902 INDEX. 
 
 PURCHASE.— Continued. 
 
 terms on which the purchase will be set aside, 538, 539. 
 allowance to the trustees for repairs and improvements, ib. 
 
 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 sufficient 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 justice of 
 the peace, or to shoot game, &c, 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 must 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 sufficient reason itself, ib. 
 
 secus, when joined with other circumstances, 257. 
 
 what other circumstances sufficient for that purpose, ib. 258. 
 
 reconveyance of the/ee, 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. 903 
 
 RECONVEYANCE.— Continued. 
 
 whether omission to notice a term is a sufficient reason for presuming its 
 surrender. Quaere? [See Surrender.] 261. 
 3d, it must be in favor of a just title, 262. 
 
 in whose 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 que trust, requisite 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 a 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 copy- 
 holds and renewal of leaseholds, 436. 
 not prejudiced by acquiescence in a breach of trust, 266. 
 
 REMOVAL : 
 of trustees, 
 
 decree 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: 
 
 trusts 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, c. 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 layout money in, 429, 571. 
 trusts 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. 
 
 RESIGNATION OP THE TRUST : 
 
 not permitted in general without sufficient reason, 554. 
 Quaere f where there is a power to appoint new trustees, ib. 
 
904 INDEX. 
 
 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 purchases by partners, ib. 
 exception, in cases 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 nominee, ib. 
 where the purchase will be an advancement, and not a trust for the purchaser* 
 [See Advancement.] ib. 
 
 II. Where there is a voluntary conveyance without any trusts declared. [Se9 
 Voluntary Conveyance.] 106. 
 
 III. Where there is a 'disposition of property upon trusts, which are not declared, 
 or are only partially declared, or fail, 113. 
 
 1. Where the trusts are not declared, 114. 
 
 or referred to, as thereafter declared, and no declaration is made, ib. 
 
 2. Where the trusts are ineffectually 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 residue 
 
 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 resulting 
 
 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 resulting trust. [See Conversion.] 127. 
 exception to general doctrine of resulting trusts in cases of charity. [See 
 Charity.] 128. 
 
 4. Where the trusts declared are void or lapse, 134. 
 
 trusts in remainder not accelerated by failure of preceding ones, 135. 
 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 bequest, ib. 
 
 unless the residuary gift itself fail, ib. 
 secus as to real estate before 1 Vict. c. 26 ; 1 36. 
 
 distinction between residuary gifts of real and personal estate abolished by 
 that act, ib. 
 
INDEX. 905 
 
 RESULTING TRUST.— Continued. 
 
 resulting trust excluded by a substitutionary gift, 136. 
 
 whether a charge that fails will result, or sink for the benefit of the donee, 
 
 it- 
 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 resulting trust 
 
 on failure or lapse of the particular trust. [See Conversion— Heir — 
 
 Next op 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 trustees 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 of rents and profits, 355, 366. 
 power of, given to trustees. 
 
 may be 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. Qucere? 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 contemplation, ib. 
 
 whether power exercisable after the determination of the trusts, ib. 
 
 where the trust is determined as to part of the estate, ib. 
 unlimited power of sale how far valid, 475. 
 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. 
 
906 INDEX. 
 
 SALE. — Continued. 
 
 how the power is to be executed, 478. 
 
 prescribed forms must be observed, ib. 
 
 effect of conditional powers of sale, and their impolicy, 4T9. 
 
 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 affected 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? ib. 
 covenant by trustees to indemnify husband from wife's debts, how far requi- 
 site, 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. 
 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. Qucere? 49. 
 in cases of escheated trust property, 50. 
 in other cases. Qucere? 51. 
 may be 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 for- 
 feiture of cestui que trust, 271. 
 
INDEX. 907 
 
 SOVEREIGN, THE.— Continued. 
 
 but cannot call for, or benefit by, the conversion of real estate into personalty, 
 271. 
 
 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 concurrence 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? 445. 
 
 remedy on incapacity or refusal of trustees to transfer or pay dividends, ib. 
 effect of reduction by act of Parliament of, held in trust, ib. 
 
 allowance to trustees ijf brokerage on transfer of, 446. 
 STRANGERS : 
 
 whether a power enforced as a trust in favor of. Quceref 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. 
 
 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. 
 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, 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. 
 
908 INDEX. 
 
 SURRENDER: 
 
 of a term assigned to attend, whether it will be presumed. Qu.ce.re t [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. Qwzre? 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. 
 
 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 securi- 
 ties. [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, quw ipso usu consumuntur, 
 
 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. Quceref 256. 
 effect of omission to notice, for a long period, 258. 
 
 no distinction between one expressly assigned to attend, and one at- 
 tended 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. 
 
INDEX. 909 
 
 TERM.— Continued. 
 
 becomes attendant either by express declaration, or by construction of law, 324. 
 
 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 — Acquiescence — Limitation, Statutes op.] 
 
 when a sufficient reason for presuming a reconveyance by a trustee. [See Recon- 
 veyance — 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 disability, 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. 
 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. 
 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. 
 
 restricted 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 of 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. 
 
910 INDEX. 
 
 TRUSTEE.— Continued. 
 
 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 tru$t. [See At- 
 tainder — 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 — Posses- 
 sion.] 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 used iu actions respecting the title at law, 317. 
 
 may purchase the trust estate, 158, 317, 493. 
 
 cannot traverse an inquisition, 275. 
 
 may be receiver or consignee of trust estate, 539. 
 
 has no right to possession of title-deeds, 271, 428 
 
 TRUSTEE CO-: [See Co-Trustee.] 
 TRUSTEE INDEMNITY CLAUSE, 315, 528. 
 TRUSTEE, NEW : [See New Trustee.] 
 
 u. 
 
 USE : [See Estate — Legal Estate — Trust.] 
 
 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 limitations im- 
 material 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. Quaere t 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 part of the 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, 
 
INDEX. 911 
 
 VOLUNTARY TRUST.— Continued. 
 
 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. 
 
 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 iu 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. 
 
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 We annex a specimen of the Index. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 I. Form and obligation generally. X. Protest. 
 
 (a) What is a Bill of Exchange. XI. Notice of dishonour. 
 
 (6) What is. a Promissory Note. (a) Notice by any party accrues 
 
 (c) Place of making. to benefit of all. 
 
 (d) Place for payment. lb) Who entitled to notice. 
 
 («) Parties to. (c) Due diligence in giving 
 
 * (/) Other matters relating to. notice. 
 
 II. Alteration of. (d) Manner of giving notice. 
 
 HI. The stamp. (e) Form of notice. 
 
 IV. The acceptance. (/) Proof of notice of dishonour. 
 
 V. Presentment for acceptance. (g) Want of notice, how excused. 
 VT. Acceptance supra protest. XII. Bankers. 
 
 VII. Transfer. (a) Liability, where taking lost 
 
 VIII. Presentment for payment. or stolen note. 
 
 la), Generally. (6) Payment of forged bill or 
 
 (6) Time within which Bills, check. 
 
 Notes, and Checks, must (c) Payment of checks and bills, 
 
 be presented. (d) Liability and duty in other 
 
 (c) Place at which presentment respects. 
 
 must be made. (e) Lien of bankers. 
 
 {d) The hours within which pre- (/) Interest. 
 
 sentment for payment (</) Appropriation of bills or 
 
 should be made. notes. 
 
 (e) Days of grace. (h) Other matters. 
 IX. Payment. XTII. Consideration. 
 
 la) Restrictive indorsement. (a) Illegal consideration. 
 
 (6) Notice of application of bill (5) Want of consideration gene 
 to a particular account. rally. 
 
 (c) Payment for honour. (c) Accommodation paper. 
 
 (d) Evidence of payment. (d) Proof of consideration. 
 
BILLS OP EXCHANGE, I. (a), (J). 
 
 (e) Pleadings. (/) Trover for lost or staler 
 
 XIV. Release of parties to bill or note. bill or note. 
 
 la) Giving time. (g) Who may be sued. 
 
 (6) How acceptor or maker dis- lh) Affidavit to hold to bail, 
 
 charged. (i) Debt. 
 
 XV. Satisfaction of bill or note. (k) Trover. 
 
 XVI. Proceedings upon. ll) Pleadings. 
 
 (a) Who may sue. (m) Evidence. 
 
 (b) Recovery where note or bill (ra) Competency of party to bill 
 
 overdue. or note to be witness. 
 
 (c) Recovery where bill or note (o) Amount recoverable. 
 
 lost or stolen. (p) When party may resort to 
 
 (d) Recoverybybonafideholder original consideration. 
 
 of lost or stolen note. (q) When recovery may be had 
 
 (e) Recovery of proceeds of lost on common counts. 
 
 or stolen note or bill. XVII. Other matters. 
 
 I. Form and obligation generally. 
 (as) What is a Bill of Exchange. 
 
 Instrument dra\-n payable on a contingency, not a bill. Palmer v. Pratt, ix. 538 ; 
 2 Bing. 185. Ralh v. Sarell, xvi. 422 ; 1 D. & R. 33. 
 
 Instrument treated as a bill, where an obviously supplied omission is made. 
 Phipps v. Tanner, xxjv. 669 ; 5 C. & P. 488. 
 
 An order to pay money "provided certain terms are complied with," not aviilable 
 as a bill. Kingston v. Long, xxvi. 308 ; 4 Doug. 9. 
 
 The order of time in which the names of the drawer and acceptor of a bill are 
 placed upon it is immaterial. Molloy v. Delves, xix. 617 ; 4 C. & P. 492. S. C. xx. 
 194 ; 7 Bing. 428. 
 
 Bill may be accepted and indorsed, before drawn. Schultz v. Astley, xxix. 655 ; 
 
 2 B. N. C. 544. 
 
 But a blank acceptance for a certain sum, altered by the drawer before drawing 
 into a smaller sum, is not a drawing of the bill for the sum expressed in the accept- 
 ance. Baker v. Jubber, xxxix. 724 ; 1 M. & G. 212. 
 
 Words " value received" not essential to constitute a bill of exohange. White v. 
 Ledwick, xxvi. 454 ; 4 Doug. 247. 
 
 A paper containing a request for the payment of money, but not purporting to be 
 made by one having a right to call on the other to pay, is not a bill of exchange. 
 Little v. Slackford, xxii. 498 ; 1 M. & M. 171. 
 
 There must be a drawer to a bill. Vyse v. Clarke, xxiv. 626 ; 5 C. & P. 403. 
 
 Instrument drawn, payable to drawer or order at a particular place, without being 
 addressed to any person by name, if afterwards accepted by one at the place where 
 made payable, may be declared upon as a bill of exchange. Gray v. Milner, iv. 361 ; 
 8 Taun. 739. 
 
 Bill at sight is not a bill payable on demand, within exception in stat. 22 G. 3, c. 
 49. Janson v. Thomas, xxvi. 276 ; 3 Doug. 421. 
 
 Drawn payable ninety days after sight or when realized is not a bill within custom 
 of merchants. Alexander v. Thomas, lxxi. 332 ; 16 Q. B. 333. 
 
 Acceptance in blank for drawer and payee's name not a bill. Stoessiger v. Rail- 
 way, lxxvii. 548 ; 3 E. & B. 549. 
 
 " Fifty-three days after date credit A. or order 5001. in cash on account of," signed 
 by managing director of company, is a bill of exchange. Ellison v. Collingridge, 
 lxvii. ; 9 0.B. 570. 
 
 Dividend warrant not negotiable. Partridge v. Bank, lviii. 396 ; 9 Q. B. 396. 
 
 Exchequer bills are negotiable passing by delivery. Brandao v. Barnett, liv. 518 ; 
 
 3 C. B. 519. 
 
 Statement of deposit of leases as security in the body of the note does not affect 
 its negotiability. Fancourt v. Thorne, lviii. 310 ; 9 Q. B. 311. 
 
 Instrument in form of note with address in the corner and accepted by that party, 
 may be treated as his acceptance or the note of the drawer. Lloyd v. Oliver, Ixxxiii. ; 
 18 Q. B. 471. 
 
 (6) What is a Promissory Note. 
 
 Not necessary that a promissory note should be in itself negotiable. Rex v. Box, 
 i. 635 ; 6 Taun. 325. 
 
 It is sufficient that it is a note for the certain payment of a sum of money, whether 
 negotiable or not. Ibid. 
 
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