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 CoRNEi-L University Law Library 
 
 FROM THE 
 
 BENNO LOEWY LIBRARY 
 
 RECEIVED BY CORNELL UNIVERSITY 
 UNDER THE WILL OF 
 
 MR. BENNO LOEWY 
 
Cornell University Library 
 KD 1480.L67 1857 
 
 A practical treatise on the law of trust 
 
 3 1924 021 859 305 
 
Cornell University 
 Library 
 
 The original of tinis 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/cu31924021859305 
 
PEACTICAL TEEATISE 
 
 THE LAW OF TRUSTS 
 
 TRUSTEES. 
 
 BY 
 
 THOMAS LEWIN, ESQ., 
 
 OF TRINITY COLLEGE, OXON., M.A., AND OF LINCOLN'S INN, BAHRISTER-AT-LAW, 
 ONE 01' THE OOHTETANOIHS COUNSEL TO THE OOUKT OE OHANOEKY. 
 
 THIRD EDITION. 
 
 LONDON : 
 
 W. MAXWELL, 82, BELL YAED, LINCOLN'S INN, 
 
 Hato iSeokstUtx enS i^ubligljet: 
 
 HODGES,' SMITH, & Co., DUBUlir. 
 
 1857. 
 
B ii^3:l 
 
 LONDON : 
 BEADBUBT AND EVANS, PRINTERS, WHITEFEIAUS. 
 
RIGHT HONORABLE LORD ST. LEONARDS, 
 
 ETC. ETC. ETC. 
 
 Mt Lord, .^' '^'^ 
 
 The rare talents and indefatigable industry/ "wMcli, ? 
 without any extrinsic aid, have raised your Lordship/ .^o^ 
 the most honorable eminence, command the adiniration 
 and respect of every Member of the profession. ';:':Jv 
 
 Personally I feel myself under peculiar obhgations. 
 Your Lordship's writings have been the models, and have 
 furnished no small part of the materials, for the present 
 treatise; and your Lordship's appointment of me as one 
 of the Conveyancing Counsel to the Court has enabled 
 me to bring to the revision of my work an enlarged 
 practical experience. 
 
 Permit me, my Lord, on these public and private 
 grounds, to dedicate the following pages to your Lordship, 
 and with the earnest hope that your Lordship's valuable 
 life may long be preserved to the profession and the 
 community at large, 
 
 I remain 
 Your Lordship's most obliged and grateful servant, 
 
 THE AUTHOR. 
 
 a 2 
 
PREFACE. 
 
 In the present Edition the Author has recast the earlier 
 part of the work, and, besides incorporating recent cases and 
 statutes, and interspersing much additional matter through- 
 out, has appended a supplementary chapter on Pleading and 
 Practice. 
 
 The correction of the press was kindly undertaken for the 
 Author by Mr. F. 0. Haynes, whose extensive knowledge of 
 law and careful research are Well known at the Chancery Bar. 
 Had the labours of Mr. Haynes gone no further, the Author 
 would have felt grateful for the assistance, but in fact Mr. 
 Haynes, as the sheets passed through his hands, has 
 identified himself with the Author, and examined into the 
 law — has inserted additional authorities which had been 
 inadvertently omitted, and corrected mistakes into which the 
 Author had occasionally fallen. Moot points, also, as they 
 arose have been freely discussed, and the reader has the 
 benefit of the conclusions arrived at. The Author is of course 
 to be held responsible for the errors which remain, but the 
 value of the work (whatever it may be) has been unquestion- 
 ably much enhanced by the legal acumen and learning which 
 Mr. Haynes has imported into it. 
 
VI PREFACE. 
 
 The Index has been compiled for the Author by Mr. P. A. 
 Kingdon, a much esteemed former pupil. The merits of 
 this part of the work will be best tested in the use, but a 
 superficial glance will show that never were more pains taken 
 to render an Index as perfect as possible. 
 
 The Author begs in conclusion to thank his coadjutors for 
 their timely aid, and to assure them that he appreciates his 
 own performance much more highly from the circumstance 
 that two gentlemen of their talents and standing, have con- 
 descended to bestow upon it so much of their time and 
 labour. 
 
 Jvly i, 1857. 
 
TABULAE ANALYSIS. 
 
 PAET I. 
 
 Definition of a trust, p. 15. 
 
 Classification of trusts, p. 21. 
 
 Creation of trusts, p. 24. 
 
 By act of a party, 
 p. 24. 
 
 By operation of 
 law, p. 176. 
 
 Neceasaiy parties 
 to a trust, p. 24. 
 
 What property 
 maybe made 
 subject to a 
 trust, p. 45. 
 
 Formalities 
 required, 
 p. 56. 
 
 The object 
 proposed, 
 p. 103. 
 
 Of the lan- 
 guage de- 
 claring the 
 tiTist, p. 
 140. 
 
 Lawful 
 trusts, 
 p. 103. 
 
 Unlawful 
 trusts, 
 p. 131. 
 
 trusts, 
 p. 140. 
 
 Implied 
 trusts, 
 p. 167. 
 
 Executed, 
 p. 144. 
 
 Executory, 
 p. 144. 
 
 In marriage ar- 
 ticles, p. 146. 
 
 In wills, 
 p. 153. 
 
 Settlor, 
 p. 24. 
 
 Trustee, 
 p. 30. 
 
 Cestui que 
 trust, p. 
 41. 
 
 At common 
 law, p. 56. 
 
 Under Stat. 
 ofFrauds, 
 p. 60. 
 
 Under Stat, 
 of "Wills, 
 p. 65. 
 
 Of transmuta- 
 tion of pos- 
 session, p. 
 81. 
 
 Resulting trusts, 
 p. 176. 
 
 Constructive trusts, as renewal of 
 leaseholds, &c., p. 217. 
 
 Legal interest, but not the 
 equitable, disposed of, 
 p. 176. 
 
 Upon purchases in names of 
 third persons, p. 199. 
 
 By presumption of 
 law, p. 177. 
 
 By force of words, 
 p. 181. 
 
 In name of a stranger, 
 p. 199. 
 
 In name of a child, 
 p. 207. 
 
TABULAR ANALYSIS- 
 
 PAET II. 
 
 The Trustee. 
 
 Disclaimer and ac- 
 ceptance, p, 232. 
 
 The legal estate in the 
 trustee, p. 246. 
 
 The office of trustee, 
 p. 289. 
 
 How vested, 
 p. 246. 
 
 Properties 
 of estate, 
 p. 260. 
 
 What owners 
 of the estate 
 bound by the 
 trust, p. 279. 
 
 At common law, 
 p. 260. 
 
 By statute, 
 p. 273. 
 
 General properties, 
 p. 289. 
 
 Duties of trustees, 
 p. 326. 
 
 1. Renunciation, p. 289. 
 
 2. Delegation, p. 290. 
 
 3. Joint nature of the ofSce, p. 
 
 297. 
 
 4. Survivorship, p. 299. 
 
 5. Liability, p. 302. 
 
 6. Trustee excluded from all 
 
 benefit, p. 318. 
 
 Powers, 
 p. 512. 
 
 General, 
 p. 512. ' 
 
 Special, 
 p. 624. 
 
 Allowances, 
 p. 545. 
 
 Relinquishment of 
 office, -p. 565. 
 
 For trouble, p. 545. 
 For expenses, p. 557. 
 
 By consent of 
 cestui que 
 trusty p. 565. 
 
 By power, 
 p. 566. 
 
 By smt, 
 p. 582. 
 
 In trusts of 
 personalty, 
 p. 326. 
 
 In trusts of 
 renewable 
 leaseholds, 
 p. 383. 
 
 In trusts to pre- 
 serve contin- 
 gent remain- 
 ders, p 404. 
 
 In trusts for 
 sale, p. 414. 
 
 1. Reduction into possession, p. 326. 
 
 2. Safe custody, p, 332. 
 
 3. Investment, p. 337. 
 
 4. Liability of trustees to payment of 
 
 interest, p. 358. 
 
 5. Distribution of the trust fund, p. 365. 
 
 In trusts for pay- 
 ment of debts, 
 p. 474. 
 
 Geiiiral duties, 
 p. 414. 
 
 Trustees' receipts, 
 p. 428. 
 
 In trusts for 
 charities, 
 p. 492. 
 
 ■ Purchase of the 
 trust property 
 by trustees, p. 
 460. 
 
TABULAE ANALYSIS. 
 
 IX 
 
 PAET III. 
 
 The Cestui que Trust. 
 
 Estate as between 
 cestui que trust 
 and trustee, p. 
 585. 
 
 Estate as uffected 
 by dealings of ces- 
 tui gue i?*us(, or 
 by operatdon of 
 law, p. 600. 
 
 -_P 
 
 Subsidiary rights 
 of cestui gue 
 trust, p. 693. 
 
 In. the simple 
 trust, p. 586. 
 
 In the special 
 trust, p. 697. 
 
 Jus nabendi^ 
 p. 585. 
 
 J-ULS disponendi, 
 p. 595. 
 
 Maxims of equity 
 in support of the 
 cestui gue trusts' 
 estate against 
 the acts of the 
 trustee, p. 792. 
 
 Statutory enact- 
 ments remedy- 
 ing inconveni- 
 ences from the 
 disability of the 
 trustee, p. 83'2. 
 
 Belief against 
 failure of the 
 trustee, p. 693. 
 
 Eights in prevention 
 of a breach of trust, 
 p. 710. 
 
 9. 
 10. 
 11. 
 
 Assignment, p. 600. 
 
 Testamentary disposition, p. 615. 
 
 Seisin, p. 617. 
 
 Dower and curtesy, p. 621. 
 
 ■peme covert, p. 627. 
 
 Judgments, p. 646. 
 
 Extents, p. 673. 
 
 Forfeiture, p. 674. 
 
 Eschoat, p. 678. 
 
 Descefut, p. 680. 
 
 Assets, p. 681. 
 
 Kemediea in event 
 of a _breach of 
 trust]" p. 724. 
 
 Appointment of proper 
 trustees, p. 710, 
 
 Compulsion of trustees 
 to duty, p. 718. 
 
 Injunction against breach 
 of duty, p. 723. 
 
 Of following the spe- 
 cific trust estate, 
 p. 724. 
 
 Of attaching property into 
 which the trust estate 
 has been converted, p. 
 763. 
 
 Kemedy against the 
 trustee personally, 
 p. 763. 
 
 Eemedies in breaches 
 of trust by trustees 
 for charities, p. 778. 
 
 PAET IV. 
 
 Pleading and Practice in reference to tlie Law of Trusts and Trustees- 
 
 Necessary parties 
 to suits, p. 841. 
 
 Ordei^ and manner 
 of suing and de- 
 fending, p- 856. 
 
 Distringas, 
 p. 868. 
 
 Compulsoiy pay- 
 ment into court, 
 p. 864. 
 
 Receivership, 
 p. 869. 
 
 Costs of 
 suit, p, 
 872, 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 PAGE 
 
 Origin of trusts . ... . . . . . . 1 
 
 Invention of the suhposna ..... 
 
 The simple trust or use ...... 
 
 Confidence in the person of the trustee .... 
 
 Privity of estate in the trustee . . . . ■ 
 
 Privity as applied to the estate of the eesi/ai que use 
 
 The special trust ....... 
 
 Both kinds of trusts applicable to chattels .... 
 
 Statute of 1 R 3. c. 1 
 
 What trusts within it ... . . . 
 
 [Whether a trust could have been declared on an estate for 
 
 life 6, note (1)] 
 
 Statute of 2r Hen. 8. c. 10 7 
 
 [Mr. Sanders's doctrine, that before this statute no use could 
 
 have been declared on an estate in taU,' or for life . 7, note (1)] 
 What trusts -within the statute ....... 7 
 
 Introduction of the modem trust . ' . . 8 
 
 Statutes against uses not appUoable to trusts 
 
 Trusts at first administered on principles of uses 
 
 Subsequent improvements of the system .... 
 
 In respect of the estate in the trustee .... 
 
 In respect of the cestui que trust .... 
 
 Principles governing trusts at the present day . 
 
 8 
 
 9 
 
 9 
 
 10 
 
 11 
 
 13 
 
 PART I. 
 
 DEFINITION, DISTRIBUTION, AND CREATION OF TRUSTS. 
 
 CHAPTER I. 
 
 DEFINITION OF A TRUST. 
 
 1. A trust is a confidence . . . . . . 15 
 
 2. Reposed in some other . . . . . . .15 
 
 How far the equitable merges in the legal estate . . . 16 
 
XU CONTENTS. 
 
 PABE 
 
 3. Not issuing out of the land, but collateral to it . . . 18 
 
 4. Annexed in privity to th.e estate . . . . . . 18 
 
 5. Annexed in privity to the person ..... 19 
 
 6. Cestui que trust has no remedy but by siibpcena in Chancery . 19 
 
 CHAPTEE II. 
 
 CLASSIFICATION OF TRUSTS. 
 
 The simple trust .... . . . 21 
 
 The special trust ......... 21 
 
 The latter either ministerial . . . . ,, . . . 21 
 
 Or discretionary ......... 21 
 
 Mixture of trust and power ....... 22 
 
 Trusts laTrful and unlawful ....... 22 
 
 Trusts public and private ....... 23 
 
 CHAPTER III. 
 
 OF THE PARTIES TO THE CREATION OF TRUSTS. 
 Section I. 
 
 OF THE SETTLOR. 
 
 Who may create a trust .... .... 24. 
 
 The Crown 24 
 
 Corporations .......... 25 
 
 A feme covert ......... 25 
 
 As to property settled to separate use . . . , . 26 
 
 Infants .......... 26 
 
 Lunatics ... ...... 2? 
 
 Traitors, felons, and outlaws ...... 28 
 
 Bankrupts and Insolvents . . . . . . . 29 
 
 Section II. 
 
 WHO MAY BE A TRUSTEE. 
 
 The Crown . 30 
 
 A Corporation ■•...... 31 
 
 Bank of England ••■...... 31 
 
 Feme covert ought not to be appointed ..... 34 
 
 Nor a /eme sole .••...... 35 
 
 Nor an infant ■•••..... 35 
 
 Alien may be a trustee of chattels personal .... 39 
 
CONTENTS. Xlll 
 
 PAGE 
 
 Person domiciled abroad not a fit trustee ... .40 
 
 Bankrupts and insolvents not absolutely disqualified . 40 
 
 Cestms que trust should not be appointed trustees . . . 40 
 
 Proper number of trustees ....... 40 
 
 Section III. 
 
 "WHO MAY BE CESTUI QUE TEIIST. 
 
 The Crown may be . . . .... 42 
 
 A corporation not, so as respects lands, without license from the 
 
 Crown .......... 43 
 
 Nor alien, of lands ........ 43 
 
 Secus as to proceeds o£.<pale of land directed to be sold . . . 43 
 
 CHAPTEE IV. 
 
 WHAT PROPERTY MAY BE MADE THE SUBJECT OF A TRUST. 
 Copyholds may be ..... . . 45 
 
 No power to entail equitable interest of copyholds where no custom 
 
 to entail legal interest. . . ... .46 
 
 Equitable interests in foreign property . . . . 46 
 
 Equities in relation to West Indian property . ... 4:7 
 
 JEquities in respect of lands in Scotland . . , . . 48 
 
 Demerara property ........ 49 
 
 Lands in Ireland ......... 50 
 
 Covenant to settle lands in Demerara ... .51 
 
 Trusts of lands abroad ...... .53 
 
 CHAPTEE V. 
 
 OP THE FORMALITIES REQUIRED FOR THE CREATION OF A TRUST. 
 
 Section I. 
 
 OP trusts at common law. 
 
 Trusts are averrable Kke uses ...... 
 
 Averment must not contradict the instrument 
 
 Trusts not averrable where deed requisite to pass the legal estate 
 
 Nor upon a devise even at Common law .... 
 
 Nor on a bequest or appointment of executor 
 Declaration of trust 61/ or to the kin 
 
 56 
 56 
 57 
 68 
 58 
 59 
 
XIV CONTENTS. 
 
 Section II. 
 
 OP THE STATUTE OP PEATJDS. 
 
 PAGE 
 
 I. What interests within the Act . . 60 
 Copyholds are so . . ■ . . 60 
 And chattels real ......•• 61 
 
 Chattels personal not so . . . . . . . 61 
 
 Charitable uses within the Act . . . . 61 
 
 Whether Crown bound by the statute . . . . . 62 
 
 Land in the Colonies . . • .62 
 
 Whether statute must be pleaded ... .62 
 
 II. What formalities required by the statute . . .62 
 Trusts to be proved by not declared in writing . . . 62 
 Letter or recital sufficient ....... 63 
 
 Relation to subject matter and nature of trust must be clear . 64 
 
 The writing must be signed .... .64 
 
 Section III. 
 
 OP THE STATUTE OP WIMS. 
 
 Principle of rejecting declarations not testamentary ... 65 
 
 Case where no trust appears on the will and no fraud exists . , 68 
 Where the devisee is made a trustee by the will, and the testator 
 
 leaves an informal declaration of trust .... 68 
 
 Exceptions to the rule ........ 69 
 
 1. General charge of debts and legacies under the old law . 69 
 
 2. Fraud .... .... 70 
 
 Engagement to execute an unlawful trust ... 71 
 
 Devise to tenants in common with unlawful object, may be good 
 
 as to one and void as to another . . . . .73 
 
 Devise not void merely because the devisee means to execute the 
 
 unlawful trust .... .73 
 
 Engagement by devisee as to undefined part . 73 
 
 Engagement to execute a trust and none declared ... 74 
 Devisee a trustee on the face of the will, and parol undertaking by 
 
 the devisee to perform the trust . . . . . . 75 
 
 In the case of a legal devise with a subsequent parol declaration 
 
 for charitable uses, the Statute of Mortmain does not avoid 
 
 the legal devise .... ... 78 
 
 Section IV. 
 
 TRANSMUTATION OF POSSESSION. 
 
 In the absence of valuable consideration question is not whether 
 there has been transmutation, but whether trust has been 
 perfectly created .... ... 81 
 
CONTENTS. XV 
 
 (I) Trust not perfectly created where settlor contemplates further 
 acts ..... 
 
 (II) Where the settlor declares hvmself a trustee, the trust is per- 
 fectly created ....... 
 
 (Ill) Where a stranger, and not the settlor hvmself a trustee, dis' 
 tinctions necessary ...... 
 
 1. If subject matter a legal interest capable of legal 
 troMsfer, it must be actually vested in the trustee 
 
 2. If legal, but not capable of legal transfer, much diffi- 
 culty ....... 
 
 3. If subject matter an equitable interest, an assign- 
 ment to the new trustee sufficient 
 
 Voluntary settlement of real estate defeated by subsequent sale 
 Voluntary settlement of real or personal estate by one virtually 
 
 insolvent void against creditors .... 
 
 Specific performance of agreement under seal without valuable 
 
 consideration . . . . . 
 
 Meritorious consideration 
 Analogy of covenant to stand seised 
 Analogy from supplying surrender of copyholds 
 Analogy of aiding defective execution of powers 
 Agreement for meritorious consideration not enforced against the 
 
 settlor . ...... 
 
 When trust once perfectly created, legal interest revesting in the 
 
 settlor immaterial ... ... 
 
 Voluntary trust for payment of debts 
 
 81 
 
 82 
 
 84 
 
 84 
 
 85 
 
 89 
 92 
 
 93 
 
 93 
 95 
 95 
 96 
 96 
 
 97 
 
 99 
 101 
 
 CHAPTEE VI. 
 
 OF THE OBJECT PROPOSED BY THE TRUST. 
 Section I. 
 
 Ol' lAWFUI, TKUSTS. 
 
 The intention in general followed . . . . . .103 
 
 Object not attainable by any limitation of the legal estate may, if 
 not against the policy of the law, be attained by a limitation 
 of the equitable . . ..... 103 
 
 A fee upon a fee in trusts .... . . 103 
 
 Contingent rem'ainders in trusts ... . 104 
 
 Limitations of chattels in trusts ... .104 
 
 Endowments of chapels . ..... 104 
 
 Gift to the " poor of a parish " ...... 105 
 
 Advowson upon trust for " parishioners and inhabitants" . 107 
 
XVI 
 
 CONTENTS. 
 
 PAQK 
 
 Mode of electing a clerk . . . • 109 
 
 Trusts for accunmlation . . . . . . ■ HO 
 
 Thellusson Act . 112 
 
 Points resolved upon the construction of it . ..113 
 
 To whom the excess shall go . . . . . .116 
 
 Exceptions from the act . . . . . . • 119 
 
 Settlement to separate use of feme covert .... 120 
 
 The interposition of an express trustee not necessary . . . 121 
 
 What words will create a settlement to the separate use . 121 
 
 Clause against anticipation . . . . . . 123 
 
 Effect before marriage of clause against anticipation . . .124 
 
 Effect after marriage of trast for separate use . . . . 124 
 
 Effect after marriage of clause against anticipation . . . 128 
 
 Effect of separate use in case of second marriage . . 130 
 
 Section II. 
 
 or TTNIAWI'UL TBtrSTS. 
 
 Trusts against the policy of the law . . . .131 
 
 Illegitimate children ... 131 
 
 Trusts of real estate for corporations . . 131 
 
 Trusts of real estate for alien . . . . . 132 
 
 Trusts of real estate for charity . . . . .132 
 
 Restriction on alienation . . . . . . . . 132 
 
 Trusts for maintenance ... ... 133 
 
 Limitation over an alienation .... . . 135 
 
 Director to purchase presentation . . . .136 
 
 Insurances for lives" . . . • ■ . ■ ..136 
 
 Splitting votes ......... 137 
 
 Consequences of creating a trust with an unlawful purpose . . 137 
 Property settled with an unlawful purpose may be recovered by 
 
 those claiming under settlor ...... 138 
 
 Or by the settlor himself, where there is no positive fraud . . 139 
 
 CHAPTER VII. 
 
 IN WHAT LANGUAGE A TRUST MAT BE DECLARED. 
 Section I. 
 
 OE DIRECT OR EXPRESS DECLARATIONS OF TRUST. 
 
 Technical words not necessary ...... 
 
 If employed must be taken in their technical sense 
 
 Lord Hardwicke's opinion overruled . . . . . 
 
 140 
 141 
 141 
 
CONTENTS. XVU 
 
 PAGE 
 
 Whether the rule in Shelley's case applies to trusts . . .143 
 
 Distinction between trusts executed and trusts executory . . 144 
 
 Lord Hardwicke's opiuion in Bagshaw v. Spencer . . . 144 
 
 Executory trusts in articles and wiUs distinguislied . . . 146 
 
 Construction of "heirs of the body" and "issue" in articles . 147 
 
 Daugbters included under " heirs of tbe body" and " issue " . . 149 
 
 Articles to settle chattels on trusts of real estate . . . . 149 
 Limitation over on " dying under 21," or " dying imder 21 without 
 
 issue" . 150 
 
 Joint-tenancy may in articles be construed tenancy in, common . 162 
 Words may be supplied in articles . . . . . .153 
 
 Construction of "heirs of tbe body" and "issue "in executory 
 
 trusts in wills ......... 153 
 
 " Heirs of the body " and " issue " distinguished . . .155 
 
 Daughters included under "heirs of the body" or "issue" in 
 
 wiUs .......... 156 
 
 Limitation to preserve contingent reniainders . . . .156 
 
 Settlement of gavelkind lands . , . . . . . 157 
 
 No latitude of construction where testator declares his own limita- 
 tions formally ........ 157 
 
 Direction in wills to settle chattels on trusts of real estate . . 158 
 Joint tenancy in wUls in what cases may be construed tenancy in 
 
 common ......... 163 
 
 Insertion of powers in settlements . . . . . . 164 
 
 " Usual powers" ......... 164 
 
 " Proper powers " ......... 166 
 
 Section IL 
 of implied trusts. 
 
 General rule .......... 167 
 
 Words precatory, recommendatory, &o. ..... 167 
 
 No trust where there is uncertainty . . . . . . 168 
 
 Either of the objects 169 
 
 Or of the subject matter ........ 170 
 
 The impKed trust may be negatived by indicia of a contrary 
 
 intention ......... 171 
 
 Not so restrictive as a proper trust . . . . . . 172 
 
 Court at present leans against implying trusts . . . .173 
 
 Surplus does not result . . . . . . . . 173 
 
 LnpUed trust under agreement for valuable consideration . . 173 
 
 Or under a contract for sale ....... 174 
 
XVlll CONTENTS. 
 
 CHAPTER VIII. 
 
 OP EESULTING TRUSTS. 
 
 Suction I. ' 
 
 WHERE IHEBE IS A DISPOSITION OF THE LEGAL INTEREST AND NOT 
 01- THE EQUITABLE. 
 
 PAOB 
 
 General rule .......... 176 
 
 Arise either upon presumption or expression of intention . . 17T 
 
 In what cases a resulting trust arises upon presumption . . . 177 
 Distinction between devise upon a partial trust and beneficial 
 
 devise subject to a charge . . . . .179 
 
 Recognition of the devisee's relationship evidence of beneficial 
 
 devise .......... 180 
 
 The words "trust" and "trustee" not conclusive that mere trust 
 
 was intended ......... 180 
 
 Heir not excluded from resulting trust on bare conjecture . . 181 
 A trust resulting by presumption may be rebutted by parol 
 
 evidence ......... 181 
 
 In what cases a resulting trust arises from intention expressed . 181 
 
 Parol evidence not admissible to rebut latter kind of trust . . 182 
 
 General observations upon resulting trusts . . ... 182 
 
 1. Money arising from sale of real estate results to the testator's 
 
 heir 182 
 
 If purposes of the trust only partially fail, the residue results to 
 
 the heir as personal estate ....... 184 
 
 If the purposes of the trust wholly fail, the entirety results to the 
 
 heir as real estate ........ 184 
 
 2. Money bequeathed to be laid out on land results to the testa- 
 
 tor's next of kin . . ..... 187 
 
 3. Cases of primary disposition of the whole property to A. subject 
 
 to a charge in favour of B. . . . . . . 189 
 
 Diflference between exception from a devise . . . . 191 
 
 And charge upon a devise ....... 192 
 
 Possible distinction in the case of a legacy to charity . . . 192 
 
 Results of the cases 193, 194 
 
 4. The resulting interest may be given away from the heir or next 
 
 of kin by express devise or bequest . . . . .194 
 
 The word "residue" could not, before the late Wills Act, pass 
 
 resulting interest in land . . . . . . . 195 
 
 Gift of testator's "personal estate" wiU not pass money arising 
 
 from sale of real estate . . . . . . .195 
 
 Such an intention may be collected from the will . . . . 196 
 
CONTENTS. XIX 
 
 PASE 
 
 In what cases a lapsed legacy out of proceeds of real estate -will 
 
 pass by gift of the residuary personal estate . . .196 
 
 Resulting iaterests of personal estate pass by gift of the residue . 197 
 6. Law of resulting trusts, as applicable to charitable gifts . . 198 
 Where objects do not exhaust the estate, the surplus, instead of 
 
 resulting, ynO. be applied to a like charitable object . . 198 
 
 So if the value of the property increase beyond the wants of the 
 
 charity .......... 198 
 
 An interest will result even ia charitable gifts, where intention 
 
 appears that the charity should take only to limited amount 199 
 Exceptions in charity founded on precedent against principle . 199 
 
 Section II. 
 
 RESUITING TBtrSTS UPON PUBCHASES IN THE NAMES OP THIRD PERSONS. 
 
 I. Of purchases in the names of strangers 
 
 199 
 200 
 200 
 201 
 201 
 202 
 203 
 203 
 203 
 204 
 204 
 
 Principle applicable to personalty 
 
 Joint purchases in the name of a third person 
 
 Joint purchases in the joint names of the purchasers 
 
 Mortgage to two on a joint advance 
 
 Copyhold grant to A. for life and fine paid by B. . 
 
 Purchase of a ship ..... 
 
 Purchase contrary to the Papistry acts 
 
 Purchase in order to confer a vote . 
 
 Parol evidence ... . . 
 
 Purchase by agent ..... 
 
 Proof of trust against defendant's denial . . . . . 205 
 
 Of parol evidence after death of the nominal purchaser . . 205 
 
 Of following trust money into land . . . . . . 206 
 
 Resulting trust may be rebutted by parol . . . .206 
 
 Subsequent declarations . . . . . . . . 207 
 
 Effect of time 207 
 
 II. Of purchases in the names of children . . . . 207 
 
 Advancement ...... . . 207 
 
 The sonship a circumstance of evidence . . . . . 208 
 
 Distinctions : — 
 
 1. Where child an infant ....... 209 
 
 2. Where interest is reversionary . . . . . . 209 
 
 3. Purchase in joint names of father and son . . . 209 
 
 4. Purchase of copyholds granted for lives sueoessivi . . . 210 
 
 5. Where child already provided for ..... 211 
 Where child is adult ....... 211 
 
 6. Where the father holds possession and child an infant . 212 
 
 7. The same when son adult ..... . 213 
 
 b 2 
 
XX CONTENTS. 
 
 PAGE 
 
 Rebutter of the presumption . . . • .214 
 
 Paxol declarations .... . . • 214 
 
 Evidence on the paxt of the child ...... 215 
 
 niegitunate children ........ 216 
 
 Daughters, wife, grandchild, nephew . . . . .216 
 
 Purchase money not paid, a debt from parent . . . . 216 
 
 CHAPTEE IX. 
 
 OF CONSTRUCTIYE TRUSTS. 
 Renewal of leases ......... 21lr 
 
 Rule applicable to tenant for life- , . . . . . . 218 
 
 To yearly tenant ........ 
 
 Tenant at will or at sufferance .... 
 
 Jigent of trustee cannot renew for his own benefit 
 Trustee may not seU right of renewal .... 
 
 Trustee's lien for expenses of renewal .... 
 
 Expenses of tenant for life ..... 
 
 Contribution by annuitants ...... 
 
 Terms of assignment by the trustee .... 
 
 Accounting for mesne rents and profits .... 
 
 Remedies against purchasers, lessees, &c. 
 
 Limitation of time ....... 
 
 Case of trustee purchasing the reversion 
 
 No tenant right where corporation has sold to an individual . 225 
 
 Factor, agent, &c. a constructive trustee ..... 225 
 
 Eqtiitable waste ......... 225 
 
 Fraud in Attorney ........ 226 
 
 Agent of trustee not a constructive trustee . . ... 226 
 
 Constructive trust as to title deeds ..... 227 
 
 Constructive trusts from notice ....... 228 
 
 Statute of frauds as regards trusts by operation of law . . 228 
 
 219 
 
 219 
 220 
 220 
 222 
 222 
 223 
 223 
 224 
 224 
 224 
 225 
 
 PART II. 
 
 ESTATE AND OFFICE OP THE TRUSTEE. 
 
 CHAPTER X. 
 
 OF DISCLAIMER AND ACCEPTANCE OP THE TRUST. 
 
 I. Of disclaimer ......... 232 
 
 No one compellable to be trustee ...... 232 
 
 Heir of a trustee ........ 232 
 
CONTENTS. 
 
 XXI 
 
 PAGE 
 
 Disclaimer should be by deed 1 . . . . . . . 233 
 
 And by way of disclaimer and not of conveyance . . .233 
 
 Whether devise of trust estates can be disclaimed in part . . 234 
 
 Disclaimer by answer ia Chancery ...... 234 
 
 May be evidenced by a person's conduct . . . . , 235 
 
 Trustee, after disclaimer, may act as agent to the trustees . . 235 
 
 What disclaimer necessary for divesting the legal estate . . . 235 
 
 Disclaimer of uses ........ 236 
 
 Disclaimer of chattels . . . . . . . . 236 
 
 Disclaimer by /erne covert . . . . . . .236 
 
 Effect of disclaimer as regards the co-trustees . . . . 23'r 
 
 II. Of acceptance of the trust . . . . . . . 23T 
 
 Where a trustee agrees by deed to execute the trust, a breach of 
 
 trust creates a specialty debt . . . . . . 238 
 
 What acts will be construed an acceptance . . . .239 
 
 Whether taking out probate is acting . . . . . . 239 
 
 Voluntary interference with the assets, whether with or without 
 
 taking out probate^ is acting ...... 241 
 
 Except the interference was plainly on some other ground . . 242 
 
 Trustee may not act ambiguously ...... 242 
 
 Executor becoming a trustee ....... 243 
 
 Trustee on acceptance must inform himself of the state of the trust 244 
 
 Trustee by mistake ........ 244 
 
 CHAPTER XI. 
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 
 Sbotion I. 
 
 OF VESTING THE LEGAL ESTATE IN THE TRUSTEE. 
 
 What words will vest the legal estate in the trustee . 
 
 I. Under the statute of uses ...... 
 
 Special trusts not within the statute .... 
 
 Trust to permit a person to receive the rent 
 
 Charge of debts . . ..... 
 
 To permit him to receive or to pay to him 
 
 II. What quantity of estate will be vested in the trustee 
 The trustee will, if possible, take an estate sufficient for the execu- 
 tion of the trust ....... 
 
 Implied devise in the word "trustee" ..... 
 Trust to seU confers a fee ... . 
 
 Lmiitation to two trustees and heir of survivor 
 The estate will not be greater than is required for the purposes of 
 the trust ....... 
 
 246 
 246 
 247 
 248 
 248 
 249 
 249 
 
 249 
 250 
 250 
 251 
 
 252 
 
XXll 
 
 CONTENTS. 
 
 Uses limited ia remainder upon the partial trusts will be executed 253 
 
 Harton v. Harton ......••■ 255 
 
 Hawker v. Hawker . . . . . . • .256 
 
 Warter v. HutcMnson ........ 25? 
 
 Late WiU Act 259 
 
 Section II. 
 
 THE PROPERTIES AND DEVOLUTION OP THE LEGAL ESTATE. 
 
 I. At common law ........ 260 
 
 IVeeliold estate in the trustee is liable to curtesy, dower, &c. . 260 
 
 Personal estate liable to forfeiture for the offence of the trustee . 260 
 
 Whether term in a trustee requires a prerogative probate . . 260 
 
 May be taken in execution for debt of the trustee, semble . . 261 
 
 Assets a species of trust property at law . . . . . 261 
 
 Legal estate may be conveyed or devised by the trustee . . 262 
 
 In what cases it passes by a general devise . . . . . 262 
 
 Charge of debts, <fec., wiU exclude the trust estate . . .263 
 
 What expressions will or will not do so . . . . . 264 
 
 Distinction as to legal estate in mortgages passing . . . 264 
 
 Power of the trustee ia equity to devise the trust estate . . . 265 
 Whether a devisee can execute the trust . . . . .266 
 
 Estate after contract for sale passes by a general devise, where a 
 
 mere trust estate would not . . . . . . 268 
 
 Legal estate is subject to legal burthens . . . . .268 
 
 Trustee, the person to bring an action at law . . . . 269 
 
 To appoint steward of a manor or present to a church . . 269 
 
 To prove in bankruptcy . . . . . . . 269 
 
 Of voting for coroners (*) . . . . . . .269 
 
 For members of Parliament ....... 270 
 
 Trustee liable to rates . . . . . . . . 271 
 
 Trustee pays fines of copyholds . . . . . . . 272 
 
 May be bankrupt, if he trade as trustee ..... 272 
 
 II. Of the legal estate in the trustee as regards the construction 
 
 of certain statutes ........ 273 
 
 Of the Bankruptcy Act 273 
 
 The legal estate, in the case of a bare trust, does not vest in the 
 
 assignees .......... 274 
 
 Kor the property into which the trust estate may have been con- 
 verted .......... 274 
 
 In whose name actions for recovery of the trust estate from the 
 
 assignees must be brought . . . . . . . 275 
 
 If trust estate cannot be traced, the representative of the trust 
 
 must prove for the value . . . . . .276 
 
 * See note p. 593. 
 
CONTENTS. XXUl 
 
 PAGE 
 
 When the bankrupt has an interest, the legal estate vests in the 
 
 assignees as a general rule . . . . . . . 276 
 
 Eflfect of the clause relating to property left ia possession of the 
 
 bankrupt 277 
 
 Of the Insolvent Act 278 
 
 Of judgments against the trustee ...... 278 
 
 Sboiion III. 
 
 WHAT PERSONS TAKING THE LEGAI, ESTATE WILL BE BOUND BY THE TRUST. 
 
 279 
 279 
 
 279 
 279 
 280 
 280 
 283 
 283 
 284 
 285 
 286 
 287 
 287 
 287 
 
 Heir and executor 
 
 Devisee ....... 
 
 Assignees .... 
 
 Dowress, tenant by the curtesy, creditors, (fee. 
 Forfeiture ...... 
 
 Escheat ....... 
 
 Escheat in copyholds .... 
 
 In customary freeholds . . . . 
 
 Equity of redemption .... 
 
 Escheat and Forfeiture Act 
 
 Trustee Act, 1850 .... 
 
 Outlawry of the trustee . . . . 
 
 Bankruptcy of the trustee 
 Disseisor not bound by the trust 
 
 CHAPTEE XII. 
 
 GENERAL PROPERTIES OF THE OFFICE OF TRUSTEE. 
 
 I. A trustee haviug accepted the office cannot renounce it 
 So an executor ........ 
 
 Though he may not have proved ... 
 
 II. Trustee cannot delegate the office 
 
 Unless the settlor so directed ...... 
 
 Trustee acting as agent ...... 
 
 Delegation allowed where moral necessity for it . 
 Trustee not required to take security .... 
 
 How trust money to be transmitted ..... 
 
 Payments at bank must be to account of trust . 
 
 Rule at law as to liability of executors .... 
 
 Delegation of discretionary trust void .... 
 
 Even to a co-executor or co-trustee ..... 
 
 A power does not pass with the estate .... 
 
 Delegation distinguished from appointment of an attorney 
 
 III. Co-trustees exercise a joint office .... 
 
 289 
 289 
 290 
 290 
 291 
 292 
 292 
 295 
 295 
 296 
 296 
 296 
 297 
 297 
 297 
 297 
 
XXIV CONTENTS. 
 
 PAOB 
 In public trusts the majority binds . . . . . . 298 
 
 IV. On death, of one trustee the oflEice survives . . . 299 
 
 Though there be a power of appointment of new trustees . . 301 
 
 v. A trustee not liable for the acts of his co-trustee . . 302 
 
 Not responsible for having joined in receipts . . . . 304 
 
 Onus prohandi lies on each trustee to prove he did not receive the 
 
 money .... ..... 305 
 
 Is liable for joint receipts if money be improperly raised . . 305 
 
 Must not let it lie in the hands of a co-trustee . . .306 
 
 Executor liable for joining in receipts . . , . . . 310 
 
 Lord Northington's doctrine in Westley v. Clarke . . .310 
 
 Lord Harcourt's opinion that an executor is liable to creditors, but 
 
 not to legatees ......... 313 
 
 Executors liable for joining in drawing or indorsing bUla . . 314 
 
 Not Hable where joining was as necessary as in case of trustees . 314 
 Must see that the act is in accordance with the trust . . .315 
 
 Must not leave the money in the hands of the co-executor . . 316 
 Not answerable for so much as was well applied . . .316 
 
 Co-administrators on same footing as co-executors . . . . 316 
 
 Liability of trustee for concealment of breach of trust by a co- 
 trustee ....... ^ . 317 
 
 Indemnity clauses ......... 317 
 
 VI. Trustee can derive no advantage from the trust . . 318 
 
 Not entitled to the game . . . . . . . 318 
 
 Or to present to an advowson . . . . .318 
 
 Cannot buy up debts ........ 318 
 
 How far mortgagee regarded as a trustee . . . . .318 
 
 Trustee trading with the trust estate must account for the profits . 319 
 Must not be receiver with a salary . . . . . .319 
 
 Trustee who is a factor, <fec., cannot make a profit in the way 
 
 of his business from the trust . . . . . 320 
 
 Case of solicitor trustee ........ 320 
 
 Attorneys, guardians, <fec., in the same position as trustees . . 320 
 Trustee may derive an accidental advantage . . . .321 
 
 Purchaser dying without heir after payment of purchase-money, 
 
 and before conveyance . . . . . . . 322 
 
 Of mortgagor dying without heirs . . . . . .322 
 
 Of cestvA que trust attainted for felony . . . . . 323 
 
 "Whether on creation of trust in fee there can be any reverter to 
 
 the creator of the trust . . . . . . .323 
 
 Trustee cannot enforce his beneficial interest in equity . . . 323 
 
 May obtain possession at law ;...... 324 
 
 On death of cestui que trust of a chattel without next of kin the 
 
 Crown entitled ........ 324 
 
CONTENTS. XXV 
 
 CHAPTEE XIII. 
 
 DUTIES OP TRUSTEES OF CHATTELS PERSONAL. 
 Section- I. 
 
 OF EEDtrCTION INTO POSSESSION. 
 
 PASE 
 
 There must be no delay in getting in choses en action . . . 326 
 
 Executor must not allow assets to remain out upon personal 
 
 security ......... 328 
 
 May upon mortgage ........ 329 
 
 Section II. 
 
 AS TO THE SAFE CUSTODY OP THE CHATTEL. 
 
 Trustee must exercise same care as a man would for himself . . 332 
 
 332 
 332 
 332 
 332 
 334 
 334 
 336 
 337 
 
 Robbery of the trust property . . . . . 
 
 Insurance of leaseholds ..... 
 
 Money may be deposited temporarily in a responsible bank . 
 
 The deposit must be to the account of the trust 
 
 Must not be put out of the control of the trustee 
 
 Or under the sole control of the co-trustee 
 
 Eesponsible for failure of bank if he ought to have invested 
 
 Mixing trust fund with private property 
 
 Section III. 
 
 OF INVESTMENT. 
 
 As to the proper investment of trust money . . . . . 337 
 
 Trustee may not lend on personal security .... 337 
 
 Unless expressly authorised . . . . . . 333 
 
 A power to lend on personal security does not extend to an 
 
 accommodation ........ 339 
 
 Power to lend with consent . . . . . . _ 340 
 
 Investment in trade ........ 340 
 
 Loan by way of annuity ..... 34^ 
 
 On personal security where it should have been real security or 
 
 stock ........._ 34]^ 
 
 Trustee may not invest on stock of any private company . 341 
 
 Exchequer biUs are government securities .... 342 
 
 Whether he may invest on mortgage . . . . . , 342 
 
 Mortgage to replace stock and pay interim dividends . . , 344 
 
 Points to be attended to in loans on mortgage . . . . 345 
 
 Value of the security ....... 345 
 
 In loan of trust money the trust kept out of sight . . 346 
 
 "When authorised to lend on real estates in England, may now 
 
 lend on estates in Ireland ..... 34^- 
 
XXVI CONTENTS. 
 
 PAOB 
 
 Investment on leaseholds for lives ...... 349 
 
 On leaseholds for years ........ 349 
 
 Purchase of house property . . ... 349 
 
 Copyholds for lives . . . . . . . . 350 
 
 Second mortgage ........ 350 
 
 Mixing trust money in mortgage . . . . . . 350 
 
 Mortgage of a reversion ..... 350 
 
 Loan upon a judgment ........ 350 
 
 Safest investment (where no power) in 3 per cent. Bank Annuities 351 
 Other government securities . . . . . . .352 
 
 "Where successive estates Kmited, government securities other than 
 
 the 3 per cent, must be converted into that fund . . . 352 
 
 Tenant for Hfe must refund what surplus interest he has received . 353 
 
 , No conversion directed where stock is devised specifically . . 354 
 Investment in 3 per cent, reduced, ordered by Court under special 
 
 circumstances ......... 354 
 
 Mortgages need not be called in . . . . . .354 
 
 Assets in India may be invested on the securities of the Company, 
 
 though yielding 10 or 12 per cent. ... . . 355 
 
 Trustees neglecting direction to purchase stock answerable for the 
 
 amount that might have been purchased . . . .355 
 
 Trustees selling out improperly liable to cestui que trust, at his 
 option, for specific stock or proceeds with interest at 5 per 
 
 cent. . . .... . . 356 
 
 Trustees must not put the fund under the control of one of them- 
 selves singly . .... 357 
 
 Section IV. 
 
 IlABILiry OF TRUSTEES 10 PATMENT OF INTEREST. 
 
 Trustees charged with interest for improper retainer . . . 358 
 
 So executors ......... 358 
 
 And assignees of bankrupts, <feo. . . . . . . 359 
 
 Delay may be explained . . . . . . .359 
 
 No excuse that they did not use the money . . . . 360 
 
 Formerly an executor was considered entitled to use the assets . 360 
 
 At least where solvent ........ 360 
 
 Unless assets specifically bequeathed . . . . . . 360 
 
 Eule general now that executor must account for assets . . 360 
 Where trust money used in trade cestui que trust may claim either 
 
 interest or the actual profit . . . . . . 361 
 
 General rate of interest 4 per cent . . . . . .361 
 
 Under what circumstances compound interest charged . 361 
 
CONTENTS. XXVll 
 
 PAOB 
 
 Trustee charged 6 per cent, where gross misconduct . . .362 
 
 Whether simple or compound interest chargeable where monies 
 
 used in trade ....■••■• 363 
 "Where accumulation directed, compound interest . . .364 
 
 Time from which interest charged 364 
 
 Interest on money lost that never came to hand . . .364 
 
 Section V. 
 
 OF THE DISTRIBUTION OF THE TRUST FUND. 
 
 Mistake is at the risk of the trustee . . . . .365 
 
 Advice of counsel ......■•■ 366 
 
 Suit 36r 
 
 Cestui que trust afeme covert whose husband is bankrupt or insolvent 369 
 
 Equity to settlement . ., . . . • ■ 3T0 
 
 Collusive reduction into possession oi feme's chose en action . . 370 
 
 Authority from cestui que trust to receive . . . . . 372 
 
 Genuineness of the authority ....... 372 
 
 Payment to an infant ........ 373 
 
 Payment to a partner ........ 373 
 
 Release ........ . . 373 
 
 Act for the relief of trustees ....... 376 
 
 CHAPTER XIV. 
 
 DUTIES OP TRUSTEES OF RENEWABLE LEASEHOLDS. 
 
 I. In what oases the obligation to renew is imposed . . . 383 
 No such obligation from mere circumstance of successive estates 
 
 limited ......... 383 
 
 Mere interposition of trustee will not create the obligation . . 384 
 
 Nor the circumstance that the settlement was on marriage . . 385 
 If renewable leaseholds be articled to be settled, the Court inserts 
 
 a clause for renewal ........ 385 
 
 Direction to renew may be in the form of a power . . . 386 
 
 II. In what manner the fines upon renewals are to be levied . 386 
 Where the fines are directed to be raised from " rents and profits," 
 
 and the leaseholds are for years . . . . .386 
 
 Fines to be levied out of rents and profits or by mortgage . . 387 
 
 Where the leaseholds are for lives or years determinable on lives . 388 
 
 Mode lately adopted by the Court for raising the fines . . 390 
 
 Of raising fines by insurance . . . . . . . 391 
 
XXVm CONTENTS. 
 
 PAGE 
 
 Po-wer of charging freeholds for raising the fines . . .391 
 
 Who shall have the rents applicable to fines where no renewal can 
 
 be obtained ......... 392 
 
 Mode of redress where rents applicable to fines not levied . . 392 
 Case of direction to renew and ftind for raising the fines not 
 
 specified .......... 393 
 
 Mortgage seldom feasible . . . . . . .393 
 
 Application to the Court . . . . . . . . 393 
 
 Old rule of contribution as between tenant for life and remainder- 
 man .......... 395 
 
 Canons laid down in Nightingale v. Lawson . . . . 396 
 
 How rule of contribution to be applied to leaseholds for Uves . 398 
 
 Where no trustee interposed tenant for hfe is trustee . . . 402 
 
 Receiver appointed where tenant for life threatens not to renew . 402 
 
 No suit for compensation until after death of tenant for life . 402 
 
 Admission fines to copyholds ....... 402 
 
 CHAPTER XV. 
 
 DUTIES OF TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. 
 
 Forms in which settlements containing such a trust are drawn . 404 
 
 What duties imposed in each form . . . . . . 404 
 
 I. Duties untU the eldest son has attained twenty-one . . 405 
 Imperative upon the trustees not to destroy the contingent re- 
 mainders ....... . 405 
 
 Though the settlement was volimtary ..... 406 
 
 Remedy where the remainders have been destroyed . . . 406 
 Collateral heir of the husband not entitled to compensation . .406 
 
 Heir apparent not entitled during the lifetime of the father . . 406 
 
 Court has no jurisdiction to destroy the remainders . . . 407 
 
 Exceptions in Piatt v. Sprigg and Bassett v. Clapham . 407, 408 
 
 II. Duties after the eldest son has attained twenty-one . . 408 
 Destruction of remainders matter of discretion . . . 408 
 Proper, where object is to resettle estate on marriage of eldest sou 409 
 Improper, where no purpose, or none that is reasonable . . 409 
 Of distinction between settlements and wills . . . . 410 
 Efiect of the Pines and Recoveries Act . . . . .411 
 Contingent remainders no longer destructible by forfeiture, sur- 
 render, or merger ........ 413 
 
CONTENTS. 
 
 XXIX 
 
 CHAPTEE XVI. 
 
 DUTIES OF TRUSTEES FOR SALE. 
 
 Section I. 
 
 GBNBBAL DUTIES OF TRUSTEES FOR SALE. 
 
 May sell witliout application to the Court 
 
 Must consult tlie advantage of tlie cestim que trust 
 
 Each trustee responsible ..... 
 
 Trustees allowed reasonable time to sell 
 
 May not lease ...... 
 
 Nor, as a general rule, mortgage 
 
 Trust to mortgage will not authorize a sale 
 
 Nor a power of sale a partition 
 
 Sale under usual power in settlement 
 
 Special cases in powers of sale 
 
 Eaising portions ..... 
 
 Should ascertain^value of the estate 
 
 And whether good title can be made .... 
 
 Where the estate is settled, may not sell the timber exclusively 
 
 May sell by auction or private contract 
 
 May employ agents ...... 
 
 If sale by auction, proper advertisements must be given 
 Of conditions of sale ...... 
 
 Of selling in lots ..... 
 
 Of buying in ..... 
 
 Of auction duty ..... 
 
 Of letting into possession 
 
 Of the conveyance ..... 
 
 Of covenants . ... 
 
 Attested copies and covenant for production 
 Sale of leaseholds ..... 
 
 Of sale by mortgagee imder a power 
 
 As to cestwis que i/rust joining in the conveyance 
 
 Trustees bound to answer inquiries 
 
 Custody of vouchers .... 
 
 Land discharged when money raised 
 
 FA6B 
 
 414 
 
 414 
 
 415 
 
 415 
 
 416 
 
 416 
 
 417 
 
 417 
 
 417 
 
 419 
 
 420 
 
 421 
 
 421 
 
 421 
 
 422 
 
 422 
 
 422 
 
 423 
 
 423 
 
 423 
 
 424 
 
 424 
 
 424 
 
 425 
 
 425 
 
 426 
 
 427 
 
 427 
 
 427 
 
 428 
 
 428 
 
 Section II. 
 
 POWER OF TRUSTEES FOR SAXE TO SIGN DISCHARGES. 
 
 Trust for sale for payment of debts ..... 
 Sale of more than the purpose requires .... 
 
 428 
 429 
 
XXX CONTENTS. 
 
 PAGE 
 
 Sale of estate charged with legacies not yet payable . . .430 
 
 Principle of seeing to the application of purchase-money . . 430 
 
 Trust to sell implies power in some one to sign discharges . . 431 
 
 Case of infant cestuis que trust . . . . . . . 432 
 
 Special trust declared of the proceeds of the sale . . .432 
 
 Power to seU and iuvest in new purchase . . . . . 433 
 
 Trust to lay out and invest ....... 433 
 
 Trust to pay debts . ....... 434 
 
 Trust to pay scheduled debts or legacies ..... 435 
 
 Power to sign receipts, a question of intention at date of the 
 
 instrument of trust ........ 436 
 
 Forbes v. Peacock ........ 437' 
 
 Cases upon power to give receipts where a testator merely charges 
 
 an estate with payment of debts . . . . . . 440 
 
 1. Devise to trustees subject to a charge of debts . . . 440 
 
 2. Devise to a person beneficially subject to a charge of debts . 443 
 
 3. Charge of debts and no devise ...... 444 
 
 4. Charge of debts and a subsequent devise to a devisee who 
 
 dies in the testator's lifetime ...... 447 
 
 5. Charge of debts and the estate subsequently demsed upon 
 various limitations ........ 447 
 
 General consideration of trustees' power to give receipts resumed . 448 
 
 Receipts of person to whom the trust has been delegated . . 449 
 
 Receipts of trustees appointed by the Court . . . . . 449 
 
 Receipts after breach of trust ....... 450 
 
 Suggestions, where no power of signing receipts . . . 451 
 
 New principle suggested ....... 452 
 
 Cestui que trust abroad . . . . . 453 
 
 Receipts of executors . ...... 453 
 
 Notice of the will . . . ... 454 
 
 Fraud ..... .... 456 
 
 Sale for nominal consideration . . . .456 
 
 Sale by executor for payment of his own debt . . . 456 
 
 For other private purposes . . . . . . . 457 
 
 Sale of specific chattel, and notice that debts have been paid . 458 
 
 Payment to executor who will probably misapply the money . 458 
 
 Payment after long interval from testator's death . . . 453 
 
 Sale by exectitor's banter ... .... 459 
 
 Who may impeach the sale ...... 459 
 
 Effect of time . . . . ... 459 
 
 Section III. 
 
 OF PUECHASES BY THE TRUSTEES OF THE TRUST PEOPEKTY. 
 
 Principle of the rule that trustees cannot purchase . . , 460 
 
CONTENTS. XXXI 
 
 PAGE 
 
 Lord Eosslyn's opinion . . . . . . . .461 
 
 Trustees cannot buy as agents for others . . . . 462 
 
 Or employ an agent to buy for themselves . . . .462 
 
 Caimot lease to one of themselves . . . . . . 462 
 
 Trustee who has disclaimed ....... 462 
 
 Trustees may piurchase from cestui que trust . . . . . 463 
 
 But the relation of trustee and cestui que 1/rust must first be 
 
 dissolved ......... 463 
 
 Instances where purchases by trustees from cestui cpie i/rust have 
 
 been allowed ......... 464 
 
 Said that cestui que trust's solicitor must be specially authorised to 
 
 deal with the trustee ....... 464 
 
 Where creditors, all must join . . . . . . . 464 
 
 . 465 
 
 . 465 
 
 . 465 
 
 . 465 
 
 . 466 
 
 . 466 
 
 . 466 
 
 . 46T 
 
 Court will not authorise trustee to bid .... 
 
 Case of infant cestuis que trust ..... 
 
 Rxile applicable to executors, assignees, <fec. 
 
 Of the terms upon which the sale will be set aside 
 
 Cestui que trust may recover specific estate 
 
 Allowances will be made for improvements and repairs . 
 
 Exception where actual fraud ...... 
 
 Case of purchase-money paid into court and a rise of stock 
 
 Immediate conveyance ordered ...... 467 
 
 Titles of lessees not prejudiced ..... . 467 
 
 Cestui que trust may pray a resale ...... 467 
 
 Estate win be put up at the purchase-money . . . . 468 
 
 Expense of repairs and improvements will be added to the pur- 
 chase-money ......... 468 
 
 As to resale in lots ......... 468 
 
 Any creditor may insist on a resale . . . . . .469 
 
 Case of subsequent sale by the trustee to purchaser without notice 469 
 Case of resale of shares in mines . . . . . . . 469 
 
 Of the costs of suit ........ 469 
 
 Within what time cestui que trust may set aside the S^le , . . 470 
 
 Zac?i«s not imputed to /ernes coijert and infants . . . .471 
 
 Not to creditors in same degree as to individuals . . . . 471 
 
 No laches where cestui que trust was ignorant of his light . . 471 
 
 Or was in distress ......... 471 
 
 Of confirmation of the sale ....... 471 
 
XXXll 
 
 CONTENTS. 
 
 CHAPTEE XVII. 
 
 DUTIES OF TRUSTEES FOE PAYMENT OF DEBTS. 
 
 Trust created by mil .... 
 By act inter vivos ..... 
 
 1. Where person is not a trader . 
 Insolvent Debtors' Act .... 
 Trust attended with fraud 
 Voluntary trust ..... 
 Terms of the composition must be observed 
 
 2. Where person is a trader . 
 BanlcruptGy Act ..... 
 Creditors acquiescing .... 
 Late Act allows a composition 
 Trader may assign part of his property 
 Division of trusts for payment of debts 
 
 1. Irrevocable trusts .... 
 
 2. Revocable trusts .... 
 Duties of trustees for payment of debts 
 What debts are to be paid 
 Debts barred by Statute of Limitations 
 Infants' debts ..... 
 Mortgage with covenant .... 
 Creditors to come in within a certain time 
 Discretion given to trustees 
 Order of payment ..... 
 Creditors and legatees .... 
 All creditors paid pom passu . 
 Specialty creditors ..... 
 Trustee who is also executor . 
 Allowance of interlst .... 
 Specialty debts ..... 
 Bond creditors ..... 
 
 FAQZ 
 474 
 
 474 
 474 
 475 
 476 
 476 
 476 
 477 
 477 
 479 
 479 
 480 
 480 
 481 
 481 
 481 
 481 
 484 
 485 
 485 
 486 
 486 
 487 
 487 
 488 
 488 
 488 
 489 
 491 
 491 
 
 CHAPTEE XVIII. 
 
 DUTIES OP TRUSTEES FOR CHARITIES. 
 
 Charities either in the hands of trustees or incorporated . . 492 
 
 Prefatory remarks on the visitatorial power . . . . . 492 
 
 Distinction between original endowment and new donations . . 494 
 
CONTENTS. XXXlll 
 
 PAGE 
 
 Tke Lord Chancellor in certain cases the visitor . . . . 495 
 
 Duties of trustees for charities ...... 495 
 
 Must not divert the fund to other charitable purposes . . . 495 
 
 Chapels 496 
 
 Trust in aid of rates ........ 496 
 
 Trust for maintaining the worship of God .... 497 
 
 Appointment of new trustees ....... 498 
 
 Meeting-house . . . . . . . . .498 
 
 A corporation with power of making bye-laws . . . . 498 
 
 Whether Court can sanction aberration from founder's intention . 499 
 
 No total alteration without authority of Parliament . . . 499 
 The application of the fund may in certain cases contravene the 
 
 letter of the endowment ....... 499 
 
 Eb:ee Grammar School ....... 499 
 
 Grammar School Act (3 & 4 Vict. c. 7T) 500 
 
 "Finding a master" ........ 501 
 
 "iteUef ofpoor" .... .... 501 
 
 " Repairing" .... ... 601 
 
 Augmentation and reduction of salaries . .... 502 
 
 Loans .......... 502 
 
 Retainer of charity revenue ....... 502 
 
 Of alienations of the charity estate ...... 502 
 
 Recent charity Acts ... .... 504 
 
 Accumulations ......... 504 
 
 Trustees cannot lease the charity lands to one of themselves . 505 
 
 As to discretion of taking fines or reserving rents upon leases . 505 
 
 Of inadequate consideration for the lease . . . . 606 
 
 Of unreasonable extent of the term . . . .507 
 
 Of husbandry or farm leases . . ... 508 
 
 Leases on lives ..... . 509 
 
 Of building leases ........ 510 
 
 Foregoing rules subject to donor's intention to the contrary . 510 
 
 Improvements by lessees . . . . . . . . 611 
 
 Disabling effect of the Charitable Trusts Amendment . . 511 
 
 CHAPTEE XIX. 
 
 THE POWERS OF TRUSTEES. 
 Section I. 
 
 OF THE GENERAL POWERS OF TRUSTEES. 
 
 Powers at law distinguished from those in equity . . . 512 
 
 Rule in the simple trust ........ 512 
 
XXXIV 
 
 CONTENTS. 
 
 PAGE 
 
 Rule in the special trust . . . . . • .512 
 
 Trustee may exercise discretion under circumstances . . . 513 
 
 Trustee, may do without suit what is compellable by suit . . 513 
 
 Repairs ........... 513 
 
 Cutting timber ... 515 
 
 Opposing bUl in Parliament . , . . . . 515 
 
 Insurance .......... 516 
 
 Executor may appropriate a legacy . . . . . . 517 
 
 May allow maintenance to infant out of the interest of his legacy 517 
 
 And, under certaiu circumstances, out of the principal . . 517 
 May sink part of the capital fcM: infant's advancement, where he 
 
 could not for his maintenance . . . . . . 518 
 
 Cannot apply principal where limitation over .... 519 
 
 Except the limitation be by way of survivorship among the children 
 
 themselves . . ...... 519 
 
 Has power to release or compound debts ..... 520 
 
 Whether a trustee mortgagee can release part of the land in 
 
 mortgage .......... 521 
 
 May reimburse himself a payment made in Ms own protection as 
 
 trustee .......... 521 
 
 May grant reasonable leases ....... 622 
 
 Power of varying securities ....... 523 
 
 Case of suit instituted . . . . . . . . 523 
 
 Case of suit and no decree ....... 524 
 
 Section II. 
 
 OF IHB SPECIAL POWEBS OF TRUSTEES. 
 
 I. Of the diiferent kind of powers . . . . .524 
 Distinction between legal and equitable powers . . . . 524 
 Equitable powers whether annexed to the estate or simply col- 
 lateral .......... 525 
 
 Distinction between mere powers and powers coupled with a trust 526 
 
 Between strict and directory powers .'.... 527 
 
 II. Of the construction of powers . . . . .527 
 
 Power to A. and B. and "their heirs" ... . . 227 
 
 To A. and his "assigns" ....... 529 
 
 Power indicating personal confidence to A. and his " executors" . 530 
 
 To "executors," "sons in law," "trustees" . . . . 530 
 
 To trustees and the " survivors of them" ..... 531 
 
 Power during continuance of the trust . . . . . 531 
 
 III. Of the effect of Msclmmer, assigiiment, and survivorship of 
 
 the estate ......... 532 
 
 JEffect of disclaimer upon powers . . . . . . . 532 
 
CONTENTS. XXXV 
 
 PAOB 
 
 Of assignment of the estate . . . . . . .533 
 
 Whether power will remain in trustee after aJienation of the estate 534 
 Case of real and personal estate blended together . . .534 
 
 The Court may sanction the severance of the estate from the 
 
 powers .......... 535 
 
 Of sij/rvivorslM^ among the trustees . . . . .536 
 
 [Remarks upon powers before the Statute of Uses . 537, note (1)] 
 
 Survivorship where power given to trustees by name . . . 537 
 
 Powers not annexed to the trust . . . . . .538 
 
 IV. Of the control exercised by the Court over powers . . 538 
 The Court will not control mere powers ..... 538 
 
 Except there be fraud ........ 543 
 
 Or suit has been instituted ....... 544 
 
 CHAPTEE XX. 
 
 OF ALLOWANCES TO TRUSTEES. 
 Section I. 
 
 ALLOWANCES FOE, TIME AND TROTJBLE. 
 
 No allowance in general for time and trouble . . . .545 
 
 Rule applies to executors, mortgagees, <fec. .... 
 Trustees for absentees of West India estates are allowed a com 
 
 mission ........ 
 
 Rate of commission in Jamaica ...... 
 
 Mortgagees in possession of West India estates 
 
 Of the commission allowed to executors in the East Indies 
 
 Person constructively a trustee may be paid for his trouble in the 
 
 management of a trade ...... 
 
 But not an express trustee ...... 
 
 Solicitors and attorneys allowed expenses out of pocket only 
 
 The author of the trust may order an aUowanoe 
 
 Where quantum not specified ..... 
 
 Of contracts between trustee and cestui gue trust for an allowance 551 
 
 The contract must be fulfilled to the letter . 
 Trustee may contract with the Court .... 
 
 Usury law prevents a mortgagee bargaining for compensation 
 But he may save his own trouble by employment of agents . 
 Or a collector of rents, bailiff, attorney, or accountant . 
 
 546 
 
 546 
 546 
 546 
 547 
 
 548 
 549 
 549 
 550 
 551 
 
 553 
 553 
 556 
 556 
 556 
 
 e 2 
 
XXXVl CONTENTS. 
 
 Section II. 
 
 ALLOWANCES TO TRUSTEES FOR EXPENSES. 
 
 FAGB 
 
 Allowance will be made to trustee for all actual expenses . . 657 
 
 Though remunerated for his trouble besides . . . . . 558 
 
 Case of trustee who has not kept account of expenses . . 559 
 
 Trustee will be reimbursed a payment made for his own protection 559' 
 
 Trustee's expenses a lien upon the estate . . . . . 560 
 
 Trott V. Dawson ......... 560 
 
 No lien in favour of agents of the trustee . . . .561 
 
 How expenses recoverable when no trust estate . . 662 
 
 Claim against tlie cestui que i^ust personally . . . 663 
 
 Funds out of which expenses payable ... . 564 
 
 CHAPTER XXI. 
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE FROM THE OFFICE. 
 
 I. May retire with consent of all the cestms que trust . . 565 
 If aR he sui jwris ......... 666 
 
 II. May retire by virtue of a special power in the trust deed . 566 
 The usual power stated . . . . . . . .666 
 
 Whether a new trustee actually such until the estate has been 
 
 transferred ......... 56T 
 
 Mode of vesting tbe trust estate . .... 668 
 
 Construction of the power ........ 570 
 
 Sharp V. Sharp ..... . . 570 
 
 Meaning of the word "survivor" . . . . .670 
 
 Meaning of the word " acting" ...... 671 
 
 "Refvising or decliniiig" includes "disclaiming" . . . . 571 
 
 " Refusing or declining" means also after having acted . .572 
 
 Morris v. Preston ... .... 573 
 
 Power to tenant for life iwith trustee . . . .573 
 
 Trustee becoming bankrupt "wnfit" . . . . . _ 5^^ 
 
 Trustee resident abroad ....... 574 
 
 Two trustees cannot relinquish in favour of one . . . . 574 
 
 Case of one trustee substituting more than one in his place . . 574 
 
 One trustee cannot relinquish to the other . . . . . 577 
 
 Appointment of one tmstee in the place of several . . . 577 
 
 Appointment of twotrustees at once . . . . . . 5178 
 
 Appointment of a cestui que trust, or near relation, as trustee . 579 
 Of severing a trusteeship . . . . . . .579 
 
CONTENTS. XXXVU 
 
 FAGH 
 
 Of powers of appointment of a directory character . . . 580 
 
 Power will be no protection where there is fraud 
 Eesult where a new trustee is ineffectually appointed 
 
 III. Trustee may get himself discharged by application to 
 court of equity .....■■ 
 
 Where no new trustee can be found . . . . ■ 
 
 How application should be made 
 
 Costs ...... • • 
 
 Application by representative of deceased trustee 
 Complication of trusts by acts of tenant for life 
 
 580 
 581 
 
 582 
 582 
 583 
 583 
 584 
 584 
 
 PART III. 
 
 THE ESTATE OP THE CESTUI QUE TRUST. 
 
 CHAPTEE XXII. 
 
 IN WHAT THE ESTATE OF CESTUI QUE TEUST CONSISTS. 
 Section I. 
 
 THE ESTATE OF CBSTITI QTTE TKUST IN THE SIMPLE TETJST. 
 
 1. The jus habendi, or cestui que trust's right to the pernancy of 
 
 the profits ... 585 
 
 Entitled to the possession of lands . . . . . 685 
 
 Except there be some interest in another person . . .586 
 
 Eight to the possession recognised in equity only, not at law , . 590 
 Lord Mansfield's doctrines, since overruled . . . .590 
 
 Possession of title deeds . . . . . . . 591 
 
 Cestwi que trust qualified to be a juror . ... 592 
 
 So, before late Game Act qualified to sport . . . . . 593 
 
 As to right of cestui que trust to vote for coroner . . .592 
 
 Has right to vote at elections for members of Parliament . 593 
 
 Of his right to the possession of trust chattels . . . . 593 
 
 How usually empowered to receive dividends . . .594 
 
 2. Of cestui que thrust's jus disponent . . . . . 595 
 
 Trustee's conveyance ... . . . 596 
 
 Trustee to bar dower ....... 596 
 
 Intermediate trusts . . . ... 596 
 
 Section II. 
 
 The estate of cestui que trxist in the special trust . . . . 59'7 
 
 "Where only one cestui que trust, or all cestwls que trust of one 
 
 mind, the special trust same as a simple trust . . .597 
 
XXXVUl 
 
 CONTENTS. 
 
 But special trust continues until election expressed 
 The special trust must be a lawful one 
 
 FACSE 
 
 598 
 699 
 
 CHAPTER XXIII. 
 
 OF THE PROPERTIES OF THE CESTUI QUE TRUST'S ESTATE AS 
 AFFECTED BY HIS ACTS OR BY OPERATION OF LAW. 
 
 Section I. 
 
 OP ASSIGNMENT. 
 
 Form of assignment ........ 600 
 
 Power of equitable tenant in tail . . . . .601 
 
 Summary of law before the Fines and Recoveries Act . . 604 
 
 Cautions in assignments of equitable interests . . . . 604 
 
 Priority of charge from priority of notice ..... 605 
 
 The principle of the dootiiae ....... 605 
 
 Distinction between real and personal estate .... 60'r 
 
 Notice in respect of real estate ..... . 60'r 
 
 Second incumbrancer giving notice but making no inquiries . 608 
 
 Notice to one of several co-trusteea . . . . . . 609 
 
 Death of single trustee to whom notice given . . . .610 
 
 Notice to all the trustees, and all dying . ... 611 
 
 Time of giving notice ........ 612 
 
 To whom notice should be given . . . . . . 612 
 
 Case of the fund being in Court ...... 613 
 
 Notice to trustee where fund in Court, and neither assignee obtains 
 
 a stop order ......... 614 
 
 Case where there is no trustee ...... 614 
 
 Section II. 
 
 OF TESTAMENTARY DISPOSITION. 
 
 How trust of freeholds to be devised . . . . 
 
 Trust of copyholds ...... 
 
 Where no custom to devise the legal estate of copyholds 
 Of customary freeholds ...... 
 
 Late Wills Act 
 
 615 
 615 
 616 
 
 6ir 
 
 617 
 
 Section III. 
 
 OF SEISIN AND DISSEISIN. 
 
 Equitable seisin 
 Possessio fratris of a trust 
 
 6ir 
 618 
 
CONTENTS. XXXIX 
 
 PAGE 
 
 What is equitable disseisin .... .618 
 
 Marqviis of Cholmondeley v. Clinton . . . . 618 
 
 Section IV. 
 
 OP BOWBB AND CUETESY. 
 
 Dower and curtesy of a trust ...... 621 
 
 Freebench 621 
 
 What seisin required to give curtesy . . . . .622 
 
 Curtesy where there is separate use . . . . . . 623 
 
 Distinction between dower and curtesy . . . . .624 
 
 How curtesy came to be allowed, and not dower . . . . 625 
 
 Late Dower Act ........ 626 
 
 Section V. 
 
 OF THE ESTATE OF A FEME COVEKT CESTUI QUE TRUST. 
 
 1. In pure personal estate not settled to separate use . . . 627 
 Equity to a settlement . . . . . . . .628 
 
 Right by survivorship . . . . . . . . 628 
 
 2. Equitable chattels real of /erne covert .... 629 
 
 Whether wife entitled to a settlement out of equitable chattels real 629 
 Result of decisions ........ 630 
 
 Effect of gettiQg in legal estate iu wife's equitable term . . . 630 
 
 Estate by elegit ia trust for a /erne covert . . . . .630 
 
 Mortgage term in trust for a /erne covert . . . . . 631 
 
 Equitable term in trust for separate use . . . . .631 
 
 3. Wife's equitable interest in lands of freehold or inheritance . 631 
 
 4. The wife's separate estate ...... 632 
 
 General rule . . ....... 632 
 
 General engagements of a feme covert in writing . . . 633 
 
 General engagements not in writing . . . . . . 634 
 
 Lord Brougham's exposition of the principles regulating the liability 
 
 of the separate estate ....... 635 
 
 Lord Cottenham's view . . . . . . . . 636 
 
 Result of judgments of Lord Brougham and Lord Cottenham . 638 
 Observations of V. 0. Kindersley respecting feme's verbal engage- 
 ments .......... 638 
 
 Case of clear contradiction of intention . . . . .639 
 
 Breach of trust by /erne co'oeri . . . . . . . 639 
 
 View of Lord St. Leonards in reference to breaches of trust by a 
 
 feme covert having a separate estate ... . . . 640 
 
 Nature of the relief against the separate estate . . . . 640 
 
 Where no power of anticipation ...... 641 
 
Xl CONTENTS. 
 
 PAGE 
 
 Stock settled to separate use . . . . • 642 
 
 Creditors' suit after death oi feme covert ..... 642 
 
 Power of disposition by will of separate estate . . . . 642 
 
 Separate estate undisposed of survives to the husband . . 642 
 
 Arrears of separate estate ........ 642 
 
 Case oi feme covert non compos ...... 644 
 
 Special consideration of separate use in reference to real estate . 644 
 No acknowledgment needed of conveyance of real estate settled to 
 
 separate use ......... 646 
 
 Section VI. 
 
 JUDGMENTS AGAINST THE CESTUI QUE TEUST. 
 
 Writs of execution at common law . . . . . . 646 
 
 Statute of Westminster ....... 647^ 
 
 Ftom what time chattel interests in land bound . . . 647 
 
 Fieri facias as regards trusts ....... 648 
 
 Trusts not bound by it before execution sent oiit . . 648 
 
 Nor where legal estate not liable ..... 648 
 
 Equity of redemption . . ..... 649 
 
 Levari facias ... ..... 649 
 
 Whether eqtiity can adopt the elegit by analogy . . . . 649 
 
 Trust at one time held not to be subject to elegit . . . 650 
 
 Secus now .......... 650 
 
 Doctrine laid down by Sir J. Leach . . . .652 
 
 Land to be converted into personalty not bound formerly by a 
 
 judgment ......... 653 
 
 Judgment entered up against vendor after contract to sell . 654 
 Whether in case of conveyance upon trust to sell for limited pur- 
 pose, surplus proceeds bound by a judgment . . . 656 
 Altered state of the law ........ 656 
 
 Practical result . . . . . . . . .657 
 
 How much of the estate might be taken in execution . . . 657 
 Grounds on which he may come into equity . . . .658 
 
 Entitled to moiety only of a trust . . . , . . 658 
 But to entirety of equity of redemption . . . .660 
 
 Case of trust by way of mortgage . . . . . . 661 
 
 Whether necessary before suit to take out actual elegit . . 662 
 
 Bill of judgment creditor after the death of the conusor . . 663 
 
 Of execution against the trust estate under Statute of Frauds . 664 
 
 Whether equitable elegit where no legal elegit of a trust . . . 665 
 
 Statute of 1 & 2 Vict, c, 110, ss. 11, 13, 18, and 19 . . 666 
 
 3 & 4 Vict. c. 82 668 
 
 18 & 19 Vict. c. 15 669 
 
CONTENTS. xli 
 
 PAGE 
 
 Construction of tlie Acts ....... 669 
 
 Consideration of the cha/rging order provisions of tlie 1 & 2 Vict. 
 
 0. 110 669 
 
 1. By whom tlie charging order should be made . . . 670 
 
 2. Charging order will be made without deciding on the quantum 
 
 of interest charged . . . . . . . . 670 
 
 3. Bank, (fee, bound to pay trustee notwithstanding charging 
 order on interest of cestui que trust . . . . .671 
 
 4. iToviso at end of s. 14 does not prohibit a suit for merely 
 protecting interest charged . . . . . . 671 
 
 5. EflFect of charging order in reference to other incumbrances . 671 
 Case of lands lying in a register county . . . . . 672 
 Judgment postponed to subsequent purchase or mortgage without 
 
 notice 672 
 
 Case where subsequent purchaser or mortgagee has notice . . 672 
 
 Section VII. 
 
 op extents from the crown. 
 
 Trusts subject to extents . . . . . .673 
 
 May be sold under 25 G. 3, c. 35 673 
 
 Equity of redemption ........ 674 
 
 Section VIII. 
 
 OF FORFEITURE. 
 
 Trust not forfeitable for attainder at common law . . . 674 
 
 Forfeitable for treason by enactment . . . 674 
 
 Equities of redemption forfeitable . . . . . . 677 
 
 Trusts for aliens forfeitable at common law . . . 677 
 
 Trusts for chattels forfeitable . . . . . . . 677 
 
 Forfeiture by tenant for life . . .... 678 
 
 Section IX. 
 
 OF escheat. 
 
 Trust not subject to escheat . . . . . . 678 
 
 Burgess v. Wheate .... ... 678 
 
 Section X. 
 
 OF descent of the trust. 
 
 Trust descends as the legal estate . . . . . .680 
 
 Though there be lex loci, as gavelkind . , . . 680 
 Possessio fratris at a trust . . . . . .680 
 
xlii 
 
 CONTENTS. 
 
 FAOE 
 
 Proceeds from sale of gavelkind lands . . . . . 680 
 
 Limitation to heirs as purchasers . . . . . .681 
 
 Section XI. 
 
 OV ASSETS. 
 
 Trusts of chattels always assets ....... 681 
 
 Whether trusts of freeholds assets before Statute of Frauds . . 681 
 
 Construction of that statute . . . . . . ». 684 
 
 Late Act for more effectual payment of debts .... 685 
 
 Whether trusts of chattels are legal or equitable assets . . . 685 
 
 Whether trusts in fee are legal or equitable assets . . . 688 
 
 Construction of late Act for more effectual payment of debts . . 691 
 
 CHAPTEE XXIV. 
 
 CESTUI QUE TRUST'S RELIEF AGAINST THE FAILURE OF THE TRUSTEE. 
 
 Where the terms of the trust can be ascertained, equity follows 
 
 the estate ......... 
 
 Trustee dying in the testator's lifetime or otherwise failing 
 Direction to sell and trustee not named ..... 
 
 Gift to separate use, and no trustee named . . . . . 
 
 If the trust be in form of a power, the Court, on failure of trustee, 
 
 will execute it ........ 
 
 Where rule to go by, the Court exercises the discretion for the 
 
 trustee .......... 
 
 [Construction of bequest to poor relations . . 698, note (1.)] 
 
 How the Court will exercise the power where the settlor has laid 
 
 down no rule ......... 
 
 In such a case the Court adopts the maxim that equality is equity 
 
 Words of " gift " and words of " power " distinguished . 
 
 Upon trust for the children of A. as B. shall appoint . 
 
 Upon trust to dispose amongst the children of A. 
 
 Discretion as to the objects of the power 
 
 In favour of what objects the Court will exercise a power imperative 
 
 Where immediate exercise contemplated .... 
 
 Where immediate exercise not contemplated 
 
 1. Where power testamentary ..... 
 
 2. Where not merely so ...... 
 
 How Court will execute power in favour of " relations" 
 
 As to persons amongst whom ...... 
 
 As to shares in which . . ... 
 
 Case of power of selecting one of a class .... 
 
 693 
 693 
 694 
 694 
 
 694 
 
 696 
 
 699 
 TOO 
 TOO 
 TOO 
 TOO 
 TOl 
 T03 
 T03 
 T04 
 T04 
 T04 
 T05 
 T05 
 T06 
 TOT 
 
CONTENTS. xliii 
 
 CHAPTEE XXV. 
 
 EIGHTS OF CESTUI QUE TRUST IN PRETENTION OF A BREACH 
 OF TRUST. 
 
 PAGE 
 
 I. Cestui que trust entitled to appointment of proper trustees 
 
 and proper number of trustees ..... 710 
 Of substitution of trustees on death, incapacity to discharge the 
 
 office, &c. 710 
 
 Of trustees not answering description of " inhabitants " . . 711 
 
 Court mil not dismiss trustee from caprice of cestui que trust . , 712 
 Trustee substituted by the Court has not the special powers of the 
 
 original trustee ........ 712 
 
 Appointment of new trustee under Sir B. Sugden's Act . . . 713 
 
 Under the Trustee Act, 1850 714 
 
 Under the Bankruptcy Act . . . . . . . 714 
 
 Case of charitable trusts . . . . . . .716 
 
 Jxirisdiction under 5 & 6 W. 4, c. 76 716 
 
 Charitable Trusts Act 718 
 
 II. Cestui que trust may compel trustee to the observance of 
 
 any act of duty ........ 718 
 
 Sir J. Jekyll's dictum, that laches of trustee shall not prejudice 
 
 cestui que trust ........ 719 
 
 Consideration of the recent Statute of Limitations . . .719 
 
 Allen V. Sayer ......... 720 
 
 Where tenant for life misapplies proceeds of renewable leaseholds, 
 
 receiver appointed ........ 722 
 
 Case of trustee required to give security ..... 723 
 
 III. Cestui que trust may restrain trustee from committing a 
 breach of trust by injunction . . . . . . 723 
 
 And whether damage irremediable or not . . . . .723 
 
 CHAPTEE XXVI. 
 
 REMEDIES OF CESTUI QUE TRUST IN EVENT OF A BREACH OF TRUST. 
 
 Section I. 
 
 OF FOLLOWING THE TEtTST ESTATE INTO HANBS OF A STEANGIK. ■ 
 
 General rule .......... 724 
 
 I. If the alienee be a volunteer . . . . . .724 
 
 Purchaser without notice from a purchaser with notice . . . 726 
 
 Purchaser with notice from a purchaser without notice . . 726 
 
xliv 
 
 CONTENTS. 
 
 PAGE 
 
 How far purchaser bound by notice of a doubtful equity . . ?27 
 
 II. No time bars a direct trust ; otherwise in a constructive trust 729 
 
 1. Of the bar in equity by analogy to a statute of limitation . 731 
 Period limited for recovery of lands is 20 years . . . . 732 
 Ignorance or naistake of plaintiff no excuse . . . .733 
 Time does not run in case of fraud undiscovered . . . . 734 
 How statute must be taken advantage of . . . . . 734 
 
 2. Of presumption of some act in bar of the plaintiff's claim 735 
 Time within which the presimiption arises . . .735 
 Ground of Court's raising the presumption . . 736 
 Waiver. Acquiescence ..... . . 737 
 
 No presumption during ignorance or mistake, (fee. . 737 
 
 Presumption cannot be taken advantage of by demurrer . . 738 
 
 3. Of the bar in equity arising from great public or private 
 inconvenience ........ 739 
 
 Bar from length of time ........ 741 
 
 Late Act for Limitation of Actions and Suits .... 743 
 
 III. Of accounting for mesne rents and profits . . . . 750 
 Defendant prima, facie must account from commencement of 
 
 wrongful title ........ 751 
 
 Several exceptions to the rule . . . . . . . 752 
 
 Bill for relief followed by bUl for account . . . . .752 
 
 Wording of the order ...... . 752 
 
 Liability of trustee for mesne rents and profits .... 752 
 
 [The subject of accounting for mesne rents and profits considered 
 
 generally ....... 752, note (1.)] 
 
 Section II. 
 
 EICHT OF ATTACHING THE PROPBfiTT INTO WHICH THE TRUST ESTATE 
 HAS BEEN WRONGFULLY CONVERTED. 
 
 General rule ....... . 753 
 
 "Money has no earmark'' ..... . 757 
 
 Trust money mixed with trustee's money ..... 769 
 
 Following money into land ...... 762 
 
 Whether cestui que trust can take the estate, or has only a lien . 763 
 
 Section III. 
 
 OF CESTUI QUE TRUST'S REMEDY AGAINST TRUSTEE PERSONALLTi: FOR 
 COMPENSATION. 
 
 Land tortiously sold . . . . . . .763 
 
 Neglect to purchase stock . . . 764 
 
 Policy forfeited 764 
 
CONTENTS. xlv 
 
 FAQB 
 
 Person acting as trustee but not such ..... 766 
 
 Trustee and his assets liable for damage to trust estate as for a 
 
 simple contract debt . . . . . . . . 765 
 
 Immaterial whether trustee was a gainer by the breach of trust 
 
 or not 765 
 
 Or whether loss would have occiured had no breach been com- 
 mitted 766 
 
 Trustee not charged with imaginary values, <feo. . . . . 766 
 
 Where co-trustees, all must be made parties, but each liable in toto 767 
 
 Corporators ......... 767 
 
 As amongst the parties to the breach of trust the person benefited 
 
 or the contriver of the fraud suffers . . . . .768 
 
 Interest of party to a breach of trust may be stopped to make 
 
 compensation ......... 771 
 
 Proof against estate of bankrupt trustee ..... 771 
 
 How far trust debt barred by the certificate . . . 772 
 Bankruptcy of co-trustees . . . . . . .773 
 
 Of cestui que fo-itsf s concurrence in the breach of trust . . . 773 
 Femes covert and infants cannot concur . . . . .774 
 
 Coverture and infancy no protection in case of fraud . . . 774 
 Feme covert bound by concurrence in regard to a fund settled to 
 
 her separate use . ...... 775 
 
 Of acquiescence ......... 775 
 
 Fluctuating body .... ... 777 
 
 Creditors .......... 777 
 
 Of release and confirmation . . . . .777 
 
 Section IV. 
 
 OF REDRESS IN BREACHES OF TRUST BY TRTTSTEES FOR CHARITIES. 
 
 I. Mode of redress ........ 778 
 
 779 
 779 
 
 Of commissions under Statute of Charitable Uses . 
 
 62 Geo. 3, c. 101, or Sir S. RomiUy's Act . . , 
 
 Points resolved upon that Act ..... 780 — 783 
 
 Acts appointing Commissioners of Inquiry 
 
 Charitable Trusts Act, 1853 
 
 Charitable Trusts Amendment Act ..... 
 
 II. Of the extent of redress . ..... 
 
 To what period of time the account of mesne rents and profits 
 against trustees of charities will be restricted 
 
 1. Statutes of limitation not applicable .... 
 
 2. How far presumption applicable .... 
 
 3. Bar arising from inconvenience ..... 
 
 783 
 
 784 
 785 
 786 
 
 786 
 786 
 786 
 787 
 
xlvi 
 
 CONTENTS. 
 
 Pistinotions between trustees and individuals in respect of implied 
 
 notice TOO 
 
 Breach of trust by a parish . . . . . . . 791 
 
 Mode of attaching corporation property . . . . .791 
 
 CHAPTEE XXVII. 
 
 MAXIMS OP EQUITY FOE SUSTAINING THE TRUE CHARACTER OF THE 
 TRUST ESTATE AGAINST THE LACHES OR TORT OF THE TRUSTEE. 
 
 Section I. 
 
 WHAT OUGHT TO BE DONE SHALL BE CONSIDEEBD AS DONE. 
 
 Money to be laid out on land shall be taken as land, and land to 
 
 be turned into money shall be taken as money . . .793 
 
 Money to be laid out on land is subject to curtesy . . . 793 
 
 "Whether subject to dower . . . . . . .793 
 
 Not subject to escheat ........ 795 
 
 Could not have been devised by an infant . . . .796 
 
 Passes in will by description of "lands" . . . . . 796 
 
 Bound by judgments, <fec. ....... 796 
 
 Not to be brought into hotchpot by child claiming an orphanage 
 
 share .......... 797 
 
 In what cases will go to heir of person upon whom the land is 
 
 directed to be settled . . . . . . .797 
 
 Will belong to heir claiming the money from a stranger . . . 797 
 
 Or claiming from the executor of his own ancestor, if any limita- 
 tion of the money be outstanding . . . . .798 
 
 Otherwise, if the money be " at home " . . . . . 800 
 
 Chichester v. Bickerstaff ....... 800 
 
 Pulteney v. Darlington . . . . . . . . 803 
 
 Money is " at home" when actually received . . . .804 
 
 Bequest of money to be laid out on lands to be settled to testator's 
 
 right heirs ......... 805 
 
 Voluntary covenant to purchase lands to be settled to covenanter 
 
 in fee 805 
 
 Direction for conversion, to create a notional conversion, must be 
 
 imperative . . ...... 806 
 
 Cases of direction deemed imperative where the uses were exclu- 
 sively applicable to real estate ...... 806 
 
 Conversion at "the request" of a party . . . . . 807 
 
 Land to be turned into money passes by bequest of "personal 
 
 estate," <Sic 807 
 
CONTENTS. 
 
 xlvii 
 
 PAGE 
 
 Alien 807 
 
 Charity 808 
 
 The conversion must be imperative . . . . . . 808 
 
 Implied conversion in bequests of wasting property to persons in 
 
 succession ......... 808 
 
 Intention to confer enjoyment in specie may be collected from the 
 
 bequest .......... 809 
 
 Instances of the genera] rule ...... 809 — 812 
 
 Rule where property not wasting, but of a class not authorised by 
 
 the Court 812 
 
 Direction for investment of personal estate and accumulation of 
 
 income .......... 813 
 
 Devise of real estate upon trust to seU. and invest proceeds and 
 
 rents until sale ......... 813 
 
 Produce during first year from testator's death .... 813 
 
 Where funds are in the state they ought to be . . . . 814 
 
 "Where the proper investment is made before the end of the year 814 
 "Where the funds are not in the state they ought to be . .814 
 
 Discretion expressly given by the testator . . . . . 815 
 
 Eents of devised estate . . . . . . . .816 
 
 Election 816 
 
 "Who may elect ......... 816 
 
 Of infants, lunatics, and femes covert . . . . . . 816 
 
 Power of feme covert over money-land . . . . .816 
 
 Special power of married women under Pines and Recoveries Act 817 
 
 Of remainder-men ......... 818 
 
 Of several parties interested . . . . . . .819 
 
 Of tenant in tail ......... 820 
 
 39 <fc 40 a 3, c. 56 821 
 
 Effect of Pines and Recoveries Act . . . . . . 822 
 
 In what manner election may be made ..... 823 
 
 Of presumption of election . . . . . . . 823 
 
 How election may be expressed ...... 824 
 
 Money to be turned into lands may be passed by wiU not 
 
 attested .......... 824 
 
 Section II. 
 
 THE ACT OP THE TETTSTEE SHALL NOT ALTER THE NATURE OF CESTUI QUE 
 trust's ESTATE. 
 
 Where conversion is wrongful, equity neutralizes it . . . 825 
 
 Trustee for a lunatic cannot convert, unless beneficial to lunatic 
 himself .......... 826 
 
 Interest of lunatic's successors not consulted . . . .826 
 
xlviii 
 
 CONTENTS. 
 
 PAGE 
 Heir ex parte paternd has no equity against heir ex pwrte maUrnd 826 
 
 Of payment of lunatic's debts out of his real estate . . . 826 
 
 Of fall of lunatic's timber 826 
 
 Of redemption of lunatic's mortgage debts . . . . . 827 
 
 Of actions in lunatic's name ....... 827 
 
 Of improvements, repairs, <fec. . . . . . . 827 
 
 Conversion will not be made unnecessarily . . . .828 
 
 •Distinction between lunatics and infants . . . . . 829 
 
 Purchases for infants can only be made sub conditione . .829 
 
 Timber cut on infant's land continues real estate . . . . 829 
 
 Money paid in discharge of mortgage debts continues personalty . 830 
 
 Conversion allowable for necessary expenses . . . .830 
 
 Late Wills Act ... .... 831 
 
 CHAPTEE XXVIII. 
 
 OF STATUTOET ENACTMENTS FOE EEMEDTING INCONVENIENCES 
 ARISING PROM THE DISABILITY OF THE TRUSTEE. 
 
 Statute of 7th Anne, c. 19 . 
 
 Construction of Act ...... 
 
 Statute of 4 Geo. 2, c. 10 
 
 Lord St. Leonards' Act (11 G. 4, & 1 W. 4, c. 60) 
 
 Trustee Act, 1850 
 
 832 
 832 
 833 
 834 
 840 
 
 CHAPTER XXIX. 
 
 PLEADING AND PRACTICE IN REFERENCE TO THE LAW OF TRUSTS. 
 
 Section L 
 
 or KECESSAKT PARTIES. 
 
 1. General rule in suits by or against strangers . . . . 841 
 
 One of several cestuis que trust cannot foreclose or redeem alone 842 
 Mortgagee coming to foreclose and mortgagor to redeem must 
 
 make all cestuis que trust parties . . . . .842 
 
 Legal termor a necessary party ...... 
 
 Error ia Lord Redesdale's Treatise as to trustees for creditors 
 Similar error ......... 
 
 Suits for specific performance ...... 
 
 Marriage articles ........ 
 
 Representation specially constituted .... 
 
 2. Suits by parties interested, ' ' inter se" 
 
 842 
 843 
 843 
 844 
 84:4 
 844 
 845 
 
CONTENTS. xlix 
 
 PAGE 
 
 In suits by cestuis que trust against their trustees, all the latter 
 
 necessary parties ........ 845 
 
 Rule the same though equities between them cannot be adjusted . 845 
 
 Quasi-tnistee a necessary party . . . . . . 846 
 
 Stranger who has dealt with the trust fund viithout notice not a 
 
 necessary party ........ 846 
 
 Distinction between cases of a mere breach of trust and those of a 
 
 "delictum" 8^6 
 
 Representatives of trustee who had no interest not necessary 
 
 parties .......... 847 
 
 Nor trustee who disclaims ....... 847 
 
 Nor a trustee out of the jurisdiction . . . . . . 847 
 
 Nor representative of a deceased insolvent trustee . . . 847 
 
 Nor trustee of an outstanding term . . . 848 
 
 Nor trustee of a mere equity . ...... 848 
 
 Nor a trustee who has assigned , ...... 848 
 
 Nor a trustee who is a mere agent ..... 848 
 
 Trusteeship survives . . . . . . . 849 
 
 One of two classes of trustees may be sued . . . 849 
 
 All cestuis que trust necessary parties as a general rule . . . 849 
 
 Cestuis que trust abroad ........ 849 
 
 Cestui qu,e trust standing out process . . . . . . 850 
 
 Or assigning his interest . . . . . . .850 
 
 Cestui que trust of an aliquot share . . . . . 850 
 
 3. Exceptional cases 
 
 Suit to recover a trust fund ....... 850 
 
 Where eetuis que trust extremely numerous, some may sue on behalf of all 851 
 So some may defend on behalf, ifec. . . . . .851 
 
 Requisites to entitle some to sue, <fec. . . . . . . 851 
 
 What number sufficient to dispense with the strict rule . . 852 
 
 4. Special enactments and General Orders varying the practice 
 30th Order of 26th August, 1841 . . ... 852 
 
 Decisions thereon . . . . . . . . .852 
 
 32nd Order of 26th August, 1841 . . , . 853 
 Decisions thereon . . . . . . .853 
 
 New rules as to parties under the 15 <fe 16 Vict. c. 86, s. 42 . . 854 
 General working of new rules . . . . . .855 
 
 Decisions on rule 9 . . . . . . . . . 855 
 
 47th section of 15 <fe 16 Vict. c. 86 856 
 
 51st section of same Act ... .... 856 
 
CONTENTS. 
 
 Section II. 
 
 OF THE ORDER AND MANNER IN WHICH TRUSTEES AND CESTUIS QUE 
 TRUST OUGHT TO APPEAR UPON THE RECORD, AS WHETHER 
 JOINTLY OR SEVERALLY AS PLAINTIPI'S OR DEPENDANTS. 
 
 FASB 
 
 Sir Anthony Hart's statement of tlie proper course . . .856 
 
 Trustees and cestms que trust ought to join in defence . . . 8 5 7 
 In suits " inter se," cestuis que trust in same interest should join 
 
 as plaintiffs ........ 857 
 
 Trustees should defend joiatly . . . . . . . 857 
 
 How /erne covert cestui que trust should sue and defend . . 858 
 
 Section III. 
 
 OF DISTRINGAS. 
 
 Danger to which stock, <fec., exposed, in consequence of the legal 
 
 title only being recognised ...... 858 
 
 Origin of the Writ of Distringas . . . . . . . 859 
 
 Practice continued notwithstanding 4 Anne, c. 16, and 39 & 40 
 
 G. 3, 0. 36 859 
 
 Process transferred to Chancery on the abolition of the Equity 
 
 • Exchequer . 859 
 
 Additional remedy given by 5 Vict. c. 6, s. 4 . . . . 860 
 
 Practice under the 4th section . . . . . . . 860 
 
 Transfer of the old Writ of Distringas . . . . .860 
 
 Form of new Writ 861 
 
 Orders of the Court of Chancery regulating the. practice . . 861 
 
 Form of Affidavit 862 
 
 As to discharging writ ....... 862 
 
 Effect of service of writ . . . . . . . . 862 
 
 Affidavit to be filed ........ 862 
 
 Present practice . . . . . . . ..862 
 
 Distinctions between remedies under the 4th <fe 5th sections of 
 
 the Act 863 
 
 Both remedies available in the case of stock . . . . . 863 
 
 Section IV. 
 
 OF COMPULSORY PAYMENT INTO COURT. 
 
 General rule ......... 864 
 
 Plaintiff may move upon a possible title . . . . . 865 
 
 Motion must be founded on admissions in answer . . .865 
 
 Answer should contain an admission of probable title . . . 866 
 
CONTENTS. li 
 
 PAGE 
 
 Payment into Court must be on the footing of an equity alleged 
 
 by the bill 866 
 
 Not necessary that fimd should be actually in defendant's hands . 866 
 
 Payments not mentioned in answer may be verified by affidavit . 867 
 Payment not ordered on a mere admission of circumstances showing 
 
 a liability 86T 
 
 Special case of a trustee who is a debtor to his trust estate . . 868 
 
 Payment into Court at the hearing . . . . . . 868 
 
 Time allowed for payment into Court . . .869 
 
 Section V. 
 
 OP RECEIVERSHIP. 
 
 Receiver will be appointed at the instance of all the cestuis que 
 
 trust 869 
 
 Also where trustee is guilty of misconduct, or is insolvent, bank- 
 rupt, &o 810 
 
 Where executrix a feme covert and husband abroad . . . 870 
 Receiver where trust estate unprotected . . . . .870 
 Receiver not granted on alight grounds . . ... 870 
 Receiver not discharged at the mere instance of the party pro- 
 curing his appointment ... . . 871 
 
 Section VI. 
 
 OF COSTS op suit. 
 
 I. Costs as between trustees and strangers . . . . 872 
 
 Where trustees cannot make a title ..... 872 
 
 Trustee made a defendant as a necessary party . . . . 872 
 
 Plaintiff failing, not necessarily to pay costs of a trustee . 872 
 Trustee has costs as between party and party only . .872 
 
 Costs in creditor's suit ........ 873 
 
 Executor (though not so formerly) now held entitled to his costs 
 
 in preference to the plaintiff in creditor's suit . . . 873 
 
 II. Costs as between trustees and cestuis que trust, inter se . 873 
 Trustees entitled to costs as a general rule . . . . . 873 
 
 Trustee not appearing ........ 874 
 
 Decree passed .......... 874 
 
 Disclaimer .......... 874 
 
 Suit originated by trustees' misconduct . . . . 875 
 
 Where misconduct proved only ia part . . . . .875 
 
 Setting aside a purchase by trustees, and absence of fraud . . 876 
 
 Mistake or slight neglect of trustee . . . . . 876 
 
 Administration suit mainly caused by a breach of trust . . 876 
 
 Misconduct of the trustee discovered in the progress of the suit . 876 
 
 d 2 
 
lii CONTENTS. 
 
 PAOB 
 
 Costs of discussing a doubtful point of law . . . .8^6 
 
 Costs paid in part and received in part by trustee . . . 877 
 
 Trivial misconduct . . . . . . . .877 
 
 Trustee instituting a suit for his private ends . . . 877 
 
 Trustee falsely denying the plaintiff's claims . . , . 877 
 
 Trustee misstating bis accounts ....... 877 
 
 Corporation (trustee) pleading ignorance falsely .... 878 
 
 Corporation (trustee) suppressing documents . . . . . 878 
 
 Trustee setting up title of Us own ...... 878 
 
 Executor denying relationship of next of kin . . . . 878 
 
 Costs where executor charged with interest .... 878 
 
 STATUTES, WITH NOTES OF DECISIONS 
 THEREON. 
 
 Trustee Act, 1850 . . 880 
 
 Trustee Extension Act, 1862 903 
 
 APPENDIX. 
 
 909 
 909 
 911 
 922 
 923 
 
 No. I. Strode v. Winchester ..... 
 
 II. Abbot D. Lee . .... 
 
 III. Cogan V. Stevens ...... 
 
 IV. Appointment of new Trustee of Stock 
 v. Appointment of new Trustee of Chattels 
 
 VI. Appointment of new Trustee of Freeholds (single deed) 924 
 
 VII. Appointment of new Trustee of Freeholds (two deeds) 925 
 
 VIII. Sands v. Nugee 927 
 
 IX. Cases on Gifts to Relations . . . . . 929 
 
 X. Allen u. Sayer ....... 931 
 
TABLE OF CASES. 
 
 PAGE 
 
 Abbot v. Gibbs . . . 435 
 
 Lee . . 189, 797, 806 
 
 Abington's case . . 675, 677 
 Abney «. Miller ... .217 
 Acherley v. Acherley . . 60 
 
 v.Roe . . . . 752 
 
 Acheson v. Fair . . . 220 
 Ackland v. Lutby . 251, 255, 256 
 Ackroyd v. Smithson . 182, 183 
 Acland v. Gaisford . . 174, 175 
 Acton V. Peirce . . 661, 685 
 
 V. White . . .123 
 
 V. Woodgate . 476, 481, 482 
 
 Adair v. Shaw . 725, 766, 873 
 
 V. New River Company . 851 
 
 Adams v. Adams . 252, 254, 259 
 
 . 419 
 
 . 300 
 
 ^ . . 332 
 
 290, 472, 778, 875 
 
 . 360 
 
 V. Broke 
 
 V, Buckland 
 
 V. Claxton 
 
 «. Clifton 
 
 ■;;. Gale . 
 
 V. Paynter 
 
 V. St. iieger 
 
 V. Taunton 
 
 Adamson v. Armitage 
 Adey v. Arnold 
 Adye v. Feuilleteau 
 nilitteau 
 
 577, 650 
 840, 849 
 237, 449, 533 
 . 121 
 . 239 
 or Fen- 
 337, 338, 341, 
 860, 361 
 Adlington v. Cann 66, 57, 61, 62, 66, 
 67, 68, 71, 79, 615 
 Agar V. Fairfax 
 Aggas-«. Pickerell . 
 Aguilar v. Aguilar . 
 Alcock V. Sloper 
 Alden v. Gregory . 
 Alderman v. Neate . 
 Alderson v. Temple 
 Aldridge v. Westbrooke 
 Alexander v. Alexander 
 
 «. Ciosbie 
 
 V. Duke of Wellingt( 
 
 V. Newman 
 
 D. Mulling 
 
 Alison's case . 
 Allam V. Heber 
 
 PASS 
 
 Allan V. Backhouse . 389, 393, 401 
 Allason v. Spark . .106, 107 
 Allen's will, in re . . . 379 
 Allen V. Alien . . 37, 603 
 
 V. Imlett . 19, 20, 269 
 
 V. Papworth . . . 633 
 
 V. Sayer .... 720 
 
 Alleyne v. Darcy 226, 358, 562, 766 
 Altham v. Anglesey . . 7 
 
 Alven v. Bond . . . 465 
 
 Amand v. Bradburne . . 558 
 Ambrose v. Ambrose 63, 200, 204 
 Ames V. Parkinson 330, 341, 346, 356 
 Amhurst v. Bawling . . 269 
 Amler v. Amler . . . 806 
 Amphlett v. Parke 181, 183, 196, 
 
 197 
 Aivandale (Marquis of) v. 
 Marchioness of Anandale . 827, 
 
 828 
 Anderson, ex parte . . 583, 835 
 
 , in re . 580, 683, 713, 838 
 
 V. Stather . . . 842 
 
 Andrew v. Trinity Hall, Camb. 233 
 
 V. Wrigley 454, 465, 456, 460, 
 
 726, 730 
 Andrews, eai parte 318, 
 
 •■! •" 
 
 755 
 
 731, 
 
 734 
 
 635, 
 
 639 
 
 354, 
 
 811 
 
 
 734 
 
 106, 
 
 107 
 
 477, 
 
 480 
 
 684 
 
 858 
 
 
 296 
 
 427, 
 
 666 
 
 26, 
 
 101 
 
 
 137 
 
 
 850 
 
 
 71 
 
 
 488 
 
 V. Brown 
 
 «. Bousfield . 
 
 «. Partington . 
 
 Angel 0, re . . 
 AngeU V. Dawson . 
 
 V. Draper 
 
 Angerstein v. Martin 
 Angier v, Stannard . 
 Angle, ex parte 
 Angus V. Angus 
 Annand v. Honeywood . 
 Annesley, ex parte . 
 
 V. Ashurst 
 
 V. Simeon 
 
 Anonymous case (Keilway) 
 
 (Jenkyns, 244, c. 30) 
 
 (1 P. W. 445) 
 
 (2 Sim. N. S. 71) . 
 
 326, 332, 
 516 
 
 . 484 
 
 . 606 
 
 . 517 
 
 . 881, 882 
 
 352, 613, 623 
 
 . 648 
 
 . 346, 814 
 
 367, 696, 696 
 
 . 767 
 
 . 47 
 
 . 797 
 
 . 106, 107 
 
 . 624 
 
 591 
 3 
 5 
 
 12 
 
liv 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Anonymous case (2 Vent. 349) 105 
 
 (7 Vin. 96) . . 122 
 
 . (8 Vin. Ab. 72) . . 169 
 
 (1 Com. 346) . . 181, 195 
 
 (2 Vent. 361) . . 200 
 
 (Carth. 16) . . .201 
 
 (2Ch. Ca. 207) . . 217 
 
 (4 Leon. 207) . . .235 
 
 (Mos. 36) . . .291 
 
 (12 Mod. 560) . 295, 302 
 
 (Mos. 35) . . .305 
 
 (Dyer, 210 a) . . 310 
 
 (1 Salk. 155) . . 318 
 
 (3 Ves. 515) . . .319 
 
 (Lofft. 492) . . .337 
 
 (2 Ves. 630) . . .361 
 
 (6 Mad. 10) . . 414, 423 
 
 (1 Salk. 153) . . .428 
 
 (Mos. 96) . . 434, 435 
 
 (Pr. Ch. 434) . . 456, 459 
 
 (2 Euss. 350) . . .465 
 
 (6 Ves. 632) . . .471 
 
 (2 Vem. 133) . . 487 
 
 (2 Ch. Ca. 54) . . 488 
 
 (1 Salk. 154) . . .491 
 
 (2 Sw. 300, 302) . .604 
 
 (10 Ves. 104) . . 524 
 
 (10 Ves. 103) . . 646 
 
 (2 P. W. 261 . . 616 
 
 (18 Ves. 258) . 642 
 
 ■ (1 P. W. 445) . . 648 
 
 (2 Moll. 483) . . 659 
 
 (2Atk. 223) . . .677 
 
 (1 Roll. Rep. 56) . . 685 
 
 (2 Vent. 349) . . 693 
 
 (1 P. W. 327) . . 698 
 
 (4 Ir. Eq. Rep. 700) . 710 
 
 (6 Mad. 10) . . . 723 
 
 (6 Ves. 632) . . .738 
 
 (Sel. Ch.- Ca. 57) . 754, 762 
 
 (1 Vera. 105) . . 755 
 
 (1 Salk. 126) . . .758 
 
 (2 Freem. 114) . . 828 
 
 (1 Ves. jun. 462, and 3 829 
 
 B. C. C. 515) 
 
 (3 P. W. 389) . . 832 
 
 (5 Sim. 322) . . .835 
 
 (1 Y. & C. 76) . . 839 
 
 (1 Y. & C. 638) . . 858 
 
 . — - (4 Sim. 359) . . .867 
 
 (12 Ves. 4) . . 870, 871 
 
 (12 Ves. 5) . . . 870 
 
 Anthony v. Rees . . 247, 260 
 Antrim (Lord) v. Duke of 
 
 Buckingham ... 34 
 
 Antrobus v. Smith . . 85, 97, 99 
 
 Aplyn V. Brewer . . 305, 310 
 
 Appleyard v. Wood . 46, 61 6 
 
 Archer v. Hooke . . 121, 126 
 
 Ardill V. Savage . . .683 
 
 Airglasse v. Muschamp . . 48 
 
 PAGE 
 
 Armstrong «. Peirse . • 690 
 
 •!). Walker . . .659 
 
 Arnold «. Chapman 182, 193, 194 
 
 ■!). Garner . . 319,646 
 
 Arran v. Tyrawley . . . 734 
 Arthur v. Arthur . . 121, 643 
 Asby V. Doyl . . . 173 
 
 Ashburnham v. Thompson 359, 876, 
 • 878 
 Ashburton v. Ashburton . . 829 
 
 Ashby v. Ashby 
 
 V. Blackwell 
 
 V. Palmer 
 
 Ash ton V. Ash ton 
 
 V. M'Dougall 
 
 Aston V. Aston 
 Atcherley v. Vernon 
 Atkins V. Rowe 
 Atkinson, re . 
 Atkyns v. Wright 
 Attorney-General v 
 
 V. Andrew 
 
 V. Andrews 
 
 V. Arnold 
 
 V. Aspinall - 
 
 D. Backhouse 
 
 V. Baliol College 
 
 . 628 
 
 . 372 
 
 807, 816, 823 
 
 . 166 
 
 . 131 
 
 . 643, 644 
 
 . 122, 250 
 
 . 206 
 
 . 607 
 
 . 170 
 
 Alford361, 362, 
 
 376, 377 
 
 . 659, 665 
 
 . 516, 616 
 
 . 198 
 
 . 23, 25, 31 
 
 508, 509, 610 
 
 . 611, 850 
 
 493 
 
 V. Corporation of Bedford 
 V. Corporation of Berwick- 
 upon-Tweed . . .790 
 
 V. Black . . .496 
 
 V. Blizard . . 106, 496 
 
 B. Boulden ' . . .178 
 
 V. Bovill . . . 105, 496 
 
 V. Brandreth . . 496 
 
 V. Master of Brentwood 
 
 School . . . .502 
 
 V. Brettingham . 503, 790 
 
 V. Brewers' Company . 753, 
 
 786, 788, 877 
 
 V. Brickdale . . 298 
 
 V. Corporation of Bristol . 781 
 
 V. Mayor of Bristol . 198, 199 
 
 V. Brooke . 503, 607, 508, 
 
 ' 509 
 
 V. Browne's Hospital . 493 
 
 V. Brown . . . 846 
 
 17. Buckland . . .698 
 
 V. Buller . . 263, 603 
 
 V. Caius College 31, 199, 500, 
 
 712, 790, 876 
 V. Corporation of Carlisle 790 
 
 V. Master of Catherine 
 
 Hall, Cambridge, . . 198, 492, 
 
 507 
 
 V. Dean of Christchurch 499, 
 
 502, 790 
 
 V. Christ's Hospital . 199, 
 
 730, 735, 790, 878 
 V. Clack . . 524, 644, 682 
 
TABLE OP CASES. 
 
 Iv 
 
 Attorney-General v. Clapham . 497 
 
 V. Clare Hall . . .494 
 
 V. Earl of Clarendon . 31, 
 
 462, 493, 495, 505 
 
 V. Coopers' Company 198, 712 
 
 V. Cordwainers' Company 
 
 V. Mayor of Coventry . 198 
 
 V. Cowper . . .711 
 
 V. Crook . . 492, 510 
 
 V. St. Cross Hospital . 493 
 
 V. Cross . . 506, 508, 509 
 
 V. Cuming . 107, 298, 300, 
 
 712, 777, 779, 857, 874, 
 301, 527 
 
 V. Davy . . .109 
 
 V. Day . . . 504, 511 
 
 V. Dew .... 854 
 
 V. Dixie . 332, 493, 495, 500, 
 
 505, 506, 507, 508 
 
 V. Lady Downing 693, 694, 69() 
 
 V. Doyley . . .233 
 
 V. Drapers' Company . 199, 
 
 789, 790, 876, 878 
 
 V. Drummond . . 876 
 
 V. Lord Dudley . .461, 
 
 466, 469, 470, 738 
 
 V. Dulwich College . . 493 
 
 V. Duplessis ... 71 
 
 V. Corporation of Exeter 105, 
 
 496, 790 
 
 V. Mayor of Exeter 717, 729, 
 
 731, 739, 786, 787, 788, 790 
 
 V Fishmongers' Company 730 
 
 V. Flint . . .745 
 
 V. Floyer 301, 527, 580, 751 
 
 V. Foley . . .107 
 
 V. Foord . . 506, 510 
 
 V. Forster . 107, 108, 109, 
 
 269, 779 
 
 V. The Foundling Hospital 31, 
 
 493, 723 
 
 V. Foyster .... 502 
 
 V. Gascoigne . . 199, 500 
 
 V. Gaunt . . . 492 
 
 V. Gibson . . . 505 
 
 V. Glegg 22, 2S7, 299, 300, 
 
 543 
 
 V. Goldsmiths' Company . 495 
 
 V. Lord Gore . . 585 
 
 V. Lord Gower . . 506 
 
 V. Green 503, 508, 511, 782 
 
 V. Greenhouse . . 766 
 
 V. Griffith . . 607, 509 
 
 V. Haberdashers' Company 198, 
 
 500, 783 
 
 V. Hall . . 169, 171, 509 
 
 V. Governors of Harrow 
 
 School . . . 538, 644 
 
 V. Heelis . 23, 851, 852 
 
 1«. Herrick . . -198 
 
 V. Hickman . . . 696 
 
 Attorney-General v. Higham 
 
 V. Hobert 
 
 ■ V. Holland 
 
 ■ V. Lord Hotham 
 
 • V. Hungerford 
 V. Hurst 
 
 • V. Jackson 
 
 ■ V. Johnson 
 
 ■ V. Johnstone . 
 ■«. Kell 
 
 ■ V. Kerr . 
 
 ■ V. Ladyman . 
 
 ■ V. Landerfield 
 
 • V. Duke of Leeds 
 
 ■ V. Corporation of Le: 
 
 PAOE 
 
 328, 
 
 338 
 
 875 
 
 317, 502 
 
 . 509 
 
 . 503 
 
 . 713 
 
 . 600 
 
 198, 199 
 
 196, 197 
 
 . 496 
 
 503, 609, 511 
 
 . 500 
 
 . 31 
 
 283, 285 
 
 icester 226, 
 
 227, 562, 763, 853 
 
 V. Lewin . . . 106 
 
 V. Corporation of Lichfield 31 
 
 V. Bishop of Lichfield . 300, 
 
 301, 527, 580 
 
 V. Mayor of Liverpool . 723 
 
 D. Lock . . 301, 492, 493 
 
 V. Lockley ... 57 
 
 V. City of London . . 873 
 
 V. Corporation of London 31 
 
 V. Magdalen College, Ox- 
 ford 493 
 
 V. Magdalen College, . 503, 
 
 722, 746, 749 
 
 V. Magwood . . . 506 
 
 V. Earl of Mansfield . 496, 
 
 499, 500, 504 
 
 V. Mercers' Company . 502 
 
 V. Merchant Venturers' So- 
 ciety . . . .199 
 
 V. Middleton . . 493 
 
 V. Milner . . .190 
 
 V. Minshull . . .198 
 
 V. Moor . . . .736 
 
 V. Morgan . . . 606 
 
 V. Munby . . .132 
 
 V. Munro . . 325, 498 
 
 V. Murdoch . . 497 
 
 V. Newark . . 503, 791 
 
 V. Newbury . . 789, 790 
 
 V. Newbury Corporation . 495, 
 
 717, 789, 845 
 
 V. Newcombe . . 107, 108, 
 
 269, 779 
 
 V. Mayor of Norwich 557, 659 
 
 V. Corporation of Norwich 516 
 
 V. Owen . 607, 508, 509, 
 
 510, 623 
 
 V. Pargeter . . 503, 508 
 
 V. Parker 108, 109, 269, 779 
 
 V. Parnther . . . 644 
 
 V. Pearson . 131, 497, 498, 
 
 499, 569, 577, 711, 853 
 
 V. Persse . . 746, 750 
 
 V. Pomfret . . .833 
 
Ivi 
 
 TABLE OF CASES. 
 
 PASE 
 
 Attorney^General ». Borough of 
 
 Poole 31 
 
 V. Poulden . 113, 114, 118 
 
 V. Pretyman . . . 790 
 
 V. Price . . .706 
 
 V. Randall . . 306, 332 
 
 V. Randies . . .836 
 
 V. East Retford Grammar 
 
 School . . . .781 
 V. Burgesses of East Ret- 
 ford . . 764, 790, 791, 878 
 
 V. Righy . . .790 
 
 V. Mayor of Rochester . 511 
 
 V. Rutter . . .109 
 
 V. Sands 2, 43, 103, 131, 321, 
 
 673, 674, 676, 677, 678, 
 681, 682 
 
 V. Scott . 22, 57, 107, 247, 
 
 297, 627, 621, 625, 777 
 
 ; V. Shearman . . . 298 
 
 V. Sherborne School . 495 
 
 • V. Shore . . . 711 
 
 ». Corporation of Shrews- 
 bury 23 
 
 V. Smythies . . .199 
 
 ■ V. Solly . . . 363, 364 
 
 ■ V. Guardians of Poor of 
 
 Southampton . . .516 
 
 V. Corporation of South- 
 
 molton . . . .199 
 
 V. South Sea Company 503, 515 
 
 V. Sparks . . .198 
 
 V. Corporation of Stafford 788 
 
 -' — • V. Mayor of Stamford . 31, 
 
 500, 501, 505, 606, 507, 711, 
 
 783 
 
 ■ V. Stephens . . 693, 696 
 
 V. Viyian . . 496, 779 
 
 V. Warren 603, 504, 507, 508 
 
 V. Whiteley . . .499 
 
 V. Whorwood . . 10, 31 
 
 V. Wilkinson . . . 105 
 
 V. Wilson . 26, 177, 198, 
 
 504, 767, 768,-845, 
 846, 847, 875 
 
 V. Bishop of Worcester . 782 
 
 V. Archbishop of York . 492 
 
 Austen v. Taylor . 141, 142, 144, 
 145, 168, 246 
 Austin V. The Bank of England 33 
 Aveling v. Knipe 200, 201, 202 
 
 Averall ». Wade ... 52 
 Avery v. Osborne . . . 877 
 Awdley v. Awdley . 18, 828, 830 
 Ayles V. Cox . . 893, 896, 903 
 Ayliff V. Murray 460, 463, 545, 552 
 Aylwyn «).Bray . . . 777 
 Aynsworth v. The Bank . . 33 
 
 Babington's case 
 
 . 673 
 
 PAGE 
 
 210,216 
 
 478, 479 
 
 . 693 
 
 . 725 
 
 284, 293 
 
 . Ill 
 
 . 828 
 
 462, 466 
 
 . 796 
 
 . 465 
 
 44, 645 
 
 142, 153; 
 
 156, 247, 251, 256 
 
 V. Winter . . 369, 370 
 
 Bailey, ex parte . . ■ 477 
 
 ?>. Ekins .. 238,441,443,488 
 
 V. Gould . 328, 329, 332, 877 
 
 V. Jackson . . 633, 635 
 
 Bain v. Lescher . . . 122 
 Bainbridge v. Lord Ashburton 264 
 Bainbrigge v. Blair . 320, 549, 
 
 564, 556, 711, 870, 871 
 
 Back V. Andrews 
 
 V. Gooch 
 
 Backhouse v. Backhouse . 
 
 ». Middleton . 
 
 Bacon v. Bacon 
 
 V. Proctor 
 
 Badcock, in re 
 Badcocke, ex parte . 
 Baden v. Earl of Pembroke 
 Bage, ex parte 
 Baggett V. Meux 
 Bagshaw v. Spencer 
 
 V. Burton 
 
 Baker, ex parte 
 V. Carter 
 
 ». Hall . 
 
 V. Martin 
 
 V. Read 
 
 Balch V. Wastall 
 Balchen v. Scott 
 Baldock, ex parte 
 Baldwin v. Baldwin 
 
 V. Banister 
 
 Bale V. Coleman 141. 
 Balfour v. Welland 
 Balgney v. Hamilton 
 Ball V. Harris 
 
 V. Montgomery 
 
 Ballet V. Sprainger 
 Balls V. Strutt 
 Balsh V. Hyham 
 
 V. Wastall 
 
 Bamford v. Baron . 
 Banbury v. Briscoe . 
 Band v. Fardell 
 Bangley's Trust 
 Bank of England v. Lunn 
 
 V. Moffatt 
 
 V. Parsons. 
 
 Bankes v. Le Despencer 
 
 1). Sutton, 621, 625, 680, 794, 
 
 795 
 Barber, ex parte . . . 265 
 
 V. Barber . . . 735 
 
 Barclay v. Raine . . . 227 
 
 V. Russell . . 198, 325 
 
 Bards well v. Bardswell 168, 170 
 
 BiacB, ex parte. . . . 771 
 Barfield ». Rogers . . .836 
 
 852 
 
 . 826 
 
 460, 465, 470, 
 
 774, 875 
 
 . 194 
 
 . 551 
 
 . 470 
 
 . 648 
 
 240, 291 
 
 . 424 
 
 . 628 
 
 . 319 
 
 144, 146, 266 
 
 432, 433, 436 
 
 . 206, 756 
 
 416, 440, 441, 
 
 442, 454 
 
 . 878 
 
 . 395 
 
 . 723 
 
 522, 569, 562 
 
 . 12 
 
 . 479 
 
 . 227 
 
 . 362, 363 
 
 . 381 
 
 32,33 
 
 32, 33 
 
 32,33 
 
 157, 638 
 
TABLE OF CASES. 
 
 Ivii 
 
 
 
 
 PAOE 
 
 
 
 PAGE 
 
 Barker v. Boucher . 
 
 
 . 489 
 
 Beale v. Symonds . 
 
 285 
 
 322, 679 
 
 V. Greenwood . 
 
 , 
 
 247, 248 
 
 Beales v. Spencer . 
 
 
 . 122 
 
 V. Duke of Devonshire 
 
 . 435 
 
 Bean v. Sykes 
 
 
 . 372 
 
 V. Lea 
 
 , 
 
 . 369 
 
 Beanland v. Halliwell 
 
 
 . 813 
 
 V. May . 
 
 ^ 
 
 20, 688 
 
 Beard v. Nulthall . 
 
 
 . 94 
 
 Barkley v. Reay, Lord 
 
 . 
 
 . 871 
 
 Beatson v. Beatson . 
 
 
 . 91 
 
 Barlow v. Grant 
 
 , 
 
 517, 518 
 
 Beatty v. Johnstone 
 
 
 . 847 
 
 Barnard v. Heaton . 
 
 . 
 
 . 397 
 
 Beauclerk v. Ashburnham 
 
 349, 542 
 
 V. Hunter 
 
 
 . 729 
 
 Beaumont v. Beaumon 
 
 ) 
 
 . 869 
 
 V. Large . 408 
 
 409 
 
 410, 411 
 
 V. Meredith . 
 
 
 . 866 
 
 V. Proby . 
 
 . 
 
 . 145 
 
 V. Salisbury (Mai 
 
 quis] 
 
 . 253 
 
 Barnardiston v. Soame 
 
 
 . 20 
 
 Beavan v. Lord Oxford 
 
 
 280, 666, 
 
 Barnes v. Crow 
 
 
 . 591 
 
 
 
 668, 672 
 
 Barnwall v. Barnwall 
 
 
 660, 663, 
 
 Beckett v. Cordley . 
 
 
 . 39 
 
 
 664 
 
 754, 755 
 
 Beckford v. Beckford 
 
 
 215, 216 
 
 Barnwell v, Barnwell 
 
 
 . 658 
 
 V. Close 
 
 
 . 734 
 
 Barret v. Glubb 
 
 
 . 269 
 
 V. Wade . 
 
 
 730, 731 
 
 Barrett v. Buck 
 
 
 118, 177 
 
 Bedford (Duke of) v. 
 
 Marquis 
 
 Barrington v. Hereforc 
 
 
 . 194 
 
 of Abercorn . 
 
 
 164, 165 
 
 V. Liddle 
 
 
 119, 120 
 
 Charity, in re . 
 
 . 
 
 493, 780 
 
 Barrow v. Greenough 
 
 
 . 70 
 
 V. Leigh . 
 
 
 . 658 
 
 Barry, inre . 
 
 
 . 835 
 
 V. Woodham . 
 
 
 . 456 
 
 V. Marriott 
 
 
 343, 346 
 
 Bedwell v. Froome . 
 
 
 . 207 
 
 V. Woodham . 
 
 
 . 858 
 
 Beech v. Keep . 
 
 
 81,84 
 
 Bartholomew's Trust, in re 
 
 . 380 
 
 V. St. Vincent . 
 
 
 . 119 
 
 Barthrop v. West . 
 
 
 . 681 
 
 Beer (in the goods of) 
 
 . 
 
 . 234 
 
 Bartlett «. Bartlett . 
 
 
 . 865 
 
 Beere v. Head . 
 
 
 . 669 
 
 V. Green . 
 
 , 
 
 . 149 
 
 Begbie v. Crook 
 
 , 
 
 . 236 
 
 ■ V. Pickersgill . 
 
 200, 
 
 204, 205 
 
 Beilby, ex parte 
 
 
 123, 773 
 
 Bartley v. Bartley . 
 
 
 450, 533 
 
 Belch V. Harvey 
 
 
 . 731 
 
 Barton ». Briscoe . 
 
 
 130, 631 
 
 Belchier, ex parte 
 
 293, 
 
 295, 305, 
 
 Barwell v. Parker . 
 
 489 
 
 490, 491 
 
 
 310 
 
 332, 422 
 
 Baskerville ■». Baskerville . 
 
 144, 156 
 
 Belke's Charity 
 
 
 . 718 
 
 Basset's (Sir W.) case 
 
 , 
 
 . 184 
 
 Belli). Bell . 721, 
 
 724, 
 
 725, 729, 
 
 V. Clapham 
 
 , 
 
 . 408 
 
 
 
 730, 733 
 
 Bastard v. Proby . 
 
 . 
 
 . 156 
 
 Bell V. Hyde . 
 
 , 
 
 . 34 
 
 Bate V. Hooper 
 
 340, 
 
 353, 373 
 
 Bellamy, ea; patre . 
 
 
 . 833 
 
 ». Scales 
 
 
 . 356 
 
 V. Burrow 
 
 
 . 63 
 
 Bateman v. Davis . 
 
 340 
 
 774, 777 
 
 Bellasis v. Compton . 
 
 , 
 
 56,61 
 
 V. Hotchkin 
 
 111 
 
 , 119, 238 
 
 Bellingham v. Lowther . 
 
 . 98 
 
 V. Margerison . 
 
 
 491, 852 
 
 Beloved Wilkes's Charity, ' 
 
 n re 543 
 
 Bates V. Dandy 
 
 
 . 631 
 
 Benbow v. Townsend 
 
 66, 61, 207 
 
 Bath (Earl of) v. Abney . 
 
 . 272 
 
 Benn v. Dixon. 
 
 
 . 808 
 
 ». Earl of Bradford 
 
 414, 489, 
 
 Bennet, ex parte 
 
 
 136, 476 
 
 
 491, 
 
 513, 820 
 
 V. Box . 
 
 
 682, 683 
 
 Batson v. Lindegreen 
 
 
 . 488 
 
 V. Davis. 
 
 121, 
 
 173, 260, 
 
 Batteley v. Windle . 
 
 
 . 180 
 
 276, 279 
 
 623 
 
 624, 694 
 
 Battersby's Trust 
 
 
 
 . 895 
 
 V. Going 
 
 
 . 873 
 
 Battier, ex parte 
 
 
 
 . 269 
 
 V, Mayhew 
 
 
 . 758 
 
 Baugh V. Price 
 
 
 
 466, 472 
 
 V. Whitehead . 
 
 
 . 755 
 
 Baugham, esc parte 
 
 
 
 . 380 
 
 Bennett ». Attkins . 
 
 
 873, 876 
 
 Baxter v. Pritchard 
 
 
 
 . 478 
 
 V. Burgis 
 
 
 . 244 
 
 Baxter's Will . 
 
 
 
 . 891 
 
 ex parte 460, 
 
 461, 
 
 462, 463, 
 
 Bay ley v. Boulcott 
 
 
 
 56,61 
 
 
 463 
 
 466, 467 
 
 V. Mansell 
 
 
 
 . 713 
 
 V. Colley 
 
 392, 
 
 395, 402, 
 
 V. Powell 
 
 
 
 184, 878 
 
 722 
 
 729 
 
 737, 778 
 
 Baylies v. Baylies 
 
 
 
 . 589 
 
 V. Honywood . 
 
 
 542, 706 
 
 Baylis v. Newton . 
 
 
 
 177, 214 
 
 V. Powell 
 
 648 
 
 652, 663 
 
 Bayly v. Gumming 
 
 
 
 237, 533 
 
 Benson v. Benson 125, 
 
 130, 
 
 238, 631, 
 
 Baynard v. WoUey . 
 
 
 
 768, 851 
 
 
 
 820, 822 
 
 Baynes v. Baynes 
 
 
 
 . 839 
 
 V. Whittam . 
 
 . 
 
 . 172 
 
Iviii 
 
 TABLE OF CASES- 
 
 Bentham v. Wiltshire 
 Bentley 11. Craven . 
 
 v. Mackay 
 
 Berkhampstead Free 
 
 ex parte 
 Berrington u. Evans 
 Berry v. Usher 
 Bessey v. Windham 
 Bethune «. Kennedy 
 Sevan's case . 
 Bevant v. Pope 
 Beveridge, ex parte 
 Beverley D. Beverley 
 Beynon v. GoUins 
 
 PAOB 
 
 . 445 
 
 . 225, 318 
 
 63, 83 
 
 School, 
 
 493, 643, 782 
 . 661 
 
 183, 195, 196 
 . -478 
 
 354, 810, 812 
 . 827 
 . 260 
 . 715 
 . 603 
 . 435 
 
 Bick V. Motly 315, 362, 771, 772 
 
 Bickham v. Freeman . . 489 
 
 Bicknell v. Gough . . . 734 
 
 Biddulph, en parte . . . 772 
 
 V. Biddulph . . . 796 
 
 Bifield V. Taylor . . 841, 844 
 
 Biggs, inre . . . . 376 
 
 V. Andrews . . . 807 
 
 V. Penn . . . 854 
 
 Bignold V. Springfield . . 782 
 
 Bill V. Cureton . . • 93 
 
 Billing V. Webb . . .837 
 
 Billingsley v. Mathew . . 300 
 
 Billingsly v. Critchet . . 518 
 
 Binford v. Bawden . . 817 
 
 Bingham v. Clanmorris . . 236 
 
 V. Woodgate . . 284, 61 6 
 
 Bingley School, in re . . 785 
 
 Binion v. Stone . . .209 
 
 Binks V. Lord Eokeby 427, 431, 435 
 
 Birch V. Blagrave . . 178, 215 
 
 V. Cropper 
 
 V. Wade 
 
 Bird V. Johnson 
 
 V. Lockey 
 
 V. Peagrum 
 
 Birls V. Betty . 
 Birmingham School, in re 
 Biscoe V. Kennedy 
 
 575 
 
 167, 703, 704 
 
 . 132 
 
 . 351, 361 
 
 . 642 
 
 . 767 
 
 492 
 
 634 
 
 V. Perkins 
 
 247, 405, 408, 409, 
 410, 411 
 . 372 
 . 68 
 . 866 
 147, 153, 154 
 . 536 
 . 122 
 
 Bishop V. Colebrook 
 
 V. Talbot 
 
 Black V. Creighton . 
 Blackburn v. Stables 
 Blackbume, ex parte 
 Blacklow V. Laws . 
 Blackston w.Hemsworth Hospital 
 
 502 
 
 Blackwood v. Borrowes . 317, 338, 
 
 419, 773, 777 
 
 Blagrave v. Blossom . . 258 
 
 Blair v. Bromley . . .734 
 
 V. Ormond . . .742 
 
 V. Nugent . . . 745 
 
 Blake v, Bunbury . . . 586 
 *. Foster . . .733 
 
 Blakely v. Brady 
 Bland v. Bland 
 
 V. Wilkins 
 
 Blann v. Bell . 
 Blatch V. Wilder . 
 Blennerhassett v. Day 
 Blewitt V. Millett . 
 
 V. Thomas 
 
 Blinkhorne v. Feast 
 Bliss V. Bridgwater . 
 Blithe's case . 
 Blomfield v. Eyre . 
 Bloye's Trust, in re 
 
 FASE 
 
 . 87 
 
 169, 171 
 
 . 193 
 
 810, 813 
 
 173, 488 
 
 423, 734 
 
 220, 224 
 
 . 734 
 
 . 39 
 
 . 238 
 
 34, 626 
 
 753 
 
 379, 380, 460, 
 461, 462 
 . 521 
 . 317 
 274, 275 
 
 Blue V. Marshall 
 
 Boardman r. Mosman 
 
 Boddy V. Esdaile 
 
 Bodenham v. Hoskyns 227, 459, 562 
 
 Boden's Trust, in re . . 888 
 
 Bold V. Hutchinson . . 149 
 
 Bolton V. Bolton, . . 97, 99 
 
 (Duke of) V. Deane . 754, 755 
 
 V. Williams . 634, 635, 639 
 
 Bond V. Hopkins . . .732 
 
 • ■». Nurse ... 19 
 
 Bone V. Cook . . . 306, 317 
 Bonham v. Newcomb . . 97 
 Bonifant v. Greenfield 235, 236, 237 
 Bonithon v. Hockmore 545, 546, 556 
 Bonner v. Bonner . . 370 
 
 Bonney v. Ridgard 453, 464, 465, 
 457, 460, 730, 731 
 Booth, ex parte . . . 290 
 
 V. Booth 239, 240, 290, 317, 
 
 768, 774 
 
 41. Warrington 
 
 Boreham v. Bignall . 
 Bosanquet, ex parte . 
 Boschetti v. Power . 
 Boson V. Statham 
 
 Boss 1). Godsall 
 Bostock V. Blakeney 
 Bosvil V. Brander . 
 Bosworth V. Forard 
 Boteler v. Allington 
 Bothomly v. Lord Fairfax 
 Boughton V. James 
 
 V. Langley 
 
 Boulton V. Beard 
 Bourne v. Buckton 
 
 ■». Bourne 
 
 V. Mole 
 
 Bovey v. Smith 
 Bowater v. Elly 
 Bowden v. Bowden 
 Bowes, ex parte 
 
 V. East London 
 
 works' Company . 
 
 V. Earl of Shaftesbury . 805 
 
 Bowker v. Burdekin . 477, 479 
 
 734 
 
 . 368 
 
 . 835 
 
 . 866 
 
 56, 61, 67, 68, 
 
 74,80 
 
 . 339 
 
 356, 512, 514 
 
 . 628 
 
 . 251 
 
 . 16 
 
 489, 621 
 
 . Ill 
 
 . 248 
 
 . 366 
 
 118, 119 
 
 . 808 
 
 . 867 
 
 725, 726, 727 
 
 603 
 
 810 
 
 263, 264, 836 
 
 Water- 
 
 622, 762, 778 
 
TABLE OF CASES. 
 
 lix 
 
 
 FAQS 
 
 
 PAGE 
 
 Bowles V. Rogers 
 
 . 277 
 
 Bromfield v. Wytherley . 
 
 . 360 
 
 D. Stewart 
 
 223, 224, 778 
 
 Bromley «. Holland 
 
 842, 848 
 
 V. Weeks 
 
 . 713 
 
 V. Lingard 
 
 . 773 
 
 Bowyer v. Rivitt 
 
 . 659 
 
 1). Smith . 
 
 . 851 
 
 Bowra v. Wright . 
 
 . 894 
 
 Brook v. Brook 
 
 . 35 
 
 Box V. Box 
 
 . 372 
 
 (Earl) V. Bulkeley . 
 
 . 725 
 
 ' V. Jackson 
 
 . 629 
 
 Brookes v. Burt 
 
 . 848 
 
 Boyce v. Corbally . 
 
 . 533 
 
 Brookman v. Hales . 
 
 182, 218 
 
 Brace v. Duchess ol 
 
 Marl- 
 
 11. Rothschild . 
 
 . 225 
 
 borough 
 
 . 280 
 
 Brooksbank ». Smith 
 
 . 733 
 
 Brackenbury v. Brackenhury . 138 
 
 Broom ». Broom 
 
 . 839 
 
 Bradburne, in re 
 
 . 837 
 
 ■». Summers . 
 
 . 497 
 
 Bradford v. Belfield 
 
 . 296, 297 
 
 Brougham (Lord) v. Poulett 
 
 Bradgate v. Ridlington 
 
 . 487 
 
 (Lord) . . 
 
 . 564 
 
 Bradish ». Gee 
 
 . 823, 824 
 
 Broughton «. Broughton 
 
 320, 649, 
 
 Bradshaw, ex parte . 
 
 . 890 
 
 
 650 
 
 V. BradsJtiaw . 
 
 . 300 
 
 V. James . 
 
 . 641 
 
 «. Fane . 
 
 . 417 
 
 . V. Langley 
 
 . 246 
 
 Bradwell v. Catchpole 
 
 . 304, 726 
 
 Browell v. Read 237, 424, 869, 871 
 
 Brandlyn v. Ord 
 
 . 726 
 
 Brown, ex parte 
 
 . 781 
 
 Brandon v. Aston . 
 
 . 136, 520 
 
 V. Bamford 
 
 . 129 
 
 V. Robinson 
 
 . 132 
 
 V. Bigg . 
 
 . 196 
 
 Brasier v. Hudson . 
 
 . 431 
 
 ■». Brown 
 
 . 713 
 
 Brassey v. Chalmers 
 
 417, 530, 533 
 
 ■ ■». Dawson . . 
 
 . 498 
 
 Bray, ex parte 
 
 . 557 
 
 V. De Tastet . 
 
 . 648 
 
 V. West . 
 
 . 235 
 
 2). Groombridge 
 
 . 664 
 
 Braybroke (Lord) v. Inskip 262, 263,' 
 
 «. Higgs 168, 197, 626, 695, 
 
 
 264, 449 
 
 696, 701, 702, 703, 706, 708, 709 
 
 Brearcliff v. Dorrington . . 614 
 
 V. How . 
 
 . 686, 876 
 
 Breedon ». Breedon 
 
 . 432 
 
 V. Jones . 
 
 . 182, 191 
 
 Brest V. Offley 
 
 . 167 
 
 . V. Like . 
 
 . 123 
 
 Brett V. Greenwell . 
 
 . 369 
 
 V. Litton 343, 360, 361, 548 
 
 Brettell, ex parte 
 
 . 263, 264 
 
 V. Pocock 124, 128, 701, 704 
 
 Brewer v. Swirles 
 
 . 640, 776 
 
 V. Raindle 
 
 . 260 
 
 Brewster v. Angell . 
 
 164, 165, 166 
 
 V. Sansome 
 
 . 361, 364 
 
 Brice v. Stokes 304, 
 
 305, 306, 311, 
 
 V. Whiteway . 
 
 . 256 
 
 312, 316 
 
 317, 774, 775 
 
 Browne v. Blount . 
 
 . 849 
 
 Bridgenorth (Corporation oif) ». 
 
 V. Cavendish 481, 482, 483, 
 
 ■ Collins 
 
 . 116 
 
 
 653 
 
 Bridge v. Bridge 65, 
 
 81, 83, 84, 89, 
 
 V. Cross . 
 
 . 742, 776 
 
 
 94 
 
 11. De Laet 
 
 . 189 
 
 V. Brown 
 
 613, 517, 567 
 
 V. Elton 
 
 . 628 
 
 Bridger v. Rice 
 
 . 415 
 
 11. Lockhart 
 
 . -867 
 
 Bridgett v. Hames . 
 
 . 851 
 
 V. Southouse . 
 
 . , 359, 361 
 
 Briggs V. Chamberlain 
 
 . 818 
 
 V. Stoughton . 
 
 . Ill 
 
 V. Oxford (Earl c 
 
 f) . . 112 
 
 Brudenell v. Boughton 
 
 . 65 
 
 V. Penny 68, 78 
 
 168, 169, 173 
 
 Bruere v. Pemberton 
 
 . 359 
 
 Blight V. North 
 
 . 516, 659 
 
 Brummell v. Macpherson 
 
 . 42 
 
 Bright's Trust, in re 
 
 . 613 
 
 Brunsden v. Woolredge 
 
 542, 699, 
 
 Bristed v. Wilkins . 
 
 . 671 
 
 
 706 
 
 Bristol (Countess of) » 
 
 Hunger- 
 
 Bryan v. Collins 
 
 . 116 
 
 ford . 
 
 . 183, 184 
 
 v. Brydges 
 
 . 142 
 
 Bristow V. Pegge 
 
 . 590 
 
 Buchanan v. Hamilton 
 
 . 710 
 
 Britten v. Cole 
 
 . 647 
 
 Buck V. Shippam 
 
 . 486 
 
 Britton ». Twining . 
 
 . 142 
 
 Buckeridge ii. Glasse 2C 
 
 7, 711, 756, 
 
 Broadhurst v. Balguy 
 
 306, 775, 778 
 
 7 
 
 74, 775, 778 
 
 Brocksopp V. Barnes 
 
 545, 549, 563 
 
 V. Ingram 
 
 . 393, 396 
 
 Brodie v. Bany 
 
 . 643, 869 
 
 Buckingham (Earl of) v. I 
 
 )rury 39, 792 
 
 V. St. Paul 
 
 . 872 
 
 Buckle V. Mitchell . 
 
 . 93 
 
 Bromiield, ex parte 
 
 826, 827, 828, 
 
 Buckley's Trust, in re 
 
 . 375 
 
 
 829, 830 
 
 Buckley v. Lanauze 
 
 . 218 
 
Ix 
 
 TABLE OF CASES. 
 
 Buffery, ex parte 
 Bugden v. Bignold . 
 Buggins V. Yates 169, 1 
 Bulkly V. Wilford . 
 Bull J). Birkbeck 
 
 — V. Vardy 
 
 Bullock V. Knight . 
 
 V. Wheatley . 
 
 BuUpin V. Clarke . 
 Bunnett v. Foster . 
 Bunting, in re , . 
 Burbridge, ex parte . 
 Burchett v. Durdant 
 Burden v. Burden . 
 Burdett v. Rockey . 
 
 V. Willet 
 
 Burdon v. Burdon . 
 Burdon v. Kennedy 
 Burge V. Brutton 
 Burgess v. Wheate 
 
 PAGE 
 
 716 
 
 608 
 
 0, 180, 183 
 
 . 226 
 
 . 403 
 
 . 172 
 
 . 629 
 
 . 328 
 
 634, 641 
 
 183, 851 
 
 . 226 
 
 . 278 
 
 . 248 
 
 . 549 
 
 . 261 
 
 . 754 
 
 . 643 
 
 649, 665 
 
 320, 550 
 
 10, 11, 12, 13, 
 
 14, 15, 30, 42,. 43, 57, 103, 269, 
 270, 280,. 281,. 282, .283, 284, 285, 
 318, 321, 322, 323, 593, 600, 615, 
 622, 625,-629, 675, 677, 678, 680, 
 724, 725, 792, 795, 872 
 Burgh ». Burgh . . .280 
 
 * V. Francis . . . 279 
 
 Burke v. Jones, . . . 484 
 Burn V. Carvalho . . .92 
 Burney «. Macdonald, 43, 72, 132, 472 
 Burniei). Getting . . . 342 
 Burntree Building Society, in re 837 
 Burrell v. Bgremont (Lord) . 733 
 
 Burridge v. Kow 
 Burrough v. Philcox 
 Burroughs v. Elton . 
 
 V. M'Creight . 
 
 Burrowes v. Lock . 
 Burrows v. Greenwood 
 
 V. Walls 
 
 Burt, re . 
 
 ■ V. Dennet 
 
 V. Ingram 
 
 V. Sturt . 
 
 Burting v. Stonard . 
 Burton, ex parte 
 
 V. Hastings 
 
 v.. Hodsoll 
 
 V. Mount 
 
 t!. Pierpoint 
 
 K. Wookey 
 
 Burtt's Trust, re 
 
 Estate, re 
 
 Bush v. Allen 
 Butcher r>. Easto 
 Butler & Baker's case 
 Butler's Trust, re . 
 Butler, ex parte 
 
 V. Bray . , 
 
 V. Portarlington 
 
 V. Prendergast 
 
 . 771 
 
 703, 704 
 
 . 659 
 
 748 
 
 . 605 
 
 . 875 
 
 599, 778 
 
 882, 901 
 . 846 
 . 339 
 
 119, 120 
 . 459 
 
 226, 768 
 
 148, 149 
 . 807 
 . 810 
 
 121, 694 
 . 546 
 297 
 534, 267, 533 
 . 250 
 . 477 
 
 235, 236 
 . 381 
 . 274 
 
 299, 536 
 . 63 
 
 842, 847 
 
 Buxton, ex parte 
 
 V. Buxton 
 
 Byam v. Byam 
 
 PAGE 
 
 . 423 
 
 . 329, 415 
 
 450, 533, 536,. 
 
 543 
 
 Byrchall v. Bradford 243, 764, 774 
 Byrne, re .... 713 
 V. Frere . . 733, 734, 738 
 
 Cadooan V, Earl of Essex 349, 542 
 
 V. Kennet . . . 594 
 
 Cafe V. Bent . 524, 544, 582, 812 
 CafErey ». Darby 326, 557, 558, 766, 
 
 875 
 Caillaud «. Estwick 
 Caldecott v.. Brown . 
 V. (Jaldecott 
 
 Callaghan v. Egan . 
 Callow V. Howie 
 Calvert v. Godfrey . 
 Calverley v. Phelp . 
 Cambridge ». Rous . 
 Camden v. Anderson 
 Camoys (Lord) v. Best 
 Campbell v. Campbell 
 
 V. Ferrall 
 
 «. Graham 
 
 V. Home 
 
 ■». Walker 421, 460, 461," 462, 
 
 464,. 465, 466, 467, 468, 470, 471, 
 472, 473 
 
 . 649 
 
 . 514 
 
 364, 814, 815 
 
 . 839 
 
 . 633, 634 
 . 840 
 . 842 
 
 . 195, 197 
 . 203 
 
 . 566, 578 
 
 . 547 
 
 . 662 
 
 . 739 
 
 367, 695 
 
 Caney v. Bond 
 Cann v. Cann 
 Canning ». Hicks 
 Cant, ex parte 
 Cantley, re 
 Cape V. Cape . 
 Capel ». Wood 
 Car V. Burlington 
 
 V. Ellison 
 
 Carbis, ex parte 
 Carew v. Johnston 
 Carleton v. Earl of Dorset 
 Carlisle (Corporation of) v. 
 
 son 
 Carlon v. Farlar 
 Carmichael v. Wilson 
 Carpenter, yj re 
 
 V. Carpenter . 
 
 V. Heriot 
 
 ». Marnell 
 
 Carr v. Bedford 
 
 V. Ellison 
 
 v. Errol . 
 
 Carrick v. Ei-rington 
 Carsey v. Barsham . 
 Caiter v. Barnardiston 
 
 V. Home 
 
 V. Taggart 
 
 V. Waine 
 
 Carteret (Lord) v. Paschal 
 
 328 
 
 472 
 
 18 
 
 901 
 
 264 
 
 122 
 
 384 
 
 489, 490, 491 
 
 272, 816 
 
 612, 613 
 
 . 546 
 
 631 
 
 Wil- 
 
 . 753 
 
 . 662 
 
 361, 517 
 
 . 882 
 
 . 603 
 
 . 472 
 
 274, 275, 276 
 
 538, 707 
 
 . 816 
 
 . 163 
 
 . 182 
 
 . 305 
 
 251, 428 
 
 225, 318 
 
 369, 370 
 
 . 474 
 
 . 630 
 
TABLE OF CASES. 
 
 Ixi 
 
 PAGE 
 
 Carteret (Lord) v. Petty . 50 
 
 Caxtwrigiit, ex parte . 714,716 
 Carvill v. Carvill . . .173 
 Carwardine v. Carwardine . 246 
 Gary v. Gary . 167, 168, 169 
 
 Casamajor v. Strode . . 816 
 
 Casborne v. Scarfe . 262, 
 
 263, 
 
 264, 
 
 621 
 
 623 
 
 680 
 
 Gasburne v. Gasbume 
 
 11 
 
 625 
 
 Gasey's Trust, in re 
 
 , 
 
 136 
 
 Gathorpe, ex parte . 
 
 
 343 
 
 Gator V. Croydon Railway Com- 
 
 
 pany .... 
 
 
 763 
 
 V. Earl of Pembroke 
 
 
 758 
 
 Cave V. Roberts 
 
 
 325 
 
 Cavendish v. Mercer 
 
 
 620 
 
 Cawkwell, ex parte . 
 
 
 479 
 
 Cawthorn, in re 
 
 
 380 
 
 Gazneau's Legacy . 
 
 
 378 
 
 Chadwick v. Heatley 
 
 
 373 
 
 V. Holt 
 
 
 667 
 
 Challen v. Shippam 
 
 
 357 
 
 Chalmer v. Bradley 289, 
 
 470, 
 
 471, 
 
 472,729 
 
 737 
 
 819 
 
 Chaloner v. Butcher 
 
 
 824 
 
 Chamberlain v. Agar 
 
 
 71 
 
 Chamberlaine v. Ghamberlaine 
 
 70 
 
 Chambers, ex parte 
 
 
 517 
 
 V. Chambers . 
 
 149 
 
 810 
 
 V. Goldwin 
 
 546 
 
 556 
 
 V. Minchin 290, 
 
 291, 
 
 293, 
 
 305, 311 
 
 ,312 
 
 315 
 
 • V. Waters . . .462 
 Champion, ex parte . .351 
 
 V. Rigby . . .470 
 
 Chancellor v. Morecraft . . 851 
 Chandler, in re . . . 763 
 Ghancey v. May . . . 851 
 Chase v. Gable . . . 477 
 Chaplin, ex parte . . . 342 
 
 V. Chaplin 57, 138, 178, 621, 625 
 
 W.Horner 797,798,805,819 
 
 Chapman v. Blisset 104, 246, 247 
 
 V. Gibson ... 96 
 
 Charity Corporation v. Sutton . 290, 
 545, 846 
 Chasteney, ex parte . . 833 
 Ghedworth v. Edwards 337, 756, 758 
 Chelmsford. (Poor of) v. Mild- 
 may 493 
 
 Chertsey Market, iw re . 817,415, 
 493, 723, 767, 777, 781, 783, 787, 
 
 845 
 Chester v. Piatt . . .635 
 
 V. Rolfe . . 517, 774 
 
 Chesterfield (Earl of) v. Jansen 471, 
 / 472, 473, 778 
 Chetham v. Lord Audley . 547 
 Chichester v. Bickerstaff . . 800 
 Child 4). Gibson . , .360 
 V. Stephens ... . 488 
 
 PAGE 
 
 Chion, ex parte . . 274, 754 
 Bhipping-Sodbury School, in re 783 
 Chirton's case . . . 673 
 
 Chitty V. Parker . . 183, 184 
 Cholmondeley v. Cholmondeley 168 
 
 (The Marquis of) v. Lord 
 
 Clinton . 618,730,732,733, 
 
 737 
 Christian v. Devereux . . 744 
 Christophers v. White . . 320 
 Christ's Hospital v. Budgin 177, 216 
 
 V. Grainger . . 23, 717 
 
 Christy v. Courtenay 207, 209, 212, 
 
 214, 215 
 
 Chumley, ex parte . . . 826 
 
 Churchill v. Bank of England . 671 
 
 V. Dibben . . .645 
 
 V. Lady Hobson 241, 291, 310, 
 
 313 
 
 V. Marks . . .136 
 
 City of London v. Garway 182, 183 
 
 V. Richmond . . . 851 
 
 Clack V. Holland . 329, 729, 764 
 Clapham (Inhabitants of) v. 
 
 Hewer . . . .779 
 Clare v. Earl of Bedford . . 39 
 Glare v. Ormond . . .699 
 
 V. Wood . . . 657 
 
 Clark I). Burgh . . .629 
 
 V. Cook . . .630 
 
 Clarke's Charity, in re . . 781 
 Clarke v. Danvers . 199, 202, 216 
 
 V. Earl of Ormonde . 428 
 
 V. Parker 
 
 V. Pistor 
 
 V. Swaile 
 
 V. Turner 
 
 Clay V. Sharpe 
 
 V. Willis 
 
 Clegg V. Edmondson 
 Clerk V. Miller 
 Clerkson v. Bowyer 
 Clifton V. Lombe 
 
 533 
 
 . 123 
 
 464, 471 
 
 . 707 
 
 . 427 
 
 687, 688 
 
 . 742 
 
 . 633 
 
 . 18 
 
 . 168 
 
 . 637 
 
 291, 293, 328, 
 
 337, 351, 766 
 
 314, 336, 367 
 
 . 167 
 
 . 490, 491 
 
 40, 579 
 
 144, 146, 
 
 155 
 
 . 426 
 
 340, 480 
 
 . 861 
 
 838, 839 
 
 729 
 
 34©, 596, 766, 
 
 774, 775 
 
 Cockerell v. Cholmley . 472, 778 
 Cogan V. Stevens . . . 189 
 
 Clinton v. Willes 
 Clough V. Bond 
 
 V. Dixon 
 
 Clowdsley v. Pellham 
 Clowes V. Waters . 
 Clutton, ex parte . 
 Coape V. Arnold . 142, 
 
 Cochrane v. Robinson 
 Cock V. Goodfellow 
 Gockburn v. Thompson 
 Gockell V. Pugh 
 
 V. Taylor 
 
 Cocker v. Quayle 
 
Ixii 
 
 TABLE OF CASES. 
 
 
 PAOB 
 
 
 PASS 
 
 Coke's case (Sir E.) 
 
 646, 673 
 
 Cookson V. Cookson 
 
 . 823, 824 
 
 Colchester v. Lowten 
 
 . & 
 
 V. Eeay 
 
 . 806, 816 
 
 Cole V. Gibson 
 
 . 472 
 
 Coope V. Carter 
 
 . 766 
 
 V. Moore 615, 723 
 
 , 724, 725 
 
 Cooper, ex parte 
 
 . 613 
 
 V. Muddle 
 
 . 771 
 
 V. Douglas 
 
 . 617 
 
 ■ . V. Wade 22, 297, 526, 528, 630, 
 
 V. Fynmore 
 
 . 605 
 
 533, 534 
 
 , 680, 712 
 
 V. Jones 
 
 . 893 
 
 Colebrooke's (Sir George) 
 
 case 464, 
 
 V. Thornton . 
 
 . 696 
 
 
 473 
 
 V. Wyatt 
 
 . 136, 136 
 
 Colegrave v. Manby 
 
 . 392 
 
 Cooper's Trust, in re 
 
 191, 193, 808 
 
 Coles V. Trecothick 460, 
 
 462, 463, 
 
 Cooth V. Jackson 
 
 . 205 
 
 
 464 
 
 Cope V. Parry 
 
 . 842 
 
 CoUard v. Hare 
 
 . 730 
 
 Copeman v. Gallant 
 
 274, 275, 277, 
 
 CoUett V. Morrison 
 
 . 137 
 
 
 278 
 
 CoUingwood v. Pace 
 
 . 677 
 
 Copper Mining Company v. Beach 
 
 Collins V. Archer . 
 
 . 753 
 
 
 425 
 
 V. Carey . 
 
 320, 549 
 
 Copperthwaite v. Tuite 
 
 . 633 
 
 V. Collins 
 
 364, 810 
 
 Coppin V. Fernyhough 
 
 218, 222, 224, 
 
 V. Reece 
 
 . 486 
 
 384, 
 
 397, 398, 729 
 
 V. Vining 
 
 538, 642 
 
 V. Gray . 
 
 . 634 
 
 V. Wakeman 182, 
 
 183, 195, 
 
 Corbett v. Barker . 
 
 . 733 
 
 
 196 
 
 Cordal's case . 
 
 . 251 
 
 Collinson v. CoUinson 
 
 209, 214 
 
 Corder v. Morgan . 
 
 . 427 
 
 V. Lister 
 
 456, 563 
 
 Cordwell v. Mackrill 
 
 . 727, 728 
 
 V. Patrick 
 
 81,91 
 
 Cornbury (Lord) v. Middleton 12, 
 
 CoUis V. Collis 
 
 338, 867 
 
 
 600, 615 
 
 Colman v. Sarel . 84, 94, 971 874 
 
 Cornish v. Mew 
 
 . 395 
 
 Colmore v. Tyndall 
 
 . 253 
 
 Cornthwaite v. Frith 
 
 . 481, 482 
 
 Colston V. Lilley 
 
 . 427 
 
 Cory V. Gertcken . 
 
 . 39 
 
 Colt V. Colt 
 
 12, 621 
 
 Coryton v. Helyar . 
 
 8 
 
 Colwall V. Shadwell 
 
 819 
 
 Costeker v. Horrox 
 
 . 867 
 
 Commissioners of Charitable 
 
 Cotham v. West 
 
 . 517 
 
 Donations v. Archbold 
 
 710, 711 
 
 Cotteen v. Missing . 
 
 81, 91 
 
 V. Wybrants 441, 443, 
 
 722, 726, 
 
 Cotterell v. Purchase 
 
 734 
 
 745, 746 
 
 , 748, 749 
 
 Cottingham v. Shrewsbury . 845 
 
 Compton V. Bedford 
 
 477, 480 
 
 Cottington v. Fletcher 
 
 62, 63, 137, 
 
 V. Collinson . 
 
 34, 35 
 
 
 178, 179 
 
 V. Compton . 
 
 . 658 
 
 Cotton V. Clark 
 
 . 877 
 
 (Lord) V. Oxenden . 
 
 . 798 
 
 Court V. Jeffery 
 
 . 458, 849 
 
 Congreve, ex parte . 
 
 . 715 
 
 Courtenay v. Courtenay 
 
 . 583 
 
 Coningham v. Mellish 
 
 . 180 
 
 Courthorpe v. Heyman 
 
 12, 600 
 
 V. Plunkett . 
 
 . 84 
 
 Courtois, in re 
 
 . 378 
 
 ConoUy v. Parsons . 
 
 421, 424 
 
 Cousen, ex parte . 
 
 . 276, 714 
 
 Consett V. Bell 
 
 101, 846 
 
 Coventry (Mayor of) v. 
 
 Coventry 97, 
 
 Conry v. Caulfield . 
 
 325, 845 
 
 
 584 
 
 Conyngham v. Conyngham 
 
 . 243 
 
 — ^ V. Atty.-Gen. . 
 
 . 711 
 
 Cook V. Arnham 
 
 734, 752 
 
 V. Hall . 
 
 . 751 
 
 V. Duckenfield 
 
 . 180 
 
 Covington, in re 
 
 . 380 
 
 V. Fountain . 
 
 . 173 
 
 Cowdery v. Way 
 
 . 633 
 
 V. Fryer 
 
 . 243 
 
 Cowgill V. Lord Oxmantown . 418 
 
 V. Gregson 
 
 . 688 
 
 Cowley V. Hartstonge 
 
 538, 806, 808 
 
 V. Gwavas 
 
 . 179 
 
 Cowman v. Harrison 
 
 . 171 
 
 • V. Hutchinson 177, 
 
 180, 181 
 
 Cowstad V. Cely 
 
 . 847 
 
 V. Parsons 
 
 . 513 
 
 Cowper V. Earl Cowper 
 
 . 680 
 
 Cooke, ex parCe 
 
 . 136 
 
 Cox V. Barnard 
 
 . 94, 863 
 
 V. Blake 
 
 . 252 
 
 V. Bateman 
 
 204, 238, 757 
 
 V. Cholmondeley 
 
 . 218 
 
 V. Cox . 
 
 . 376, 433 
 
 i;. Crawford . 237, 
 
 265, 266, 
 
 V. Dolman 
 
 . 748, 749 
 
 528 
 
 532, 533 
 
 V. Parker 
 
 14, 321, 679 
 
 V. Stationers' Company ] 
 
 Cox's case (Sir Charles 
 
 . 687 
 
 182, 190, 193, 194, 
 
 195, 197 1 
 
 Coysegame, ex parte 
 
 . 277 
 
TABLE OF CASES. 
 
 Ixiii 
 
 Crabb o. Crabb 
 Crabtree v. Bramble 
 
 PAGE 
 
 56, 61 
 792, 794, 805, 
 806, 823, 824 
 Crackelt ». Bethune 357, 359, 362, 
 
 876 
 Cradock v. Piper 
 Craigdallie v. Aikman 
 Crallan v. Oulton . 
 Cramer v. Cramer . 
 Cranch v. Cranch . 
 Crane v. Drake 
 Cranstonn v. Johnston 
 Crawford, ex parte 
 Crawley v. Crawley 
 Crawshay v. Collins 
 Creagh v. Blood 
 
 Creed v. Covile 
 
 V. Creed 
 
 V. Perry 
 
 Creuze v. Hunter 
 Crewe v. Dicken 
 
 320, 550, 655 
 
 . 497 
 
 . 484 
 
 . 890, 904 
 
 . 808 
 
 455, 456, 459 
 
 . 48 
 
 . 479 
 
 . 118, 808 
 
 . 321, 548 
 
 16, 232 
 
 12, 683 
 
 . 236, 847 
 
 . 372 
 
 . 489 
 
 233, 237, 297, 
 
 449, 531, 532, 633, 634 
 Cripps V. Jee . . . 178 
 
 Crisp V. Heath . . . 660 
 
 V. Spranger . 226, 292, 469 
 
 Crispe v. Blake . . .606 
 Croft V. Adam . . .696 
 
 V. Slee . . . 183, 190 
 
 Crofton V. Ormsby . . 725 
 Crofts V. Middleton . . 634 
 Crompton v. North . . .181 
 Crook V. Ingoldsby . . . 572 
 Crooke v. Brooking . . 63, 76, 77 
 Crop V. Norton . 63, 200, 218 
 Cropper v. MeUersh . . 855 
 Crosby v. Church . 636, 640, 645 
 Crosley v. Archdeacon of Sud- 
 bury 261 
 
 Crosse v. Smith . . .296 
 Crossley v. Crowther . .718 
 Crouch V. Citizens of Worcester 606, 
 
 508 
 Crowe V. Ballard 460, 470, 472, 473 
 
 V. Crisford . . .810 
 
 Croyden's Trust . . 380 
 
 Crozier v. Crozier . . . 166 
 Cruse V. Barley 182, 183, 190, 195 
 Cruwys v. Colman 167, 169, 704, 706 
 Cuddy V. Waldron . . .857 
 Cuff V. Hall . . . 416, 527 
 Cullingworth v. Lloyd . . 486 
 Culpepper «. Aston 179, 414, 428, 
 
 429, 434, 436 
 Cummins v. Cummins 238, 239, 240, 
 
 319 
 Cunliffe v. Cunliffe . . .168 
 Cunningham v. Moody 621, 680, 793, 
 
 794, 819, 820 
 Curling v. May . . . 806 
 Currant v. Jago . . .216 
 Curre v. Bowyer . . . 655 
 
 Currer v. Walkley . 
 Curiie, ex parte 
 Curteis v. Candler . 
 Curtis V. Curtis 621, 622, 
 
 ■». Lukin . Ill, 
 
 ». Price . 
 
 V. Rippon 
 
 Cusack V. Cnsack . 
 Custance v. Bradshaw 
 
 V. Cunningham 
 
 Cuthbert v. Baker . 
 Cutterback v. Smith 
 
 FAGIi 
 
 . 435 
 . 833 
 . 367 
 753, 755 
 112, 597 
 . 253 
 
 169, 
 
 171 
 147 
 807 
 179 
 432 
 488 
 
 43, 677, 678 
 . 122 
 . 643 
 . 278 
 . 575 
 . 35 
 810 
 725 
 
 368, 
 
 Daok's case (Sir John) 
 Dakins v. Berisford . 
 Dalbiac v. Dalbiac . 
 Dale, ex parte 
 D'Almaine v. Anderson 
 Daniel v. Ubley 
 
 ». Warren 
 
 Daniels v. Davison . 
 D'Arcy v. Blake 622, 625, 626, 755 
 Darcy v. Hall . . .318 
 
 Darke v. Martyn . . . 337 
 Darley v. Darley 97, 121, 122, 123 
 Daxlington, ex parte . .617 
 D'Amay v. Chesneau . . 276 
 Darwell v. Darwell . . 310 
 
 Davall V. New River Company 321, 
 
 679 
 Davenport v. Coltman 182, 183, 184 
 
 179, 
 
 V. Stafford 
 Davenport's Charity, re 
 Davers v. Dewes 
 Davey v. Miller 
 David V. Frowd 
 Davidson v. Foley 
 
 V. Gardner 
 
 Davies, re 
 
 V, Ashford 
 
 V. Austen 
 
 V. Davies 
 
 V. Goodhew 
 
 V. Thornycroft 
 
 V. Weld . 
 
 V. Westcomb 
 
 Davis, ex parte 
 
 V. Dendy 
 
 V. Dysart 
 
 V. Jenkins 
 
 V. Kirk . 
 
 V. Prout . 
 
 V. Spurling 226, 290, 292, 293, 
 
 459 
 
 V. Strathmore (Earl of) 
 
 Davy V. Hooper 
 
 356 
 
 718, 899 
 
 196, 197 
 
 . 885 
 
 . 375 
 
 191, 650 
 
 . 460, 633 
 
 . 895, 901 
 
 . 823 
 
 . 518 
 
 147, 268, 727 
 
 . 806, 807 
 
 . 128 
 
 . 407 
 
 . 421 
 
 . 575 
 
 . 556 
 
 . 227 
 
 . 498, 779 
 
 . 680 
 
 . 121 
 
 V. Pepys 
 
 V. Seys . 
 
 Dawson t>. Clarke 
 
 672 
 
 700 
 
 . 646 
 
 . 873 
 
 179, 180, 181, 
 
 197, 317, 557 
 
Ixiv 
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 
 PASE 
 
 Dawson v. Hearu . 
 
 . 597 
 
 Doe V. Ball . 
 
 . 478 
 
 V. Massey 
 
 . 359 
 
 V. Barrell 
 
 . 667 
 
 Day V. Croft . 
 
 . 557, 870 
 
 V. Barthrop 
 
 . 253 
 
 Dean v. Allen 
 
 . 426 
 
 V. Bennett 
 
 . 264 
 
 Dearden, in re 
 
 . 836 
 
 «>. Biggs . 
 
 . 249 
 
 Dearie v. Hall 
 
 . 605, 607 
 
 V. Bolton 
 
 . 252 
 
 De Clifford, in re . 
 
 . 836 
 
 V. Cadogan 
 
 . 258 
 
 Deerhurst (Lord) v. 
 
 Duke of 
 
 V. Cafe . 141, 253, 254, 259 
 
 St. Albans . 
 
 . 163 
 
 V. Claridge, . 
 
 . 247 
 
 Deeth v. Hale 
 
 . 597, 819 
 
 V. Cockell 
 
 . 106, 107 
 
 Deg V. Deg 63, 204, 206, 238, 757 
 
 V. Danvers 
 
 61, 617 
 
 Degg's case 
 
 . 828 
 
 V. Edlin . 
 
 . 247 
 
 Delaue v. Delane . 
 
 . 207 
 
 V. Bwart 
 
 . 252 
 
 Delauney v. Barker 
 
 . 274, 275 
 
 V. Field . 
 
 . 247 
 
 Deloraine (Lord) v. Browne 732, 734, 
 
 V. Godwin 
 
 . 301, 419 
 
 
 735, 738 
 
 V. Greenhill . 
 
 . 665 
 
 De Manneville v. Crompton . 543 
 
 V. Harris 182, 233, 236, 237, 
 
 Dennis v. Badd 
 
 . 227, 830 
 
 
 243 
 
 Denton v. Davies . 
 
 64, 757, 762, 
 
 V. Hawkins . 
 
 . 505 
 
 
 764 
 
 V. Hawthorn . 
 
 . 132 
 
 V. Denton 
 
 . 589, 592 
 
 V. Hicks 
 
 . 253 
 
 Deptford (Churchwardens of) 
 
 ■ V. Hiley . 
 
 106, 107 
 
 V. Sketchley 
 
 . 106, 107 
 
 V. Homfray . 
 
 247, 250 
 
 Derbishire v. Home 
 
 633, 765, 775, 
 
 V. Hughes 441, 442, 444, 445, 
 
 
 778 
 
 
 447 
 
 Devenish v. Baines 
 
 60, 71 
 
 V. Ironmonger 
 
 . 254 
 
 Devey v. Peace 
 
 . 575 
 
 V. Jones . 
 
 498, 590 
 
 V. Thornton . 
 
 367, 595, 876 
 
 V. Keen . 
 
 . 753 
 
 Devon v. Watts 
 
 . 477, 480 
 
 V. Lea . 
 
 251, 255 
 
 Dew V. Clarke 
 
 . 834 
 
 V. Lightfoot . 
 
 . 265 
 
 Dewdney, ex parte . 
 
 . 731 
 
 V. M'Kaeg _ . 
 
 498, 590 
 
 Dibbs V. Goren 
 
 . 373 
 
 V. Munro 
 
 . 132 
 
 Dickenson v. Dickenson . 420, 430 
 
 V. Nicholls 
 
 249, 253 
 
 Dickinson v. Shaw . 
 
 . 211 
 
 V. Norton 
 
 . 717 
 
 Dickonson v. Player 
 
 . 340 
 
 V. Passingham 
 
 . 247 
 
 Dickson, re. . 
 
 . 558, 662 
 
 V. Phillips . 
 
 686, 748 
 
 Digby V. Howard 
 
 . 643 
 
 ^«. Pott . 
 
 . 591 
 
 V. Irvine 
 
 635, 666, 669 
 
 V. Pratt . 
 
 . 250 
 
 V. Langworth . 
 
 . 602 
 
 V. Price . 
 
 . 288 
 
 V. Legard 
 
 . 182, 183 
 
 V. Roe 
 
 527, 580 
 
 Dike V. Ricks 
 
 . 429 
 
 V. Rusham 
 
 . 93 
 
 Dillon V. Coppin 
 
 . 81, 84, 94 
 
 V. Shotter 
 
 . 250 
 
 V. PlaskeU 
 
 . 662 
 
 V. Simpson 250, 25 
 
 1, 254, 259 
 
 Dimes v. Scott 
 
 291, 353, 815 
 
 V. Smyth 
 
 . 236 
 
 Dimsdale v. Dimsdale 
 
 . 94 
 
 V. Sotheron 
 
 . 252 
 
 Dinwiddle v. Bailey 
 
 . 753 
 
 V. Staple 
 
 590, 691 
 
 Disher v. Disher 
 
 . 797 
 
 V. Sybourn 
 
 . 591 
 
 Dix V. Burford 
 
 . 243 
 
 V. Terry . 
 
 106, 107 
 
 Dixon V. Olmius 
 
 71, 122 
 
 V. Thompson . 
 
 . 45 
 
 V. Dawson 
 
 . 181 
 
 V. Underdown 
 
 . 195 
 
 V. Gay fere 
 
 745, 816, 823 
 
 V. Willan 
 
 . 256 
 
 V. Saville 
 
 . 621, 625 
 
 V. Woodhouse 
 
 . 250 
 
 Dobson V. Carpenter 
 
 . 426 
 
 V. Wroot 
 
 . 591 
 
 V. Land . 
 
 319, 332, 516 
 
 Dolder v. Bank of Englanc 
 
 1 . 865 
 
 Docker v. Somes 318, 
 
 319, 321, 361, 
 
 Dollond V, Johnson 
 
 . 689 
 
 
 362 
 
 Dolman v. Pritman 
 
 . 489 
 
 Docksey v. Docksey 
 
 . 181 
 
 Dolton V. Hewen 
 
 . 435 
 
 Dod V. Dod . 
 
 . 147 
 
 • ~v. Young 
 
 . 444 
 
 Dodson V. Hay 154, 
 
 156, 621, 622, 
 
 Dommett v. Bedford 
 
 . 136 
 
 
 793 
 
 Donaldson v. Donaldson . 
 
 81,91 
 
 Doe V. Amey . 
 
 . 667 
 
 Donne v. Hart 
 
 26, 629 
 
TABLE OF CASES. 
 
 Ixv 
 
 FASE 
 
 Donohoe v. Conrahy . . 65 
 Doody V. Higgins . . . 856 
 Doolan «. Blake . . .632 
 Doran v. Wiltshire . . 433, 435 
 Dorchester (Lord) v. Earl of 
 
 Effingham . . .332 
 
 Dormer's case . . 826, 827 
 
 V. Fortescue, 409, 761, 752, 
 
 763 754, 755, 766 
 Dornford v. Dornford, 358, 359, 364, 
 766, 771, 772 
 
 Douglas 1). Allen 
 
 V. Browne 
 
 V. Congreve 
 
 v. Horsfall 
 
 Dove V. Everard 
 
 484 
 . 290 
 . 816 
 . 844 
 235, 242 
 
 Dovenby Hospital, in. re . . 782 
 Dover, ex parte . 243, 838, 880 
 Dowling ». Belton . . .830 
 
 V. Hudson . . . 434 
 
 Dowling V. Maguire 632, 634, 635 
 Downe (Viscount) «. Morris, 14,18, 
 
 283, 285, 322 
 Dovyns v. Thomas . . . 860 
 
 V. Worrall . . . 700 
 
 DovsTies V. Grazebrook, 414, 461, 463, 
 
 464 
 Downing v. Townsend . . 95 
 Dowtie's case .... 676 
 Doyle V. Blake, 232, 240, 289, 292, 
 310,311, 313, 366 
 Doyley v. Attorney-General . 297, 
 533, 534, 696, 700, 704, 712 
 Doyly V. Sherratt . . .298 
 Drake v. Whitmore . . 417 
 
 Drakeford v. Wilks . . 70 
 
 Drakeley's Trust, in re . . 118 
 Drant v. Vause . . .808 
 Drayson v. Pocock . 414, 460, 712 
 Drewr V. Harman . . . 842 
 Drever v. Mawdesley . . 641 
 Drohan v. Drohan . . 456, 522 
 Drosier v. Brereton . 82, 345, 350 
 Drummond v. Duke of St. Al ban's 
 
 751, 756 
 Drury v. Scott . . .642 
 
 Duberly v. Day . . 26, 629 
 Dubless V. Flint . . 864, 866 
 Dubois, ex parte . . . 269 
 Dudgeon v. Cormley . . 858 
 Dudley (Lord) v. Lady Dudley 794 
 Du Hourmelin v. Sheldon 43, 807 
 Dumas, ex parte . . 274, 276 
 Dummer v. Corporation of Chip- 
 penham .... 31 
 Dumoncel v. Dumoncel, 43, 132, 621 
 Dunbar v. Tredennick, 466, 469,470, 
 
 472, 473, 725 
 Duncan v. Chamberlayne . 613 
 
 Dunch V. Kent 318, 428, 436, 486 
 Duncombe v. Mayer . . 592 
 
 Duncombe v. Nelson 
 Dundas v. Blake 
 
 V. Dutens 
 
 Dunkley v. Dunkley 
 Dunman, ex parte . 
 Dunnage v. White . 
 Dunne v. Dunne 
 Dunster v. Glengal 
 Durour v. Mottenx . 
 Dutton V. Morrison 
 
 476, 
 
 Dyer v. Dyer •. 200, 207, 
 
 PAQE 
 
 . 617 
 
 . 746 
 
 . 648 
 
 369, 370 
 
 . 422 
 
 . 181 
 
 . 614 
 
 . 608 
 
 196, 197 
 
 477, 478, 
 
 479 
 
 209, 211, 
 
 212, 213 
 
 Bade v. Bade . . 167, 169, 171 
 Bales V. England . 167, 169, 283 
 Earlom u. Saunders . 792, 796, 806, 
 
 816 
 Bast V. Ryall . . . 506, 876 
 Bast Greenstead's case . . 726 
 East India Company v. Hench- 
 man 225 
 
 Eaton V. Smith . . . 531 
 Bbrand v. Dancer . . 200, 216 
 Eccleston v. Skelmersdale . 846 
 Eckhardt v. Wilson . 477, 479 
 
 Eddleston v. Collins . . 36 
 Bden v. Poster . 492, 493, 499 
 Bdenborough v. Archbishop of 
 
 Canterbury 107, 109, 1 10, 777, 874 
 Edmonds v. Dennington . . 631 
 
 V. Peake . . . 427 
 
 Edwards v. Fashion . . 202 
 
 V. Freeman ... 20 
 
 V. Graves ... 19 
 
 • V. Harvey . . 421, 872 
 
 V. Jones . . 81, 88 
 
 V. Lewis . . . 220 
 
 V. Morgan . . 751, 756 
 
 V. Pike . . .80, 205 
 
 V. Tuck . . . 118, 119 
 
 ■ V. Countess of Warwick . 797, 
 
 806, 806, 820, 822, 824 
 Eidsforth v. Armstead, 441, 446, 447 
 Bland v. Eland 435, 436, 437, 444, 
 456, 458 
 Blborne v. Goode . . 116, 118 
 Bldridge v. Knott . . . 735 
 Blibank (Lady) v. Montolieu . 628 
 BUerthorpe, in re . . . 883 
 EUice, ex parte . . . 343 
 Elliot V. Brown . . . 202 
 
 V. Edwards . . . 725 
 
 V. Elliot 177, 207, 211, 214, 215 
 
 V. Merriman 435, 441, 444 
 
 455, 738 
 
 Ellis, ex parte 
 Ellis V. Atkinson 
 
 V. Maxwell 
 
 V. Nimmo 
 
 274 
 
 123 
 
 . 116 
 
 . 96, 97, 99 
 
 e 
 
Ixvi 
 
 TABLE Off CASES. 
 
 
 
 PAGE 
 
 PAOB 
 
 Ellis V. Selby . 
 
 , 
 
 . 182 
 
 Faulkner v. Elger . . .109 
 
 Ellison V. Airey 
 
 
 . 551 
 
 Fauntleroy, in re . . . 713 
 
 i>. Ellison 
 
 81, 
 
 84, 89, 99 
 
 Fawcet v. Lowther . . 680 
 
 ■ V. Elwin 
 
 
 . 628 
 
 Fawcett v. Whitehouse . . 225 
 
 Ellison's Trust, in re 
 
 , 
 
 236, 895 
 
 Fearns v. Young . . 558, 808 
 
 Elliston, e^joar^e . 
 
 
 . 277 
 
 Fearon v. Webb . . 107, 108 
 
 Elmsley v. Young . 
 
 
 . 707 
 
 Featherstonhaugh v. Fenwick 218, 
 
 Else V. Osborn 
 
 
 . 407 
 
 220 
 
 Elsee, ex parte 
 
 
 . 567 
 
 Fell V. Brown . . .849 
 
 Eltham (Inhabitants 
 
 of) 
 
 V. 
 
 V. Lutwidge . . . 875 
 
 Warreyn 
 
 
 198, 506 
 
 Fellowes u. Till . . .839 
 
 Elton V. Harrison . 
 
 
 . 444 
 
 V. Mitchell 304, 305, 337, 774 
 
 Eniblyn v. Freeman 
 
 
 . 182 
 
 Fellows's Settlement, in re 897, 901 
 
 Emelie v. Emelie . 
 
 
 . 341 
 
 Feltham's Trusts, in re. . 380 
 
 Emmett v. Dewhurst 
 
 
 . 486 
 
 Fenniliteau, ex parte . . 835 
 
 Emuss V. Smith 
 
 , 
 
 . 808 
 
 Fenwick v. Greenwell . 700, 765 
 
 England (Bank of) v. 
 
 Lunr 
 
 I 32, 33 
 
 Feoffees of Heriot's Hospital u. 
 
 V. Moffat 
 
 
 32,33 
 
 Boss . . . 567, 561 
 
 V. Parsons 
 
 
 32,33 
 
 Fergus (Executors of) v. Gore . 484 
 
 England (Mary), in rt 
 
 . 
 
 . 408 
 
 Ferguson v. Livingstone . . 734 
 
 ■ V. Downs 
 
 
 131, 244 
 
 V. Tadman . . .174 
 
 Entwistle v. Marklant 
 
 I .' 
 
 . 813 
 
 Ferraby «. Hobson . 606, 506 
 
 Erskine's Trust, in re 
 
 
 . 380 
 
 Fernie i>. Maguire . . .331 
 
 Bstwick V. Caillaud, 
 
 474", 
 
 475, 476, 
 
 Ferrars v. Cherry . . 725, 726 
 
 
 477 
 
 , 480, 648 
 
 Fettiplace v. Gorges . . 642 
 
 Etty V. Bridges 608 
 
 ,611 
 
 , 614, 863 
 
 Fidgeon w. Sharp . . . 480 
 
 Evans v. Bagwell . 
 
 
 482, 483 
 
 Field's Trust, in re. . . 381 
 
 ■ V. Bicknell 
 
 J 
 
 692, 776 
 
 Mortgage . . . 265 
 
 ■ V. Brown 
 
 14, 18, 285 
 
 Field ex parte . . . 860 
 
 V. Coventry 
 
 
 . 870 
 
 V. Dononghmore 367, 486, 595 
 
 - — - V. Hellier 
 
 114 
 
 117,119 
 
 K. Evans . . .123 
 
 V. Jackson 
 
 , 
 
 416, 523 
 
 V. Lonsdale . . . 101 
 
 • V. John . 
 
 
 . 241 
 
 V. Sowle 634, 635, 640, 641 
 
 V. Stokes 
 
 
 . 852 
 
 Finch's case (Sir Moyle) 4, 9, 16, 
 
 V. Tweedy 
 
 , 
 
 . 486 
 
 18, 56, 287 
 
 Evelyn «. Forster . 
 
 
 835, 839 
 
 Finch V. Finch 200, 207, 209, 215 
 
 V. Templar 
 
 93, 
 
 34, 97, 99 
 
 V. Earl of Winchelsea 99, 174, 
 
 Everett, in re . 
 
 , 
 
 . 377 
 
 279, 280 
 
 V. Prythergch . 
 
 
 . 870 
 
 V. Hollingsworlh . 701, 704 
 
 Evroy v. Nicholas . 
 
 
 . 39 
 
 Finden «. Stephens . . 102 
 
 Ewer V. Corbet 
 
 455 
 
 456, 458 
 
 Finlay v. Howard . .710 
 
 Exel V. Wallace 
 
 . 
 
 . 145 
 
 Fishbourne, in re . . 461 
 
 Eyre's case 
 
 
 . 820 
 
 Fish V. Klein ... 39 
 
 Eyre v. Dolphin 
 
 218 
 
 220, 224 
 
 Fitch V. Weber . . 182, 184 
 
 V. Marsden 
 
 118 
 
 119, 183 
 
 Fitigerald, in re . . 683, 713 
 
 V. Countess of Shaftesbury, 299, 
 
 K.Fitzgerald . . .631 
 
 
 
 300, 536 
 
 V. Jervoise . 415, 792, 816 
 
 V. O'Flaherty . . 876 
 
 V. Pringle . . 341, 877 
 
 Fabg's Trust, in re . 
 
 
 380, 677 
 
 Fitzgibbon v. Blake . 634, 642 
 
 Fain v. Ayers 
 
 
 . 227 
 
 Fitzroy v. Howard . . . 384 
 
 Falkland, Lord v. Bertie 
 
 . 753 
 
 Flack's settlement, in re . . 378 
 
 Falkner ?). Lord Wynford 
 
 . 700 
 
 Flanagan v. S'lanagan . . 177 
 
 Fane v. Fane . 
 
 
 59,61 
 
 V. Nolan . . 366, 876, 877 
 
 Parquharson v. Seton 
 
 
 . 845 
 
 Flanders v. Clark . . 536, 696 
 
 Farr v. Newman 
 
 261, 
 
 262, 274, 
 
 Flemming «. Page . . .725 
 
 
 
 278 
 
 Fletcher ex parte . . . 381 
 
 V. Sheriffe 
 
 
 857, 868 
 
 V. Ashburner . 177, 183, 793, 
 
 Farrar v. Winterton 
 
 
 . 666 
 
 819 
 
 Farrell v. Smith . 
 
 
 . 375 
 
 V. Chapman . . .189 
 
 Farrington v Knightly 
 
 
 . 19 
 
 V. Fletcher . 81, 94, 719 
 
TABLE OF CASES. 
 
 Ixvii 
 
 . 794 
 
 . 93 
 
 375, 426 
 
 . 333 
 
 . 184 
 
 . 893 
 
 877, 979 
 
 . 849 
 
 152, 161, 163, 
 
 261,280,718 
 
 . 731, 732 
 
 . 167 
 
 301, 419, 497, 
 
 498, 527, 580 
 
 . 623 
 
 . 488, 489 
 
 . 792, 796 
 
 . 477 
 
 . 662 
 
 . 167, 706 
 
 430, 434, 435, 
 
 437, 440, 441, 442, 446, 
 
 453, 458 
 
 V. Ross . 339, 359, 361, 365 
 
 Fletcher v. Eobinson 
 
 V. Sidley 
 
 V. Stevenson 
 
 V. Walker 
 
 Flint V. Warren 
 Flitcroft, in re 
 Fogin V. Andrews 
 Foley, em parte 
 V. Burnell 
 
 V. Hill . 
 
 V. Parry 
 
 V. Wontner 
 
 FoUettD.Tyrer 
 Foly's case 
 Foone v. Blount 
 Foord ex parte 
 Footner v. Sturgis 
 Forbes v. Ball 
 V. Peacock 
 
 Ford V. Hopkins 
 
 V. Ryan . 
 
 V. White 
 
 Ford's Charity, in re 
 Forder v. Wade 
 Fordham v. Wallis . 
 Fordyce v. Bridges . 
 V. Willis 
 
 . 758 
 331, 433, 453 
 . 729 
 . 785 
 . 621,751 
 . 373 
 . 533, 712 
 25, 66, 57, 69, 
 61, 267 
 Forrest v. Elwes 
 
 Forshaw v. Higginson . 583, 584 
 Forster v. Hale 61, 62, 63, 64, 66 
 Fortescue v. Bamett . . 86 
 Forth V. Duke of Norfolk . 660, 
 653, 655, 665 
 Fosbrooke v. Balguy . 217, 225, 
 318, 319 
 Foster v. Blackstone . 606, 608, 
 612, 660, 663, 656 
 . 592 
 . 608 
 174 
 . 369 
 . 692 
 . 734 
 . 97 
 . 650 
 . 559 
 . 43 
 . 671 
 643, 644 
 . 181 
 . 346 
 . 791 
 . 136 
 .277 
 
 V. Crabb 
 
 V. Cockerell 
 
 V. Deacon 
 
 ■ V. Foster 
 
 V. Handley 
 
 V. Hodgson 
 
 Fothergill v. Fothergill 
 
 V. Kendrick 
 
 Fountaine v. Pellett 
 Fourdrin v. Gowdey 
 Fowler V. Churchill 
 
 ». Fowler 
 
 V. Garlike 
 
 V. Reynall 
 
 Fowlser, ex parte . 
 Fox V. Bishop of Chester . 
 V. Fisher 
 
 PASE 
 
 Foxall, inre . . . . 713 
 Fozard's Trust, in re . 379, 816 
 Fozier v. Andrews . . 877, 879 
 France v. Woods . . . 332 
 Francis v, Francis . . 345, 561 
 Francis v. Grover . . . 746 
 Francis v. Wigsell . . 635, 640 
 Franco v. Franco . 317, 629, 851 
 Frank W.Frank . . .816 
 Franklin v. The Bank of Eng- 
 land 32 
 
 V. Frith ;. 351, 359, 875, 878 
 
 • V. Green . . . 619 
 
 Franklyn, ex parte . . . 343 
 Franks v. Price . . . 157 
 Fraser v. Palmer . . 320, 649 
 Frazer v. Moor . . . 734 
 Freake v. Cranefeldt . . 486 
 Frederick v. Aynscombe . 796 
 
 V. Frederick . . .806 
 
 Freeman v. Fairlie 547, 699, 864, 
 
 867 
 
 V. Tatham ... 64 
 
 V. Taylor . . .650 
 
 Freemoult v. Dedire . 174, 488 
 Freme v. Woods . . .332 
 Fremington School, in re . 781 
 French, ex parte ' . . . 348 
 
 V. Baron . . . 546 
 
 V. Davidson . 638, 539, 543 
 
 V. Hobson . . . 777 
 
 Frewin v. Charleton . . 409 
 Friendly Society, ex parte . 783 
 Frost's Settlement, in re . 895 
 
 Fulham, in re 
 
 V. Jones . 
 
 Fuller V. Knight 
 
 V. Lance 
 
 Fussell V. Elwin 
 Fulton V. Gilmour . 
 Fursaker v. Robinson 
 Fust, ex parte 
 Futter V. Jackson . 
 
 . 901 
 
 . 796 
 
 349, 415, 771 
 
 . 476 
 
 . 854 
 
 . 374 
 
 . 94 
 
 . 343 
 
 . 867 
 
 Fyler v. Fyler 
 Fyson v. Pole 
 
 226, 358, 562, 766, 
 
 774 
 
 . 734 
 
 V. Mackreth . 460, 469, 473 
 
 Gaffee, in re ... 131 
 
 Gainsborough v. Gainsborough 181 
 Gale V. Pitt . . . .356 
 
 V. Williamson . . 477 
 
 Galliers v. Moss . . . 264 
 Galway v. Butler . . . 857 
 Gannon v. White ... 89 
 Gardiner v. Fell . 62, 753, 764 
 Gardner v. Marshall . . 370 
 
 ■ V. Rowe ... 63 
 
 Garey v. Whittingham . . 858 
 Garfoot v. Garfoot . . . 173 
 Garland, ex parte . . .273 
 e 2 
 
Ixviii 
 
 TABLE or CASES. 
 
 PAGE 
 
 Garrard v. Lauderdale 81, 84, 99, 
 101, 476, 482, 483 
 
 V. Tuck 
 
 Garrat v. Cullum 
 Garratt v. Lancefield 
 Garrett v. Noble 
 
 V. Wilkinson . 
 
 Garth v. Baldwin 
 
 ' V. Cotton 
 
 Gascoigne v. Thwing 
 Gaskell v. Gaskell . 
 
 V. Harman 
 
 ■ V. Holmes 
 
 Gaston v. Frankum 
 Gaunt V. Taylor 
 Gayner's case . 
 Geary v. Bearcroft 
 Geaves, ex parte 
 Gennys, ex parte 
 Gent V. Harris 
 George v. Ba;nk of England 
 
 V. Howard 
 
 Gibbons v. Baddall . 
 Gibbs V. Glamis 
 
 V. Herring 
 
 V. Ougier 
 
 «. Rumsey 
 
 Gibson v. Bott 
 
 V. Jeyes . 
 
 V. Lord Montford 
 
 K. Rogers 
 
 ■ V. Winter 
 
 586, 590, 748 
 
 . 275 
 
 . 426 
 
 . 415 
 
 . 216 
 
 141, 142, 247 
 
 156, 408, 753 
 
 . 204, 205 
 
 . 100 
 
 . 792 
 
 . 368 
 
 . 634 
 
 . 857, 868 
 
 . 477 
 
 57, 260, 590 
 
 . 277, 772 
 
 . 274, 276 
 
 369, 370 
 
 . 61 
 
 . 179 
 
 . 725 
 
 . 482 
 
 . 313 
 
 . 183 
 
 181, 182, 183, 195 
 
 . 814, 815 
 
 460, 461, 463 
 
 . 261 
 
 . 616 
 
 . 269 
 
 PAOE 
 
 Godfrey v. Watson . . 566, 657 
 Godolphin v. Godolphin 34, 525, 526 
 
 Giddings v. Giddin;:s 218, 220, 221, 
 
 223, 224, 225, 397 39S 
 
 Gifford V. Hort . . 733 
 
 V. Manley . . .238 
 
 Gilchrist v. Cator . . .370 
 Giles V. Dyson . . . 557 
 
 Gill V. Attorney-General . 314 
 
 Gillam, ex parte . . . 833 
 Gillespie v. Alexander . . 375 
 Gillett V. Peppercorn . . 226 
 Gillibrand v. Goold . 421, 430 
 
 Gillies V. Longlands 818, 819, 823 
 Girling v. Lee . . . 488 
 
 Gladding v. Yapp . . .182 
 Gladden v. Stoneman . . 870 
 Gladstone v. Hadwen . . 274 
 Glaister v. Hewer . . .216 
 Glass V. Oxenham . . . 847 
 Glenorchy (Lord) v. Bosville 141, 
 144, 164 
 Glover v. Monckton . 251, 256 
 
 V. Strothoff ... 53 
 
 Glynn v. Lock . . 330, 433 
 
 Gobe V. The Earl of Carlisle . 18 
 Goddard, in re . . .836 
 Goddard v. Macaulay . 836, 881 
 Godden v. Crowhurst . . 134 
 Godfrey «). Dixon . . 43,132 
 - — V. Furzo . . . .274 
 
 Godsall V. Webb 
 Godwin v. Winsmore 
 Goffe V. Whalley . 
 Golding V. Yapp 
 Goldsmid v. Stonehewer . 
 Gomley v. Wood 
 Goode V. West 
 Goodenough v. Goodenough 
 
 V, Tremamondo 
 
 Goodere v. Lloyd . 
 Goodrick v. Brown . 
 Goodright v. Hodges 
 
 • V. Opie . 
 
 V. Wells 
 
 Goodson V. EUisson 
 
 91 
 621, 622 
 . 684 
 59, 69 
 . 855 
 549, 550 
 376, 377 
 . 755 
 .. 810 
 . 181 
 . 602, 604 
 60, 199, 203, 
 205, 207 
 . 195 
 15, 16, 61, 591 
 367, 595, 600, 
 850 
 . 691 
 . 262 
 251, 255 
 . 763 
 . 832 
 . 97 
 . 668 
 836, 837 
 238, 648, 663 
 209, 212, 216 
 . 621 
 12, 600 
 . 94, 97, 99 
 . 113 
 
 Goodtitle v. Jones . 
 
 V. Layman 
 
 V. Whitby 
 
 Goodwin v. Gosnell 
 
 V. Lister 
 
 Gordon v. Gordon . 
 
 V. Trail . > . 
 
 Gore's Charity, in re 
 
 V. Bowser 
 
 Gorge's (Lady) case 
 
 V, Chansey 
 
 Guring v. Bickerstaff 
 
 «. Nash . 
 
 Gorst V. Lowndes . 
 
 Gosling V. Carter 435, 441, 442, 444, 
 
 446, 447 
 
 V. Dorney . . . 487 
 
 Goss V. Neale . . 474, 475 
 
 Gough V. Birch . . . 458 
 
 V. Bull . . . 729, 748 
 
 Gould V. Fleetwood . 545, 653 
 
 Gouldswoith V. Knight . 107, 299 
 Governess's Institution v. Rus- 
 
 bridger 
 Gover, ex parte 
 Gower v. Eyre 
 
 V. Grosvenor , 
 
 V. Main waring 
 
 Gowland v. De Faria 
 Grace, ex parte 
 Graham v. Birkenhead 
 
 V. Fitch . 
 
 V. Lord Londonderiy 
 
 Grange v. Tiving 
 Grant v. Lynam 
 
 V. Mills . 
 
 Gravenor v. Hallum 
 Graves v. Dolphin . 
 Gray, ex parte 
 
 V. Chaplin 
 
 V. Gray . 
 
 424 
 
 614 
 
 144, 150, 158 
 
 22, 626, 697, 
 
 699 
 
 . 738 
 
 . 218 
 
 737, 775 
 
 . 633 
 
 386, 395 
 
 36, 36, 37 
 
 . 705 
 
 276, 725 
 
 . 194 
 
 132, 133 
 
 . 269 
 
 . 852 
 
 . 83 
 
TABLE OF CASES. 
 
 Ixix 
 
 Gray v. Haig . 
 Greatley v. Noble 
 Greaves v. Powell 
 Greedy v. Lavender 
 Green, ex parte 
 — — - V. Ekins . 
 — — V. H olden 
 
 V. Hovifard 
 
 V. Jackson 
 
 V. Marsden 
 
 V. Pledger 
 
 V. Rutherforth 
 
 10, 
 
 V. Spicer . 
 
 V. Stephens 
 
 Greenfell v. Girdlestone 
 Greenhill v. Greenhill 
 Greenhouse, ex parte 
 Greening v. Beckford 
 Greenwell v. Greenwell 
 Greenwood v. Churchill 
 V. Bvans . 
 
 V. Taylor 
 
 V. Wakeford 
 
 Gregory v. Gregory 
 
 PAGE 
 
 . 599 
 634, 639, 756 
 . 487 
 . 628 
 269, 517 
 . 148 
 . 836 
 699, 707 
 . 197 
 170, 171 
 . 866 
 31, 492, 
 494 
 132, 133 
 158, 796 
 736, 737 
 615, 616 
 496, 711 
 . 613 
 . 520 
 . 478 
 387, 390, 391, 
 400, 401 
 . 486 
 583, 684, 768 
 306, 306, 310, 
 462, 470, 471 
 . 246, 248 
 . 642 
 
 V. Henderson . 
 
 ' — — V. Lockyer 
 Greisley w. Chesterfield (Earl of) 813 
 Grenville (Lord) v. Blyth . 279 
 
 Greswold v. Marsham . . 660 
 Grey i;. Colville . 12,682,689 
 
 V. Grey 177, 200, 207, 210, 
 
 211, 212, 213, 214 
 
 Grierson v. Eyre . . 753 
 
 Grieshach v. Freemantle . 823, 824 
 
 Grieveson v. Kirksopp . 696, 701, 
 
 704, 807, 808 
 
 Griffin, ex parte 
 
 294, 
 
 298, 332, 
 357 
 
 V. Griffin . 
 
 
 217,220 
 
 Griffith V. Evans 
 
 
 168, 170 
 
 V. Buckle 
 
 , 
 
 .147 
 
 V. Ricketts 
 
 
 . 807 
 
 Griffiths V. Vere 
 
 
 114, 117 
 
 Grigby V. Cox 
 
 
 632 
 
 Grimstone, ex parte 
 
 825, 
 
 826, 827, 
 830 
 
 Grogan v. Cooke 
 
 
 648, 649 
 
 GrooniB. Booth 
 
 
 . 851 
 
 Grosvenor 1). Carlw light . 
 
 . 360 
 
 Groves v. Groves 138, 
 
 200, 
 
 204, 205, 
 207 
 
 Gubhins v. Creed . 
 
 
 . 318 
 
 Qade V. Worthington 
 
 . 
 
 543, 696 
 
 Guiberts' Trust 
 
 , 
 
 . 577 
 
 Guidot V. Guidot 
 
 792 
 
 . 796, 806 
 
 Gurner, ex parte 
 
 
 357, 772 
 
 Guthrie v. Crossley . 
 
 
 . 480 
 
 Gwilliams v. Rowel . 
 
 
 173, 300 
 
 Haberdasher's Company v. At- 
 torney General . 
 Habergham v. Vincent 
 
 Hackett v. M'Namara 
 Hadley, in re . 
 Hagger, ex parte 
 Halcott V. Markant . 
 Haldenby v. Spofforth 
 Hale V. Allnutt 
 
 V. Lamb 
 
 Haley v. Bannister . 
 Halford v. Stains 
 Hall, in re 
 
 V. Austin 
 
 V. Coventry 
 
 ■ V. Dewes 
 
 ■ V. Hallett 
 
 . 876 
 
 17,66, 69, 
 
 181 
 
 . 416 
 
 . 572, 895 
 
 . 838 
 
 204, 206, 206 
 
 . 416 
 
 . 480 
 
 94, 97, 221 
 
 . 114, 118 
 
 118, 120, 177 
 
 . 763 
 
 . 864 
 
 . 752 
 
 301, 528 
 
 46, 358, 359, 361, 
 
 460, 465, 469, 470, 873 
 
 V. Hugonin . . . 372 
 
 V. Jones . . . 300 
 
 V. Laver . . . 101, 561 
 
 V. Noyes . . 461, 470 
 
 Hall's Charity, 2» j-e . . 781 
 
 Halliburton v. Leslie . ■ 36 
 
 Halliday v. Hudson . 179, 181 
 Hamer's Devisees . . . 285 
 
 Ham's Trust . . .380 
 
 Hamilton v. Ball . . .138 
 
 ■ V. Fry . . . 582, 683 
 
 V. Grant . . . .731 
 
 V. Handcock . . . 833 
 
 V. Houghton . . 488, 489 
 
 V. Mainwaring . . 131 
 
 V. Wright . . -318 
 
 Hamond v. Hicks . . . 729 
 
 Hampshire v. Bradley . . 875 
 
 Hampton v. Spencer . 63, 64 
 
 Hanbury v. Kirkland 306, 317, 361 
 
 Hancom v. Allen . . 341, 361 
 
 Hancox, ex parte . . . 716 
 
 Handcock ( v.) . . 833 
 
 Handick v. Wilkes . . . 147 
 
 Hands v. Hands . .701, 704 
 
 Hankey v. Garret . . 369, 361 
 
 V. Hammond . . . 273 
 
 Hanman v. Riley . . 485, 855 
 
 Hanne v. Stevens , . . 849 
 
 Hanson v. Beverley . . 451, 523 
 
 V. Keatin . . 26, 629 
 
 Hanson, ex parte . . . 277 
 
 Harbert's case . . . 646, 669 
 
 Harcourt v. Seymour . 816, 824 
 
 Harden v. Parsons 304, 306, 310, 
 314, 332, 337,776 
 
 Hardey v. Hawkshaw i . . 807 
 Harding v. Glyn 167, 696, 701, 703, 
 704, 706 
 
 V. Hardrett . . 284, 726 
 
 Hardman ex parte . . .715 
 V. Johnson . . . 225 
 
Ixx 
 
 TABLE OF CASES. 
 
 FASE 
 
 Hardwick v. Mynd 290, 422, 434, 
 447, 449, 471, 529, 633, 738 
 Hardwicke (Lord)a.' "/^ernon 466, 
 469, 699 
 Hardy v. Reeves 
 Harford v. Furrier 
 Haigrave v. Tindall 
 Hargreaves v. Michell 
 Hargthorpe v. Milforth 
 Harland v. Binka 
 
 «. Trigg . 
 
 Harley v. Harley 
 Harman v. Fisher . 
 Harmood v. Oglander 
 
 Harnard v. Webster 
 Harnett v. Macdougal 
 
 V. Maitland 
 
 Harris' Tnist, in re , 
 
 ■ V. Booker 
 
 V. Davison 
 
 V. Horwell 
 
 V. Mott . 
 
 V. Poyner 
 
 V. Pugh . 
 
 Harrison v. Borwell 
 
 in re 
 
 —^ V. Cage , 
 
 V. Coppard 
 
 V. Duignan 
 
 V. Forth . 
 
 V. Graham 
 
 V. Harrison 
 
 V. HoUins 
 
 V. Naylor 
 
 V. Pryse . 
 
 V. Stewardson 
 
 Harrop v. Howard 
 Hartnall, in re 
 Harte ». French 
 
 V. Middlehurst 
 
 Hart V. Tribe .... 
 Hartford, in re . . . 
 Hartga v. The Bank of England 
 Hartley v. Hurle 
 Harton v, Harton 
 Hartop V. Hoare 
 Haitshorn v. Slodden 
 Hartwell v. Chitters 
 Harvey v. Audland . 
 
 V. Harvey . 
 
 694, 811, 851 
 Harwood v. Wrayman . . 685 
 Hasell, ex parte . . . 730 
 Hassell v. Simpson . . . 477 
 Hathorntwaithte v. Russell . 871 
 Havers v. Havers . . 870, 871 
 Hawker v. Hawker . . 251, 256 
 Hawkins v. Chappell . 318, 415 
 V. Gardner . . .61 
 
 728, 734 
 . 174 
 . 488 
 484, 729 
 . 310 
 476, 483 
 168, 169 
 . 627 
 . 480 
 16, 735, 751, 
 756 
 . 766 
 . 130 
 . 514 
 . 379 
 . 665 
 . 656 
 • 70 
 633, 646 
 . 810 
 247, 665 
 . 735 
 . 252 
 . 428 
 . 227 
 . 746 
 . 726 
 235,241,290, 
 291, 305, 310 
 . 356 
 . 733 
 . 153, 166 
 . 372, g46 
 . 843,852 
 . 130 
 . 891, 906 
 . 713 
 . 149 
 . 168 
 . 713 
 32 
 122 
 247, 265 
 . 275 
 . 480 
 . 687 
 . 94 
 121, 386, 517, 
 
 Hawkins v. Kemp , 
 
 V. Lawse 
 
 V. Luscombe 
 
 V. Obeen 
 
 Hay V. Bowen 
 Hayes v. Kingdoms 
 Hayford v. Benlows 
 Hays, ex parte 
 Hayton v. Wolf 
 Haytor f .' Rod 
 Haywood v. Ovey . 
 Head v. Lord Teynham 
 Heap V. ToDge 
 Heardson v. Williamson 
 Hearle v. Greenbank 
 
 PAGE 
 
 237, 449, 532 
 . 685 
 . 265 
 . 832 
 . 368 
 
 177, 201, 210 
 . 189 
 . 617 
 . 234 
 . 805 
 . 848 
 596, 848 
 . 94 
 . 256 
 34, 35, 36, 
 
 526, 623, 624 
 Hazeldine, in re . . . 895 
 Heath, in the matter of . . 714 
 
 V. Henley . . .729 
 
 ■ V. Percival . . . 847 
 
 Heathcote v. Hulme 359, 361, 363 
 Heatley v. Thomas 
 Heaton, ex parte 
 
 V. Marriott 
 
 Heenan v. Berry 
 Heighington v. Grant 
 Hemming, ex pa/rte 
 Henchman v. 
 ral 
 
 Henderson v, M'lver 
 Henley v. Stone 
 
 V. Philips 
 
 V. Webb . 
 
 Hennessey, ex parte 
 
 Herbert, ex parte . 
 Hercy v. Ballard 
 
 V. Dinwoody 
 
 Hereford v. Ravenhill 
 Heron v. Heron 
 Hertford (Borough of) v. 
 of same Borough 
 
 (Marquis of) in re 
 
 Hethersell «. Hales 
 Hewett V. Hewett . 
 
 V. Foster 
 
 Hewitt V. Wright . 
 
 V. Morris 
 
 Hey's Will, in re . 
 Hibbard v. Lanibe 
 
 Hibbert v. Cooke 
 
 V. Hibbert 
 
 Hichens v. Congreve 
 Hiohens v. Kelly 
 Hickling v. Boyer . 
 Hicks V. Hicks 
 
 V. Sallitt 
 
 Hickson v. Fitzgerald 
 Hide V. Heywood 
 Higgiiison «. Barneby 
 
 633, 634, 640 
 
 . 772 
 
 . 304 
 
 . 745 
 
 363, 876 
 
 . 380 
 
 Attorney-Gene- 
 
 194, 198, 325, 796 
 
 667 
 
 . 842 
 
 . 877 
 
 817, 821, 823 
 
 . 609, 610, 
 
 612, 613 
 
 . 277' 
 
 . 761, 766 
 
 471, 738, 739 
 
 . 189, 806 
 
 . 204, 206 
 
 Poor 
 
 878 
 
 860, 864 
 
 . 559 
 
 . 629, 696 
 
 315, 316, 876 
 
 . 184 
 
 . 814 
 
 . 893 
 
 22, 531, 533, 
 
 636, 710, 712 
 
 . 614 
 
 . 101 
 
 225, 861 
 
 . 842 
 
 . 426 
 
 369, 361, 777 
 
 . 753, 764 
 
 . 234, 874 
 
 . 557, 875 
 
 165 
 
TABLE OF CASES. 
 
 Ixxi 
 
 Higginson v. Kelly - 
 Highway v. Banner . 
 Higinbotham v. Holme 
 Hilchina v. Hilchins 
 Hill, ex parte . 
 
 V. Buckley 
 
 V. Cock . 
 
 V. Edmonds . 
 
 V. Gomme 
 
 V. Hill . 
 
 V. Bishop of London 
 
 ■ V. Magan 
 ' V. Simpson 
 
 pAaB 
 . 136 
 148, 604 
 . 136 
 . 251 
 . 136 
 . 415 
 . 183 
 . 630 
 . 765 
 164, 165 
 172, 180, 
 269, 318 
 560, 872 
 455, 456, 457, 
 459 
 736, 738 
 359, 361 
 . 707 
 420, 630 
 . 167 
 867, 869 
 . 39 
 . 135 
 260, 276, 279 
 , 811 
 
 734, 
 
 Hillary v. Waller 
 Hilliard, in re 
 Hinckley v. Maolarens 
 Hind V. Poole . 
 Hindle v. Taylor 
 Hinde v. Blake 
 Hindmarsh v. Southgate 
 Hinton, ex parte 
 
 V. Hinton 
 
 Hinves v. Hinves 
 Hitch V. Leworthy 
 Hixon V. Wytham 
 Hoare v. Parker 
 
 1!. Peck . 
 
 Hobart v. Countess of Suffolk 
 Hobby V. Collins 
 Hobson V. Bell 
 
 V. Trevor 
 
 «. Staneer 
 
 Hockley v. Bantock 
 
 V. Mawbey 
 
 Hodge V. Attorney-General 
 
 V. Churchwood 
 
 Hodges, in re . 
 
 V. Blagrave 
 
 Hodgeson v. Bussey 
 Hodgkinson v. Cooper 
 Hodgson, ex parte . 
 Hodgson, in re 
 
 V. Hodgson 
 
 Hodle V. Healey 
 Hodsden v. Lloyd . 
 Hodson's settlement 
 Holder v. Darbin . 
 
 296 
 
 487 
 
 594 
 
 735 
 
 179 
 
 . 818 
 
 423, 612 
 
 . 751 
 
 . 842 
 
 341, 356 
 
 . 700 
 
 . 30 
 
 . 746 
 
 . 378 
 
 . 426 
 
 . 149 
 
 . 224 
 
 . 136 
 
 . 380 
 
 . 605 
 
 . 734 
 
 . 261 
 
 . 895 
 
 . 713 
 
 Holdernesse v. Carmarthen 820, 821 
 Holford V. Phipps . . .695 
 Holgate V. Haworth . 359, 879 
 Holland's case 19, 20, 30, 629, 677, 
 
 678 
 
 V. Baker . 843, 844, 851 
 
 V. Hughes 351, 353, 355, 792 
 
 Holliday v. Overton " . . 141 
 Hollingsworth v. Shakeshaft . 359 
 HoUis's case (Lord) . . 729 
 
 HoUoway's case . . 28, 287 
 Holloway v. Headington . 94, 99 
 
 PAGE 
 
 Holloway v. Radcliffe . . 819 
 
 Holmes «. Bell . . .849 
 
 V. Coghill ... 97 
 
 V. Dring . . 337, 338 
 
 V. Moore . . .338 
 
 Holt, ex parte . . .772 
 
 v. Holt . . 217, 222 
 
 Homan v. Hague . . . 867 
 
 Honner v. Morton . . .627 
 
 Honnor's Trust . . . 604 
 
 Honor v. Honor . . . 148 
 
 Hood V. Clapham . . . 810 
 
 V. Hall . . . .836 
 
 Hooke V. Kinnear . . . 844 
 
 Hooper v. Eyles . . . 204 
 
 V. Goodwin . . . 183 
 
 V. Smith . . 477, 480 
 
 Hope V. Corporation of GIou- 
 
 V. Liddeli 263, 451, 765, 776 
 
 Hopkins v. Hopkins 8, 104, 144, 156, 
 181, 247, 619 
 
 V. Myall . . .596 
 
 Hopkinson v. Roe . . , 657 
 Horde v. Earl of Suffolk . . 642 
 Hore V. Beecher . . . 631 
 Horn V. Horn . 435, 436, 648 
 
 Home V. Barton 156, 165, 166, 167 
 Horner v. Wheelwright . . 590 
 Horrocks v. Ledsam . 848, 872 
 
 Horsfall, in, re . . . 264 
 
 Horsley v. Chaloner 
 
 V. Fawcett 
 
 Horwood, ex parte . 
 
 V. West 
 
 Hoskins v. Nicholls 
 Houell V. Barnes 
 Hough's will, in re 
 Hougham v. Sandys 
 Houghton, ex parte 
 
 V. Koenig 
 
 House V. Way 
 
 Hovenden v. Lord Annesley 30, 719, 
 
 730, 732, 734, 735, 739 
 
 Hovey v. Blakeman 124, 312, 314, 
 
 277, 
 168, 
 
 332 
 
 851 
 278 
 171 
 867 
 630 
 250 
 681 
 199, 200, 203 
 274 
 808 
 
 How V. Godfrey 
 
 21. Kennett 
 
 V. Whitfield 
 
 Howard's Estate, in 
 
 ?). Digby 
 
 «. Ducane 
 
 V. Hooker 
 
 V. Jemmet 
 
 V. Papera 
 
 V. Rhodes 
 
 Howe V. Earl of 
 
 re 
 
 315 
 
 645, 646, 657 
 
 . 474 
 
 . 529 
 
 . 884 
 
 643, 644 
 
 . 462 
 
 . 631 
 
 274, 758 
 
 870, 871 
 
 . 683 
 
 Dartmouth 330, 
 
 342, 351, 353, 355, 768, 808, 809 
 
 V. Howe . . . 199, 202 
 
 Howel V. Howel . . 148, 149 
 Howell «. Howell . . . 752 
 
Ixxii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 HoTTse V. Chapman . .183 
 
 Hoy V. Master . . 170, 172 
 Huddlestone v. Whelpdale . 402 
 
 Hudson V. Hudson . . 300, 316 
 
 Huet V. Fletcher . . .739 
 Hughes, ex parte 462, 464, 465, 
 466, 468, 469, 473 
 
 V. Evans . . .180 
 
 U.Kelly . . .746 
 
 V. Key . . . 851, 857 
 
 V. Lumley . . .672 
 
 «. Stubbs . . 83, 100 
 
 V. Wells . . 640, 775 
 
 V. Wynne . . 484, 491 
 
 Hughson V. Cookson . . 850 
 
 Hulkes V. Barrow . . . 384 
 
 V. Day . . . .670 
 
 Hulme V. Hulme . . . 574 
 
 V. Tenant 123, 632, 634, 641 
 
 Humberstone v. Chase . 32, 845 
 Humble v. Bill 435, 454, 455, 
 
 459 
 
 Hume V. Edwards . . . 797 
 
 Humphreston's case . 36, 37 
 
 Humphry's estate, in re . 895 
 
 Humphrey v. Morse . . 873 
 
 Humph erey v. Richards . . 642 
 
 Humphreys v. Hollis . . 844 
 
 Hun^ate v. Hungate . , 200 
 
 Hungerford v. Eaile . . 476 
 
 Hunt V. Baker . . .131 
 
 V. Bateman . . . 747 
 
 V. Coles . . . .665 
 
 Huntingdon (Earl of) v. 
 
 Countess 
 Hunton v. Davies . 
 Hurly, ex parte 
 Husband v. Pollard 
 Huskisson v. Bridge 
 Hussey V. Grills 
 
 V. Markham . 
 
 Hutcheon v. Mannington 
 Hutcheson v. Hammond 
 
 The 
 
 . 721 
 
 . 739 
 
 . 422 
 
 . 94 
 
 . 171 
 
 615, 617 
 
 . 233 
 
 . 816 
 
 182, 195, 
 
 196, 613, 517 
 
 Hutchins v. Lee . 61, 177, 178 
 
 Hutchinson v. Hutchinson 526, 704 
 
 • V. Massareene 
 
 V. Morritt 
 
 V. Stephens 
 
 V. Townsend 
 
 Hutton V. Sandys 
 
 ■ V. Simpson 
 
 Hylton V. Hylton 
 Hyne v. Redington 
 Hynshaw v. Morpeth Corpora- 
 tion 
 
 428 
 . 318 
 
 838, 888 
 . 850 
 . 605 
 . 754 
 . 777 
 
 341, 342 
 
 198 
 
 Ibbetson v. Ibbetson . . 161 
 Inchiquin v. French . . 77 
 Incledon v. Northcote . 629, 631 
 
 Incorporated Society v. Rich- 
 
 , ards . . . . 749, 786 
 
 Inge, ex parte . . 494, 495 
 
 Inglefield v. Coghlan . . 122 
 
 Ingliss V. Grant . 474, 479 
 
 Ingram, in re . , . . 381 
 
 Inkersole, ex parte . . . 715 
 Inwood V. Twyne . 513, 823, 829 
 
 Irwin V. Rogers . . . 878 
 
 Isaac V. Defriez . . . 706 
 
 Isaacs V. Weatherstone . . 869 
 
 Isald V. Fitzgerald . . .224 
 
 Ithell u. Beane . . .435 
 
 Jackson's case . . . » 725 
 
 Jackson v. Gamett . . . 476 
 
 V. Haworth . . .633 
 
 u. Hobhouse . . . 123 
 
 V. Hurlock . . 190, 194 
 
 V. Jackson . . 202, 351 
 
 V. Kelly . . . .197 
 
 u. Milfield . . .839 
 
 V Welsh . . 218, 224 
 
 V. WooUey ... 524 
 
 Jacob J). Lucas . 301,326,768 
 
 V. Shepperd . . . 480 
 
 Jacobs V. Amyatt . . . 122 
 
 Jacomb v. Harwood . . 316 
 
 James, ex parte 460, 461, 462, 464, 
 
 465, 466, 467, 468, 469, 470, 560 
 
 V. Dean 218, 219, 220, 222, 
 
 224 
 
 V. Frearson 237, 241, 243, 244 
 
 Janaway, in re . . . 832 
 Jarman v. Wooloton . . 277 
 Jebb V. Abbott . . .435 
 Jeffereys v. Small . . .202 
 Jefferies v. Harrison . . 873 
 Jefferys v. Jefferys . . 94, 99 
 Jenkins v. Hiles . . . 441 
 
 V. Jenkins . . . 250 
 
 V. Milford . . 588, 591 
 
 V. Perry . . 489, 490 
 
 Jenkyn v. Vaughan . . 93 
 Jenner v. Tracy . . . 734 
 Jennings v. Selleck . 177, 216 
 Jerdon v. Foster . . . 832 
 Jervoise, in re . . . 377 
 V. The Duke of Northumber- 
 land 141, 142, 144, 145, 154, 158 
 Jesse V. Bennett . . . 854 
 Jessopp V. Watson . . 183, 184 
 Jesus College v. Bloome . . 753 
 Jevon V. Bush . . 20, 521 
 Jewson V. Moulson . . . 629 
 Johnes u. Lockhart . . 122 
 Johnson, ex parte . . 343, 835 
 
 V. Arnold . . 806, 807 
 
 V. Ball .... 68 
 
 V. Freeth . . .128 
 
TABLE OF CASES. 
 
 Ixxiii 
 
 Johnson v. Holdsworth 
 
 V. Johnson 
 
 V. Kennett 
 
 PASE 
 
 52, 672 
 184, 808 
 434, 435, 436, 437, 
 439, 444 
 
 . 93 
 
 . 731 
 
 . 558 
 
 . 361 
 
 . 336 
 
 . 172 
 
 . 419 
 
 . 642 
 
 . 372 
 
 . ,319 
 
 . 486 
 
 834, 883 
 
 . 29 
 
 . 93 
 
 . 852 
 
 357, 362, 364 
 
 . 631 
 
 . 324 
 
 . 77 
 
 639, 641 
 
 . 853 
 
 . 854 
 
 387, 388, 391, 399, 
 
 403, 607, 845 
 
 . 218, 223, 775 
 
 . 147 
 
 296, 332, 345, 595, 
 
 "*«*■ 875 
 
 . 118, 119 
 
 . 423 
 
 V. Mitchell 182, 183, 195, 196, 
 197 
 142, 256 
 . 95 
 
 V. Legard 
 
 V. Smith, 
 
 V. Telford 
 
 Johnston v. Lloyd 
 
 V. Newton 
 
 V. Rowlands 
 
 Johnstone v. Baber 
 
 V. Lnmb 
 
 Joliffe, ex parte 
 
 Jolland ( V.) 
 
 Jolly V. Norton 
 Jones, in re 
 
 V. Ashurst 
 
 V. Croucher 
 
 ■ V. Del Rio 
 
 V. Foxall 
 
 ■ V, Gibbons 
 
 V. Goodchild 
 
 V. Habbs 
 
 V. Harris 
 
 ■ V. How . 
 
 V. James 
 
 • v. Jones . 
 
 V. Kearney 
 
 ■ V. Langton 
 
 V. Lewis . 
 
 ■ V. Maggs 
 
 V. Matthiff 
 
 PAGE 
 
 Keane v. Robarts . 226, 292, 428, 
 454, 455, 456, 458, 459, 561 
 
 V. Morgan 
 t!. Morley 
 V. Powell 
 V. Powles 
 V. Price . 
 V. Reasbie 
 V. Salter 
 
 . 524 
 . 725 
 
 435, 528 
 . 680 
 
 124, 130 
 
 V. Lord Say and Seal 247, 248, 
 
 254 
 
 • V. Scott . . . 484, 485 
 
 V. Torin . . .700 
 
 V. Turberville . 139, 277, 736 
 
 V. Williams . . .667 
 
 Joseph's Will, in re . . 377 
 Josling V. Karr . . . 849 
 Josselyn v. Josselyn . . 597 
 Joy V. Campbell 139, 277, 293, 305, 
 311, 313, 725, 758, 773 
 Joyce V. Joyce . . . 713 
 Juxon V. Brian . . . 428 
 
 Kampf v. Jones 
 Kator V. Pembroke 
 Kaye v. Powel 
 
 858 
 725 
 585 
 
 Kearnan v. Fitzsimon 
 Kearsley v. Woodcock 
 Keating v. Keating . 
 Keble v. Thompson. 
 Keech v. Sandford . 
 Keeling v. Child 
 Kekewich v." 
 
 V. Marker 
 
 Kellaway v. Johnson 
 
 Kellett V. Kellett . 
 Kemp V. Kemp 
 Kempton v. Packman 
 Kendall v. Granger . 
 
 V. Micfield 
 
 Kenge v. Delavall . 
 Kennedy v. Daly 
 
 238 
 
 . 135 
 
 . 416 
 
 337, 771, 773 
 
 22U, 223, 224 
 
 723 
 
 '. 88, 91, 94 
 
 . 538 
 
 353, 766, 776, 
 
 853 
 
 . 181 
 
 10, 
 
 . 218, 222 
 
 . 182 
 
 . 17 
 
 . 640 
 
 174, 280, 325, 
 
 721, 725, 726 
 
 . 544, 582 
 
 . 193, 197 
 
 V. Turnley 
 
 Kennell v. Abbott . 
 
 Kenney v. Browne . 
 
 Kenrick v. Lord Beauclerk 247, 248 
 
 Kensey v. Langham 
 
 Kensington Hastings' case 
 
 467 
 
 248 
 
 269 
 
 198 
 
 121, 122, 123 
 
 . 835 
 
 737, 775 
 
 . 153 
 
 . 633 
 
 . 844 
 
 . 477 
 
 . 798 
 
 196, 471, 
 
 488, 738, 762 
 
 Kilbee v. Sneyd 290, 292, 294, 314, 
 
 316, 336, 461, 463, 465, 777 
 
 Kildare (Earl of) v. Eustace 10, 30, 
 
 678 
 
 V. Dollond 
 Kent, in re 
 
 V. Jackson 
 
 Kentish v. Newman 
 Keogh V. Cathcart . 
 Keen v. Magawly 
 Kettle V. Hammond 
 Kettleby v. Atwood 
 Kidney v. Koussmaker 
 
 Killett V. Killett 
 Killick, ex parte 
 V. Flexney 
 
 Kilpin V. Kilpin 
 Kilvington v. Gray 
 Kincaid, in re 
 Kinder v. Miller 
 Kinderley v. Jervis 
 King V. Ayloff 
 
 , ex parte 
 
 V. Ballett 
 
 • V. Boston 
 
 V. Archbishop 
 
 bury . 
 
 V. Denison 
 
 V. Leach . 
 
 e. Marissal 
 
 V. Mildmay 
 
 V. MuUins 
 
 V. Turner 
 
 . 179 
 
 . 121 
 
 217, 220, 460, 
 
 465 
 
 56, 61 
 
 . 813 
 
 . 370 
 
 . 204, 206 
 
 . 285 
 
 28, 287 
 
 . 771, 773 
 
 . 689 
 
 . 205 
 
 of Canter- 
 
 . 543 
 39, 179, 180, 181 
 836, 837, 839 
 . 649 
 . 260 
 . 374 
 . 834 
 
Ixxiv 
 
 TABLE OF CASES. 
 
 PAGE 
 
 King's Mortgage, in re . . 264 
 King (The) v. St. Catharine's 
 
 Hall 495 
 
 V. Coggan . . . 324 
 
 V. Daccombe . . 675, 677 
 
 V. De la Motte 649, 650, 674 
 
 (The) V. Egginton . . 758 
 
 V. Holland . 11, 12, 43, 132 
 
 V. Jenkiilp . . 19 
 
 V. Lambe . . . 673 
 
 V. Portington . . 62, 71 
 
 V. Smith . . .673 
 
 V. Trussel . . .136 
 
 . V. Wilson . . . 324 
 
 V. Winstanley . , 424 
 
 Kingdome v. Bridges . 210, 216 
 Kingsman v. Kingsman . 70, 74 
 
 Kingston v. Lorton . 168, 731 
 
 • (Earl of) V, Lady Piere- 
 
 point .... 311 
 
 Kirbyw. Mash . . 718,875 
 Kiricke v. Bransbey . .179 
 Kirk V. Clark . . 844, 848 
 
 V. Paulin . . .122 
 
 V. Webb . . 204, 206 
 
 Kirkby v. Dillon . . 648, 650 
 Kirkman v. Miles . . 800, 823 
 Kirkpatrick's Trust . . 348 
 Kirwan v. Daniel . 476, 482, 483 
 Kitchen v. Calvert . . .136 
 KnatchbuU v. Fearnhead 375, 765, 
 
 768 
 Knight V. Boughton . .169 
 
 V. Knight 130, 168, 169, 170, 
 
 171, 172, 173, 631 
 
 V. Majoribanks . 460, 465 
 
 V. Martin . . .367 
 
 ■?). Pechey . . .204 
 
 V. Earl of Plymouth 343, 351 
 
 V. Selby 
 
 Knights V. Atkyns , 
 Knott V. Cottee 
 
 Knowles v. Spence 
 Knox V. Kelly 
 Knye v, Moore 
 
 141 
 
 . 797 
 
 102, 172, 364, 
 
 877 
 
 . 731 
 
 . 746 
 
 . 846, 848 
 
 Laoey, ex parte, 318, 460, 461, 462, 
 
 463, 464, 465, 466, 468, 469, 473 
 
 Lachton v. Adams . . . 372 
 
 Lacon v. Lacon . . . 734 
 
 Lad V. London City . . 198 
 
 Ladbroke, ex parte . . 422 
 
 Ladbrook v. Bleaden . . 234 
 
 Lade v. Halford . . .590 
 
 V. Lade . . . .200 
 
 Laifan, in re . . ■ ■ 714 
 
 Lake w. Craddock . . .202 
 
 V. De Lambert . 34, 711 
 
 V. Gibson . . 201, 202 
 
 PASB 
 
 Lamas v. Bayly . . . 206 
 Lamplugh v. Lamplugh . 39, 207, 
 209, 210, 212, 215 
 Lanauze v. Malone . . . 357 
 Lancashire v. Lancashire . 530, 581 
 Lancy v. Fairechild . . 798 
 
 Landen v. Green . . . 873 
 Lander v. Weston . 349, 357, 4^ 
 Lane v. Debenham . 301, 419, 530, 
 
 V. Dighton 
 
 V. Wroth 
 
 Langford v. Auger 
 
 536, 638 
 
 204, 206, 756, 
 
 769, 762, 763 
 
 . 291 
 
 . 263 
 
 ■ V. Gascoyne, 290, 293, 311, 774 
 
 V. Mahony 
 Langham v. Sandford 
 Langhorn v. Langhorn 
 Langley v. Fisher . 
 
 V. Hawk 
 
 V. Sneyd . 
 
 Langstaffe v. Fenwick 
 Langston v. Ollivant 
 Langlon v. Astrey . 
 
 V. Horton 
 
 V. Tracy 
 
 Lansdowne v. Lansdowne 
 L'Apostre v. Le Plaistrier 
 
 La Terriere v. Bulmer 
 La Touche v. Dunsany 
 Lavender v. Stanton 
 Law, in re 
 
 V. Bagwell 
 
 V. Skinner 
 
 Lawes v. Bennett 
 Lawless v. Shaw 
 Lawrence v. Beverley 
 
 V. Bowie 
 
 V. Maggs 
 
 Lea V. Grundy 
 Leach v. Dean 
 
 V. Leach 
 
 Leahy v. Dancer 
 Lear v. Leggett 
 
 561 
 
 69, 69, 182 
 
 . 896 
 
 325, 721 
 
 . 870 
 
 . 680 
 
 . 546 
 
 . 339 
 
 724, 726 
 
 . 279 
 
 . . 482 
 
 . 753 
 
 . 274, 
 
 275, 278 
 
 . 814 
 
 . 845 
 
 . 432 
 
 668, 837, 839 
 
 . 748 
 
 . 476, 477 
 
 . 808 
 
 . 173 
 
 . 796 
 
 . 767 
 
 222, 385, 386, 396 
 
 . 643 
 
 . 93 
 
 . 168 
 
 . 660, 661 
 
 135 
 
 Lechmere v. Earl of Carlisle . 719, 
 792, 79.3, 798, 801, 807, 825 
 
 V. Lavie . . 168, 169, 171 
 
 V. Lechmere . 797, 798, 799, 
 
 802, 805 
 Ledwich, in re . . . 710 
 Lee V. Alston .... 753 
 
 V. Brown . 613, 517, 519 
 
 V. Delane . . . 868 
 
 V. Howlett . . . 608 
 
 V. Lee .... 361 
 
 V. Prieaux . . . 122 
 
 V. Young 538, 542, 643, 712 
 
 Leech v. Leech ... 97 
 Leeds (Duke of) v. Amherst 737, 743 
 V. Munday . . . 263 
 
TABLE OF CASES. 
 
 Ixxv 
 
 Lees V. Sanderson 
 Lefroy v. Flood 
 Legard v. Hodges 
 Legate v. Sewell 
 Legg V. Gold wire 
 
 Leigh V. Barry 302, 306, 310, 476 
 
 Leister v. Foxcroft 
 Leith V. Irvine 
 Lemaitre v. Bannister 
 Leman v. Whitley . 
 Lenaghan v. Smith 
 Lench v. Lench 
 
 FASE 
 
 . 314 
 172, 173 
 
 . 174 
 164, 603 
 
 . 148 
 
 70 
 
 547, 556 
 
 169, 170 
 
 . 178 
 
 . 850 
 
 204, 205, 206, 756, 
 
 762, 774 
 
 Le Neve v. Norris . 
 Lennard v. Curzon . 
 Leonard v. Baker . 
 
 V. Lord Sussex 
 
 Lesley's case . 
 Leslie v. Baillie 
 
 V. Birnie 
 
 V, Duke of Devonshire 
 
 V. Guthrie 
 
 Lethieullier v. Tracy 
 Lever v. Andrews . 
 Levet V. Needham 
 Levett's Trust, in re 
 Lewellin v. Cobbold 
 
 V, Mackworth 
 
 Lewes v. Lewes 
 — — , in re 
 Lewin v. Okeley 
 Lewis, ex parte 
 
 (Otto), ex parte 
 
 V. Hillman 
 
 V. Lane . 
 
 V. Lewis 
 
 . 845 
 
 474, 475 
 . 154 
 -. 225 
 . 367 
 . 498 
 . 182, 
 
 188, 189 
 
 . 276 
 
 251, 255, 678 
 
 . 200 
 
 177, 179 
 . 378 
 . 865 
 
 719, 729 
 . 135 
 . 883 
 489 
 . 423 
 . 833 
 . 378 
 46, 616 
 . 56 
 
 ■ V. Madocks 174, 759, 762, 763 
 
 V. Lord Zouche . . 651 
 
 Lichfield «. Baker . . .810 
 Liley V. Hay . . . 169, 698 
 Lillia V. Airey . . . 633 
 
 Limbrey v. Gurr . . . 132 
 Limbroso v. Francia . . 395 
 
 Linch V. Cappy . . . 360 
 Lincoln Primitive Methodist 
 
 Chapel, in re . . . 718 
 Lincoln (Countess of) v. Duke 
 
 of Newcastle 
 
 Lincoln v. Allen 
 
 V. Windsor 
 
 V. Wright 
 
 Lindon v. Sharp 
 Lindow v. Fleetwood, 
 Lindsell v. Thacker 
 Lingard v. Bromley 
 Lingen v. Sowray . 
 Linion v. Bartlett . 
 Lismore (Lord), in re 
 
 146, 152, 159, 
 
 161, 163 
 
 . 359 
 
 . 320, 550 
 
 306, 316, 768, 771, 
 
 775 
 
 . 477 
 
 . 164, 166 
 
 . 121, 264 
 
 . 768, 846 
 
 796, 818, 824 
 
 . 480 
 
 . 795 
 
 Lister's Hospital, in re . 378, 785 
 Lister ». Lister . 461, 462, 468, 
 471, 738 
 Little, ex parte . . 427, 691 
 Littlehales v. Gascoyne . 359, 875 
 Livesey v. Harding . . 538, 542 
 
 V. Livesey . . .373 
 
 Lloyd V. Baldwin . . 435, 436 
 
 V. Loaring . . . 851 
 
 V. Smith . . .853 
 
 V. SpiUet 15, 57, 61, 177, 178, 
 
 179, 180, 181, 229, 878 
 
 V. Went worth . .180 
 
 V. Williams . 369, 488, 489 
 
 Lloyde v. Gregory . . 36, 37 
 Loader v. Clarke . . . 776 
 Lock V. Lock . . 384, 395, 402 
 Locke V. Lomas . . 434, 623 
 Lockey v. Lockey . 730, 754, 755 
 Lockwood V. Abdy . . 226, 561 
 Lockyer v. Savage . . .135 
 Locton V. Locton . . .173 
 Loddington v. Kime . . 484 
 Lodge V. Lyseley . 650, 655, 656 
 Lofts, ex parte . . .479 
 Lomax v. Ripley . . 71, 73 
 London Bridge Act, in re . 427 
 London, Brighton, &c. Railway 
 
 Company, in re . . 718, 785 
 London Gas Light Company v. 
 
 Spottiswoode . 768, 849, 864 
 London (City of) v. Garway 182, 183 
 
 ■ V. Richmond . . .851 
 
 Long V. Yonge . . . 852 
 
 Longdon v. Simson . . .114 
 Longmore v. Broom . 359, 703 
 
 Longuet v. Hockley . . 273 
 
 Lonsdale (Earl of) v. Beckett . 577 
 Lord V. Bunn . . 135, 450, 712 
 
 V. Godfrey . . 354, 811 
 
 Lorimer, in re . . 380, 381 
 
 Louch, ex parte . . 478, 479 
 Love V. Bade . . . 751, 786 
 Love V. Gaze .... 69 
 Lovegrove, ex parte . . 657 
 
 V. Cooper . . . 688 
 
 Loveridge v. Cooper . 605, 607 
 
 Lovett's Exhibition, in re . 713 
 Low, ex parte . . . 479 
 
 V. Carter . . . 765 
 
 Lowe V. Morgan . . . 842 
 Lowes V. Hackward . . 196 
 
 Lowry v. Fulton 232, 235, 241, 242, 
 243, 289 
 Lowson if.'Copeland 328, 365, 878 
 Lowther v. Carlton . . . 726 
 Loyd V. Griffith . . .427 
 
 V. Read 200, 211, 212, 214, 216 
 
 Lucas, ex parte . . . 380 
 Luckin v. Rnshworth . 217, 224 
 Ludlow, ex parte . . , 828 
 
Ixxvi 
 
 TABLE OF CASES. 
 
 Ludlow (Corporation 
 Greenhouse . 723, 
 
 Lumb V. Milnes 
 Lunn's Charity, in re 
 Lupton V. White 
 Lushington, ex parte 
 Lush's Estate, in re 
 Lydiatt v, Foach 
 Lyne, ex parte 
 
 Lyon V. Baker 
 Lyse V, Kingdon 
 Lyster v. Burroughs 
 V. Dolland 
 
 Maberly v. Turton . 517, 697 
 
 M'Carthy v. Daunt . . .747 
 
 V. Decaix . . .778 
 
 Macartney v. Blackwood . 466, 762 
 Macauley v. Philips . . 629 
 
 M'Donald v. Bryce . . 116, 118 
 
 • V. Hanson . . . 421 
 
 M'Donel v. Hesilrige . . 93 
 Macdonald v. AValker . . 265 
 Macdonnell v. Harding . 333, 775 
 Mace V. Cadell . . .278 
 Macey v. Shurmer . . . 168 
 Mackenzie v. Mackenzie 476, 891, 905 
 Mackie v. Mackie . . . 816 
 M'Key, ex parte . . . 618 
 Mackinnon i: Stewart 476, 481, 666 
 Mackreth v. Symmons . . 725 
 M'Cleland v. Shaw . . 183, 196 
 M'Gachen v. Dew 326, 771, 849 
 M'Hardy v. Hitchcock . 864, 866 
 Macleod v. Annesley . 345, 349 
 M'Leod 0. Drummond 464, 456,456, 
 467, 458, 469 
 Macnab v. Whi thread . 168, 170 
 Macnamara v. Jones . . 556 
 Macpherson v. Macpherson . 814 
 Maddison v. Andrew . . 543 
 Madoc V. Jackson . . . 700 
 Madox V. Jackson . . . 848 
 Madge v. Riley . . .839 
 Mngawley's Trust, in re . .93 
 Maggeridge v. Grey . . 710 
 
 Maguire v. Scully . . 147, 149 
 Mahon v. Savage 542, 699, 706 
 
 ■ (Lord) V. Earl Stanhope . 418 
 
 Maire, ex parte . . ■ 835 
 Maitland v. Bateman . . 329 
 Major V. Lansley . . 646, 694 
 Malcolm v. O'Callaghan . . 557 
 Malim v. Barker . . . 168 
 
 V. Keighley . 168, 1C9, 171 
 
 Mallahar v. Mallabar 181, 196, 197 
 Walone v. Geraghty . 718, 848 
 V. O'Connor . . 168, 170 
 
 
 
 PAOH 
 
 of) 
 
 V. 
 
 
 777,779,780, | 
 
 781 
 
 ,782 
 
 , 783 
 122 
 838 
 337 
 605 
 885 
 
 
 603, 
 
 607 
 299 
 122 
 
 
 320 
 
 550 
 
 343, 
 
 767, 
 
 876 
 174 
 
 
 202, 
 
 665 
 ... 
 
 PAGK 
 
 Malzy V, Edge . . 240, 244 
 
 Manchester (Mayor of) v. Man- 
 chester (Overseers of) . . 272 
 Manchester New College, in re 781, 
 782, 783 
 Mangles v. Dixon . . . 729 
 Manifold, in re . . . 837 
 Manners v, Fnize . 
 Manning v. Thesiger 
 Manning's Trust 
 Mansell v. Mansell 
 
 V. Vaughan 
 
 Mansfield (Earl of) v. Ogle 
 
 V. Shaw . 
 
 Mant V. Leith 
 Maplett V. Pocock 
 Mapp u. Elcock 
 Mara v. Manning 
 March v. Russell 
 Margetts v. Barringer 
 Marker v. Marker . 
 Mark well's Legacy, in re 
 Marlborough (Duke of) v 
 Godolphin . 
 
 V. St. John 
 
 Marlow v. Pitfield 
 
 V. Smith 
 
 Marriot v. Marriot 
 Mariiott v. Kinnersley 
 
 V. Turner 
 
 Marryat v. Marryat 
 V. Townley 
 
 V. The Bank 
 
 Marsh ( v.) 
 
 , ex parte 
 
 V. Hunter 
 
 Marshall, ex parte 
 
 V. Blew . 
 
 V. Bousfield 
 
 V. Bremner 
 
 V. Siadden 
 
 Martin, ex parte 
 
 V. Hooper 
 
 V. Margham 
 
 V. Martin 
 
 849, 851 
 
 . 895 
 
 405, 406, 724, 
 
 725, 764 
 
 299, 528, 536 
 
 ~ ■ 749 
 
 870 
 
 . 345 
 
 . 873 
 
 . 179 
 
 640, 777 
 
 765, 777 
 
 . 122 
 
 . 778 
 
 378, 785 
 
 Lord 
 
 701, 703 
 
 . 614 
 
 37, 486 
 
 262, 279 
 . 70 
 
 306, 764 
 . 183 
 . 865 
 144, 149, 152, 
 153, 166, 164 
 . 33 
 . 823 
 . 277 
 341, 356 
 
 263, 715 
 . 594 
 
 163, 164 
 . 810 
 
 Holloway 111, 191, 649, 664 
 
 V. Sedgwick 
 
 Marwood v. Turner 
 Mdry England, in re 
 Masham v. Harding 
 Mason v. Bogg 
 
 V. Day . 
 
 V. Limbury 
 
 V. Mason 
 
 Mrissam v. Hftrding 
 Masselin's Will, in re 
 Massey, ex parte 
 V. Banner . . 
 
 418 
 277 
 487 
 136 
 
 61, 63, 153, 318 
 236, 874 
 . 613 
 
 604 
 . 617 
 . 489 
 . 485 
 . 831 
 . 167 
 
 . 690 
 . 378 
 . 277 
 296, 332, 333 
 
TABLE OF CASES. 
 
 Ixxvii 
 
 PAflE 
 
 Massey v. Parker . 121, 122, 124 
 Master v. De Cioismar . 43, 163 
 
 V. Fuller 
 
 Mather v. Norton . 
 
 V. Priestman . 
 
 V. Thomas 
 
 Mathison v. Clarke 
 Matson v. Swift 
 Matthew v. Hanbury 
 Matthews V. Bagshaw 
 
 . 635 
 
 . 439 
 
 . 422 
 
 . 265 
 
 319, 320, 546 
 
 . 807 
 
 . 138 
 
 . 547 
 
 Matthew v. Brise 333, 342, 352, 753 
 
 V. Gabb . .613, 614 
 
 Matthie V. Edwards . 414, 423 
 
 Maugham v. Mason 183, 195, 196 
 Maundrell v. Maundiell . . 191 
 Mavor v. Davenpoit . . 238 
 Maxwell v. Ashe ■ . . .223 
 
 ■ V. Wettenhall . 489, 490 
 
 May V. Selby . . .851 
 
 ■ V. Taylor . . 249, 269 
 
 Maynard's Settlement, in re . 890 
 Maynwaring v. Maynwaring 822, 823 
 Mead v. Lord Orrery 454, 455, 456, 
 
 459, 460, 725 
 Meader v. M'Cready . . 362 
 Meaghan, i» ?"e . . . 136 
 Medley v. Horton . . . 130 
 
 V. Martin . . .279 
 
 Medlicott v. O'Donel . 732, 734 
 Meek v. Kettlewell 81, 83, 84, 88, 
 
 91, 92, 93, 94 
 Meggison v. Moore . . 168, 172 
 Meggot V. Meggot . . . 755 
 Megod's case . . . . 8, 20 
 Mehrtens v. Andrews . 353, 743 
 Meinertzhagen v. Davis 40, 576, 577 
 Melland v. Gray . . .363 
 Melling v. Leak . 586, 590, 748 
 Mennard v. Welford . . 574 
 McHardy v. Hitchcock . 864, 866 
 Meredith v. Heneage 167, 168, 169, 
 
 170, 171, 172 
 
 . 16 
 
 . 836 
 
 . 726 
 
 . 277 
 
 . 665 
 
 67,77 
 
 . 153, 156 
 
 608, 610, 611, 612 
 
 . 474, 475 
 
 Merest ». James 
 Merry, ex parte , . 
 Mertins v. Jolliffe . 
 Mestaer v. Gillespie 
 Metcalf V. Scholey . 
 Metham v. Devon . 
 Meure v. Meure 
 Meux V. Bell 
 
 V. Howell 
 
 V. Maltby . . .851 
 
 Meyer v. Simonsen . . . 816 
 
 V. Montriou . . . 867 
 
 Meyrick's Trust, in re . . 888 
 McFadden t). Jenkyns . 61,91 
 Middleton v. Dodswell 522, 870, 871 
 
 V. Losh .... 120 
 
 V. Eeay . . 544, 582 
 
 i>. Spicer . 42, 198, 318, 
 
 324 
 
 Milbank v. Collier . 
 Miles V. Durnford . 
 Miliield, in re 
 Millard's case 
 
 V. Eyre . 
 
 Miller's case . 
 
 V. Huddlestone 
 
 V. Knight 
 
 V. Priddon 
 
 V. Race 
 
 Milles «. Milles 
 
 PAGE 
 
 . 851 
 
 138, 454, 456 
 
 834, 837, 839 
 
 . 725 
 
 . 711 
 
 . 19 
 
 . 853 
 
 . 839 
 
 . 578, 581 
 
 274, 275, 757, 758 
 
 387, 392 
 
 Milligan v. Mitchell . 497, 723 
 Mills «, Mills . 341, 353, 811 
 
 V. Osborne . . . 338 
 
 Milnes v. Cowley . . . 763 
 Milsington v. Mulgrave . . 386 
 Milsintown v. Earl of Portmore 387 
 Miltown V. Trimbleston . . 901 
 Minchin v. Nance . . .174 
 Mitchell V. Nixon . . .572 
 Mitchelson v. Piper . . 524 
 
 Mitford, ex parte . . . 771 
 
 V. Mitford . 276, 629, 631 
 
 Mogg V. Baker . . . 475 
 
 V. Hodges . . 183, 189 
 
 Moggridge v.- Thackwell . . 693 
 Mohun^.'Mohun . . 872,874 
 Molony, in re ' . . . 838 
 
 V. Kennedy . . . 642 
 
 V. L'Estrange . . 472 
 
 Molten V. Camroux ... 27 
 Money, in re ... 378 
 
 Montefiore, in re . . . 772 
 Montford (Lord) -v. Lord Ca- 
 dogan , 238, 241, 385, 387, 392, 
 402, 766, 768, 769, 770, 774 
 Montgomeiie v. Bath (Marquis of) 
 
 842 
 Montgomery v. Johnson . 
 Montmorency v. Devereux 
 Monypenny v. Bristow . 
 
 Moody, ex parte 
 
 V. in re . 
 
 V. Matthews 
 
 V. Walter 
 
 Moon V. Blake 
 Moons V. De Bernales 
 
 235, 243 
 
 . 472 
 
 751, 753, 
 
 754, 756 
 
 . 772 
 
 . 834 
 
 223 
 
 405, 408, 409, 910 
 
 847 
 
 361, 766, 
 
 771, 772 
 
 . 755 
 
 63, 290 
 
 . 277 
 
 . 141 
 
 320, 549, 553, 874 
 
 . 34 
 
 . 130, 643 
 
 V. Scarborough (Earl of ) . 643 
 
 V. Vinten . . 837, 847 
 
 Morden College case . . 502 
 Morgan, ex parte . 263, 465, 737 
 Morgan v. Horseman . . 480 
 
 Moor V. Black 
 Moorcroft v. Dowding 
 Moore, ex parte 
 
 V. Cleghorn 
 
 V. Frowd 
 
 V. Hussey 
 
 V. Moore 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 Morgan v. Morgan 
 
 PAQE 
 
 116, 119, 623, 
 624, 753 
 
 V. Sherrard 
 
 . 686 
 
 Moriarty v. Martin . 
 
 . 167 
 
 Moricew. Bishop of Durham 169, 181 
 
 Morison v. Morison . 
 
 . 319, 553 
 
 Morley's Trust, in re 
 
 . 263,264 
 
 Morley v Bird 
 
 201 
 
 V. Lord Hawke 
 
 . 774 
 
 V. Motley 
 
 . 332 
 
 Mornington, ex parte 
 
 . 894 
 
 Morony v. Vincent . 
 
 . 873 
 
 Morret v. Paske 
 
 . 318 
 
 Morrice v. Bank of Ei 
 
 igland . 689 
 
 Morrill v. Lawson . 
 
 . 847, 849 
 
 Morris v. Preston . 
 
 . 573 
 
 V. Lavie . 
 
 . 771 
 
 Morse v. Faulkner . 
 
 . 62 
 
 V. Langham . 
 
 . 484 
 
 — V. Royal 461 
 
 463, 464, 470, 
 
 471 
 
 , 472, 473, 734 
 
 Mortimers. Davies 
 
 . 200 
 
 V. Ireland 
 
 . 266 
 
 V. Watts . 
 
 , 386, 543 
 
 Mortlock V. BuUer . 
 
 . 415, 418 
 
 Morton v. Tewart . 
 
 63, 64 
 
 Moseley v. Moseley 
 
 . 696, 707 
 
 Moses V. Levi 
 
 . 314, 315 
 
 Mosley v. Ward 
 
 357, 361, 875, 
 
 
 878, 879 
 
 Mott V. Buxton 
 
 . 247, 269 
 
 Mount, in re . 
 
 . 835 
 
 Mousley ». Carr 
 
 362, 363, 876 
 
 Moyle i>. Moyle 232, 317, 336, 351 
 
 Moyse v. Gyles 
 
 . 201 
 
 M'Queen «. Farquhar 
 
 . 726 
 
 Muckleston v. Brown 
 
 67, 68, 71, 
 
 72, 73, 138 
 
 178, 182, 773 
 
 Mucklow V. Fuller . 
 
 . 240, 318 
 
 Mulcahy v. Kennedy 
 
 . 734 
 
 Mulvany v. Dillon 
 
 217, 220, 224, 
 
 
 461, 465 
 
 Mumma v. Mumma 
 
 39, 209, 212 
 
 Munch V. Cockerell 
 
 293, 362, 766, 
 
 
 778, 845, 848 
 
 Mundy v. Mundy . 
 
 . 765 
 
 Murless v. Franklin ." 
 
 200, 207, 209, 
 
 
 214, 215 
 
 Murphy, in re 
 
 . 136 
 
 Murray v. Barlee 634 
 
 , 635, 636, 641 
 
 i. Palmer 
 
 . 472 
 
 V. Pinkett 
 
 . 756 
 
 Murrell v. Cox 
 
 . 310, 315 
 
 Myler?;. Fitzpatrick 226,561,562 
 
 Nab i;. Nab . 61,63,64,71 
 
 Nail V. Punier . . .774 
 
 Nairn v. Majoribanks . .614 
 
 Nantes v. Corrock . 629, 641, 642 
 
 Napier v. Napier . . . 369 
 
 PAOE 
 
 Nash V. Coates . . 253, 264 
 
 V. Dillon . . .873 
 
 — — V. Preston . . 9, 260 
 
 V. Smith . . . 179 
 
 Naylor v. Arnitt . . . 622 
 
 V. Winch . , 460, 465 
 
 Neale v. Davies . . . 325 
 Neate v. Duke of Marlborough 650, 
 652, 658, 662, 663 
 Needham, in re . . 233, 237 
 Needler's case . . . 774 
 
 •». Bishop of Winchester . 34 
 
 Neeves v. Bnrrage . . . 624 
 Nelson v. Bridport . 54, 56 
 
 Nesbitts. Tredennick 217, 218, 222 
 Nettletons. Stephenson . .118 
 Nevarre v. Rutton . . . 729 
 Nevi] V. Saunders . . . 247 
 New V. Jones . 320, 546, 549, 550, 
 
 657 
 Newburgh ». Bickerstaflre 753, 755 
 
 V. Newburgh . . 71, 75 
 
 Newcastle (Duke of) v. Count- 
 ess of Lincoln . . 146, 150 
 Newcomen v. Hassard 639, 645, 646 
 Newlands v. Paynter 44, 121, 125, 
 
 131 
 Newman v. Jones . . . 774 
 
 V. Warner . . 533, 712 
 
 Newport's case . . . 828 
 Newton u. Askew . 92, 94, 599 
 
 V. Bennet 359, 360, 488, 489, 
 
 876, 877 
 
 V. Chantler 
 
 V. Earl of Egmont 
 
 V. Pelham 
 
 V. Preston 
 
 Charity, in re 
 
 NichoUs, in re 
 
 V. Crisp . 
 
 Nicholson v. Falkiner 
 
 V. Tutin 
 
 Nickolson v. Knowles 
 Nicloson V. Wordsworth 
 
 477, 480 
 . 862 
 . 74 
 . 204 
 . 782 
 . 713 
 . 183 
 
 P57, 858 
 . 483 
 . 226 
 
 233, 236, 
 237 
 . 27 
 . 718 
 . 37 
 383, 384, 396 
 . 870 
 . 626 
 
 Niel V. Morley 
 Nightingale's Charity 
 
 v. Earl Ferrers 
 
 II. Lawson 
 
 Noad V. Backhouse 
 Noble V. Pry 
 
 V. Meymott 233, 567, 572, 851 
 
 Noel V. Lord Henley • 190, 813 
 
 1). Jevon . . 11,260,279 
 
 Nokes V. Seppina;s . . 867 
 
 Norbury v. Calbeck . . 878 
 — — V. Norbury . . . 343 
 Norcliff V. Worsley . . 603 
 Norden «. James . . 479, 497 
 Norfolk's case (Duke of) 104, 131, 
 132, 681, 761 
 
TABLE OF CASES. 
 
 Ixxix 
 
 PAGE 
 
 Norfolk (Duke of) v. Browne . 177 
 Norris v. Le Neve . 224, 225 
 
 V. Norris . 349, 873, 874 
 
 V. Wright . 340, 345, 350, 
 
 356, 357, 853, 858 
 North V. Chatnpernoon . 602, 603 
 
 V. Crompton 
 
 V. Williams 
 
 Norton V. Frecker 
 
 V. Pritchard 
 
 V. Turvill 
 
 Norway v. Norway 
 Nowlan v. Nelligan 
 Nugent V. Gifford 
 
 Nunn V. Wilsmore 
 
 Nurton v. Nurton 
 
 Oakes v. Strachey 
 Oakley v. Young 
 Oates v. Cooke 
 O'Brien v. O'Brien 
 O'Callaghan v. Coc 
 O'Connor v. Spaight 
 Odell, in re 
 O'Dowda V. O'Dowda 
 O'Fallon v. Dillon . 
 O'Ferrall v. O'Ferrall 
 Oglander v. Oglander 
 Ogle V. Cook . 
 O'Gorman v. Comyn 
 O'Hara v. O'Neil . 
 O'Herlihy v. Hedges 
 Oke V. Heath . 
 O'Keefe v. Calthorpe 
 'Kelly V. Glenny . 
 Oldham v. Hughes 
 
 V. Litchford 
 
 Oliver v. Court 
 
 
 . 181 
 
 '. 602, 
 
 603, 604 
 
 . 
 
 754 
 
 _ 
 
 . 580 
 
 37, 633 
 
 642, 729 
 
 , 
 
 234, 874 
 
 I 
 
 . 168 
 
 . 454, 
 
 455, 456, 
 
 
 457, 459 
 
 _ 
 
 474, 475, 
 
 
 477, 487 
 
 
 464, 455 
 
 
 808, 811 
 
 . 
 
 . 252 
 
 
 . 250 
 
 
 356, 367 
 
 per . 
 
 . 876 
 
 668, 
 
 753 
 568 
 669 
 659 
 384 
 . 713 
 . 183 
 658, 659, 660 
 . 63 
 . 318 
 . 195, 197 
 . 712 
 . 734, 739 
 798, 816, 817 
 . 71 
 317, 415, 421, 424, 
 467, 470, 471 
 Omerod v. Hardman . . 428 
 Ommaney, ex parte 836, 901 
 
 O'Neill «. Lucas . . .118 
 Onslow's (Speaker) case . . 820 
 Onslow V. Lord Londesborough 425 
 
 V. Wallis . 322, 323, 696 
 
 O'Reilly v. Alderson . 574, 710 
 Ord V. Noel 414, 415, 422, 423, 424 
 
 1). White . . .729 
 
 Orgill, ex parte . . . 715 
 Ormonde (Marquis of) v. Kyners- 
 
 ley 
 
 Ormsby, in re 
 Orr V. Newton 
 Orrett v. Corser 
 Orrok v. Binney 
 
 Osborne ( v.) 
 
 V. Fallows 
 
 V. Foreman 
 
 225 
 
 645, 546, 557 
 
 241, 330 
 
 . 773 
 
 . 458 
 
 . 373, 583 
 
 . 842 
 
 . 853 
 
 
 FASE 
 
 . 
 
 777 
 
 
 478 
 
 ." 139, 
 
 773 
 
 . 699, 
 
 873 
 
 ^ , 
 
 795 
 
 . 
 
 633 
 
 . 
 
 356 
 
 '. 39 
 
 373 
 
 
 755 
 
 
 476 
 
 , , 
 
 461 
 
 Osmond v. Fitzroy . 
 Oswald V. Thompson 
 Ottley V. Browne . 
 
 V. Gilby 
 
 Otway V. Hudson . 
 
 V. Wing . 
 
 Ousley V. Anstruther 
 Overton v. Bannister 
 Owen V. Aprice 
 
 V. Body . 
 
 V. Foulkes 
 
 V. Williams 217, 218, 220, 224 
 
 Owens V. Dickenson 636, 638, 642 
 Oxenden v. Lord Compton 798, 825, 
 826, 827, 828, 829, 830 
 Oxford (University of) v. Ri- 
 chardson .... 753 
 Oxley, ex parte . . . 135 
 
 Packer v. Wyndham . 629, 631 
 Padbury v. Clark . .816, 823 
 Paddington Charities, in re . 106 
 Page, ex parte . . .716 
 
 V. Adam 435, 437, 440, 444 
 
 V. Broom . . . 425 
 
 V. Cooper . . 416, 417 
 
 ■ V. Leapingwell 182, 183, 195 
 
 V. Way . . . .134 
 
 Paine v. Meller . . 174, 175 
 Painter, ex parte . . 715, 716 
 Palmer, ex parte . . .715 
 
 V. Carlisle (Lord) . . 842 
 
 V. Jones . . . 766 
 
 . V. Mitchell . 
 
 V. Simmonds 
 
 V. Young 
 
 Palmes v. Danby 
 PanneU v. Hurley 
 
 Panton v. Panton 
 Papillon V. Voice 
 Parke's Charity 
 Parker v. Bloxam 
 
 . 168, 171 
 
 . 218 
 
 . 830 
 
 226, 227, 459, 
 
 662 
 
 337 
 
 144, 16*4, 562 
 
 503, 781, 782 
 
 . 319 
 
 V. Brooke 121, 643, 694, 727, 
 
 728 
 
 V. Carter 686, 617, 622 623 
 
 Parkes v. White 120, 123, 124, 406, 
 460, 462, 470, 640, 643, 774 
 
 Parkinson's Tnist, in re . 
 
 . 169 
 
 Parnham v. Hurst . 
 
 . 276 
 
 Parr v. Attorney-General 
 Parrot v. Treby 
 Parrott v. Palmer . 
 
 . 31 
 
 . 877 
 . 763 
 
 Parry's Trust, in re 
 Parry in re . 
 
 V. Warrington 
 
 Parsons v. Baker 
 
 . 381 
 . 377 
 . 813 
 . 168 
 
 V. Potter 
 
 . 235 
 
 Partridge v. Pawlet 
 Passingham v. Selby 
 
 . 201 
 . 489 
 
lxx> 
 
 TABLE OP CASES. 
 
 FASE 
 
 Passingham v. Sherborne 605, 579 
 Pattinson, in re . . 883, 906 
 Pattison v. Hawkeswoith . 735 
 Paul V. Birch . . . .274 
 
 V. Compton . 167, 168, 172 
 
 Pawlett, ex parte . . . 348 
 
 ■ V. Attorney-General 1 1, 30, 
 
 103, 260, 279, 280, 284, 286, 
 
 677, 725 
 
 Payne, ex parte . 168,169,836 
 
 4). Barker . . . 695 
 
 V. Compton . . . 725 
 
 Peacham v. Daw . . . 867 
 Peachy v. Duke of Somerset . 283 
 
 Peacock v. Monk 
 Peake v. Ledger 
 
 V. Penlington 
 
 Pearce v. Gardner . 
 
 V. Newlyn 
 
 V. Slocombe . 
 
 Pearse v. Baron 
 
 V. Green 
 
 Pearson v. Belchier 
 
 633, 643, 645 
 
 . 851 
 
 . 164 
 
 416, 527 
 
 725 
 
 489, 490 
 
 . 165 
 
 . 699 
 
 739 
 
 V. The Bank of England 33 
 
 V. Lane 
 
 V Pulley , 
 
 Peart, eas parte 
 Pease, ex parte 
 Peat V. Crane . 
 Peatfield v. Benn 
 Pechel V. Fowler 
 Peers v. Ceeley 
 Pelly V. Maddin 
 PenfolJ V. Bouch 
 
 Penn v. Lord Baltimore 
 
 Penne v. Peacock . 
 Pennell v. Deffell . 
 
 V. Home 
 
 Pennefather, in re . 
 Penny v. Pretor 
 
 V. Turner 
 
 Pentland v. Stokes . 
 Pepper v. Tuckey . 
 Peppercorn v. Waynian 
 Perkins v. Baynton . 
 
 ■ V. Bradley 
 
 Perrott v. Perrott . . .408 
 Perry (in the goods of) . . 234 
 
 V. Knott . 10, 16, 17, 768, 
 
 845,846, 850, 853,854 
 
 698, 821 
 
 731, 734 
 
 . 381 
 
 . 278 
 
 . 361 
 
 . 582 
 
 415, 422, 723 
 
 . 366, 658 
 
 . 200 
 
 . 181, 595, 
 
 875 
 
 10, 30, 31, 
 
 47,50 
 
 . 526 
 
 333, 760 
 
 . 742 
 
 . 713 
 
 . 836 
 
 703, 704 
 
 . 720 
 
 712, 838 
 
 . 237 
 
 359, 361 
 
 V. Phelips 
 
 Persse v. Persse 
 Petit V. Smith 
 Petre v. Bruin 
 
 ■». Petre . 
 
 Pettiward v. Prescott 
 Petty V. Styward 
 Peyton v. Bury 
 V. M'Dermott 
 
 762 
 . 94 
 . 20 
 . 488 
 
 746, 746 
 . 762 
 . 201 
 
 299, 636 
 . 835 
 
 Phayre v. Peree 
 Phelps, ex parte 
 Phene v. Gillan 
 Philips V. Brydges 
 
 PAGE 
 
 . 725 
 
 . 711 
 
 . 563 
 
 10, 16, 17, 600, 
 
 604, 615, 792 
 
 . 492 
 
 . 426 
 
 . 373 
 
 781 
 
 V. Bury . 
 
 c. Everard 
 
 V. Philips 
 
 Phillipott's Charity 
 Phillippo V. Munnings 243, 356, 729, 
 763, 867 
 Phillips's Charity, in re . . 781 
 ■ V. Buckingham (Duke of) 850 
 
 ex parte 
 
 V. Brydges 
 
 V. Eastwood . 
 
 V. Gnrth 
 
 V. Phillips 
 
 Phillipson v. Gatty 
 
 181, 
 
 Phillpotts V. Phillpotts . 
 Philpot, ex parte . 
 Phipps V. Lord Ennismore 
 
 V. Kelynge 
 
 Pickering v. Pickering 353, 354, 811, 
 
 812 
 V. Lord Stamford 734, 737, 
 
 739 
 
 826, 826, 
 
 827, 829, 830 
 
 . 142 
 
 . 616 
 
 701, 707 
 
 183, 197 
 
 346, 366, 357, 
 
 737, 849 
 
 . 138 
 
 . 479 
 
 . 136 
 
 111 
 
 ■ V. Vowles 
 
 217, 
 
 218, 222, 
 263, 386 
 
 Pickett V. Loggon . 
 
 
 . 762 
 
 Pickstock V. Lyster . 
 
 474 
 
 , 476, 476 
 
 Pickup V. Atkinson 
 
 , 
 
 . 810 
 
 Pie) ce K. Scott 
 
 
 429, 458 
 
 Piercy v. Roberts 
 
 , 
 
 - 133 
 
 Pierson v. Garnet 
 
 167, 
 
 168, 169, 
 170, 696 
 
 V. Shore 
 
 
 217, 831 
 
 Piety V. Stace 367 
 
 359 
 
 361, 875 
 
 Pike V. White 
 
 
 . 45 
 
 Pilkington v. Bayley 
 
 . 
 
 . 57 
 
 f. Boughey 
 
 
 168, 182 
 
 Pimm V. Insall 
 
 , 
 
 . 286 
 
 Pink V. De Thuisey 
 
 . 
 
 . 638 
 
 Pitt V. Bonner 
 
 
 767, 768 
 
 Pitt or Pit V. Hunt 
 
 12 
 
 631, 648 
 
 V. Pelham 
 
 . 
 
 173, 694 
 
 Pitts V. Edelph 
 
 , 
 
 . 726 
 
 Plasket V. Lord Dillon 
 
 648 
 
 , 650, 651 
 
 Platelu.Craddock 
 
 
 . 326 
 
 Piatt V. Sprigg 
 
 , 
 
 ." 407 
 
 Playfair v. Cooper 
 
 , 
 
 . 748 
 
 Playters v. Abbott . 
 
 390 
 
 397, 403 
 
 Plenty «. West 
 
 
 . 675 
 
 Plucknett v. Kirke 
 
 . 
 
 650, 684 
 
 Plunket V. Penson 
 
 , 
 
 488, 684, 
 
 
 686, 
 
 689, 690 
 
 Plunkett, ex parte 
 
 , 
 
 . 713 
 
 Plyer's Trust, in re 
 
 , 
 
 886, 896 
 
 Plymouth v. Hickman 
 
 . 
 
 . 64 
 
TABLE OF CASES. 
 
 Ixxxi 
 
 PAGE 
 
 Pocock V. Reddington . 338, 343, 
 
 Price V. Leaden 
 
 PAGE 
 
 . 562 
 
 
 357, 875 
 
 V. Oneby 
 
 . 832 
 
 Podmore v. Gunning 
 
 . 77 
 
 V. Price 
 
 . 81, 84 
 
 Poland V. Glyn 
 
 . 480 
 
 Prichard v. Ames . 
 
 121, 122, 694 
 
 Pole V. Pole 
 
 207, 210, 211, 
 
 Priddy v. Rose 
 
 . 771 
 
 
 215 
 
 Pride v. Fooks 
 
 118, 318, 344, 
 
 Pollard, ex parte 
 
 . 48 
 
 
 764, 876 
 
 V. Downes 
 
 . 562 
 
 Prideaux, in re 
 
 . 835 
 
 Pollexfen v. Moore 
 
 . 234 
 
 Primrose ». Bromley 
 
 . 238 
 
 PoUey V. Seymour 
 
 . 806, 808 
 
 Prince v. Heylin 
 
 . 735 
 
 Pomfret (Earl of) 
 
 V. Lord 
 
 Pring, ex parte 
 
 . 183 
 
 Windsor . 325, 729, 735, 739 
 
 V. Pring 
 
 74, 76 
 
 Pool Bathurst's Estate, in re . 577 
 
 Prior's (Tiady) Charity, 
 
 in re . 506 
 
 Poole V. Pass 
 
 . 595, 596 
 
 u. Horniblow . 
 
 . 744 
 
 V. Franks 
 
 871 
 
 V. Penpraze 
 
 . 279 
 
 Pooley V. Ray 
 
 . 740 
 
 Pritchard v. Langher 
 
 . 330 
 
 Poor V. Mial 
 
 . 193 
 
 Piopert's purchase, in 
 
 re . 882 
 
 Pope V. Gwyn 
 
 . 488 
 
 Projected Railway, ex parte . 362 
 
 V. Pope . 
 
 . 170, 171 
 
 Prosser, ex parte 
 
 . 835 
 
 V. Whitcombe 
 
 . 701, 704, 
 
 Proudfoot 11. Hume 
 
 . 866, 867 
 
 
 706, 707 
 
 Prowse V. Abingdon 
 
 . 489 
 
 Porey v. Juxon 
 
 8 
 
 Prytharch v. Havard 
 
 . 839 
 
 Porter's trust, in re 
 
 . 895 
 
 Pugh, ex parte 
 
 . 370 
 
 V. Watts 
 
 . 583 
 
 in re 
 
 . 634 
 
 ■ V. Walker . 
 
 . 477 
 
 v. Vaughan 
 
 . 689 
 
 Portington's (Lady) 
 
 case . 58 
 
 Puleston V. Puleston 
 
 . 67 
 
 Portlock V. Gardner 
 
 . 226,319,562, 
 
 Pullen V. Middleton 
 
 . 46 
 
 
 730 
 
 Pulling V. Tucker 
 
 . 480 
 
 Portsmouth (Earl 
 
 3f) V. Fel- 
 
 Pulteney v. Darlington 
 
 . 768, 792, 
 
 lows 
 
 . .711 
 
 796, 800, 802, 
 
 803, 805, 807, 
 
 Potter V. Chapman 
 
 . 22, 536, 
 
 821 
 
 , 823, 824, 825 
 
 
 538, 543 
 
 V. Warren 751 
 
 753, 754, 755 
 
 Poulson, ex parte 
 
 . 772, 773 
 
 Pulvertoft V. Pulvertof 
 
 81, 84, 93, 
 
 Poulton, in re 
 
 . 834 
 
 
 94,98 
 
 Povey V. Juxon 
 
 . 59 
 
 Purdew v. Jackson 
 
 627, 629, 630 
 
 Powdrell v. Jones 
 
 . 627 
 
 Purefoy v. Purefoy 
 
 . 484 
 
 Powel V. Price 
 
 . 149, 725 
 
 Pushman v. Filliter 
 
 . 167, 168, 
 
 Powell's case 
 
 . 487 
 
 
 169, 171 
 
 Powell V. Cleaver 
 
 . 353, 808 
 
 Pybus V. Smith 
 
 . 123, 766 
 
 V. Evans 
 
 . 328, 351 
 
 Pye, ex parte 
 
 65, 82 
 
 V. Hankey 
 
 . 643 
 
 V. Gorge 
 
 406, 406, 724 
 
 V. Matthews 
 
 . 882, 886 
 
 Pyncent v. Pyncent 
 
 . 849 
 
 V. Merrett 
 
 . 325 
 
 Pym V. Lockyer 
 
 . 136 
 
 V. Wright 
 
 . 851 
 
 
 
 Powerscourt v. Pow 
 
 erscourt . 642 
 
 
 
 Powles V. Page 
 
 . 613 
 
 QuarrEll v. Beckford 
 
 . 659 
 
 Powlett (Earl) «. H 
 
 3rbert 317, 875 
 
 ■rhe Queen v. Abrahams . 19 
 
 Powys V. Blagrave 
 
 . 614 
 
 ' V. Harrogate 
 
 Commis- 
 
 V. Mansfield 
 
 . 216 
 
 sioners 
 
 . 272 
 
 Prankerd v. Prankei 
 
 d . 199,214 
 
 V. Norfolk Commissioners 
 
 Pratt i;. Colt 
 
 . 12, 650, 682 
 
 of Sewers . 
 
 . 516 
 
 ""v. Sladden 
 
 . 181 
 
 V. Pitt 
 
 . 836 
 
 Prendergast v. Byre 
 
 i 835, 836, 839 
 
 V. Sterry 
 
 . 271 
 
 Prentice v. Prentice 
 
 .856 
 
 1!. Trustees of Orton Vi- 
 
 Preston v. Grand C 
 
 oilier Dock 
 
 carage 
 
 . 19 
 
 Company . 
 
 . 851 
 
 Queens' College, Cambridge, in 
 
 Prevost V. Clarke 
 
 . 167 
 
 re 
 
 . 495 
 
 Price V. Berrington 
 
 . 27 
 
 Quick V. Staines 
 
 . 278 
 
 V. Blakemore 
 
 759, 762, 763 
 
 
 
 t). Byrn 
 
 . 460, 470 
 
 
 
 V. Dewhurst 
 
 . 835 
 
 Raby'u. Ridehalgh . 
 
 340, 344, 771 
 / 
 
'Ixxxii 
 
 TABLE OF CASES. 
 
 Rachfield v. Careless 
 
 PAOB 
 
 59, 69, 
 
 Rex V. Flockwood 
 
 PAOB 
 
 . 301 
 
 
 182, 262 
 
 V. Lexdale 
 
 . 575 
 
 Rackham v. Siddall 
 
 245, 247, 258, 
 
 V. Tippin 
 
 . 287 
 
 
 263, 765 
 
 'ReynoMs, ex parte 465,468,469,711 
 
 Eadcliffe ». Ecoles . 
 
 . 835 
 
 V. Jones 
 
 . 288, 766 
 
 Radnor (Lady) «. Rotherham . 621 
 
 V. Messing 
 
 , 621 
 
 RaiFety v. King 
 
 . 733 
 
 Itice V. Rice . 
 
 . 606, 729 
 
 Ramsden i>. Langley 
 
 . 558 
 
 Rich V. Cockell 
 
 . 694 
 
 Randal v. Heavle 
 
 . 168 
 
 Richard's Trust 
 
 . 897 
 
 ,«. Randal 
 
 . 94 
 
 V. Pel kins 
 
 . 870 
 
 Randall's Will, in re 
 
 . 890 
 
 Richardson, ex parte 
 
 . 278 
 
 V. Bookey 
 
 . 181, 183 
 
 V. Bank of England 865, 866, 
 
 V. Errington 
 
 460, 461, 463, 
 
 
 867, 868 
 
 469, 470 
 
 , 471, 737, 778 
 
 V. Chapman 
 
 168, 543, 708 
 
 V. Russell 
 
 . 225 
 
 V. Horton 
 
 . 285 
 
 Raphael v.. Bank of England . 758, 
 
 V. Hulbert 
 
 . 234, 847 
 
 *. Boehm 
 
 356, 359, 364, 
 
 V. Jenkins 
 
 239, 692, 767 
 
 
 766, 877 
 
 V. Larpent 
 
 . 852 
 
 Rashley v. Masters . 
 
 796, 872, 873 
 
 V. Moore 
 
 . 392 
 
 Rastel V. Hutchinson 
 
 . 205 
 
 Riddle v. Emerson 
 
 . 61 
 
 RatcliiFv. Graves 
 
 . 360 
 
 Rider v. Kidder . 33, 
 
 199, 200, 205, 
 
 Ealcliffe v. Winch . 
 
 . 521 
 
 
 207, 216 
 
 Ravenscroft v. Frisby 
 
 . 745 
 
 V. Rider 
 
 . 207, 649 
 
 Ravenshaw v. Hollier 
 
 . 174 
 
 Ridgeway, ex parte 
 
 . 343 
 
 Rawe V. Chichester 
 
 218, 219, 220, 
 
 Ridgway v. Woodhouse . .193 
 
 
 222, 224 
 
 Ridout V. Lewis 
 
 . 643 
 
 Rawleigh's case 
 
 . 214 
 
 Rigby, ex parte 
 
 . 297 
 
 Raworth v. Parker . 
 
 . 486, 487 
 
 Rigden «. Vallier . 
 
 152, 201, 202 
 
 Ray, ex parte . 
 
 . 121, 122 
 
 Riggs V, Sikes 
 
 . 202, 833 
 
 V. Adams 
 
 . 168, 696 
 
 Right V. Smith 
 
 . 248 
 
 Raymond v. Webb 
 
 . 414 
 
 Ripley v. Waterworth 
 
 33, 189 
 
 Rayner v. Mowbray 
 
 . 701, 707 
 
 Rippon V. Norton . 
 
 . 134 
 
 Rea V. Williams 
 
 . 201 
 
 Rivet's case . 
 
 . 272 
 
 Reach v. Kennegall 
 
 .. 71, 877 
 
 Robarts ( v.) 
 
 . 644, 583 
 
 Read v. Prest 
 
 . 856 
 
 Roberdeau v. Rous 
 
 47, 48, 753 
 
 V. Snell . 
 
 144, 149, 155 
 
 Roberts v. Dixwell . 
 
 142, 144, 166, 
 
 V. Truelove . 
 
 . 290 
 
 167 
 
 , 261, 623, 681 
 
 Reade v. Reade 
 
 751, 765, 756 
 
 V. Kingsley . 
 
 . 148 
 
 V. Sparkes ■ 
 
 691, 857, 858 
 
 V. Lloyd 
 
 87, 606 
 
 Reading Dispensary, in re . 782 
 
 V. Spicer 
 
 . 122, 694 
 
 Redington v. Redington 200, 203, 
 
 V. Tunstall 470, 471, 473, 737, 
 
 207, 211, 212 
 
 ,214,215,216 
 
 
 742 
 
 Reece v. Trye 
 
 . 325, 721 
 
 Robertson v. Skelton 
 
 . 174 
 
 Reech v. Kennegal 
 
 . 71, 877 
 
 Robinson v. Comyns or Cuming 16, 
 
 Reed v. O'Brien 
 
 89, 848 
 
 
 247, 604 
 
 Rees, ex parte 
 
 . 781 
 
 V. Grey 
 
 246, 247, 254 
 
 V. Keith 
 
 . 631 
 
 »;..Hedger 
 
 . 657 
 
 V. Williams 
 
 . 341, 356 
 
 ». Knight 
 
 . 187, 805 
 
 Reeve ?J. Attorney-General 30, 31, 677 
 
 V. Lowater 
 
 435, 441, 445, 
 
 V. Parkins 
 
 . 723 
 
 
 446, 447 
 
 Reeves v. Creswick . 
 
 387, 393, 400 
 
 • V. Pett . 232, 
 
 318, 319, 545, 
 
 Regina v. Shee 
 
 . 272 
 
 
 661, 553 
 
 Reid V. Thompson 
 
 . 596 
 
 V. Ridley 
 
 . 466, 468 
 
 Remington, in re 
 
 715 
 
 V. Robinson . 
 
 341, 346, 350, 
 
 Rendlesham v. Meux 
 
 . 417 
 
 365 
 
 366, 361, 363 
 
 Renvoize v. Cooper 
 
 . 265 
 
 V. Smith 
 
 . 168 
 
 Retford, West (Church lands), 
 
 V. Taylor 
 
 179, 180, 183 
 
 in re 
 
 . 781 
 
 V. Wheelwright 
 
 . 121 
 
 Revell V. Hussey . 
 
 . 175 
 
 V. Wood 
 
 . 837 
 
 Rex V. Blunt 
 
 . 673 
 
 Rochard v. Fulton . 
 
 . 608 
 
 — V. Bulkeley 
 
 . 673 
 
 Rochdale Canal Co. v. 
 
 King . 743 
 
TABLE OF CASES. 
 
 Ixxxiii 
 
 Roche, in re 572, 573, 574, 711, 713 
 
 V. O'Brien 471, 472, 473, 734, 
 
 737, 738, 778 
 
 V. Hart . . .873 
 
 Rochford v. Fitzmaurice . 147, 148, 
 149, 154, 156. 157, 164, 253 
 
 V. Hackman . . 135, 873 
 
 Rocke t). Hart . 359, 361, 363 
 
 V. Rocke . . . 597 
 
 Rodgers v. Marshall . 97, 99 
 Roe V. Fludd . . .195 
 
 V. Reade . . 263, 591 
 
 Rogers v. Linton . . . 849 
 
 V. Rogers 180, 181, 183, 184, 
 
 865 
 
 V. Skillicorne 434, 436, 436 
 
 RoUe's Charity, in re . . 718 
 RoUeston v. Morton . . 662 
 Rollfe V. Budder . . 121, 694 
 Rome V. Young . . . . 485 
 Rook V. Worth 823, 829, 830, 838 
 Roper V. Holland ... 19 
 
 V. Radcliffe . . .179 
 
 Viose, ex parte . , .613 
 
 V. Cunningham . . 69 
 
 ■ V. Haycock . . . 478 
 
 Ross's Trust, in re . 123, 124, 632 
 
 , in re . . . . 381 
 
 V. Ross . . . .865 
 
 Rothwell V. Rothwell . . 867 
 Round V. Byde . . .480 
 Roupe V. Atkinson . . 629 
 
 Routh V. Howell . . 295 
 
 ■ V. Kinder . . .847 
 
 Rowe V. Almsmen of Tavistock 
 
 506, 507, 508 
 
 • V. Bant . 
 
 Rowel V. Walley 
 Rowland v. Morgan 
 V. Witherden 
 
 Rowley v. Adams 
 
 V. Unwin 
 
 Rowth V. Howell 
 Roy V. Gibbon 
 Royds V. Royds 
 
 659 
 
 . 395 
 
 . 163, 368 
 
 306, .351, 357 
 
 882, 888, 896, 
 
 903, 904 
 
 . 642, 778 
 
 . 332 
 
 . 867, 869 
 
 . 876 
 
 Royston Free Grammar School, 
 
 in re . 
 Rumball v. Munt . 
 RumboU ». Rumboll 
 Rumford Market case 
 Rundle v. Rundle . 
 Rushworth's case . 
 Russell's case 
 
 , ex parte 
 
 V. Clowes 
 
 V. Dickson 
 
 • v. Jackson 
 
 V. M'Culloch 
 
 V. Plaice 
 
 Rust V. Cooper 
 
 782 783 
 
 . 107 
 
 203, 209, 210 
 
 . 217 
 
 . 202, 207 
 
 . 218 
 
 36, 39 
 
 . 891 
 
 . 325 
 
 125 
 
 Vl, 74, 169 
 
 . 657 
 
 . 454 
 
 47, 480 
 
 PAOE 
 
 Rutherford v. Maule . . 324 
 
 Ryall V. Rolle 274, 275, 276, 650, 
 
 764, 758 
 
 ■ • V. Ryall . 63, 204, 206, 756, 
 
 762 
 Rycroft v. Christy . 91, 92, 122 
 
 Ryder v. Bickerton . 337, 338, 774 
 Ryland v. Smith . . .369 
 
 Sadler v. Hobbs . 304, 305, 311, 
 312,313,314,318 
 
 V. Lee .... 594 
 
 Saint John's Col., Cambridge, v. 
 
 Todington .... 
 
 Saint John (Lord) v. Boughton 
 
 492 
 485, 
 745 
 739 
 781 
 855 
 
 ■ V. Turner . . , 
 
 Saint Wenn's Charity, in re 
 Sale V. Kitson 
 
 V. Moore . 168, 169, 170, 173 
 
 Saloway v. Strawbridge . 420, 530 
 Salsbury v. Baggott . 721, 726 
 
 Salt V. Chattaway . . 183, 197 
 Salter v. Cavanagh . 181, 731, 745 
 Saltoun V. Houston 
 Salvin v. Thornton 
 Salway v. Salway . 
 Sammes v. Rickman 
 Sampayo v. Gould 
 Sanders v. Page 
 
 V. Richards 
 Sanderson v. Walker 
 Sandford, in re 
 
 V. Keech 
 
 Saudon v. Hooper 
 Sands v. Nugee 
 Sandys v. Watson 
 Sanford v. Irby 
 Saunders, ex parte 
 
 V. Dehew 
 
 V. Neville 
 
 V. Vautier 
 
 Savage v. Carroll 
 
 V. Foster 
 
 V, Taylor 
 
 Saville i). 'Tancred 
 Savory v. Barber 
 Sawley v. Gower 
 Sawyer v. Birchmore 
 Say V. Creed . 
 
 . 239 
 . 604 
 
 . 334, 357 
 . 873 
 
 . 164, 352 
 
 . 629, 631 
 . 454 
 463, 470, 876 
 . 835 
 . 217 
 . 659 
 . 533 
 
 . 873, 878 
 . 256 
 
 . 716, 716 
 
 93, 724, 726 
 . 595 
 . 597 
 . 763 
 
 . 39, 774 
 . 511 
 
 . 226, 459 
 . 852 
 . 684 
 . 375 
 . 368 
 
 Sayers, ex parte 276, 754, 758, 759 
 Scales V. Maude . . 81, 88 
 Scammell v. Wilkinson . . 261 
 Scarborough v. Borman . .125 
 
 (Earl of) V. Parker . . 875 
 
 Scarisljrick v. Skelmersdale . Ill 
 Scattergood v. Harrison . 319, 546 
 Scawen v. Scawen . 214, 215 
 
 Schroder v. Schroder . . 752 
 Score V. Ford . . 865, 869 
 
 f2 
 
Ixxxiv 
 
 TABLE OF CASES. 
 
 Scott V. Becher 
 V. Davis 
 
 V. Nesbitt 
 
 V. NicoU 
 
 V. Scholey 
 
 V. Spashett 
 
 V. Surman 
 
 ■ ■ i>. Tyler . 
 
 Scounden v. Hawley 
 Scroope v. Scroope . 
 Scudamore, ex parte 
 
 V. Scudamore 
 
 Scully V. Delaney 
 
 V. Scully 
 
 Sculthorp V. Burgess 
 Scurfield v. Howes 
 
 PAGE 
 
 . 867, 870 
 124, 472, 473, 632 
 47, 471 
 ., 842 
 648, 665 
 . 370 
 274, 276 
 453, 454, 455, 466, 
 458, 459 
 31, 260 
 . 210 
 . 480 
 793, 797, 805 
 . 239, 316 
 . 848 
 . • . 177 
 305, 311, 312, 
 315, 316, 766 
 . 153 
 . 97 
 82, 84 
 . 846, 848 
 98, 816, 819 
 359, 875, 878 
 . 226 
 16, 792 
 . 70 
 . 847 
 . 727 
 827, 828, 829 
 . 263, 833 
 . 118,177 
 . 476 
 . 830 
 . 808 
 426 
 
 Seale v. Seale 
 Sear v. Ashwell 
 Searle v. Law 
 Seddon v. Connell 
 Seeley a. Jago 
 Seers v. Hind 
 Segrave v. Kirwan 
 Selby V. Alston 
 Sellack v. Harris 
 Selyard v. Harris 
 Senhouse v.. Earle 
 Sergeson v. Sealey 
 Sergison, ex parte 
 Sewell V. Denny 
 
 V. MusSon 
 
 Seys V. Price 
 Shadbolt v. Thornton 
 
 ■ ■ V. Woodfall . 
 
 Shaftesbury v. Duke of Marl- 
 borough 387, 389, 391, 393, 395, 
 397, 398 
 Shakeshaft, ex parte 366, 357, 767, 
 768, 771, 772, 773 
 Shales «. Shales ... . 214 
 Shallcross v. Wright . .184 
 Shanley v. Baker . . . 197 
 Shannon v.. Bradstreet . . 591 
 Shapland v. Smith . . . 247 
 Sharp V. Cossent . . . 135 
 
 V. Sharp . . 233, 264, 570 
 
 Sharpe v. Earl of Scarborough . 650, 
 
 661, 688, 691 
 
 Sharpe's Trust, in re . 377, 380 
 
 Shaw, ex parte . . 264, 479 
 
 V. Borrer 414, 428, 429, 440, 
 
 441, 513 
 
 29 
 
 102, 167 
 
 V. Bran . 
 
 o. Lawless 
 
 ■ V. Rhodes 
 
 -= V. Weigh 
 
 Shee V. Hale . 
 Sheldon v. Weldman 
 Shelly's case . 
 
 Shepherd «. Mouls . 
 
 V. Shepherd 
 
 Sheppard v. Smith . 
 
 V. Woodford . 
 
 Sheridan v. Joyce . 
 Sheriff v. Axe . 
 
 PAGB 
 
 341,355,356 
 
 . 621 
 
 . 876, 877 
 
 . 272 
 
 . 366, 756 
 
 320, 546 
 
 Sherrard v. Lord Harborough 179, 318 
 Sherratt v. Bentley . . 234, 874 
 Sherwood, in re . . 320, 649 
 Shewell v. Shewell . . .368 
 Shewen v. Vanderhorst . . 524 
 Shields v, Atkins . . . 325 
 Shine v. Gough . . 611, 591 
 Shipbrook (Ld.) v. Lord Hinchin- 
 brook . 305, 311, 312, 315, 316 
 .488 
 . 808 
 845, 864 
 . 489 
 648, 649 
 . 227 
 . 836 
 . 820 
 269, 318, 
 782 
 . 422 
 200, 207, 
 211, 214, 215, 216 
 
 Shiphard v. Lutwidge 
 Shippardson v. Tower 
 Shipton V. Rawlins 
 Shirley v. Ferrers 
 — — V. Watts 
 Shore v. Collett 
 Shorrocks, in re 
 Short V. Wood 
 Shrewsbury School, in re 
 
 Sidebotham v. Barrington 
 Sidmouth v. Sidmouth 
 
 114, 117, 119 
 . 250 
 . 135, 136 
 
 . 729 
 . 827 
 
 Sidney v. Shelley 
 Siebert v. Spooner . 
 Sikes V. Lister . 
 Silk ». Prime . 
 Sillibourne v. Newport 
 Simmonds v. Palles . 
 Simes v. Eyre . 
 
 V. Naylor 
 
 Simpson v. Morley . 
 
 V. Sikes . 
 
 V. Taylor 
 
 Sims V. Marryatt 
 Sish V. Hopkins 
 Sisson V. Shaw 
 Sitwell V. Bernard . 
 Skarff V. Soulby - . 
 Skeats v. Skeats 
 Skeetes, in re 
 Skett V. Whitmore . 
 Skinner, ex parte 505, 607, 781, 782, 
 
 783 
 Slade V. Rigg .... 
 Slater v. Wheeler . 
 Slewringe's Charity, in re 
 Sloane v. Cadogan . 
 Sloman v. Bank of England 
 Sloper, in re . 
 Small V. Attwood 
 
 V. Mar wood 
 
 V. Dudley 
 
 Smart v. Bradstock 
 Smee v. Martin 
 
 182, 191 
 . 477 
 . 832 
 . 489 
 . 538 
 482, 483 
 . 849 
 . 834 
 . 668 
 
 477, 478, 479 
 . 648 
 . 249 
 . 660 
 . 617 
 . 813 
 . 93 
 
 209, 211, 216 
 . 785 
 61, 204 
 
 . 848 
 300, 847 
 781, 783 
 81, 89, 93 
 372 
 897 
 774, 777, 844 
 . 237 
 . 480 
 . 852 
 . 518 
 
 Smith, ex parte 298, 471, 771, 835 
 
TABLE OF CASES. 
 
 IXXJLV 
 
 
 
 PAGE 
 
 
 
 
 PAGB 
 
 Smith V. Adams 
 
 , , 
 
 621 
 
 Stahlschmidt v. Lett 
 
 , 
 
 
 620 
 
 V. Adkins 
 
 . 
 
 106 
 
 Staines v. Morris . 
 
 , 
 
 
 425 
 
 V. Attersoll 
 
 , , 
 
 77 
 
 Stair V. Macgill 
 
 , 
 
 
 813 
 
 V. Baker 
 
 , 
 
 199 
 
 Stamford (Earl of) v. 
 
 Sir John 
 
 
 V. Boucher 
 
 , , 
 
 894 
 
 Hobart 
 
 
 144, 
 
 166 
 
 V. Cai^elford 
 
 . 200 
 
 643 
 
 Stamp V. Cooke 
 
 , 
 
 , 
 
 707 
 
 
 
 732 
 
 Stamper v. Millar . 
 
 
 , 
 
 301 
 
 V. Claxton 
 
 184, 186, 
 
 818 
 
 Siandford u. Marshall 
 
 , 
 
 634, 
 
 641 
 
 V, French 
 
 . 774 
 
 777 
 
 Stanes v. Parker 
 
 , 
 
 649, 
 
 560^ 
 
 V. Garland 
 
 
 93 
 
 Stanley, in re 
 
 
 , 
 
 836 
 
 V. Guyon 
 
 , 
 
 435 
 
 V. Bond 
 
 , 
 
 , 
 
 670 
 
 V. Hibbard 
 
 , , 
 
 832 
 
 V. Darington . 
 
 
 , 
 
 291 
 
 V. Hurst 
 
 . 662, 663 
 
 666 
 
 V. Leigh 
 
 , 
 
 , 
 
 160 
 
 V. Jameson 
 
 ■ 
 
 20 
 
 Stanley v. Lennard . 
 
 , 
 
 145 
 
 247 
 
 V. Keating 
 
 , , 
 
 481 
 
 Stansfield v. Hobson 
 
 
 , 
 
 855 
 
 V. King 
 
 . 39, 
 
 180 
 
 Stanton v. Hall 
 
 121 
 
 122, 
 
 135 
 
 V. Lyne . 
 
 
 99 
 
 Staple's Trust, in re 
 
 . 
 
 , 
 
 381 
 
 V. Smiih 34, 6 
 
 05, 609, 612, 
 
 771, 
 
 Stapleton v. Stapleton 
 
 
 . 
 
 82 
 
 
 870, 885 
 
 896 
 
 Starkey v. Brooks . 
 
 180 
 
 181, 
 
 183 
 
 V, Snow 
 
 . 595 
 
 850 
 
 Stead V. Nelson 
 
 633 
 
 635, 
 
 645 
 
 V. Spencer 
 
 , , 
 
 626 
 
 V. Newdigate . 
 
 792 
 
 807 
 
 818 
 
 V. Warde 
 
 , 
 
 101 
 
 Steele v. Philips 
 
 
 
 650 
 
 V. Wheeler 
 
 236, 449, 
 
 585 
 
 Stent V. Bailis 
 
 , 
 
 
 174 
 
 V. Wilkinson 
 
 . 
 
 63 
 
 Stephens v. James . 
 
 , 
 
 
 136 
 
 Smyth's Settlement 
 
 896, 897, 
 
 906 
 
 V. Trueman . 
 
 
 
 94 
 
 Snow V. Booth 
 
 
 749 
 
 Stevens v. Hotham 
 
 
 
 425 
 
 ». Hole . 
 
 . 
 
 875 
 
 V. South Devon 
 
 Railway 
 
 
 Snowdon v. Dales 
 
 . 132, 
 
 133 
 
 Company . 
 
 . 
 
 
 .516 
 
 Sockett V, Wray 
 
 , 
 
 35 
 
 Stermett v. Bainbridge 
 
 
 , 
 
 468 
 
 Sombre Dyce, in re 
 
 , 
 
 835 
 
 Stewart v. Hoare 
 
 
 
 656 
 
 Somerset's case (Ea 
 
 d of) 
 
 676 
 
 ■ V. Noble 
 
 , 
 
 
 489 
 
 Sonley v. Clockma 
 
 ters' Com- 
 
 
 Stickland v. Aldridge 
 
 . 67, 68 
 
 ,70,, 
 
 pany . 
 
 , , 
 
 693 
 
 
 
 
 71 
 
 Southampton (Lord) 
 
 V, Marquis 
 
 
 Stickney v. Sewell . 
 
 
 338 
 
 345 
 
 of Hertford 
 
 . Ill, 161 
 
 191 
 
 Stiffe V. Everitt 
 
 
 
 627 
 
 Southcomb v. Bisho 
 
 ) of Exeter 
 
 742 
 
 Stikeman v. Dawson 
 
 
 , 
 
 39 
 
 South Eastern Eai 
 
 way Com- 
 
 
 Stile V. Tomson 
 
 , 
 
 
 630 
 
 pany, ex parte 
 
 
 342 
 
 Stiles V. Guy 239, 
 
 316, 
 
 329, 
 
 338, 
 
 Southouse V. Bate 
 
 , , 
 
 181 
 
 
 
 661 
 
 737 
 
 South Sea Compai 
 
 IV 0. Wy- 
 
 
 Stileman v, Ashdown 
 
 210, 
 
 212, 660, 
 
 mpndsell . 
 
 . 734 
 
 736 
 
 
 668 
 
 669 
 
 660 
 
 Southwell V. Ward 
 
 . 
 
 713 
 
 Stocken v. Dawson 
 
 
 . 
 
 649 
 
 Sowarsby v. Lacy 
 
 > 
 
 432 
 
 Stone V. Godfrey 326 
 
 737 
 
 775 
 
 778 
 
 Sowerby's Charity, 
 
 'n re . 
 
 782 
 
 V. Gratham . 
 
 
 , 
 
 476 
 
 Spackmau v. Timbr 
 
 ell , 
 
 285 
 
 V. Theed 383, 
 
 384, 
 
 386, 
 
 388, 
 
 Spalding v. Shalmer 
 
 304, 429 
 
 435 
 
 
 
 389, 
 
 395 
 
 Sparling v. Parker 
 
 , 
 
 815 
 
 • — — V. Van Heythuysen 
 
 482 
 
 490 
 
 Spink V. Lewis 
 
 . 182, 
 
 183 
 
 V. Wythipole . 
 
 , 
 
 , 
 
 37 
 
 Spottiswoode v. Sto( 
 
 ikdale 
 
 486 
 
 Stones. «. Rowtoh . 
 
 , 
 
 
 678 
 
 Sprange v. Barnard 
 
 . 169, 
 
 171 
 
 Stonehewer v. Thompson 
 
 , 
 
 660 
 
 Sprigg V. Sprigg 
 
 . 190, 
 
 195 
 
 Stonehouse v. Evelyn 
 
 , 
 
 , 
 
 183 
 
 Spring V. Biles 
 
 , , 
 
 706 
 
 Stonor V, Curwen . 
 
 147 
 
 156 
 
 156 
 
 Spurgeon v. Collier 
 
 . 284, 
 
 724 
 
 Storry v,_ Walsh 441 
 
 445 
 
 446 
 
 448 
 
 Spunner v. Walsh . 
 
 , , 
 
 836 
 
 Story V. Tonge 
 
 
 , 
 
 372 
 
 Spurrier v. Hancock 
 
 , , 
 
 175 
 
 Stott V. HolHngworth 
 
 
 , 
 
 813 
 
 Squire v. Dean 
 
 , , 
 
 643 
 
 Stow V. Drinkwater 
 
 
 . 
 
 262 
 
 -. V. Ford . 
 
 , , 
 
 486 
 
 Strafford v. Powel. . 
 
 
 146 
 
 163 
 
 Stacey v. Elph 2 
 
 33, 235, 242, 
 
 462 
 
 V. Twynam . 
 
 
 , 
 
 465 
 
 Stacldipuse v. Bams 
 
 ton 737, 761 
 
 766 
 
 Streatfield v, Streatiield . 
 
 , 
 
 148 
 
 Stackpole v. Davorei 
 
 1 . 761, 
 
 752 
 
 Stretton v. Ashmall 
 
 . 
 
 , 
 
 346 
 
 Stacpople V. Stacppp 
 
 le . 369, 
 
 876 
 
 ; Stright, ex parte 
 
 . 
 
 . 
 
 612 
 
Ixxxvi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Strode v. Russel . . . 262 
 
 V, Winchester . . 71 
 
 Strong V. Strong . . . 853 
 
 Stroughill V. Anstey 416, 417, 434, 
 
 436, 437, 439, 468 
 
 Stuart, ex parte . . . 425 
 
 ■ V. Biuere . . .813 
 
 V. Kirkwall 634, 635, 639, 641 
 
 V. Stuart . . 340, 348 
 
 Stuckey v. Drewe . . . 476 
 
 Stulz's Trusts, in re . . 136 
 
 Slahhs, ex parte . . . 715 
 
 V, Roth . . . 218, 223 
 
 V. Sargon . . . 181 
 
 Sturgis V. Champneys . 629, 630 
 
 V. Corp . . . .124 
 
 Sturt V. Mellish . . 19, 20 
 
 Stutely, ex parte . . 379, 772 
 
 Styan, in re . . , . 613 
 Suir Island Female Charity 
 
 School, in re 
 Supple V. Lowson 
 
 503, 782 
 642, 706, 706, 
 782 
 . 190 
 808, 810, 815 
 319, 460 
 359, 361 
 198, 726 
 . 511 
 . 613 
 . 726 
 
 Suteliffe V. Cole 
 Sutherland v. Cooke 
 Sutton V. Jones 
 
 V. Sharp 
 
 Sutton Colefield case 
 Swan V. Swan 
 Swayne v. Swayne ■ 
 Sweet V. Southcote 
 Sweetapple v. Bindon 153, 621, 622, 
 
 793 
 Swift, ex parte . . . 617 
 
 V. Davis . . 211, 214 
 
 V. Gregson . . 701, 706 
 
 V. Nash ... 69 
 
 Swinnock v. Crisp . . . 618 
 Sykes v. Hastings . . . 319 
 Sylva V. Da Costa . . .834 
 Sylvester v. Jarman . . 263 
 
 V. Wilson . . . 247 
 
 Symance v. Tattam . . 409 
 
 Symons v. Rutter . . . 807 
 Symson v. Turner . . . 247 
 Synge v. Hales . 141, 146, 164 
 
 Tabor v. Grover . . .18 
 
 Taggart v. Taggart . . 152, 153 
 
 Tait n. Jenkins . . . 871 
 
 V. Northwick . . 482, 491 
 
 Talbot V. Earl of Radnor 234, 367 
 
 ■ — r- V. Whitfield . . .820 
 Taner v. Ivie .... 465 
 
 Tanner v. Dancey . . . 873 
 
 w. Elworthy. .•. . ■ . 218 
 
 Tappenden v. Burgess 477, 478, 479 
 
 V. Walsh . . .694 
 
 Tarback v. Marbury . . 476 
 
 Tardiif v. Robinson . . 392 
 
 Targus v. Puget 
 Tarleton v. Hornby 
 Tasker v. Small 
 Taster «. Marriott 
 Tatam v. Williams 
 Taylor, ex parte 
 Taylor's Trust, in re 
 
 V. Allen . 
 
 V. Alston 
 
 a. Clark 
 
 V. Crompton 
 
 V. George 
 
 V. Glanville 
 
 V. Hawkins 
 
 V. Haygarth 198, 321, 324, 679 
 
 V. Hibbert 
 
 V. Jones 
 
 V. Plumer 
 
 PAQE 
 
 . 163 
 
 . 768, 846 
 
 . 176, 844 
 . 218 
 . 742 
 
 . 477, 478 
 . 807 
 . 870 
 
 . 214, 215 
 . 815 
 . 763 
 
 . 167, 168 
 
 367, 873, 875 
 
 . 466 
 
 813 
 
 93, 648 
 
 274, 275, 764, 757, 
 
 758, 763 
 
 V. Salmon . . . 851 
 
 V. Stibbert . . .725 
 
 V. Tabrum . 424, 767, 876 
 
 V. Taylor 39, 184, 207, 212 
 
 216, 633 
 
 V. Wheeler . . .276 
 
 Tee V. Ferris . . . 71, 73 
 Tebbs V. Carpenter . 328, 358, 359, 
 361, 362, 364, 365, 876, 879 
 
 Tenant v. Brown 
 Tench v. Cheese 
 Terry v. Terry 
 Theebridge v. Kilburne 
 Thetford School case 
 Thicknesse v. Vernon 
 Thomas, ex parte . 
 
 V. Bennett 
 
 V. Bume 
 
 V, Dering 
 
 V. Dunning 
 
 V. Gwynne 
 
 V. Hole . 
 
 V. Thomas 
 
 Thomason v. Maokworth 
 Thompson, in re 
 
 1). Blackstone . 
 
 V. Grant 
 
 V. Harrison 
 
 V. Jackson 
 
 V. Leach 
 
 V, Simpson 
 
 Thompson v. Speirs 
 Thorby v. Yeats 
 
 173 
 
 . 116 
 
 . 337, 613 
 
 . 149 
 
 . 198, 199 
 
 . 201 
 
 . 277, 278 
 
 . 643 
 
 . 223 
 
 538, 640, 641 
 
 . 842, 843 
 
 . 834 
 
 . 707 
 
 751, 756 
 
 . 251 
 
 . 836 
 
 . 415 
 
 . 264 
 
 . 777 
 
 . 476 
 
 . 36 
 
 722, 728, 745, 775 
 
 . 613 
 
 595, 858, 875 
 
 Thorn ley v. Aspland . . 137 
 Thornton v. Ellis ", . . 813 
 
 V. Hawley 800, 806, 807, 816 
 
 Thorp V. Thorp . . 376, 377 
 Thorpe v. Jackson . . . 848 
 
 V. Owen . 61, 82, 172, 681 
 
 Thrupp V. Harman 643, 644, 681 
 Thrustout V. Coppin . . 262 
 Thruxton v. Attorney-General . 66 
 
TABLE OF CASES. 
 
 Ixxxvii 
 
 
 
 PAGE 
 
 
 
 PAGE 
 
 Thynn v. Thynn . 
 
 , 
 
 . 71 
 
 TuUet V. Tullet . 
 
 
 . 830 
 
 Tibbits J). Tibbits . 
 
 168 
 
 169, 171 
 
 TuUett V. Armstrong 
 
 122 
 
 128, 633, 
 
 Tickner v. Smith. . 
 
 , 
 
 . 358 
 
 
 
 634, 635 
 
 Tidd V. Lister 
 
 370 
 
 687, 870 
 
 Tulloch V. Hartley . 
 
 . 
 
 . 60 
 
 Tieruey v. Wood . 
 
 , 
 
 . 65 
 
 Tunstall v. Trappes 
 
 651, 
 
 661,662, 
 
 Tiffin V. Longman . 
 
 , 
 
 . 705 
 
 
 
 672, 772 
 
 Tinstone's Trust, in re . 
 
 . 377 
 
 Tunstall's Will 
 
 
 . 896 
 
 Tilly V. Bridges 
 
 
 . 755 
 
 Turquand v. Knight 
 
 
 . 876 
 
 Timson v. Eamsbottom 608, 610, 614 
 
 Turner, ex parte 436 
 
 , 441 
 
 , 442, 772 
 
 Tipping V. Piggott . 
 
 , 
 
 405, 406 
 
 (Sir Edward's) case 
 
 . 631 
 
 V. Power 
 
 , 
 
 . 873 
 
 V. Buck . 
 
 288 
 
 , 719, 751 
 
 Titley w. Wolstenholme . 
 
 265, 266 
 
 V. Corney 
 
 
 290, 599 
 
 Todd V. Wilson 
 
 , 
 
 649, 660 
 
 V. Frampton . 
 
 
 . 368 
 
 Toft V. Stephenson . 
 
 
 . 746 
 
 V. Gwinn 
 
 
 . 603 
 
 Toller V. Attwood . 
 
 
 . 256 
 
 V. Harvey 
 
 
 . 415 
 
 V. Carteret . . 
 
 
 . 48 
 
 V. Hill . 
 
 
 . 217 
 
 Tooke V. Hollingworth 
 
 
 . 274 
 
 V. Hind . 
 
 
 . 853 
 
 Tournay, in re 
 
 
 . 376 
 
 V. Mauley 
 
 356 
 
 366, 674 
 
 Townley v. Bedwell 
 
 
 392, 808 
 
 V. Sargent 
 
 
 146, 164 
 
 V. Bond . 
 
 244 
 
 390, 392 
 
 V. Turner 
 
 
 . 358 
 
 V. Sherborne . 
 
 299 
 
 302, 304 
 
 V, Wardle . 
 
 
 . 238 
 
 Townsend, ex parte 
 
 , 
 
 29, 296 
 
 Tumley v. Kelly 
 
 
 . 121 
 
 , in re 
 
 , 
 
 . 883 
 
 Turpin, ex parte 
 
 
 . 771 
 
 V. Ash . 
 
 , 
 
 . 756 
 
 Tutin, ex parte 
 
 
 . 833 
 
 D. Barber 
 
 
 . 314 
 
 Twisleton v. Thelwel 
 
 
 . 873 
 
 V. Lawton 
 
 , 
 
 . 409 
 
 Twopeny v. Peyton 
 
 
 . 133 
 
 • V. Westacott . 
 
 , 
 
 . 93 
 
 Twyne's case . 
 
 
 . 476 
 
 V. Wilson 
 
 ^ 
 
 301, 528 
 
 Tylden v. Hyde . 
 
 
 . 445 
 
 Townshend ( Marquis 
 
 of) 
 
 ■D. 
 
 Tylee v. Tylee 
 
 
 . 869 
 
 Bishop of Norwich 
 
 
 . 179 
 
 Tyler v. Lake 
 
 
 . 122 
 
 V. Townshend 
 
 729, 
 
 730, 731 
 
 Tyler's Tiust, in re 
 
 
 . 895 
 
 V. Windham . 
 
 . 
 
 . 643 
 
 Tyrrell v. Hope , . 
 
 
 122, 277 
 
 Townson v. Tickell 
 
 
 236, 237 
 
 Tyrrell's case (Lady) 
 
 
 . 177 
 
 Trafford v. Boehm 
 
 341, 
 
 351, 768, 
 
 
 
 
 792, 
 
 820 
 
 821, 823 
 
 
 
 
 V. Trafford . 
 
 . 
 
 . 160 
 
 Underwood v. Hatton 
 
 , 
 
 376, 487, 
 
 Trash.D. Wood 
 
 . 
 
 45, 680 
 
 
 
 522, 766 
 
 Travel! v. Danvers . 
 
 
 . 710 
 
 V. Stevens 
 
 315 
 
 316, 774 
 
 Travers v. Townsend 
 
 . 
 
 . 876 
 
 Uniacke, in re 
 
 
 .233, 237 
 
 Tregonwell v. Sydenham 
 
 181, 182, 
 
 University College, Oxford, 
 
 in re 495 
 
 
 189 
 
 190, 191 
 
 of Oxfurd V. Richardson . 753 
 
 Trench w. St. George 
 
 
 384, 385 
 
 Upton Warren, in, re 
 
 
 . 781 
 
 V. Harrison 200, 
 
 2U6, 
 
 360, 756, 
 
 UpfuU's Trust, in re 
 
 . 
 
 . 376 
 
 
 
 763 
 
 Urch V. Walker 233, 
 
 234, 
 
 240, 241, 
 
 Trent v. Banning . 
 
 
 . 250 
 
 
 
 .366 
 
 Treves v. Townsend 
 
 359, 
 
 361, 362 
 
 Uvedale v. Ettrick . 
 
 , 
 
 . 712 
 
 Trevor v. Peryor. . 
 
 . 
 
 . 682 
 
 v. Uvedale 
 
 
 . 873 
 
 V Trevor 147, 
 
 155, 
 
 166, 725 
 
 
 
 
 Trickey v. Trickey 
 
 , 
 
 . 117 
 
 
 
 
 Trinity College v. Brown 
 
 . 272 
 
 Van v. Barnett 723, 
 
 806, 
 
 816,823 
 
 Triquet v. Thornton 
 
 
 . 806 
 
 Van Sandau v. Moore 
 
 , 
 
 . 857 
 
 Trot V. Vernon 
 
 
 . 167 
 
 Vandebende v. Levingston 
 
 . 752 
 
 Trott V. Dawson 
 
 
 . 660 
 
 Vanderstegen v. Witham 
 
 . 19 
 
 Tiower v. Knightley 
 
 
 531, 819 
 
 Vaughan v. Buck 369, 
 
 370, 
 
 810, 812 
 
 Trutch V. Lamprell 
 
 
 . 291 
 
 V. Burslem 
 
 151, 
 
 162, 163 
 
 Tryon, in re . 
 
 
 . 234 
 
 V. Farrer 
 
 
 . 504 
 
 .Tucker ®. Boswell . 
 
 
 . 813 
 
 V. Vanderstegen 
 
 
 639, 768 
 
 V. Thurstan . 
 
 
 . 284 
 
 Venables v. Morris . 
 
 
 . 263 
 
 Tudor V. Samyne . 
 
 
 . 631 
 
 Verner, ex parte 
 
 
 . 136 
 
 Tuer V. Turner 
 
 
 . 818 
 
 Verney i).. Carding . 
 
 
 725, 768 
 
 luffnell V. Page . 
 
 
 45, 616 
 
 V. Verney 
 
 384, 386, 395 
 
Ixxxviii 
 
 TABLE OP CASES. 
 
 
 PAGE 
 
 
 
 PAGE 
 
 Vernon's case . 
 
 . 58 
 
 Wallgrave v. Tebbs 
 
 73,79 
 
 Vernon, ex parte , 
 
 . 200, 832 
 
 Wallwyn v. Coutts . 101, 
 
 476, 481 
 
 V. Blacker! ey . 
 
 . 844 
 
 Walsh V. Dillon 
 
 . 858 
 
 V. Vawdry 
 
 . 238, 764 
 
 V. Gladstone . 
 
 . 672 
 
 V. Vernon 
 
 94, 167, 830 
 
 V. Walliiiger . 701 
 
 703, 704 
 
 Verulam (Earl of) v. Bathurst " 155 
 
 Walter v. Maunde . 599, 
 
 707, 808 
 
 Vez V. Emery 
 
 . 367 
 
 V. Saunders 
 
 . 631 
 
 Vezey v. Jamson 
 
 . 182 
 
 Walton, ex. parte . 
 
 . 71S 
 
 Vick V. Edwards 
 
 . 252 
 
 V. MeiTy 
 
 . 839 
 
 Vickers v. Cowell . 
 
 . 201 
 
 V. Walton 69, 69, 
 
 180, 182 
 
 V. Scott . 
 
 . 415, 813 
 
 Walworth v. Holt . 
 
 . 851 
 
 Vigor V. Harwood . 
 
 . 813 
 
 Wankford v. Wankford . 
 
 . 234 
 
 Vigrass v. Binfield . 
 
 337, 867, 869 
 
 Warburton v. Hill 608, 613 
 
 614, 616 
 
 Villers v. Beaumont 
 
 . 97 
 
 V. Sandys 300, 301, 
 
 667, 581 
 
 Villiers v. Villiers 
 
 . 250 
 
 V. Vaughan . 
 
 837, 839 
 
 Vincent v. Godson . 
 
 . 239 
 
 Ward V. Arch 
 
 
 729, 747 
 
 V. Newcombe 
 
 . 345, 810 
 
 V. Audland 
 
 
 . 88 
 
 Viner v. Cadell 
 
 . 274, 278 
 
 V. Bassett 
 
 
 . 853 
 
 Voyle V. Hughes . 
 
 . 91 
 
 V. Burbury 
 
 V. Butler 
 
 V. Lant . 
 
 
 253, 254 
 
 239, 240 
 
 . ,177 
 
 Waokerbath, ex parte 
 
 . 305 
 
 Wardle v. Claxton 
 
 
 122, 123 
 
 V. Powell 
 
 . 294 
 
 Ware /u. Polhill 
 
 
 . 829 
 
 Wade V. Paget 
 
 . 16 
 
 Waring, in re 
 
 
 376, 380 
 
 Wadley v. Wadley . 
 
 . 392 
 
 V. Coventry 
 
 
 . 277 
 
 Wagstaff V. Smith . 
 
 122,124,248 
 
 V. Waring 326, 344, 
 
 346, 360j 
 
 n. Wagstaff 
 
 45, 615, 616 
 
 
 -858 
 
 Wain V. Earl of Egmont 487, 538, 
 
 Warman v. Seaman 
 
 . 177 
 
 
 641 
 
 Warmstrey v. Tanfield . 
 
 12, 600 
 
 Wainwright ». Bagshaw . . 107 
 
 Warrick v. Warrick 
 
 148, 727 
 
 V. Elwell 
 
 . 15 
 
 Warter v. Hutchinson 248, 
 
 251, 254, 
 
 V. Hardisty . 
 
 . 635, 646 
 
 
 257 
 
 V. Waterman . 
 
 . 696 
 
 Warwick Charities, in re 
 
 . 718 
 
 Waite V. Whorwood 
 
 . 754, 757 
 
 Countess of, v. Edwards . 643 
 
 Waithman, ex parte 
 
 . 612 
 
 — -■ — V. Richardson . 
 
 37, 681 
 
 Wake V. Wake 
 
 . 893, 903 
 
 Washborn v. Downes 
 
 . 602 
 
 Wakeford, in re 
 
 . 834, 883 
 
 Waterhouse v. Stanfield . 
 
 . 49 
 
 Wakeman v. Duchess of Rut- 
 
 Waters v. Bailey 
 
 . 218 
 
 land . 
 
 . 427, 844 
 
 V. Wood 
 
 . 44 
 
 Walbum v. Ingilby 
 
 . 846 
 
 Watkins, ex parte . 
 
 . 612 
 
 Walford( V.) . 
 
 . 596 
 
 V. Cheek 434, 435 
 
 466, 458 
 
 Waldo V. Caley . 
 
 . 642 
 
 Watson, ex parte . 
 
 361, 772 
 
 V. Waldo 
 
 . 516 
 
 V. Hayes 
 
 . 183 
 
 Walker ( v.) . 
 
 . 346 
 
 V. Hinsworth Hospita 
 
 I . 607 
 
 Walker, in re 546 
 
 818, 834, 883 
 
 V. Earl of Lincoln . 
 
 . 195 
 
 V. Denne 791, 
 
 795, 798, 805, 
 
 V. Marshall 
 
 . 370 
 
 
 806, 819 , 
 
 V. Pearson 
 
 258, 300 
 
 V. Meager 
 
 . 487, 643 
 
 V. Toone 460, 465 
 
 466, 471 
 
 V. Preswick . 
 
 . 726, 845 
 
 Watts's settlement, in re 
 
 674, 885, 
 
 V. Shore 
 
 415, 775, 816 
 
 
 896 
 
 V. Smalwood . 
 
 429, 434, 524 
 
 V. Ball . 
 
 621, 625 
 
 — — V. Symonds 290, 
 
 304,307,311, 
 
 V. Bulks 
 
 . 99 
 
 312, 317, 337, 338, 
 
 357, 699, 726, 
 
 V. Cresswell . 
 
 . 39 
 
 767, 774, 775 
 
 777, 778, 845 
 
 V. Girdlestone'338, 341, 356,418 
 
 V. Walker. . 
 
 538, 540 
 
 V. Hyde 
 
 . 472 
 
 V. Wetherell . 
 
 . 518 
 
 ». Jeffereyes 
 
 . 671 
 
 V. Woodward . 
 
 . 363 
 
 V. Kancie 
 
 454, 456 
 
 Wall V. Bright 
 
 175, 263, 268 
 
 V. Porter 
 
 280, 671 
 
 Wallburn v. Ingilby 
 
 . 846 
 
 V. Turner 
 
 . 595 
 
 Walley v. Whalley . 
 
 217, 222, 224, 
 
 Waugh's Trust, in re 
 
 883, 906 
 
 
 726, 847 
 
 Way v. East . 
 
 
 . 132 
 
TABLE OF CASES. 
 
 Ixxxix: 
 
 Weale v. OUive 
 Weatherby v. St. Giorgio 
 Weaver v. Maule . 
 Webb V. Ledsam 
 
 V. Lugar 
 
 ■». Rorke 
 
 PA8E 
 
 . 84 
 . 430 
 283, 284 
 . 305 
 . 218 
 . -470 
 
 V. Earl of Shaftesbury . 142 
 
 318, 544, 569, 582, 723 
 
 V. Webb . . . 118, 857 
 
 V. Wools . . 168, 171 
 
 Wedderburn v. Wedderburn 319, 
 . 729, 730, 777," 778 
 Wedgwood ». Adams . . 424 
 Weiss V. Dill . '. . . 557 
 Weld -v. Bonham . . .851 
 
 V. Tew . . . .827 
 
 Welford ». Liddle . . .734 
 Wellesley i>. Wellesley . . 174 
 West «!. Ayles . . . 834 
 
 11. Errissey . 148, 149, 727 
 
 V. Steward . . . 474 
 
 Westby v. Westby . . 670 
 
 Westbrook, in re . . 646, 556 
 
 V. Blythe . . 668, 672 
 
 Westcott V. Culliford . . 368 
 Western v. Ca,rtwright . . 734 
 Westley v. Clarke . 304, 305, 310, 
 
 317 
 Weston V. Filer . . 893, 903 
 Westover v. Chapman . 338, 363 
 Wetherell «. Collins . .842 
 
 V. Hall . . . .593 
 
 ■». Langston . . . 237 
 
 V. Wilson . . . 596 
 
 West Ham Charities, in re . 782 
 Whale V. Booth 278, 455, 466, 457 
 Whalley v. Whalley . . 734 
 Whateley v. Kemp . . 148 
 
 Whatton v. Toone . . 460, 734 
 Wheate v. Hall . . .164 
 Wheatley v. Purr ... 81 
 Wheeler, in re . . . 883 
 Wheelwright v. Jackson . . 480 
 Wheldale v. Partridge 793, 799, 
 
 804, 806, 824 
 Whelpdale v. Cookson . 461, 464 
 466,473 
 Whetstone (Lady) v. Bury . 678 
 Whichcote v. Lawrence 461, 463, 
 469, 470, 471, 7-38 
 Whinchcombe v. PuUeston . 136 
 Whish, ea; parte . . .715 
 Whistler v. Newman 634, 640, 775, 
 
 875 
 
 J). Webb . . . -842 
 
 Whiston V. Dean and Chapter of 
 Rochester . . . ■ . -493 
 .« 264 
 . 28 
 . 462 
 241, 868 
 
 Whitacre, ex parte . 
 Whitaker v. Wisbey 
 Whitcomb ». Minchin 
 White V. Bartqn 
 
 PAGE 
 
 White «. Baylor . . 283, 692f 
 
 V. Briggs . 168, 169, 170, 171 
 
 V. Carter . . .155 
 
 — i— «. Cuddon . . . -416- 
 
 V. Evans . 69, 69, 162 
 
 V. Ewer . . . 731- 
 
 a. Foljambe . .421, 426 
 
 ■«. Lincoln . . 337,599- 
 
 v. Nutts . . .175 
 
 V. Parker . . 247, 24S 
 
 v. Tommy . . . 465 
 
 V. White 383, 384, 395, 396, 
 
 397, 398, 399, 402, 706, 713, 774 
 
 ». Williams ... 69 
 
 Whitecomb v. Jacob . 766, 757 
 Whitfield V. Brand . . 278 
 
 ». Prickett . . .135 
 
 Whitley, e^^arte . 713,715,716 
 Whitmarsh v. Robertson . 866 
 
 Whitmore v. Weld . . 39 
 
 Whittingham's case . 36, 37 
 
 Whittem v. Sawyer . . 369 
 
 Whittle V. Halliday . . 848 
 
 V. Henning . . . 372 
 
 Whitton ex parte . . . 836 
 
 V. Lloyd . . . 488 
 
 Whitwick V. Jermin . . 796 
 Whitworth v. Gangain . 280, 672 
 Wichfield v. Baker . . .808 
 Widdowsonti. Duck . 343, 624 
 Widmore v. Woodroffe . . 699 
 Wigg V. Wigg . .173, 725 
 Wightman v. Townroe . . 272- 
 Wiglesworth v. Wiglesworth 357, 867 
 Wike's case 30, 260, 280, 629, 677 
 Wilcocks V. Hannygton . . 83 
 
 Wild V. Wells 
 Wildes V. Davies 
 Wilding V. Bolder 
 
 V. Richards 
 
 Wiles V. Cooper 
 
 V. Gresham 326, 340, 521, 756 
 
 Wilkes V. Steward 
 Wilkins v. Fry 
 
 V. Hunt . 
 
 - — — V. Stevens 
 Wilkinson, ex parte 
 
 V. Brayfield 
 
 V. Malin 
 
 V. Parry 
 
 . 765 
 . 119 
 
 40, 679 
 
 481, 482, 483 
 
 . 858 
 
 Wilks V. Groom ■ 
 V. Wilkinson 
 
 Willan V. Lancaster 
 Willand v. Fenn 
 Willats V. Busby. . 
 Willet V. Sandford 
 Willett V. Blandford 
 Williams' estate, in re 
 Williams, in re 
 
 337, 338 
 
 . 423, 426 
 
 . 873 
 
 . 206 
 
 . 243, 715 
 
 . 178 
 
 298, 299, 601 
 
 666, 677, 774, 777, 
 
 847 
 
 . 885 
 
 131, 135, 139, 
 
 656, 659 
 
 . 617 
 
 . 316 
 
 93, 849, 850 
 
 319 
 881 
 836 
 
xc 
 
 TABLE OF CASES. 
 
 
 
 FAQE 
 
 
 PAGE 
 
 Williams v. Bird . 
 
 
 . 716 
 
 Withers v. Withers 
 
 60, 199, 202 
 
 V, Carter 
 
 
 . 167 
 
 Withington v. Withington . 674 
 
 V. Coade. 
 
 
 182, 183 
 
 Withy V. Mangles . 
 
 . 707 
 
 V. Corbet 
 
 
 . 101 
 
 Witter V. Witter . 
 
 . 19, 829 
 
 V. Kershaw 
 
 
 . 182 
 
 Witts V. Bodington 
 
 , , 
 
 V. Lomas 
 
 
 . 768 
 
 V. Dawkius 
 
 . 123 
 
 ^- V. Lord Lonsdale 
 
 
 . 324 
 
 Wivelescom case 
 
 . 495 
 
 V. Nixon 240, 
 
 29*9, 
 
 310, 316, 
 
 Wolestoncroft v. Long 
 
 . 487, 488 
 
 
 316 
 
 , 317, 318 
 
 Wood V. Betlestone 
 
 . 894, 898 
 
 V. Powell 
 
 , 
 
 363, 364 
 
 V. Cox . 
 
 . 168 
 
 V. Waters 
 
 , 
 
 . 248 
 
 V. Dixie 
 
 . 475 
 
 V. Williams . 
 
 , 
 
 169, 173 
 
 V. Downes 
 
 473, 867 
 
 Williamson v. Codrington 
 
 93,94 
 
 V. Hardisty . 
 
 . 238 
 
 V. Curtis 
 
 . 
 
 . 435 
 
 V. Harman 
 
 . 434, 623 
 
 V. Park . 
 
 . 
 
 . 659 
 
 V. Nosworthy 
 
 . 18 
 
 V. Williamson 
 
 , 
 
 . 93 
 
 V, Richardson 
 
 . 415 
 
 Willis V. Childe . 
 
 , 
 
 . 643 
 
 V. Stane 
 
 . 710 
 
 V. Hiscox 
 
 
 593, 878 
 
 v.. White . 441, 532. 844 
 
 V. Kibble 
 
 . 
 
 . 561 
 
 V. Williams . 
 
 . 842 
 
 V. Willis 
 
 200 
 
 204, 205 
 
 V. Woods 
 
 . 857 
 
 Wilmot V. Pike . 
 
 
 . 608 
 
 Wood's Trust, in re 
 
 . 377 
 
 Willmott V. Jenkins 
 
 . 
 
 . 243 
 
 Woodcock V. Renneck 
 
 700, 704 
 
 Willoughby v. Willoughby 
 
 131, 725 
 
 Woodhead v. Mai-riott 
 
 368, 879 
 
 Wills V. Sayers 
 
 , 
 
 121, 122 
 
 Woodin, ea; parte . 
 
 226, 562 
 
 Wilson, in re 
 
 , 
 
 . 836 
 
 Woodhouse v. Hoskins 
 
 144, 404, 
 
 V. Beddard . 
 
 , 
 
 . 805 
 
 408, 409, 410 
 
 V. Bennett 
 
 265 
 
 267, 533 
 
 Woodman v. Horsley 
 
 . 122 
 
 V. Broughton . 
 
 
 . 845 
 
 V. Morrel 178, 200, 207, 214, 
 
 V. Clapham . 
 
 
 . 174 
 
 
 215, 216 
 
 V. Day . 
 
 476, 
 
 477, 480 
 
 Woodmeston v. Walker 
 
 . 124 
 
 
 
 . 297 
 
 Woods V. Woods . 169, 596, 857 
 
 V. Dent . 
 
 '45, 63, 616 
 
 Woodyat v. Gresley 
 
 . 771 
 
 V. Fielding 
 
 , 
 
 . 686 
 
 Woollett V. Harris . 
 
 180, 181 
 
 V. Foreman , 
 
 , 
 
 . 756 
 
 Woolmore v. Burrows 154, 166, 157, 
 
 V. Goodman . 
 
 , 
 
 . 768 
 
 
 164. 404 
 
 V. Heaton 
 
 
 . 564 
 
 Woolnough V. Woolnough . 603 
 
 V. Hoare . 
 
 
 . 272 
 
 Worley v. Framptun 
 
 . 425 
 
 V. Knubley 
 
 
 . 239 
 
 Worrall v. Harford 101, 317, 557, 561 
 
 V. Major 169, 
 
 171 
 
 183, 187 
 
 Worsley v. Demattos 
 
 476, 477, 
 
 V. Moore 
 
 
 729, 767 
 
 
 478, 480 
 
 V. Oldham 
 
 
 . 371 
 
 Wortham v. Pemberton . 
 
 629, 632 
 
 V. Wilson 
 
 
 113, 875 
 
 Worthington v. Evans . 
 
 . 533 
 
 Wilton V. Hill 
 
 , 
 
 . 865 
 
 Wrangham, ex parte 
 
 . 496 
 
 V. Jones . 
 
 
 842, 853 
 
 Way V. Smith 
 
 . 816 
 
 Wiltshire v. Rabbits 
 
 
 . 608 
 
 Wray v. Steele 
 
 200, 201 
 
 Winch V. Brutton . 
 
 . 
 
 . 171 
 
 Wren v. Kirton . 2£ 
 
 5, 296, 333 
 
 V. Keeley 
 
 
 274, 275 
 
 Wright V. Atkyns 168, If 
 
 i9, 170, 173 
 
 Winchelsea «). Norcliffe 
 
 829, 830 
 
 V. Hall . 
 
 . 195 
 
 Winchester (Bishop of) 
 
 V. Knight 753 
 
 Wright V. Maunder 
 
 . 422 
 
 Winged v. Lefebury 
 
 
 . 725 
 
 V. Newport Pond E 
 
 chool 
 
 Winn V. Fenwick . 
 
 
 . 705 
 
 
 606, 608 
 
 Winnall, ex parte ■ 
 
 
 . 291 
 
 V. Pearson 141, 14 
 
 2, 145, 247, 
 
 Winnington v. Foley 
 
 
 . 409 
 
 
 251, 266 
 
 Winslow V. Tighe . 
 
 
 218, 223 
 
 V. Rose . 
 
 . 808 
 
 Winter, ex parte 
 
 
 . 838 
 
 V, Row . 
 
 193, 194 
 
 V. Rudge 
 
 
 . 572 
 
 V. Snowe 
 
 . 39 
 
 Wise, in re . . . 
 
 
 . 882 
 
 V. Wright 
 
 183, 184 
 
 V. Wise . 
 
 
 233, 609 
 
 WrigSl's settlement, in ri 
 
 ! . 376 
 
 Wiseman v. Roper . 
 
 
 . 94 
 
 will, in re 
 
 . 377 
 
 Witham's case 
 
 « 
 
 . 6,9 
 
 Wrigley v. Sykes 441, 
 
 445, 446, 
 
 Withers v. AUgood . 
 
 • 
 
 . 142 
 
 
 447 
 
TABLE OF CASES. 
 
 XCl 
 
 PAGE 
 
 Wyatt V. ShaiTatt . 349, 867, 869 
 Wych V. East India Company 
 
 721, 734 
 
 V. Packington 177, 179, 180 
 
 Wyche, in re ... 550 
 
 Wykham v. Wykham . 253, 604 
 Wynch v. Grant . . .239 
 Wynne v. Hawkins . 169, 171 
 
 V. Styan . . . 733 
 
 Wynter v. Bold . . .420 
 
 Yallop, ex parte . . . 203 
 
 V. Holworthy . . 753 
 
 Yarnold v. Moorhouse . . 135 
 Yates V. Hambly . . .842 
 Yervel (Poor of) v. Sutton 506, 507, 
 
 508 
 York V. Brown . 320, 549, 874 
 
 York Buildings Company 
 Mackenzie . . 466, 
 
 V. Baton 
 
 Young V. Dennet 
 
 V. Grove 
 
 V. Martin 
 
 ■ V. Peachy 
 
 V. Scott . 
 
 V. Waterpark . 729, 
 
 Younge v. Combe 
 Younger v. Welham 
 Younghusband v. Gisborne 
 
 FAQK 
 V, 
 
 467, 471 
 
 201, 202 
 
 . 488 
 
 . 182 
 
 . 172 
 
 177, 178 
 
 . 857 
 
 747, 748 
 
 359, 361 
 
 . 298 
 
 134, 598, 
 
 656 
 
 ZiNOK V. Walker 
 Zoach V. Lloyd 
 Zouch V. Parsons 
 
 . 275 
 
 . 830 
 
 36, 37, 38 
 
TABLE OP STATUTES CITED. 
 
 EDWARD I. 
 
 
 
 
 PAOE 
 
 
 FAOE 
 
 29. 
 
 c. 3. s. lO (Judgments 
 
 
 11. (Statute Merchant) . 
 
 278 
 
 
 against cestui que 
 
 
 13. St. 1. 0. 1 (De Donis) 
 
 601 
 
 
 trust) . 664, 
 
 690 
 
 St. 1. 0. 18 (Elegit) 
 
 278 
 
 
 s. 12 (Estates pur au- 
 
 
 St. 1. 0. 39 (Levari Facias) 
 
 647 
 
 
 tre vie) 
 
 202 
 
 st. 3 (Statute Merehant) . 
 
 278 
 
 
 WILLIAM AND MARY. 
 
 
 EDWARD II. 
 
 
 3. 
 
 c. 14 (Action against De- 
 
 
 9. St. 2 (Sheriffs) . 
 
 269 
 
 4. 
 
 visee) 239, 689, 
 c. 3. s. 10 (Bequests of 
 
 690 
 
 EDWARD III 
 
 
 
 Stock) . 
 
 32 
 
 27. St. 2. c. 9 (Statute Staple) 
 
 278 
 
 6. 
 
 c. 20. s. 20 (Bank of Eng- 
 land) . 
 
 WILLIAM III. 
 
 32 
 
 RICHARD II. 
 
 
 
 
 15. c. 5 (Mortmain) 
 
 43 
 
 7 
 
 & 8. c. 25. 3. 7 (Right of 
 
 
 HENRY VI. 
 
 
 
 voting for Mem- 
 
 
 8. c. 7 (Right of voting for 
 
 
 
 bers of Parliament) 
 
 270 
 
 Memhers of Parlia- 
 
 
 
 ANNE. 
 
 
 ment) . 
 
 270 
 
 4. 
 
 c. 16. s. 22 (Subpoena) . 
 
 859 
 
 RICHARD III. 
 
 
 6. 
 
 0. 35 (Yorkshire Registry) 
 
 596 
 
 1. c. 1 [Cestui que Use em- 
 
 
 7. 
 
 0. 19 (Infant Trustees) 38, 
 
 832 
 
 powered to pass Legal 
 
 
 
 GEORGE I. 
 
 
 Estate) . . 5 
 
 601 
 
 1. 
 
 st. 2. c. 19 (Bequests of 
 
 
 HENRY VII. 
 
 
 
 Stock) . 
 
 32 
 
 4. c. 24 (Fines) . 
 
 601 
 
 
 GEORGE II. 
 
 
 19. c. 15 (Execution against 
 Uses) . 
 
 10 
 
 4. 
 
 c. 10 (Lunatics, &c.. Trus- 
 tees of Lands) 
 
 833 
 
 
 8. 
 
 c. .6 (Yorkshire Registry) . 
 
 596 
 
 HENRY VIII. 
 
 
 9. 
 
 c. 6 (Mortmain) 44, 79, 
 
 132 
 
 21. c. 4 (Sales by Executors) 
 
 532 
 
 14. 
 
 c. 20. s. 9 (Estates ^ar au- 
 
 
 26. c. 13 (Forfeiture) . 9, 28 
 
 674 
 
 
 tre vie) 
 
 202 
 
 27. c. 10 (Statute of Uses) 
 
 7,10 
 
 18. 
 
 c. 18. s. 1 (Right of voting 
 
 
 33. 0. 20 (Forfeiture) 674, 675 
 
 676 
 
 
 for Members of 
 
 
 ELIZABETH. 
 
 
 30. 
 
 Parliament) . 
 0. 19. s. 49 (Bequests of 
 
 271 
 
 13. c. 4 (Extents) . 
 
 673 
 
 
 stock) . 
 
 32 
 
 c. 5 (Creditors) . 93, 475, 476 
 27. 0. 4 (Purchasers) . . 92, 93 
 
 
 GEORGE III. 
 
 
 43. c. 4 (Charitable Uses) 
 
 779 
 
 25. 
 36. 
 
 c. 35 (Extents) 
 
 0. 90 (Lunatic, &o.. Trus- 
 
 673 
 
 CHARLES II. 
 
 
 
 tees of Stock) 
 
 833 
 
 22 & 23. c. 25 (Game Act) . 
 29. c. 3. 3. 5 (Devises of T;a,nd) 
 
 593 
 
 39 & 40. c. 36 (Bank of Eng- 
 
 
 65 
 
 
 land) . . 33 
 0. 56 (Disentailing 
 
 859 
 
 s. 7 (Creations of Trust 
 
 
 
 
 of Land) 
 
 60 
 
 
 money-land) 820 
 
 821 
 
 s. 8 (Exception of Im- 
 
 
 
 0. 88. s. 10 (WiU of 
 
 
 plied Trusts) 204, 
 
 228, 
 
 
 the Sovereign) 
 
 25 
 
 
 762 
 
 
 c. 98(ThellussonAct) 
 
 112 
 
 s. 9 (Assignments of 
 
 
 47. 
 
 c. 74 (Traders' Lands, 
 
 
 Trusts) 
 
 600 
 
 
 Assets) 
 
 273 
 
TABLE OF STATUTES CITED. 
 
 XCJll 
 
 52. c. 101 (Romilly's Act) 718, 779 
 54. c. 145 (Corruption of Blood) 28 
 56. c. 91 (Charity Commis- 
 sioners) . . 783 
 
 58. e. 95. s. 2 (Right of voting 
 
 for Coroners) . 592 
 
 59. 0. 81 (Charity Commis- 
 
 sioners) ; .783 
 
 GEORGE IV. 
 
 I & 2. 0. 19 (Lunatic Trustees) 834 
 
 6. c. 74 (Trustee Act) . . ih. 
 c. 16 (Bankruptcy Act) 479, 557 
 
 7. 0. 57 (Sales under Insolvent 
 
 Debtors' Act) . 422 
 
 WILLIAM IV. 
 
 II G. 4. & 1 W. 4, 0. 40 (Exe- 
 
 cutor Trustee for 
 next of kin) . 59, 325 
 c. 47 (Action against 
 
 Devisee, Assets) . 239, 
 273, 474 
 c. 60 (Lord St. Leonards' 
 
 Trustee Act) 713, 834, 
 835, 836, 837, 838, 839 
 
 1. c. 60. s. 23 (Charities) . 716 
 1 & 2. c. 32 (Game Act) . 593 
 
 2. c. 45. s. 23 (Reform Act, 
 
 Right of Voting) . 271 
 c. 57 (Charities) . . 716 
 3&4. 0. 27 (Limitation of Ac- 
 tions and Suits) 288, 484, 
 722, 743, 744, 745, 786 
 c. 74 (Fines and Reco- 
 veries) . 16, 148, 156, 
 157, 236, 237, 411, 472, 
 604, 817, 822 
 c. 104 (Assets) . 273, 285, 
 435, 474, 688, 691, 692, 
 796 
 c. 105 (Dower) . 621, 626, 
 794 
 c. 106 (Inheritance) . 187, 
 618, 680 
 
 4 & 5. c. 23 (Escheat) . . 836 
 
 c. 29 (Lpch's Act) 347, 348 
 c. 92 (Fines and Reco- 
 veries, Irish) , 236 
 
 5 & 6. e. 76 (Municipal Cor- 
 
 poration Act) 25, 31, 
 
 716, 717 
 
 VICTORIA. 
 
 1. c. 26 (Wills) . 33, 45, 60, 65, 
 
 80, 118, 195, 203, 249, 
 
 259, 617, 825, 831 
 
 1 & 2. e. 110 (Insolvency, 
 
 Judgments) . 29, 136, 
 278, 350, 476, 6=8 
 
 2 & 3. c. 11 (Judgments) . 669 
 
 3 & 4. c. 77 (Grammar-school 
 
 Act) . . .500 
 0. 82 (Judgments) . 670 
 5. c. 5 (Abolition of Equity 
 Exchequer Juris- 
 diction) . . 859 
 
 5 & 6. c. 116 (Insolvent Act) 278 
 
 6 & 7. c. 18. s. 74 (Right of 
 
 Voting) . 271, 593 
 c. 73 (Solicitors' Act) . 561 
 
 7 & 8. c. 45. 3. 2 (Dissenters' 
 
 Religious Property 
 Limitation Act) . 497 
 
 c. 66 (Aliens) . 39, 43 
 
 c. 76 (Real Property 
 Amendment Act, 
 now repealed) 156, 236, 
 412 
 
 c. 92 (Right of voting 
 
 for Coroners) . 593 
 
 0. 96 (Insolvency) . 278 
 
 8 & 9. 0. 16. s. 20 (Com- 
 
 panies' Clauses Act) 859 
 0. 106 (Real Property 
 
 Amendment Act) 412, 
 424, 600, 817 
 10 & 11. c. 96 (Trustee Relief 
 
 Act) Zn5etseq., 785 
 
 12 & 13. c. 106 (Bankrupt Law 
 
 Consolidation Act) 29, 
 
 273, 277, 287, 477, 479, 
 
 714 
 
 13 & 14. 0. 35 (Sir G. Turner's 
 
 Act) . . .368 
 0. 60 (Trustee Act, 
 1850) 283, 286, 714, 
 840, 847 
 
 14 & 15. c. 83 (Court of Appeal 
 
 in Chancery) . 714 
 
 15 & 16. e. 86 (Chancery 
 
 Amendment Act) 854, 
 860, 866 
 
 16 & 17. c. 137 (Charitable 
 
 Trusts Act, 1853) 
 
 499, 717, 718, 
 784 et seq. 
 
 18 & 19. c. 15 (Judgments) 657, 669 
 
 c. 124. (Charitable 
 Trusts Amend- 
 ment Act, 1855) 
 382, 504, 511, 785, 786 
 
 19 & 20. e. 50 (Sale of Parish 
 
 Advowsons). . 107 
 
 c. 94 (Uniform Ad- 
 ministration of Es- 
 tates) . . .797 
 
ADDENDA. 
 
 The following List of References will, it is believed, be found to embrace almost 
 all tlie decisions of importance bearing upon the subject matter of the treatise 
 reported during its progress through the Press, down to the 1st of July, 1857. 
 A few earlier cases, which had escaped previous attention, have also been added. 
 Mere typographical errors (except where they might possibly mislead) h&ve not 
 been noticed. 
 
 PAGE 
 
 19, note (a), add Sloperv. Cottrell, 2 Jur. N. S. 1046 
 
 27, — (i), — Greenslade v. Bare, 20 Beav. 284 
 
 28, line 13. Read thus :—"Areitpoji aMffiimc^er forfeitedabsolutelytotheCrown.'' 
 
 And note that, attainder is necessary to support the Crown's right 
 
 even to the year, day, and waste ; Bex v. Brldger, 1 M. & W. 146. 
 
 33, note (1), by the 8 & 9 Vict. cap. 97, the provisions of the former Acts relating 
 
 to registration of testamentary instruments in the ofice of the Bank 
 
 were repealed. 
 
 62, — (d), add Wood v. Midgley, 5 De Gex, M. & G. 41 
 
 70. As to the limits of the jurisdiction of Courts of Equity in cases of devises or 
 bequests obtained by fraud, see Hindson v. Weatherill, 5 De Gex, M. & G. 
 301, and the cases there collected. 
 81, note (a), add Sccdes v. Maude, 6 De Gex, M. & G. 43 ; Airey v. Hall, 2 Jur. 
 N. S. 658 
 
 — Dipple T. Corles, 11 Hare, 183 
 
 — Airey v. HaM, 2 Jur. N. S. 658 ; and Kiddill v. Pamell, 6 
 Weekly Rep. 324 
 
 — Lewis V. JJees, 3 K. & J. 132 
 
 — Holmes v. Penney, 3 K. & J. 99 
 
 — Dening v. Ware, 22 Beav. 184 
 
 — Paterson v. Mwrphy, 11 Hare, 88 
 See further, as to the ClerkenweU Case, Cajrter v. Oropley, 26 
 
 L. J. N. S. (Ch.) 246 
 
 — Tmvm V. Newcome, 3 K. & J. 16 
 
 — Tench v. Cheese, now reported, 6 De Gex, M. & G. 453' 
 
 — Baker v. Bradley, 2 Jur. N. S. 98 
 
 — Fratt V. Mathew, 22 Beav. 339 
 
 — Holmes v. Penney, 3 E. & J. 90 
 
 — Childers v. ChUders, 3 Kay & Johns. 310 ; under appeal at the 
 date of publication. 
 
 ; and see observations of Lord St. Leonards, in Potts v. Potts, 3 
 
 Jones & Lat. 353 
 add Doncaster v. Doncaster, 3 K. & J. 26 
 
 Ba/rnes v. Grani, 2 Jur. N. S. 1127 
 
 Haddelsey v. Adams, 22 Beav. 266 ; Lewis v. Rees, 3 K. & J. 
 132 
 
 265, — (5), — Knight v. Robinson, 2 K. & J. 503 
 
 266, — (d), — Beasley v. WilMnson, 13 Jur. 649 ; in which case a devise 
 
 by a sole surviving devisee in trust of all estates, which at his 
 decease might be vested in him as trustee, and which he comld 
 devise without breach of trust, was held by the Vice Chancellor 
 of England to pass Trust Estates, ■ 
 
 269. As to the right of the cestui que trust to vote for coroners ; see pp. 592, 593 
 
 277, note (6), add Re Bamhhead's Trust, 2 Kay & Johns. 560 
 
 288. Compare subsequent observations at p. 722 
 
 290, note (e), add Ohost v. Waller^ 9 Beav. 497. 
 
 82, 
 
 — 
 
 .(»), 
 
 84, 
 
 — 
 
 («), 
 
 93, 
 
 
 
 w, 
 
 93, 
 
 — 
 
 (I), 
 
 94, 
 
 — 
 
 if), 
 
 99, 
 
 — 
 
 (9), 
 
 108, 
 
 — 
 
 («). 
 
 111, 
 
 — 
 
 («), 
 
 116, 
 
 — 
 
 {/), 
 
 123, 
 
 — 
 
 m, 
 
 131, 
 
 — 
 
 (h), 
 
 135, 
 
 — 
 
 w, 
 
 138, 
 
 — 
 
 (6), 
 
 161, 
 
 — 
 
 (6); 
 
 163, 
 
 
 
 (»), 
 
 168, 
 
 — 
 
 (i), 
 
 253, 
 
 — 
 
 ^f), 
 
ADDENDA. XCV 
 
 PAGE 
 
 290, note (/), add Truich v. Lamprdl, 20 Beav. 116 ; Thompson v. Finch, 22 
 
 Beav. 316 
 311, — (a), — Re Fryer, 3 Jut. N. S. 485 ; decided ty Vice Chancellor Wood, 
 whiok supports Lord Northington's view. ^ 
 
 318, — {a), — SugdeuY. Crosslcmd, 3 Sm. & Giff. 192 
 
 319, — (d), — Wedderlurn v. Wedderhwrn, reported on the late hearing 
 
 before the Master of the Rolls, 22 Bear. 84. It appears 
 from a note hy the reporter at page 124, that the decision 
 was appealed from, but that the suit was compromised. 
 321, — (A), — Coxy. Parker, now reported, 22 Beav. 168 
 323, — (c), — As to the necessity for the pardon containing words of resti- 
 tution, see BvUoch v. Dodds, 2 B. & Aid. 277 
 329, — (e), — Sughes v. Empson, 22 Beav. 181 
 332, — (/), — Johnson v. Newton, 11 Hare, 160 ; Willcs v. Groom, 3 Drewry, 
 
 584 
 337, — (5), — Dnlce of Leeds Y. Earl Amherst, iO Be^arT. iZQ 
 342, dele the reference to 16 Beav. 76, at (/). 
 
 362, note (c). In Mayor of Berwick v. Murray, March 7, 1857, the Lord Chan- 
 cellor explained that, what he thought in Attorney-General v. 
 Alford was, "that, although there had been great misconduct 
 on the part of Mr. A., in not communicating to the proper autho- 
 rities the fact that trust monies had come to his hands, yet that 
 was not a sort of misconduct frhich enabled him (the Lord Chan- 
 cellor) to charge Mr. A. with more than the ordinary rate of 
 interest." Taken from short-hand writer's note of Judgment, 
 add Penny v. Avison, 3 Jur. N. S. 62 
 
 — ■ Pride v. Fooks, 2 Beav. 430 ; Wilson v. Peake, 3 Jur. N. S. 
 155 
 
 — Earper v. Munday, 2 Jur. N. S'. 1197 
 
 — Koeber v. Stwgis, 22 Beav. 588 
 
 — Warter v. Anderson, 11 Hare, 301 
 
 — Re Woodhurn, 5 Weekly Rep. 649, M. E. 423 ; in which case it 
 was decided by the full Court of Appeal (notwithstanding the con- 
 
 trary opinion previously entertained, see 3 K. & J. 41), that the 
 Court has jurisdiction under the Trustee Relief Act to make the 
 trustee pay costs. And see Re Jones, 3 Drewry, 679 
 416, — (c), — Devaynes v. Roiimson, 5 Weekly Rep. 509 
 446, lines 3 to 5. In reference to obtaining a vesting order in such a case, see Re 
 
 Wise, 5 De Gex & Sm. 415 
 448, add Colyer v. Finch, 3 Jur. N. S. 25, argument of Lord Chancellor in moving 
 
 the House. 
 454, — Clarke v. Panopticon, 3 Jur. N. S. 178 
 
 474, — Moore v. Petckell, 22 Beav. 172 ; in which case, however, Jon^s v. Scott, 
 1 R. & M. 255, reversed in D. P. 4 CI. & Fin. 382, appears 
 to have been altogether overlooked. 
 478, note (e), add Bittleston v. Cooke, 2 Jur. N. S. 758; ffutton v. Cruttwell, 1 
 Ell, & Bl. 15 
 — (/). — Smith Y. Hurst, 10 Hare, 30 
 493, — [b), — Attorney-General v. Governors of Dedham Grammar School, 3 
 
 Jur. N. S. 325 
 503, add Re Ashton Charity, 22 Beav. 288 
 
 614, note (a). See Re SMngley, 3 Mac. & Gor. 221 ; and Gregg y. Coaies, 2 Jur. N. S. 
 964 ; where the tenant for life was held liable under the parti- 
 cular words of the will in each case . 
 
 516, — (6), add Vance v. East Lancashire Railway Company, 3 K. & J. 50 
 
 517, — {g), — Worthimgton v. M'Craw, 26 L. J. N. S. (Ch.) 286 
 519, — {a), — Worthington v. M'Crcm, ubi su/pra. 
 
 521, — (a), — Forshaw v. Higginson, 3 Jur. N. S. 476 
 
 534, second paragraph. But compare the subsequent discussion, at page 567, upon 
 the question how far a trustee becomes such before the transfer to him of 
 the trust estate. 
 556, note (c), add Nicholson v. Tmtin, 3 K. & J. 159 
 568, — (c). The reference should be Appendix No. VII. 
 570, add Peaa-ce v. Pearce, 22 Beav. 248 
 
 572, second paragraph. See,^ Armstrong's Setflemiwt, 5 Weekly Rep. 448, and 
 Re Woodgaie's Settlement, ib., in reference to the question there adverted to. 
 
 364, 
 
 - («). 
 
 
 - (6). 
 
 367, 
 
 - W, 
 
 370, 
 
 - («), 
 
 373, 
 
 - (/), 
 
 380, 
 
 - («), 
 
XCVl ADDENDA. 
 
 FADE 
 
 577, note (/), add Nicholson v. Smith, 3 Jur. N. S. 313 
 
 578, — (6), — Nicholson v. Smith, 26 L. J. N. S. (Ch.) 312 ; 3 Jur. N. S. 313 
 580, — (d),. — Sugdem. Crosaland, 3 Sm. & ffif. 192 
 
 '582. Palmers Settlement, cor. Vice Chancellor Kindersley, April 18, 1857, costs of 
 
 ap^nting newi trustees ordered to be paid oat of the corpus. 
 583, note (h), 3,0.. Gardiner y. Dotimes, 22 Beav. 395 
 613, — (c), — Ex parte Boidton. 3 Jur. N. S. 425 
 — (g), — Elder v. Maclean, 3 Jur. H. S. 283 
 621. The reference to the Dower Act should be 3 & 4 W. IV. c. 105 
 640, note (5), add Eanchett t. Briscoe, 22 Beav. 496 
 
 662, — ■ (6), — Jones t. Bailey, 17 Beav. 582 ; but qvmre rightly decided. 
 668, — (o), — Beavan v. Earl of Oxford, now reported, 6 De Gex, M. & G. 492 
 
 670, — {d},) 
 
 and } add Wells v. Giibs, 22 Bear. 204 
 
 671, - (c), ) 
 
 672, — (as), — Kinderley t. Jervis, 22 Beav. 1 
 
 677, — (/), — Chattel interests accruing to a felon after conviction, but before 
 restoration to civil rights, are forfeited to the Crown. Roberts 
 v. Walker, 1 R. & M. 752. SecHs as to chattels accruing sub- 
 sequently to such restoration. Stokes v. ffolden, 1 Keen, 145 ; 
 Qough V. Davies, 2 E. & J. 623 ; Thompson's Trusts, 22 
 Beav. 606 
 
 688, — (c), — French v. French, 3 Jur. N. S. 428 
 
 722, — {a), — Attorney-General v. Magdalen College, was reversed in D. P., on 
 the 13th of June, 1857 
 
 745, — (a), — Mawksbee v. Mawksbee, 11 Hare, 230 
 
 749, — (e), — Attorney-General v. Magdalen Gollege has been reversed in D. P. 
 
 756, — (6), — Mayor of Berwick Y. Murray, 3 Jmt. N.S.I; Harford -7. Lloyd, 
 20 Beav. 310 
 
 762, — (g), — Matthias v. Matthias, 3 Jur. N. S., 429 
 
 766, — (c), — Oibbins v. Taylor, 22 Beav. 344 
 
 771, — (c), add Egbert v. Butter, 21 Beav. 560 
 
 772, — (jr). As to the discharge of a debt created by a breach of trust under the 
 
 Insolvent Acts, see Thompson v. Finch, 22 Beav. 316 ; on appeal, 
 25 1. J. N. S. (Ch.) 681 
 776, — (a), — Story v. Gape, 2 Jur. N.S. 706 
 778, — (a), — Robinson v. Wheelwright, 6 De Gex, M. & Gr., 535 ; Wilton v. 
 
 HUl, 25 L. J. N. S. (Ch.) 156 
 782, — if) — Re Ashton Charity, 22 Beav. 288 
 
 807 — (h), — Nor would such proceed? be forfeitable to the Crown as personalty 
 until the period for conversion arrives. Thompson's Trusts, 22 
 Beav. 506 
 809, — (a), — Wilkinson v. Duncan, 3 Jur. N. S. 530 
 819, — (a), — Exparte Stewart, 1 Sm. & Gif. 32 
 
 825. Add to first paragraph of Section 11 : — But of course where a power (asa power 
 of sale) is given to a trustee, the mere circumstance that the exercise of it 
 may vary the rights of the cestuis que trust will not be allowed to fetter the 
 free action of the trustee. Lantsberyr. Collier, 2 Kay & Johns, 709 
 
 851, note (ft), add Williams v. Salmond, 2 K. & J. 463 
 
 852, — (c), — Ogden v. Lovn-y, 25 L. J. N. S. Ch. 198 
 
 855, — (e) — Chaffers v. Baker, 5 Weekly Eep. 326 
 
 856, — (ft), — Rump v. Oreenhill, 20 Beav. 512 ; Ogden v. Lowry, 25 L. J. 
 
 N. S. (Ch.) 198 
 
 872 — (/), — Saunders v. Saamders, 5 'Weeldy Eep. 479 
 
 895, — (d) — The trust property having greatly increased, the Court, upon an 
 apphoation under the Act, appointed two additional trustees, 
 though the Instrument of Trust provided for two only. Boycotts 
 Settlemeni, 5 Weekly Eep. 15 
 
 901, — (a), — In Re Primrose's Settlement, 5 Weekly Eep. 508, the Master of 
 the Eolls was of opinion, that he had no jurisdiction under this 
 Act to order respondents to pay costs. But compare the 
 decision in Re Woodbum, 5 Weekly Eep. 649, under the Trustee 
 Belief Act. 
 
INTKODUCTORY VIEW 
 
 RISE AND PROGRESS OF TRUSTS. 
 
 The origin of trusts, or rather the adaptation of them to Origin of tnista. 
 the EngUsh law, may be traced to the ingenuity of fraud. 
 By the interposition of a trustee the debtor thought to 
 withdraw his property out of the reach of his creditor, the 
 freeholder to intercept the fruits of tenure from the lord of 
 whom the lands were held, and the body ecclesiastic to 
 evade the restrictions directed against the growing wealth 
 of the church by the statutes of mortmain. Another 
 inducement to the adoption of the new system was the 
 natural aniiety of mankind to acquire that free power of 
 alienation and settlement of their estates, which, by the 
 narrow policy of the common law, they had hitherto been 
 prevented from exercising. 
 
 Originally, the only pledge for the due execution of the The subpoena, 
 trust was the faith and integrity of the trustee ; but the 
 mere feeling of honour proving, as was likely, when 
 opposed to self-interest, an extremely precarious security, 
 John Waltham, Bishop of Salisbury, a Chancellor in the 
 reign of Richard the Second, originated the writ of mh- 
 poena, by which the trustee was liable to be summoned 
 
INTEODUCTION. 
 
 into Chancery, and compellable to answer upon oath the 
 allegations of his cestui que trust. No sooner was this 
 protection extended, than half the lands in the kingdom 
 became vested in feoffees to uses. Thus, in the words of 
 an old counsellor, the Parents of the trust were Fraud and 
 Fear, and a Court of Conscience was the Nurse («). 
 Trusts simple or Qf trusts there wcre two kinds : the simple trust, and 
 
 spefeial. 
 
 the special trust. The simple trust, which also passed by 
 Simple trust de- the name of a use, was defined in legal phraseology to be, 
 " a confidence, not issuing out of the land, but as a thing 
 collateral, annexed in privity to the estate of the land, and 
 to the person touching the land, scilicet, that cestui que use 
 should take the profit, and that the terre-tenant should 
 execute an estate as he should direct" {b). In order 
 rightly to understand what was meant by this rather 
 technical description, we shall briefly consider the prin- 
 ciples that were recognised by Courts of equity (for these 
 had the exclusive jurisdiction of trusts), first, with refer- 
 ence to the terre-tenant or feoffee to uses, and secondly, 
 with reference to the beneficial proprietor, or cestui que use. 
 Confidence in the With rcspect to the feoffcc to uscs, it was held to be 
 
 person. 
 
 absolutely indispensable that there should be confidence in 
 the person, sadi privity of estate. For want of the requisite 
 of personal confidence it was ruled that a corporation could 
 not stand seised to a use ; for how, it was said, could a 
 corporation be capable of confidence when it had not a 
 soul? Nor was it competent for the king to sustain the 
 character of trustee ; for it was thought inconsistent with 
 his high prerogative that he should be made responsible to 
 his own subject for the due administration of the estate. 
 
 (a) Attorney- General v. Sands, (b) Co. Lit. 272, b. 
 
 Hard. 491. 
 
INTRODUCTION. 
 
 And originally the subpoena lay against the trustee himself 
 only, and could not have been sued against either his heir 
 or assign ; for the confidence was declared to be personal, 
 and not to accompany the devolution of the property («). 
 But the doctrine of the Court in this respect was subse- 
 quently put on a more liberal footing, and it came to be 
 held that both heir and assign should be liable to the 
 execution of the use. An exception however was stUl 
 made in favour of a purchaser for valuable consideration 
 not affected by notice {b). 
 
 The meaning of privity of estate may be best illustrated Mvity of estate. 
 by an example. Had a feoffment been made to A. for life 
 to his own use, with remainder to B. in fee to the use of 
 
 C, and then A. had enfeoffed D. in fee, in this case, though 
 
 D, had the land, yet, as he did not take the identical estate 
 in the land to which the use in favour of C. was attached, 
 he was not bound by C.'s equitable claim. And, by the 
 same rule, neither tenant by the curtesy, nor tenant in 
 dower, nor tenant by elegit, was liable to the execution of 
 the use, for their interests were new and original estates, 
 and could not be said to have been impressed with the use. 
 So the lord who was in by escheat, a disseisor, abator, and 
 intruder, were not amenable to the subpoena ; for the first 
 claimed by title paramount to the creation of the use ; and 
 the three last were seised of a tortious estate, and held 
 adversely to the feoffee to uses. 
 
 With respect to the cestui que use, the principle upon Privity as regards 
 
 ^ ^ . the cestui que use. 
 
 which his whole estate depended was also what in legal 
 language was denominated jony2Yy. Thus, on the death of 
 the original cestui que use, the right to sue the subpoena 
 was held to descend indeed to the heir on the ground of 
 
 (o) 8 E. 4. 6 ; 22 E. 4. 6. (6) Keilway, 42, b. 
 
 B 2 
 
INTRODUCTION. 
 
 Special trust de- 
 fined. 
 
 Trusts applica- 
 ble to chattels. 
 
 haeres eadem persona cum antecessore ; but the wife of the 
 cestui que use, or the husband of a feme cestui que use, and 
 a judgment creditor, were not admitted to the same privi- 
 lege ; for their respective claims were founded not on 
 privity with the person of the cestui que use, but on the 
 course and operation of law. And for the like reason a 
 use was not assets, was not subject to forfeiture, and on 
 failure of heirs in the inheritable line did not escheat to 
 the lord. And as a use was regarded in the light of a 
 chose in action, that is, a mere right to enforce a claim 
 against another in a court of equity, the use was held not 
 to be assignable {a). 
 
 The special trust (for hitherto we have spoken of the 
 simple trust or use only) was where the conveyance to the 
 trustee was to answer some particular and specific purpose, 
 as upon trust to reconvey in order to change the line of 
 descent, upon trust to sell for payment of debts, &c. In 
 the special trust the duty of the trustee was not, as in the 
 use, of a mere passive description, but imposed upon him 
 the obligation of exerting himself in some active character 
 for the accomplishment of the object for which the trust 
 was created. In case the trustee neglected his duty, the 
 cestui que trust was entitled to file a bill in Chancery, and 
 compel him to proceed in the execution of his ofiice {b). 
 
 Both the use and the special trust were applicable to 
 chattels real and personal, as well as to freeholds ; but trusts 
 of chattels were for obvious reasons much less frequently 
 in practice. The amount of the property was small ; the 
 owner, even without the interposition of a trustee, had the 
 fullest control and dominion over it ; and a chattel inte- 
 
 («) Finch's case, 4 Inst. 85. Hen. 7. Append, to Treat, of Powers, 
 
 (b) See the case in the reign of No. 1. 
 
INTEODUCTION. 
 
 rest, as it followed the person, was equally subject to for- 
 feiture whether in the custody of a trustee, or in the hands 
 of the beneficial proprietor (a). But to the extent, what- 
 ever it was, to which trusts of chattels were adopted, they 
 were conducted upon the same principles, mutatis mutandis, 
 as were trusts of freeholds ; the right to sue a suijposna 
 turned equally on privity {b), and the interest of the cestui 
 que trust was held not to be assignable (c). 
 
 Such was the nature of trusts as they stood at common statutes affecting 
 
 trusts. 
 
 law J but the manifold frauds and mischiefs to which the 
 new system gave occasion, particularly " the great uu surety 
 and trouble arising thereby to purchasers," called loudly 
 from time to time for the enactment of remedial statutes. 
 One of the most important of these was the 1 Ric. 3. c. 1, 
 the substance of which may be well expressed in the terms 
 of the preamble, viz., that " all acts made by or against a 
 cestui que use should be good as against him, his heirs, and 
 feoifees in trust," in other words, that all dealings of the 
 cestui que use with the trust property should have precisely 
 the same legal operation, as if the cestui que use had him- 
 self possessed the legal ownership. To what interests the 
 legislature intended this statute to apply has not on all 
 hands been agreed. A feofi'ment mfee to uses was clearly 
 the case primarily intended. Upon a feoffment in tail, it 
 seems no use could have been declared, for a tenant in tail 
 was incapacitated by the statute de donis from executing 
 estates [d). With respect to a feoffment for life to uses, 
 there appears to be no reason upon principle (except so 
 far as the language of the act may be thought to furnish 
 any inference), and certainly there is no objection on the 
 
 (a) 5 H. 5. 3, 6. (c) Jenk. 244, o. 30. 
 
 (i) Witham's case, 4 Inst. 87. {d) Co. Lit. 19, b. 
 
INTEODUCTION. 
 
 score of authority, why the cestui que use might not have 
 passed the legal estate by virtue of the statutory power. 
 It has been contended by Mr. Sanders, that on a feoffment 
 for life no use could have been declared, on the ground 
 that, as the tenant for life held of the reversioner, the con- 
 sideration of tenure would have conferred a title to the 
 beneficial interest on the tenant for life himself {a). But 
 this reasoning can have no application where the estate for 
 life was not created, but was merely transferred, for then 
 the assignment of the life estate was not distinguishable in 
 this respect from a conveyance of the fee ; in each case 
 there was no consideration of tenure as between the grantor 
 and grantee, but in each case the services incident to 
 tenure were due from the grantee to a third person (1). 
 It is clear that the statute embraced uses of lands only, 
 and did not extend either to special trusts, or to trusts of 
 chattels : not to special trusts, because the trustee combined 
 in himself both the legal estate and the use, though com- 
 pellable in Chancery to direct them to a particular purpose; 
 and not to trusts of chattels, because the preamble and the 
 statute were addressed to cestui que use and liis Jieirs, and 
 io feoffees in trust. 
 
 (a) Sand, on Uses, o. 1, s. 6, div. 2. 
 
 In what cases a 
 use might have 
 been declared 
 upon an estate 
 for life. 
 
 (1) The state of the law upon this subject appears to have been as 
 follows :— 1. On the creation of an estate for life, had no use been men- 
 tioned on the face of the instrument, the tenant for life had held for his 
 own benefit in compensation of his services ; Perk. s. 535 ; B. N". C. 60 ; 
 Br. Feff. al. Uses, 10 ; and no use could have been averred in contradiction 
 to the use implied. See Gilb. on Uses, 67. 2. Had a use been expressly 
 declared by the deed, the tenant had been bound by the terms on which he 
 accepted the estate ; Perk. s. 537 ; Br. Feff. al. Uses, 10, 40. 3. Unless a 
 rent had been reserved, or consideration paid, in which case a Court of 
 equity would not have enforced the use against the purchaser for valuable 
 consideration ; B. N. C. 60 ; Br. Feff. al. Uses, 40. 4. On the assignment 
 of a life estate a use might have been declared, as on a conveyance in fee. 
 
INTEODUCTION. / 
 
 The mischiefs of the system increasing more and more, 27 h. 8. c. 10. 
 (the statute of Richard occasioning still greater evils than 
 it remedied, from the facility it gave to the cestui que use 
 and his feoffee, vrho had now each the povs^er of passing 
 the legal estate, of defrauding by collusion the bond fide 
 purchaser,) the legislature again interposed its authority 
 by the 27 Hen. 8. c. 10, and thereby annihilated uses as 
 regarded their fiduciary character, by enacting, that " where 
 any person stood seised of any hereditaments to the use, 
 confidence, or trust of any other person, or of any body 
 politic, such person or body politic as had any such use, 
 "confidence, or trust, should be deemed in lawful seisin of 
 the hereditaments in such like estates as they had in use, 
 trust, or confidence" (1). 
 
 Uses by the operation of this statute became merged in Speoiaitiustsand 
 
 ■' •"■ trusts of chattels 
 
 the legal estate ; but special trusts and trusts of chattels excepted from 
 
 '^ ' -^ -^ the statute. 
 
 were not within the purview of the act : the former, be- 
 cause the use, as well as the legal interest, was in the 
 trustee ; the latter, because a termor is said to be possessed, 
 and not to be seised of the property. 
 
 (1) As this statute does operate on tte use of a life estate, but does not Objections to the 
 apply to a seisin in tail, the doctrine of Mr. Sanders, that prior to the doctrine that no 
 27 Hen. 8. there was no use of a seisin either in tail or for life, seems open J^® '^"^ ■, *I 
 to the following objections : — ^1. That the statute in executing the use of a ^pon ^^ estate in 
 life estate operates on an interest which at the time of the enactment had tail or for life, 
 no existence ; and, 2ndly, That in not executing a use declared on a seisin 
 in taU, it operates differently on two estates that fall within precisely the 
 same principle. To meet the former objection, Mr. Sanders holds the 
 statute of Hen. 8. to be prospective, and distinguishes it from the statute of 
 Richard, which he considers not to be prospective, by observing that the 
 latter employs the word "use'' only, while the former has the additional 
 term of " trust ; " but to this it may be answered, that although the statute 
 of Richard does not contain the word trust, the preamhle does, and that the 
 distinction contended for between use and trust had no existence until a 
 comparatively recent period. See Altham v. Anglesey, Gilb. Eq. Rep. 17. 
 To obviate the latter objection, it is maintained by Mr. Sanders that tenant 
 in tail is within the statute of Hen. 8. ; an opinion which, it is submitted, is 
 directly opposed to the general stream of authority. Go. Lit. 19, b ; Shep, 
 Touch. 509 ; Gilb. on Uses, 11, and Sir E. Sugden's note, ibid. 
 
O INTRODUCTION. 
 
 Introduction of In the room of uses which were thus destroyed as they 
 
 the modern trust. 
 
 arose, the judges by their construction of the statute created 
 a novel kind of interest, since distinguished by the name 
 of Trust. Before the statute of Hen. 8. a person, to have 
 had the complete ownership, must have united the pos- 
 session of the land and the use of the profits. The pos- 
 session and the use were even at common law recognised 
 as distinct interests, though the cestui que use was left to 
 Chancery for his remedy {a). On a feoffment to A. to the 
 use of B. to the use of C, the possession was in A., the 
 use in B., and the limitation over to C. was disregarded as 
 surplusage. When the statute of Hen. 8. was passed, it 
 executed the estate in B. by annexing the possession to the 
 use ; but having thus become functus officio it did not, as 
 the act was construed, affect the use over to C. However, 
 Chancery, now that uses were converted into estates, 
 decreed C. to have a title in equity, and enforced the exe- 
 cution of it under the name of a trust (5). 
 wdltin-^""^ " Interests in land," said Lord Hardwicke, " thus be- 
 nfrSe.^""^ came of three kinds: first, the estate in the land itself, ' 
 the ancient common-law fee ; secondly, the use, which was 
 originally a creature of equity, but since the statute of 
 uses it drew the estate in the land to it, so that they were 
 joined and made one legal estate ; and, thirdly, the trust, 
 of which the common law takes no notice, but which 
 carries the beneficial interest and profits in a court of 
 equity, and is stiU a creature of that court, as the use was 
 before the statute" (c). 
 Trusts not with- This ucwly-created interest was held to be so perfectly 
 
 in statutes re- i ■/ 
 
 lating to usee. 
 
 (o) Lit. s. 462, 463 ; Co. Lit. 272, (6) See Hopkins v. Hopkins, 1 
 
 b; and see Carter, 197; Porey v. Atk. 591. 
 
 Juxon, Wels. 135 ; Megod's case, (c) Willet v. Sandford, 1 Ves. 
 
 aodb. 64. 186 ; Cory ton v. Helyar, 2 Cox, 342. 
 
INTRODUCTION. 
 
 distinct from the ancient use, that the statutory provisions, 
 by which many of the mischiefs of uses had been remedied, 
 as the 19 Hen. 7. c. 16, by which uses had been made 
 hable to writs of execution, and the 26 Hen. 8. c. 13, by 
 which they had become forfeitable to the Crown for treason, 
 were decided to have no application (1). However, the 
 trust took the likeness of the use, conforming itself to the 
 nature of special trusts and trusts of chattels, which had 
 never been disturbed by any legislative enactment. 
 
 To show how the principles of uses prevailed after the Trusts at first 
 
 . iii-i ■ n T-n ■ T 1 /• modelled after 
 
 statute 01 Hen. 8., it was held m the reign ot Jihzabeth [a), the pattern of 
 
 uses. 
 
 that the equitable term of a feme covert did not vest ■ 
 in the husband by survivorship, for a trust, it was said, 
 was a thing in privity, and in nature of an action, and no 
 remedy for it but by writ of sudpcena. And a few years 
 after in the same reign it was resolved by all the Judges 
 that a trust was a matter of privity and in nature of a c/iose 
 in action, and therefore was not assignable (3). And in 
 the sixth year of King Charles the First it was decided by 
 the Judges, that as a feme was dowable by act or rule of 
 law, and a Court of equity had no jurisdiction where there 
 was not fraud or covin, the widow of a trustee was entitled 
 beneficially to her dower out of the trust estate (c). 
 But during the reigns of Charles the First and Charles improvements 
 
 introduced by 
 Lord Notting- 
 
 (a) Witham's case, 4 Inst. 87 ; [b) Sir Moyl Finch's case, 4 Inst. 
 
 S. C. Popham, 106, sub nomina 86. 
 
 Johnson's case. (c) Nash v. Preston, Cro. Car. 
 
 190. 
 
 (1) As the statutes relating to uses have never been repealed, but are -Vftether in some 
 
 merely inoperative from the want of any subject-matter, the question cases the statutes 
 
 suggests itself whether they be not still applicable to a use created by a enacted against 
 
 bargain and sale not by indenture, or by indenture not duly enrolled ; for *tj^''o'^ "/^^te^" ™* 
 as the 27 Hen. 8. o. 10, is prevented from transferring the possession, the 
 old common-law use seems in this case to survive. See Shep. Touch. 508. 
 
10 INTRODUCTION. 
 
 the Second, and particularly during the Chancellorship 
 of Lord Nottingham, who, from the sound and compre- 
 hensive principles upon which he administered trusts, has 
 been styled the father of equity {a), the Courts gradually 
 threw off the fetters of uses, and disregarding the opera- 
 tion of mere technical rules, proceeded to establish trusts 
 upon the broad foundation of conformity to the course of 
 common law. " In my opinion," said Lord Mansfield, 
 " trusts were not on a true foundation tiU Lord Notting- 
 ham held the great seal ; but by steadily pursuing from 
 plain principles trusts in all their consequences, and by 
 some assistance from the legislature, a noble, rational, and 
 uniform system of law has since been raised ; so that trusts 
 are now made to answer the exigencies of families and 
 all purposes, without producing one inconvenience, fraud 
 or private mischief, which the statute of Hen. 8. meant to 
 avoid" ib). • 
 
 As to the changes that were successively introduced, it 
 
 Alterations made o •' 
 
 in trusts as re- -yjras held with reference to the trustee, that actual conft- 
 
 gards the trustee. '' ' ■' 
 
 dence in the person was no longer to be looked upon as 
 essential. A body corporate therefore was not exempted 
 from the writ of subpoena on the ground of incapacity (c) ; 
 and even the. king, notwithstanding his high prerogative, 
 was invested with the character of a Royal Trustee {d), 
 though the precise mode of enforcing the trust against him 
 was not exactly ascertained : to use the language of Lord 
 Northington, " the arms of equity were very short against 
 the Prerogative" {e). The subtle distinctions which had 
 
 (a) Philips V. Brydges, 3 Ves. 1 Ves. 468; Attorney-General v. 
 
 127 ; Kemp v. Kemp, 6 Ves. WJiorwood, 1 Ves. 536. 
 858. [d) See Pcnn v. Lord Baltimore, 
 
 (i) Burgess v. Wheate, 1 Ed. 1 Ves. 453 ; Earl of Kildare \. 
 
 223. Eustace, 1 Vern. 439. 
 
 (e) See Green v. Rutherworth, (e) Burgess y. l\nieate,\'E,A.1o&, 
 
INTEODUCTION. 11 
 
 formerly attended the notion of privity of estate were also 
 gradually discarded. Thus it was laid down by Lord 
 Hale, that tenant in dower should be bound by a trust as 
 claiming in the joer by the assignment of the heir [a] ; and 
 so it was afterwards determined by Lord Nottingham (3) : 
 and when an old case to the contrary was cited before 
 Lord Jeffries, it was unanimously declared both by the 
 bench and the bar to be against equity and the con- 
 stant practice of the •Court (c). A tenant by statute mer- 
 chant was held to be bound upon the same principle, for 
 he took, it was said, by the act of the party, and the 
 remedy which the law gave thereupon {d). But as to tenant 
 by the curtesy. Lord Hale gave his opinion, that one in 
 the post should not be liable to a trust without express 
 mention made hy the party who created it; and therefore 
 tenant by the curtesy should not be bound (e) : but his 
 Lordship's authority on this point was subsequently over- 
 ruled, and curtesy as well as dower was made to follow 
 the general principle. 
 
 With respect to the cestui que trust, or the person en- ^gt^^'^u'^trast. 
 titled to the subpoena, the narrow doctrine contained under 
 the technical expression of privity began equally to be 
 waived, or rather to be appHed with considerable latitude 
 of construction. " The equitable interest," said Justice 
 RoUe, " is not a thiny in action, but an inheritatice or 
 chattel, as the case may fall out" (/) ; and when once the 
 trust, instead of passing as a chose in action, came to be 
 treated on the footing of an actual estate, it soon drew to 
 
 {a) Pawletty, Attorney-General, {d) Pawletty. Attorney-Oeneral, 
 
 Hard. 469. Hard. 467, per Lord Hale. 
 
 (6) Noel V. Jevon, Freem. 43. (e) S. C. lb. 469. 
 
 (e) MS. note by an old band in (/) King v. Holland, Styl. 21 ; 
 
 tbe copy of Croke's Reports in Lin- see Cashurne v. Casburiie, 2 J. & 
 
 coin's Inn Library, Cro. Car. 191. W. 196. 
 
12 INTRODUCTION. 
 
 it all the rights and incidents that accompanied property 
 at law : thus, the equity of the cestui que trust, though a 
 bare contingency or possibility {a), was admitted to be 
 assignable {b) ; and Witkam's case, that a husband who 
 survived his vidfe could not, for want of privity, claim her 
 equitable chattel, was declared by the Com't to be no 
 longer an authority (c). So a judgment creditor, it was 
 held by Lord Nottingham, might prosecute an equitable 
 fieri facias {d) ; and though Lord KeejJter Bridgman refused 
 to allow an equitable elegit (e), it is probable, had the 
 question arisen before Lord Nottingham, his Lordship 
 would in this, as in other cases, have acted on a more 
 liberal principle; at all events, the creditor's right to relief 
 in this respect has since been established by the current of 
 modern authority (/). Again, a trust was decided by 
 Lord Nottingham to be assets in the hands of the heir {ff) ; 
 and though Lord Guildford afterwards overruled this 
 decision Qi), yet Lord Nottingham's view of the subject 
 appears to have been eventually established {i). Curtesy 
 also was permitted of a trust estate, though the widow of 
 cestui que trust could never make good her title to dower (^) ; 
 " not," said Lord Mansfield, " on reason or principle, but 
 because wrong determinations had misled in too many 
 instances to be then set right " © ; or rather, as Lord 
 Redesdale thought, because the admission of dower would 
 
 («t) Warmstrey v. Tanfield, 1 Ch. (e) Pratt v. Colt, Freem. 139. 
 
 Re. 29 ; Lord Cornhury v. Middle- {/) See infra, 
 
 ton, 1 Ch. Ca. 208; Gorini/ v. (ff) Grey v. Colville, 2 Ch. Ee. 
 
 Bicherstaff, 1 Ch. Ca. 8. 143. 
 
 (J) Courthope v. Heyman, Cart. {h) Creed y. Covile, 1 Vern. 172. 
 
 25, per Lord Bridgman. (i) See infra. 
 
 (c) Einy v. Holland, Al. 15. [k) Colt v. Colt, 1 Ch. Re. 254. 
 
 {d) Anon, case, cited Sahh v. {I) Burgess v. Wheate, 1 Ed. 
 
 Wastall, 1 P. W. 445 ; Pit v. Hunt, 224. 
 2 Ch. Ca. 73. 
 
INTRODUCTION. 
 
 13 
 
 have occasioned great inconvenience to pnrchasers — a 
 mischief that in the case of curtesy vras not equally to be 
 apprehended («). 
 
 Lord Mansfield was for carrying the analogy of trusts to Lord Mansfield's 
 
 . . doctriBes. 
 
 legal estates beyond the legitimate boundary. " A use or 
 trust," he said, " was heretofore understood to be merely 
 as an agreement, by which the trustee and all claiming 
 from him in privity were personally liable to the cestui que 
 use, and all claiming under him in like privity ; nobody in 
 the post was entitled under or bound by the agreement : 
 but now the trust in this Court is the same as the land, 
 and the trustee is considered merely as an instrument of 
 conveyance " {IS). And in the application of this principle 
 his Lordship argued, that the estate of the cestui que trust 
 was subject to escheat, and that, on failure of heirs of the 
 trustee, the lord who took by escheat was boxmd by the 
 trust. But to these propositions the Courts of equity have principles go- 
 never yet assented. The limit to which the analogy of the present day. 
 trusts to legal estates ought properly to be allowed was well 
 enunciated by Lord Northington in the case of Burgess v. 
 Wlieate. " It is true," he said, " this Court has considered 
 trusts as between the trustee, cestui que trust, and those 
 claiming under them, as imitating the possession ; but it 
 would be a bold stride, and, in my opinion, a dangerous 
 conclusion, to say therefore this Court has considered the 
 creation and instrument of trust as a mere nullity, and the 
 estate in all respects the same as if it still continued in the 
 seisin of the creator of the trust, or the person entitled 
 to it : for my own part / know no instance where this 
 Court has permitted the creation of the trust to affect the 
 
 (a) See infra. (6) Burgess v. Wheats, 1 Ed. 
 
 226. 
 
1^ ^ INTEODUCTION. 
 
 right of a third person' [a) ; that is, to illustrate the 
 principle by instances, a tenant by the curtesy, or in 
 dower, or by elegit, as claiming through the cestui que 
 trust or trustee, though in the post, is bound by and may 
 take advantage of the trust ; but, according to Lord 
 Northington, the lord, who comes in by escheat is not 
 in any sense a privy to the trust, and therefore can 
 neither reap a benefit from it on failure of heirs of the 
 cestui que trust, nor is bound by the equity on failure of 
 heirs of the trustee ij)). 
 
 (a) Burgess v. Wheate, 1 Ed. 842 ; but whether a lord taking the 
 
 250, 251. legal estate by escheat shall or not 
 
 (6) It is clear that the lord cannot be bound by the trust, has never 
 
 acquire an equitable interest by been decided. See Evans v. Brown, 
 
 escheat ; Burgess v. Wheate, 1 Ed. 5 Beav. 114 ; Viscount Downe v. 
 
 177 ; Cox y. Parher, 2 Jur. N. S. Morris, 3 Hare, 409. 
 
CHAPTER I. 
 
 DEFINITION OF A TRUST. 
 
 As the doctrines of trusts are equally applicable to real and DeEnitionofa 
 personal estate, and the principles that govern the one will be 
 found, mutatis mutandis, to govern the other, we cannot better 
 describe the nature of a trust generally, than by adopting 
 Lord Coke's definition of a use, the term by which, before the 
 Statute of Uses, a trust of lands was designated {a). A trust, 
 in the words applied to the use, may be said to be " A con- 
 fidence reposed in some other, not issuing out of the land, but as 
 a thing collateral, annexed in privity to the estate of the land, and 
 to the person touching the land, for which cestui que trust 
 has no remedy hut hy subpoena in Chancery " (&). 
 
 1. It is a confidence ; not necessarily a confidence expressly A confidence, 
 reposed by one party in another, for it may be raised by im- 
 plication of law: and the trustee of the estate need not be 
 actually capable of confidence, for the capacity itself may be 
 supplied by legal fiction, as where the administration of the 
 trust is committed to a body corporate ; but a trust is a con- 
 fidence, as distinguished from jus in re and jus ad rem, for it is 
 neither a legal property, nor a legal right to property (c). 
 
 3. It is a confidence reposed in some other ; not in some other Reposed in some 
 than the author of the trust, for a person may convert himself °* ^^' 
 into a trustee, but in some other than the cestui que trust ; for 
 as a man cannot sue a subpoena against himself, he cannot be 
 said to hold upon trust for himself ((i). If the legal and 
 
 (o) Burgess v. Wheate, 1 Ed. (c) Bacon on Uses, 5. See Waine- 
 
 248, per Lord Keeper Henley ; wright v. Elwell, 1 Mad. 634. 
 
 Lloyd V. Spillet, 2 Atk. 150, per {d) Goodright v. Wells, Dougl. 
 
 Jiord Hardwicke. 747, per Lord Mansfield. 
 
 (6) Co. Lit. 272, b. 
 
estate. 
 
 16 MEEGEE. [CH. I. 
 
 equitable interests happen to meet in the same person, the 
 equitable is forever absorbed in the legal; as if A. be seised 
 of the legal inheritance ex parte paternd, and of the equitable 
 ex parte maternd, upon the death of A. the heir of the maternal 
 line has no equity against the heir of the paternal (a). And 
 the same rule prevails as to leaseholds for lives (b). If, for 
 instance, the legal estate in a freehold lease be vested in 
 a husband and his heirs, in trust for the wife and her heirs, 
 the child who is the heir of both, and takes the legal estate 
 ex parte paternd, and the equitable estate ex parte maternd, 
 will, by the merger of the equitable in the legal, become seised 
 both at law and in equity ex parte paternd, and the sub- 
 sequent devolution will be regulated accordingly. 
 How far the g^t this rule holds only where the legal and equitable 
 
 eqiutable merges _ <= j. 
 
 in the legal estates are co-extensive and commensurate; for if a person 
 
 be seised of the legal estate in fee, and have only a partial 
 equitable interest, to merge the one in the other might occasion 
 an injurious disturbance of rights. Thus before the Fiaes and 
 Becoveries Act (c), if lands had been conveyed to A. and his 
 heirs, in trust for B. in tail, with remainder to A. in fee, had 
 the equitable remainder limited to A. been converted into a 
 legal estate, it would not have been barrable by B.'s equitable 
 recovery ((i). Lord Alvanley upon this case observed — "It 
 was maintained, that where there is in the same person a legal 
 and equitable interest, the former absorbs the latter. I admit 
 that where he has the same interest in both, he ceases to have 
 the equitable estate, and has the legal estate, upon which the 
 Court will not act, but leaves it to the rules of law ; but I do 
 not by any means admit, that, where he has the whole legal 
 estate and a partial equitable estate, the latter sinks into the 
 former. It has been very ably argued, that there seems an 
 absurdity in saying he had an equitable remainder for himself, 
 
 (a) Selby v. Alston, 3 Ves. 339 ; (b) Creagh v. Blood, 3 Jones & 
 
 Ooodright v. Wells, Dougl. 747, Lat. 133. 
 
 per Lord Mansfield ; Wade v. Paget, (c) 3 & 4 W. 4. c. 74. 
 
 1 B. C. C. 363; S. C. 1 Cox, 74; {d) Philips v. Brydges, 3 Ves. 
 
 Philips v. Brydges, 3 "Ves. 126, per 120; Pohinson v. Cuming, Rep. t. 
 
 Lord Alvanley ; Finch's case, 4 Talb. 164 -,8.0.1 Atk. 473 ; and 
 
 Inst. 85, 3rd resolution ; Harmoodv. see Boteler v. AlUngton, 1 B. C. C. 
 
 Oglander, 8 Ves. 127, perhovi. Eldon. 72 ; Merest v. James, 6 Mad. 118. 
 
OH. I.] MEBGEB. 17 
 
 ■where he had the whole legal fee ; hut it is much more absurd 
 to say he had a legal remainder. It is impossible — it would 
 be a solecism— ^to state to a lawyer that he could have an 
 estate in fee with a remainder in tail expectant in law upon 
 it ; but there is no such absurdity in saying he might have 
 the whole legal estate, and a limited interest in the beneficial 
 interest of that estate. When I am told that legal and equitable 
 estates cannot subsist in the same person, it must be under- 
 stood always with this restriction — that it is the same estate in 
 law and in equity : for then there is no person upon whom the 
 Court can act — the equitable estate is absorbed — the better 
 phrase is, that it no longer exists ; but when for the purposes 
 of justice it is necessary it should exist, that circumstance shall 
 not put a party entitled into a worse condition (a)." 
 
 Again, in Habergham v. Vincent (b), a testator devised 
 copyhold lands to five trustees, upon trust to convey the 
 estate to certain uses, which failed, with an ultimate limitation 
 to the heirs of the surviving trustee. On a bill filed by the 
 heir-at-law of the testator against the surviving trustee. Lord 
 Loughborough observed — "It is impossible to contend that 
 under the limitation to the right heir of the surviving trustee, 
 the trustee can take the fee beneficially.'' But on a sub- 
 sequent day, he added — "I am not so clear that if anything 
 passed under the remainder to the right heir of the surviving 
 trustee, it would not be the fee to the trustee himself. Other- 
 wise I must declare him a trustee for his own right heir. I 
 doubt whether a man having the legal estate himself could be 
 a trustee of the equitable interest for his own right heir. I 
 take it a man owes no duty to his own heir-at-law." But 
 eventually the Court arrived at a different conclusion, and a 
 settlement was directed, so as to give the ultimate remainder 
 to the right heir of the trustee as a purchaser. 
 
 In the case of a mortgage in fee it is said, a man and his in what sense 
 heirs are trustees for himself and his executors (c) ; the meaning i^^rustee fw 
 is that, until a release, or foreclosure of the equity of redemp- ^^^^^^ ^^^ 
 tion, the interest of the mortgagee is of the nature of per- 
 
 (o) Philips V. Brydges, 3 Yes. (c) Kendal v. MiefieU, Barn. 50, 
 
 125 — 127. per Lord Hardwicke, 
 
 (6) 2 Ves. jun. 204. 
 
18 
 
 PEIVITY. 
 
 fCH. I. 
 
 Trust not issuing 
 out of the land, 
 tut collateral to 
 it. 
 
 Annexed in 
 privity to the 
 estate. 
 
 Extent of the 
 term privity of 
 estate. 
 
 sonalty, and passes on his death to his personal representative ; 
 the heir, therefore, takes the estate upon trust for the executor. 
 A release or foreclosure, unless it happen in the lifetime of the 
 mortgagee, comes too late after his decease to alter the character 
 of the property, for, as the tree falls, so it must lie (a) (1). 
 
 3. A trust is not isswing out of the land, but as a thing col- 
 lateral to it. A legal charge, as a rent, issues directly out of 
 the land itself, and therefore hinds every person, vs^hether in the 
 per or post, whether a purchaser for valuable consideration or 
 volunteer, whether with notice or without ; but a trust is not 
 part of the land, but an incident made to accompany it, and 
 that not inseparably, but during the continuance only of cer- 
 tain indispensable adjuncts ; for — ■ 
 
 4. A trust is annexed in privity to the estate, that is, must 
 stand or fall with the interest of the person by whom the trust 
 is created ; as, if the trustee die and leave no heir, it was the 
 opinion of Lord Northington that the lord who takes by 
 escheat is not a privy to the estate upon which the trust was 
 ingrafted, and therefore will not be bound by it, but will hold 
 beneficially (6). And upon the same principle, if the trustee be 
 disseised, the tortious fee is adverse to that impressed with the 
 trust, and therefore the equitable owner cannot sue the dis- 
 seisor in Chancery, but must bring an action against him at 
 law in the name of the trustee (c). 
 
 Duriag the system of uses, and also while trusts were in their 
 infancy, the notion of privity of estate was not extended to 
 tenant by the curtesy, or in dower, or by elegit, or ia fact to 
 any person claiming by operation of law, though through the 
 trustee ; but in this respect the landmarks have since been 
 
 {a) Canning v. Hichs, 2 Ch. Ca. 
 187 ; 8. C.l Vern. 412 ; Tabor v. 
 Grover, 2 Vern. 367 ; -S. C. 1 Eq. 
 Oa. Ab. 328 ; Clerhson v. Bowyer, 
 2 Vern. 66 ; Gohe v. Earl of Car- 
 lisle, cited ib. ; Wood v. Nosworthy, 
 cited Awdley v. Awdley, 2 Vern. 193. 
 
 (6) See Viscount Downe v. Morris, 
 3 Hare, 394 ; Evans v. Brown, 5 
 Beav. 114. 
 
 (c) Finch's case, 4 Inst. 85, 1st 
 resolution ; and see Gilbert on Uses, 
 edited by Sir E. Sugden, p. 429, 
 note 6. 
 
 (1) But if tbe heir foreclose, or obtain a release of the equity of redemp- 
 tion, it is said he may keep the estate, and pay the executor the debt only. 
 Clerhson v. Bowyer, 2 Vern. 67, per Cur. But quasre. 
 
CH. I.] PRIVITY. ]9 
 
 carried forward, and at the present day a trust follows the 
 estate into the hands of every one claiming under the trustee, 
 whether in the per or post. A lord by escheat, as Lord 
 Northington thought, would be still an exception; and a 
 disseisor is unquestionably not bound, for he asserts a new 
 and adverse estate. 
 
 5. A trust is annexed in privity to the person. To entitle the Trust annexed in 
 cestui que trust to relief in equity it is not only necessary he p^J.^^ *° ^^^ 
 should prove the creation of the trust, and the continuance of 
 
 the estate supporting it, but should also evince that the assign 
 is personally privy to the equity, and therefore amenable to the 
 subpoena. If it can be shown that the assign had actual notice, 
 then, whether he paid a valuable consideration or not, he is 
 plainly privy to the trust, and bound to give it effect ; but if 
 actual notice cannot be proved, then, if he be a volunteer, the 
 Court will still affect him with notice by presumption of law ; 
 but if he be a purchaser, the Court must believe, that, having 
 paid the full value of the estate, he was ignorant, at the time 
 he purchased, of another's equitable title. A purchaser for 
 valuable consideration without notice is therefore the only 
 assign against whom privity annexed to the person cannot 
 at the present day be charged. 
 
 6. The cestui que trust has no remedy hut by subpoena in No remedy of the 
 Chancery ; and by Chancery must be understood, not exclu- tat in Chancery, 
 sively the court of the Lord Chancellor, but any court invested 
 
 with an equitable jurisdiction, as opposed to common-law 
 courts (a), and spiritual courts (6), neither of which have any 
 
 (a) Short v. MelKsh, 2 Atk. 612, the Court acted. In Moper v. Sol- 
 
 per Lord Hardwioke ; Allen v. land, 3 Ad. & Ell. 99, a cestui que 
 
 Imlett, P. L. Holt's Eep. 641 ; Hoi- trust recovered upon an action of 
 
 land's case, Styl. 41, per RoUe, J. ; debt for money had and received on 
 
 Queen v. Trustees of Orton Vicarage, proof of the admission by the trustee 
 
 14 Q,. B. Re. 139; Vanderstegen v. that he had a balance in hand for 
 
 Witham, 6 M. & W. 457 ; Bond v. the plaintiff. 
 
 iV"Mrse,10Q.B.Ee.244. InTAeQweere (6) Miller's case, 1 Freem. 283 ; 
 
 V. Abrahams, 4 Q,. B. Re. 157, the King v. Jenkins, 3 Dowl. & Ryl. 
 
 Court professed to proceed upon the 41 ; Farrington v. Knightly, 1 P. 
 
 legal right, so that the principle W. 549, per Lord Parker ; Edwards 
 
 was not disturbed, though there v. Graves, Hob. 265 ; Witter v. 
 
 may be a question how far the facts Witter, 3 P. W. 102, per Lord 
 
 justified the assumption upon which King. 
 
 2 
 
20 COURTS OF EQUITY. [CH. I. 
 
 cognisance in matters of trust. A common-law court could 
 never indeed, from the defective nature of its proceedings, have 
 specifically enforced a trust ; but at one time it affected to 
 punish a trustee in damages for breach of the implied con- 
 tract (a) : an exercise of authority, however, clearly extra- 
 provincial, and long since abandoned (&). Should a spiritual 
 court attempt to meddle with a trust, the Court of Queen's 
 Bench might be moved to issue a prohibition (c). 
 
 (a) Megod's case, Godb. 64 ; lish, 2 Atk. 612, per Lord Hard- 
 
 Jevon V. Bush, 1 Vem. 344, per ynoke; Holland's case, &ty\. il, per 
 
 Lord Jeffries ; Smith v. Jameson, EoUe, J. ; Allen v. Imlett, F. L. 
 
 5 T. E. 603, per Buller, J. ; and see Holt's Eep. 14. 
 
 1 Eq. Ca. Ab. 384, D. {a). (c) Petit v. Smith, 1 P. W. 7 ; 
 
 (6) Barnardiston v. Soame, 1 Edwards v. Freeman, 2 P, "W. 441, 
 
 State Trials, 443, Harg. ed., per per Sir J. Jekyll; Barker v. May, 
 
 Chief Justice North ; Sturt v. Mel- 4 M. & E. 386. 
 
CHAPTER II. 
 
 CLASSIFICATION OF TRUSTS, 
 
 The first and natural division of trusts is into simple and Trusts simple or 
 special. ^P^"'^'- 
 
 The simple trust is where property is vested in one person simple trust. 
 upon trust for another, and the nature of the trust, not being 
 qualified hj the settlor, is left to the construction of law. In 
 this case the cestui que trust has jus hahendi, or the right to 
 be put in actual possession of the property, and jus disponendi, 
 or the right to call upon the trustee to execute conveyances of 
 the legal estate as the cestui que trust directs. 
 
 The special trust is where the machinery of a trustee is intro- Special trust. 
 duced for the execution of some purpose particularly pointed 
 out, and the trustee is not, as before, a mere passive depositary 
 of the estate, but is called upon to exert himself actively in the 
 execution of the settlor's intention ; as where a conveyance is 
 to trustees upon trust to sell for payment of debts. 
 
 Special trusts have again been subdivided into ministerial Special trusts 
 (or instrumental) and discretionary. The former, such as mental or discre- 
 demand no further exercise of reason or understanding than ti™ary. 
 every intelligent agent nlust necessarily employ; the latter, 
 such as cannot be duly administered without the application of 
 a certain degree of prudence and judgment. 
 
 A trust to convey an estate must be regarded as minis- 
 terial; for, provided the cestui que trust be put in possession 
 of the estate, it is perfectly immaterial to him by whom the 
 conveyance is executed. 
 
 Mr. Fearne was of opinion, that even a trust for sale should r]ij.„gt ^^ ggjj j^^j^ 
 be considered as ministerial ; " for the price," he said, " is not ^ ?^^' ^'5*™^ J° 
 arbitrary, or at the trustee's discretion, but to be the best that 
 can be gotten for the estate, which is a fact to be ascertained 
 
23 
 
 THE DIPFEEENT KINDS OF TRUSTS. 
 
 [CH. n. 
 
 Mixture of trust 
 and power. 
 
 Distinguislied 
 from trust with 
 power annexed. 
 
 Trusts lawful 
 and unlawful. 
 
 independently of any discretion in the trustee" {a). But there 
 is much room for judgment in the manner of proceeding to a 
 sale, and the precautions that are taken wiU. have a material 
 influence upon the price. 
 
 A fund in trustees upon trust to distribute among such 
 charitable objects as the trustees shall think fi.t.(&), or an 
 advowson conveyed to them upon trust to elect and present a 
 proper preacher (c), is clearly a discretionary trust ; for the 
 selection of the most deserving objects in the first instance, 
 and the choice of the best candidate in the second, is a matter 
 calling for serious deliberation, and not to be determined upon 
 without due regard to the merits of the candidates, and all the 
 particular circumstances of the case. 
 
 A trust " to distribute at the discretion of the trustees " is 
 frequently designated in thebooks as a mixture of trust and 
 power (d), that is,' a trust of which the outline only was sketched 
 by the settlor, while the details were to be filled up by the good 
 sense of the trustees. The exercise of such a power is impe- 
 rative, while the mode of its execution is matter of judgment 
 and discretionary. 
 
 A mixture of trust and power is not to be confounded with 
 a common trust to which a power is annexed ; for, in the latter 
 case, the trust itself is complete, and the power, being but an 
 accessory, may be exercised or not, as the trustee may deem it 
 expedient ; as where lands are limited to trustees with a power 
 of varying the securities : for in such a case the power forms 
 no integral part of the trust, but is merely collateral and sub- 
 sidiary, and the execution of it, in the absence of fraud, cannot 
 be compelled by application to the Court. 
 
 Again, trusts may be divided, with reference to the object in 
 view, into lawful and unlawful. The former, such as are 
 directed to some honest purpose, as a trust to pay debts, &c., 
 which are called by Lord Bacon Intents or Confidences, and 
 will be administered by the Court. The latter are trusts 
 
 (a) Fearne's P. "W. 313. 
 
 (6) Attorney- General v. Glee/, 1 
 Atk. 356 ; Ilihlard v. Lambe, Amb. 
 309; Cole v. IVade, 16 Ves. 27; 
 Gower v. Mainwaring, 2 Ves. 7. 
 
 (c) Attorney- General v. Scott, 
 1 Ves. 413 ; Potter v. Chapman,, 
 Amb. 98. 
 
 {d) Cole V. Wade, 16 Ves. 43; 
 Gower v. Mainwaring, 2 Ves. 89. 
 
CH. n.] THE DIFFEKENT KINDS OP TRUSTS. 23 
 
 created for the attainment of some end contravening the policy 
 of the law, and therefore not to be sanctioned in a forum pro- 
 fessing not only justice but equity, as a trust to defraud cre- 
 ditors or to defeat a statute. Such are designated by Lord 
 Bacon as Frauds, Covins, or Collusions {a). 
 
 Another division of trusts is into public and private. By Trusts public 
 public must be understood such as are constituted for the benefit 
 either of the public at large or of some considerable portion 
 of it answering a particular description. To this class belong 
 all trusts for charitable purposes, and indeed public trusts and 
 charitable trusts may be considered as synonymous expres- 
 sions (6). In private trusts the beneficial interest is vested 
 absolutely in one or more individuals who are, or within a 
 certain time may be definitively ascertained, and to whom, 
 therefore, collectively, unless under some legal disability, it is 
 competent to control, modify, or determine the trust; the 
 duration of trusts of the latter kind cannot be extended by 
 the wiU of the settlor beyond the limits of legal limitations, 
 viz., a life or lives in being with an ingraftment of twenty-one 
 years. But the objects of a public trust are an uncertain and 
 fluctuating body, and the trust itself is of a permanent and 
 lasting character, and is not confined within the limits pre- 
 scribed to a settlement upon a private trust (c). 
 
 (a) Bac. on Uses, 9. Attorney- General v. Corporation of 
 
 (6) See Attorney- General v. As- Shrewsbury, 6 Beav. 220, 
 pinall, 2 M. & Cr. 622 ; Attorney- (c) Christ's Hospital v. Grainger, 
 
 General v. Keelis, 2 S. & S., 76; 1 Mac. & Gord. 460. 
 
CHAPTER III. 
 
 OF THE PARTIES TO THE CREATION OP A TRUST. 
 
 Now that we have defined and distributed trusts, we shall 
 next enter upon the creation of them ; first, by the act of a 
 party, and secondly, by operation of law. Upon the subject 
 of the former class, we propose to treat. First, Of the necessary 
 parties to the creation of a trust ; Secondly, "What property may 
 be made the subject of a trust; Thirdly, With what formahties 
 a trust may be created ; Fourthly, What may be the object or 
 scope of a trust ; and Fifthly, In what language a trust may 
 be declared. In this chapter, we shall consider the necessary 
 parties to a trust. 
 
 SECTION I. 
 
 as THE SETTLOK. 
 
 The creation of a trust implies the presence of three persons, 
 or at least of three characters, namely, — 1, a settlor; 3, a 
 trustee ; and 3, a cestui que trust. 
 General power of As the creation of a trust is a modification of property in a 
 crea ing a nis . pg^j.^.jg^2g^j. form, it may be laid down as a general rule that 
 whoever is competent to deal with the legal estate, may vest 
 it in a trustee for the purpose of executing the settlor's in- 
 tention. 
 The cro-wn. The Sovereign, as to his private property, may, by letters 
 
 patent, grant it to one person upon trust for another (a). But 
 the trust must appear upon the face of the letters patent ; for 
 if the grant be expressed to be made to one person, a trust 
 in favour of another cannot be proved by parol in favour of 
 
 (o) Bao. on Uses, 66. 
 
CH. m. S. l.J THE SOVEREIGN.— CORPOBATIONS. 35 
 
 another, for this would contradict the nature of the instru- 
 ment which purports to be an act of bounty to the grantee (a). 
 However, if the grant be to A. and his heirs with the limitation 
 of a beneficial interest to A. for life only, a trust of the re- 
 mainder will not pass to the- grantee, but will result to the 
 crown, for the presumption of bounty as to the whole is 
 rebutted by the declared intention as to the part (&). 
 
 All prizes taken in war vest in the sovereign, and rtiay by Prizea. 
 the royal warrant be granted to trustees upon trust to dis- 
 tribute in a prescribed form amongst the captors; but an 
 instrument of this kind is held not to vest an interest in the 
 cestuis que trust which they can enforce in equity, but to re- 
 semble a power of attorney for reducing the prizes into pos- 
 session, or a creditor's deed to which the creditors are not 
 parties, and may at any time be revoked or varied at the 
 pleasure of the sovereign before the general distribution (c). 
 
 The crown m.ay loj will bequeath its private personal pro- WiU of the sove- 
 reign, 
 perty to one person in trust for another, but the will must 
 
 be in writing and under the sign manual (d), though the 
 Ecclesiastical Court has no jurisdiction to admit it to pro- 
 bate (e). 
 
 As to the power of Corporate Bodies to create a trust, it Corporations, 
 was competent to them, before the late Municipal Corporations 
 Act(/), (subject as to ecclesiastical corporations to the restrain- 
 ing statutes of Elizabeth), to alienate-, their property, and as 
 a consequence to vest it in a trustee (g). But now civil cor- 
 porations are themselves trustees of their property, for the 
 public purposes prescribed by the Municipal Corporations 
 Act, and are debarred from ahenating their real (h) or personal 
 estate (i) without the consent of the Lords of the Treasury. 
 
 A Feme Covert may create a trust of real estate, but it must Feme oovert. 
 be with the consent of her husband, and there must be all 
 the attendant formalities required by the Fines and Eecoveries 
 
 (a) Fordyee v. Willis, 3 B.C.C. 577. (/) 5 & 6 W. 4. c. 76. 
 
 (6) Bao. on Uses, 66. (g) Colchester v. Lowten, 1 V. & 
 
 (c) Alexander v. Buhe of Wei- B. 226. 
 
 lington, 2 R. & M. 35. (A) 5 & 6 W. 4. c. 76, s. 94. 
 
 (d) 39 & 40 G. 3. 0. 88, s. 10. («) Attorney - General v. As- 
 
 (e) "Williams on Executors, 13, pinall, 2 M. & Cr. 613 ; Attorney- 
 5th ed. General v. Wilson, Cr. & Ph. 1. 
 
26 
 
 FEMES COVEET. 
 
 [CH. in. S. 1. 
 
 Act. It is somewhat singular that by our law a married 
 woman is under a total disability as to her choses en actio%. 
 The husband, however, may create a trust of them sub modo ; 
 that is, if they be reduced into possession during the coverture, 
 the settlement will be unimpeachable, but if they remain choses 
 en action at the death of the husband, the wife will be entitled 
 to them by survivorship. And the husband may, subject to 
 the wife's equity to a settlement {a), create a trust of the 
 wife's equitable chattel real (6), unless the chattel be of such a 
 nature that it cannot possibly fall into possession during the 
 coverture (c). 
 
 Separate use. As regards property settled to the separate use of a feme 
 
 covert, without a clause against anticipation, she is to all intents 
 and purposes considered a feme sole, as if real estate be 
 conveyed to a trustee and his heirs, or if personal estate be 
 vested in a trustee and his executors upon trust for the feme 
 covert, for her sole and separate use, and to be at her sole 
 disposal as to the fee-simple in the one case and the absolute 
 interest in the other, she has the entire control and may 
 exercise her ownership or implied power of appointment by 
 creating a trust, extending even beyond the coverture. If the 
 feme covert be tenant for life only to her separate use without 
 any clause against anticipation, she has full power to make a 
 settlement of her life estate. Where the power of anticipation 
 is restrained the feme covert of course can make no disposition 
 of the property, except as to the annual produce which has 
 actually become due. 
 
 Infanta. If ^Q Infant before the Fines and Eecoveries Act had levied 
 
 a fine or suffered a recovery, he might also have declared the 
 uses(ci), and unless the fine or recovery had been reversed 
 by him during his nonage he had been bound by the decla- 
 ration ie), but deeds have now been substituted for fines and 
 recoveries, and every deed of an infant, whether under the act 
 or independent of it, either is void or may be avoided. An 
 infant at the present day might make a feoffment and at the 
 same time declare a use upon it, and both feoffment and use 
 
 [a) Hanson v. Keating, 4 Hare, 1. 
 (J) Donne v. Hart, 2 E. & My. 
 360. 
 
 (c) Duherhj v. Bay, 16 Beav. 33. 
 \d) Gilb. oa Uses, 41, 245, 250. 
 (e) lb. 246. 
 
OH. in. S. 1.] INFANTS. — LUNATICS.— ALIENS. 37 
 
 would be voidable only and not void (a), and by analogy it 
 Hiigbt be held that the infant can also engraft a trust upon 
 the legal estate, but a court of equity would never allow any 
 equitable interest to be enforced against the infant to his 
 prejudice, but would give him the same power of avoidance 
 over the equitable as he had over the legal estate, and if the 
 infant has died without having avoided the trust, it is con- 
 ceived that a court wiU still investigate the transaction, and 
 see that no unfair advantage had been taken (&). 
 
 An infant may by the custom of Kent for valuable considera- Custom of Kent, 
 tion certainly, and according to the better opinion, without 
 value (c), make a feoffment at the age of fifteen, and upon such 
 feoffment he may declare uses (d). But a court of equity would 
 no doubt confine such a custom within its narrowest bounds, or 
 as trusts have sprung into being since the statute of Hen. 8. 
 might hold the custom to be void as of recent growth in 
 respect of the equitable interest, and at all events would not 
 allow the custom to be made an instrument of fraud. 
 
 Before the late Wills Act (e) an infant of the age of fourteen 
 years might have bequeathed his personal estate and have 
 created a trust of it, but now, as regards personal as well as real 
 estate, every testator must be of the age of twenty-one years. 
 
 Lwnatics or Idiots might, before the Fines and Recoveries Lunatics. 
 Act, have levied a fine or suffered a recovery, and the uses 
 declared would have been valid until the fine or recovery had 
 been reversed. But now fines and recoveries have been 
 abolished, and the deed of a lunatic or idiot is ipso facto 
 void (/). The feoffment of a lunatic or idiot is voidable by the 
 heir only {g). However, should a lunatic or idiot engraft a 
 declaration of trust upon a feoffment a court of equity would 
 have jurisdiction to set it aside Qi) ; though generally it declines 
 to interfere even in this case as against a purchaser for valuable 
 consideration without notice of the lunacy or idiocy (i). 
 
 (o) Bao. on Uses, 67 ; Bao. Ab. lunatic, see Molton v. Camroux, 2 
 
 Uses, E. Esch. Rep. 487, 4 Bxeh.. Eep. 17. 
 
 (6) See Cr. Dig. vol. iv. p. 130. {g) Co. Lit. 247, b. 
 
 (e) Robinson on Gavelkind. [h) See Cruise, vol. iv. p. 130, vol. 
 
 [d) Gilb. on Uses, 250. v. p. 253 ; Niel v. Morley, 9 Ves. 478. 
 
 (e) 1 Viet. c. 26. (J) See Price v. Berrington, 3 
 (/) But as to the contracts of a Mao. & Gord. 486. 
 
28 TEAITOES, FELONS, OUTLAWS. [CH. IH. S. 1. 
 
 ■^li™' An Alien may acquire real estate by purchase, though he 
 
 cannot take it by descent or operation of law, and if he pu:;- 
 chase it he may hold it until office found, but cannot give an 
 alienee a better title than he had himself. An alien, therefore, 
 can only create a trust of real estate until the Crown steps 
 in. As to personal estate an alien enemy cannot even hold 
 it, but an alien friend may be the lawful owner of chattels 
 personal, and may exercise the ordinary rights of proprietor- 
 ship over them, and consequently may create a trust. 
 
 Traitors, felons, With regard to Traitors, Felons, and Outlaws, a distinction 
 must be taken between real and personal estate. In high 
 treason, lands, whether held in fee simple, or fee tail {a), or for 
 life, are forfeited absolutely to the crown. In petty treason and 
 murder (6), lands in fee (subject to the year, day, and waste of 
 the sovereign), escheat to the lord of the fee, and lands in tail 
 are forfeitable to the Crown for the life of the offender, and on 
 his death devolve on the issue in tail. Outlawry for treason, 
 petty treason, or felony, is equivalent to attainder, and the 
 lands of the outlaw are forfeited, or escheat, exactly in the 
 same manner as if a judgment had been pronounced (c). In 
 treason, petty treason, and felony, or in outlawry for those 
 crimes, the forfeiture works from the time of the offence, and 
 therefore from that date no trust can be created as to lands : 
 but the goods and chattels of traitors, felons, and outlaws, 
 are forfeited only from the time of conviction, or declaration 
 of outlawry, and therefore up to that period the traitor, felon, 
 or outlaw, may vest his goods and chattels in a trustee upon 
 trusts. However, the law will not allow this power of disposi- 
 tion to be exercised coUusively for the purpose of defeating 
 the just rights of the crown {d) ; but the traitor, felon, or outlaw 
 may sell the goods for valuable consideration (e). And so he 
 may assign the property upon trust to secure the hojid fide 
 debt of a creditor (/) ; but the existence of the debt must be 
 
 [a) 26 Hen. 8. o. 13. See 2 Bao. ' {d) See Anon. 2 Sim. N.S. 71. 
 Ab. 576, 580. (e) Hawk. Pleas of the Cr., book 
 
 (6) See 54 G. 3. e. 145. 2, o. 49. 
 
 (c) See Co. Lit. 390, b; Hollo- {/) Perkins v. Bradley, 1 Ha. 
 
 way's case, 3 Mod. 42; King v. 219; Whitaker y. Wisbey, 12 C. h. 
 
 Ayloff, 3 Mod. 72. K. 44. 
 
CH. m. S. l.J BANKRUPTS, INSOLVENTS. 29 
 
 actually proved, and the mere recital of it in the security 
 will not be sufficient (a). An assignment upon a meritorious 
 consideration, as a bargain and sale to a trustee for the 
 purpose of making provision for a son, will not support the 
 deed (6). " Though a sale," said Lord Holt, " bond fide, 
 and for a valuable consideration, had been good, because the 
 party had a property in the goods till conviction, and ought to 
 be reasonably sustained out of them, yet such a conveyance as 
 this could not be intended to any other purpose than to prevent 
 a forfeiture and defraud the king ; " and added, " that there 
 was a fraud at common law in such a case " (c). OutlaTny. 
 
 Outlawry in misdemeanours and civil actions is a contempt 
 of Court, and works a forfeiture of the profits of the offender's 
 lands for his life, and of his goods and chattels, whether real 
 or personal, absolutely. The person so outlawed, therefore, 
 cannot from that time affect the pernancy of the profits of his 
 real estate, nor make any settlement of his personal estate. 
 
 If a man be declared a bankrupt, all the real and personal Bankrupt, 
 estate to which he may acquire a title up to the time of obtain- 
 ing his certificate, becomes vested in his assignees {d) ; but the 
 surplus after payment of his debts still belongs to him, and of 
 this interest he may create a trust. 
 
 In the case of an insolvent, all the real and personal estate Insolvent, 
 "which may be vested in or may accrue to him up to the date of 
 the final discharge, is transferred by the act to his assignees (e) ; 
 and as to subsequently acquired property, the assignees may, 
 by virtue of the judgment to be entered up against him, at any 
 time divest it out of the insolvent by taking out execution, 
 but they must first obtain the order of the Court (/). An 
 insolvent, therefore, can make no settlement of property which 
 he has acquired before the final discharge, and the claim of 
 the assignees, should it be ever advanced, would by the Hen of 
 the judgment over-ride a trust of any real or leasehold estate 
 to which he might have become entitled even subsequently to 
 the final discharge. 
 
 (a) Shaw v. Bran, 1 Stark. 320. {d) 12 & 13 Viot. e. 106, ss. 141, 
 
 (6) Jones v. Ashurst, Skinn, 142. 
 
 357. (e) l&2Viot. e. 110,3.37, 
 
 (c) 4 Black. Comm. 387, 388. {/ 1 & 2 Viot. c. 110, s, 87. 
 
30 TRUSTEES. — THE CROWN. [CH. HI. S. 2. 
 
 SECTION II. 
 
 WHO MAT BE A TEtTSIEE. 
 
 The crown. The Sovereign may sustain the character of a trustee, so far 
 
 as regards the capacity to take the estate, and to execute the 
 trust; but great doubts have been entertained whether the 
 subject can, by any legal process, enforce the performance of 
 the trust. The right of the cestui que trust is sufficiently clear, 
 but the defect lies in the remedy (a). The Court of Chancery 
 has no jurisdiction over the king's conscience, for that it is a 
 power delegated by the king to the chancellor to exercise the 
 king's equitable authority betwixt subject and subject (&). The 
 Court of Exchequer has, in its character of a court of revenue, 
 an especial superintendence over the royal property; and it 
 has been thought that through that channel a cestui que trust 
 might indirectly obtain the relief to which, on the general 
 principles of equity, he is confessedly entitled. No such juris- 
 diction, however, appears to have been known when Lord 
 Hale was chief baron (c). Lord Hardwicke once observed in 
 Chancery, " I will not decree a trust against the crown in this 
 Court, but it is a notion established in courts of revenue by 
 modern decisions that the king may be a royal trustee " (d) ; but 
 the doctrine was still unsettled in the time of Lord Northing- 
 ton (e). And in a recent case (/), it was decided that though 
 the Court of Exchequer could decree the possession of the 
 property according to the equitable title, it had no jurisdiction 
 to direct the crown to convey the legal estate. The subject 
 may undoubtedly appeal to the sovereign by presenting a peti- 
 
 (o) PawlettY. Attorney- General, (d) Perm v. Zord Baltimore, 1 
 
 Hard. 467, 469 ; Burgess v. Wheate, Ves. 453 ; and see Reeve v. Attorney- 
 
 1 Ed. 265 ; Kildare v. Eustace, 1 General, 2 Atk. 224 ; Sovenden v. 
 
 Vem. 439. Zord Annesley, 2 Sch. & Lef. 617. 
 
 (6) Said by counsel in Pawlett v. (e) See Burgess v. Wheate, 1 Ed. 
 
 Attorney- General, Haid. 468. 255. 
 
 (c) See Pawlett v. Attorney- (y) Hodge v. Attorney- General, 
 
 General, Hard. 467, 469 ; and see 3 Y. & C. 342. 
 Wike's case, Lan. 54. 
 
CH. ni. S. 2.] COEPOEATIONS. BANK OF ENGLAND. 31 
 
 tion of right (a), and it cannot be supposed that the fountain of 
 justice would not do justice (b). 
 
 A corporation could not have been seised to a use, for, as Corporation, 
 was gravely observed, it had no soul, and how then could any 
 confidence be reposed in it? But the technical rules upon 
 which this doctrine proceeded, have long since ceased to 
 operate in respect of trusts ; and at the present day every body 
 corporate is compellable in equity to carry the intention into 
 execution (c). Indeed, every corporation since the Municipal 
 Corporations Act {d) has become a trustee, for a corporation 
 has now no longer the power to alien and dispose of its pro- 
 perty, except with the sanction of the lords of the Treasury, 
 but is bound to apply it to certain public purposes pointed out 
 by the Act ; and if there be any misapplication of that fund, 
 there lies a remedy in Chancery by information (e). But 
 although the Court has ample jurisdiction to oblige a corpora- 
 tion to the observance of good faith, and the property already 
 vested in a corporate body will be administered upon the trust 
 attached to it, yet by the statute of mortmain no real estate 
 can now be conveyed to a corporation upon any trust without 
 the licence of the crown. However, there is no objection to an 
 assignment or bequest of pure personal estate to a corporation 
 upon a trust. 
 
 The Bank of England cannot directly or indirectly be made Bank of England, 
 a trustee of stock. The corporation manages the accounts of 
 the public funds, and is charged with the care of paying the 
 dividends; but refuses, and cannot be compelled by law, to 
 
 (a) As to the transfer of tke equity wood, 1 Ves. 536 ; Attorney- General 
 jurisdiction of the Court of Exohe- v. Mayor of Stafford, Bam. 33 ; 
 quer to the Court of Chancery, see Attorney - General v. Foundling 
 5 Vict. c. 5, s. 1 ; and Attorney- Hospital, 2 Ves. jun. 46 ; Attorney- 
 General V. Corporation of London, General v. JEarl of Clarendon, 17 
 8 Beav. 270, 1 H. of L. Ca. 440. Ves. 499 ; Attorney-General v. 
 
 (5) Scounden v. Hawley, Comb. Caius College, 2 Keen, 165. 
 
 172, per Dolben, J. ; Reeve v. At- (<?) 5 & 6 W. 4. o. 76. 
 
 torney-General, cited Penn V. Lord (e) Attorney - General v. As- 
 
 Baltimore, 1 Ves. 446. pinall, 1 Keen, 513, 2 M. & C. 613 ; 
 
 (c) See Attorney- General Y.Lan- Attorney- General v. Borough of 
 
 derfield, 9 Mod. 286; Bummer v. Poole, 4 M. & C. 17 ; Parr v. 
 
 Corporation of Chippenham, 14: Yes. Attorney- General, 8 CI. & Finn. 
 
 252 ; Green v. Rutherforth, 1 Ves. 409 ; Attorney- General v. Corpora- 
 
 468; Attorney- General v. Whor- tion of Lichfield, 11 'Bea.Y. 120. 
 
32 
 
 BANK OF ENGLAND. 
 
 [CH. ni. S. 2. 
 
 Bank of England 
 cannot be a 
 trustee. 
 
 Agreements re- 
 Bpecting stock. 
 
 notice any rights but those of the legal proprietors in whose 
 names the stock is standing. 
 
 The Company will not enter notice of instruments inter 
 vivos upon their books ; and though they are obliged by certain 
 Acts of Parliament to enter the wiUs, or at least extracts from 
 the wills, of deceased proprietors of stock, the object of the 
 legislature, as the Court has now clearly determined, was not 
 to make the Company responsible for the due administration 
 of the fund according to the equitable right, but to enable 
 them to ascertain who under the will were the persons -legally 
 entitled (a) (1). Were the construction to be otherwise, the 
 Bank of England would be trustee for half the families in the 
 kingdom. 
 
 As the Bank is not bound to recognise even the contents of 
 the will beyond the legal devise, d fortiori it will not be con- 
 verted into a trustee by notice of any agreement, by which the 
 interests taken under the will have subsequently shifted from 
 one person to another ; as, if stock be devised to A. for Ufe, 
 
 (a) Sartga v. Batik of England, 
 3 Ves. 55 ; Banh of England v. 
 Parsons, 5 Ves. 665; Banh of 
 
 Statutes relating 
 to devises of 
 stock. 
 
 Devise with two 
 witnesses before 
 the executor 
 
 England v. Lunn, 15 Ves. 583, ^er 
 Lord Eldon ; Humherstone v. Chase, 
 2 Y. & C. 209. 
 
 (1) By an act of William & Mary (4 W. & M. o. 3, s. 10) the will was 
 directed to be entered in the Receipt Office of the Exchequer, where the 
 annuities were then payable ; but by a subsequent act in the same reign 
 (6 W. & M. c. 20, s. 20) the Bank was incorporated ; and by statutes of 
 George the Krst and George the Second (1 Geo. 1. st. ii. c. 19, s. 12; 
 30 Geo. 2. c. 19, ri. 49) it was enacted, that " a person possessed of stock 
 might devise the same by will ia writing, attested by two credible 
 witnesses ; but that such devisee should receive no payment thereon, till so 
 much of the will as related to the said stock should be entered in the ofSoe 
 of the Bank ; and in default of such devise, the stock should go to the 
 executors or administrators." 
 
 Upon the effect of these provisions it has been held — 1st, That although 
 stock be specifically devised, and the wUl be duly attested by two witnesses, 
 yet, until the executor assent to the specific bequest, the legal property of 
 the stock remains vested in the executor ; and if it be necessary to make 
 use of it as assets, he may bring an action at law against the Bank for 
 refusing to transfer in obedience to his directions. Franklin v. The Bank 
 of England, 9 B. & C. 156. And of course the Bank cannot obtain aa 
 injunction in equity against the legal proceedings ; Bank of England v. 
 ■Moffat, 3 B. C. C. 260; Bank of England y. Lunn, 15 Ves. 569; Bank of 
 England v. Parsons, 5 Ves. 665 ; for, as Lord Eldon observed, if the 
 executor cannot maintain an action at law, the Bank has no need of 
 assistance from a court of equity ; and if he can maintain his action, then 
 
CH. in. S. 2.] FEME COVERT. 33 
 
 with remainder to B., and A. assign to B., or B. release to A., 
 although in equity the whole beneficial interest has thus be- 
 come vested in A. or B., the Bank will not transfer the stock 
 during the life of A. to the one or the other ; but, on A.'s 
 decease, will transfer to B. or his personal representative. 
 However, a suit may be instituted for the purpose of com- 
 pelling the Bank to give effect to the equitable title ; but, the 
 refusal of the Company to act without the order of the Court, 
 wUl be considered as justifiable and proper, and therefore the 
 Bank in such suits will be allowed their costs (a). 
 
 («) Pearsons. Banh of Enffland, Bank, cited lb. 524, note (b). As 
 
 2 B. C. C. 529 ; Austin v. Banh of to making tbe Bank parties, see 39 
 
 England, 8 Ves. 522 ; Marryatt v. & 40 G. 3. o. 36. 
 The Banh, and Aynsuoorth v. The 
 
 he must be authorised to do so by the statute, and equity cannot interfere. 
 
 Banh of England v. Lunn, 15 Ves. 583. Lord Thurlow once expressed an 
 
 opinion that the devise of stock was in the nature of a parliamentary 
 
 appointment, and did not require the executor's assent ; Pearson v. Bank 
 
 of England, 2 Cox, 178, 1*79; bat he afterwards changed his opinion, and 
 
 conceived the executor's assent to be necessary, as in a specific devise of 
 
 leaseholds. Banh of England v. Moffat, 3 B. C. C. 263 ; compare Banh of 
 
 England v. Parsons, 5 Ves. 668. Lord Eldon said, that, as by a clause in 
 
 the act, stock could not be attached, sequestered, or taken in execution, 
 
 during the lifetime of the holder, he had always doubted whether the 
 
 legislature did not intend to give it a peculiar value by enabling the party 
 
 to devise it, like land, independently of the executor; but his lordship 
 
 said, the construction adopted in practice was, that, though specifically 
 
 bequeathed, it must have the executor's assent, and was liable, as assets, to 
 
 the payment of debts; Banh of England v. Lunn, 15 Ves. 517, 518 ; and Devise with two 
 
 so the law is now clearly settled. 2ndly, There is no doubt, that, after the "witnesses after 
 
 executor's assent, the specific legatee, if the will was attested by two Wie executor 
 
 witnesses, becomes the perfect legal proprietor, and may bring an action at 
 
 law against the Bank for refusing to transfer into his name. See Banh of 
 
 England v. Lunn, 15 Ves. 518, and following pages. 3rdly, If the stock p^^j^g without 
 
 be specifically bequeathed, but the wQl be not attested by two witnesses, two witnesses. 
 
 then the legal property of the funds vests absolutely in the executor ; but, 
 
 as the act does not express how the executor shall apply it, the Court 
 
 considers him to hold it upon trust, subject to the payment of debts, for the 
 
 person to whom it was informally devised. The legatee could of course 
 
 have no legal interest in the stock until the executor had made an actual 
 
 transfer to him. See Banh of England v. Lunn, 15 Ves. 578 ; Rider v. 
 
 Kidder, 10 Ves. 369 ; Ripley v. Waterworth, 7 Ves. 440, 452. 
 
 Now by the late Will Act (7 Gul. 4. & 1 V. c. 26) the gift of stock by Late Will Act. 
 win has been put on the same footing with the testamentary disposition of 
 aU other property. 
 
34 
 
 FEME COVEET. 
 
 [CH. in. s. 3. 
 
 Feme covert 
 ought not to be 
 appointed 
 trustee. 
 
 Has sufficient 
 discretion. 
 
 A. feme covert may be a trustee, but it would not be advisable' 
 to select a feme covert (a). 
 
 There appears, indeed, to be no want of discretion for the 
 due execution of the trust, for a woman has no less judgment 
 after marriage than before (6) ; nay, as was quaintly added by 
 Sir John Trevor, she rather improves it by her husband's 
 teaching (c). The reasons upon which her disabilities are 
 founded, are her own interest or her husband's, or both((i); 
 and, where these are not concerned, she possesses as much 
 legal capacity as if she were perfectly sui juris : thus, she 
 may execute powers simply collateral (e), and (somewhat con- 
 trary to principle) even powers appendant, or in gross (/). 
 At law, the trustee is considered as the sole and absolute 
 proprietor, and therefore he can have no power that does 
 not flow from the legal ownership ; but in equity, the absolute 
 interest is vested in the cestui que trust, and, as the trustee 
 is regarded in the light of a mere instrument, any authority 
 communicated to a trustee must have the character of a power 
 simply collateral {g). It follows, that if a discretionary trust be 
 committed to a, feme covert, there is nothing to prevent her due 
 administration of it, so far as relates to her legal judgment and 
 . capacity. At the same time it must be admitted that a woman's 
 wiU is not her own, and that if a trust were confided to a. feme 
 covert, the husband would, in fact, exercise no little iniluence. 
 Indeed, as the husband would be liable for her breaches of 
 trust, he must, for his own protection, look to the manner ia 
 which she discharges the office (h). 
 
 But further, the appointment of a feme covert is attended 
 
 (o) Lahe v. De Lambert, 4 Ves. 
 595, per Lord Loughborough. 
 
 (6) Compton v. ColUnson, 2 B. 
 C. C. 387, per BuUer, J. ; Hearle 
 V. Oreenbanh, 1 Ves. 305, per Lord 
 Hardwicke; Bell v. Hyde, Pr. Ch. 
 330, per Sir John Trevor ; and see 
 marginal note to Moore v. Hussey, 
 Hob. 95 ; and see Needier v. Bishop 
 of Winchester, Hob. 225. 
 
 (e) Bell V. Hyde, Pr. Ch. 330. 
 
 (d) Compton v. ColUnson, 2 B. C. 
 C. 387, per BuUer, J. 
 
 (e) Co. Lit. 112, a; ih. 187, b; 
 Lord Antrim v. Duke of Buching- 
 ham, 2 Freem. 168,^er Lord Keeper 
 Bridgman; Blithe' s case, ib. 91, 
 vid, 2nd resolution; Godolphin v. 
 Godolphin, 1 Ves. 23, per Lord 
 Hardwicke. 
 
 (/) See Sugden on Powers, o. 3, 
 sect. 1. 
 
 (g) See infra. 
 
 [h) See Smith v. Smith, 21 Beav. 
 385. 
 
CH. ni. S. 2.] FEME SOLE. INFANTS. 35 
 
 with inconvenience from her inability to join in the requisite Her inability to 
 assurances. At common law, if lands be vested in a feme covert eS;e. ^ ^^^ 
 upon condition to enfeoff another, she may execute the feoffment 
 by her own act, without the intervention of her husband {a) ; 
 and hence it has been argued, that, in the case of a trust, she 
 may, equally without her husband's concurrence, convey the 
 estate to the parties equitably entitled (&). But between the 
 two cases there is this clear and obvious distinction, that a 
 condition is part and parcel of the common law, while a trust 
 is only recognised in the forum of a court of equity; except, 
 therefore, the trust be so worded as to bear the construction 
 of a legal condition, it seems impossible to contend that an 
 instrument otherwise inoperative should, from the mere cir- 
 cumstance of the trust, which a court of law cannot notice, 
 acquire a validity (c). Mr. Fonblanque suggests the additional 
 reason, that if a married woman were allowed to convey a trust 
 estate without her husband's concurrence, she might convey it 
 before the several objects of the trust were satisfied, for which he 
 might, jointly with her, be responsible to the cestui que trust (d). 
 
 It is almost equally undesirable to appoint a feme who is single Feme sole. 
 a trustee, for should she marry, the character of the trust is 
 altered, and the husband, as liable for her breaches of trust, 
 must have a control over her acts. On these grounds the 
 Court has refused to appoint a feme sole a trustee, as, in the 
 event of her marriage, the inconveniences above suggested 
 would arise (e). 
 
 An infant labours under stUl greater disability than a feme Infant onght not 
 covert J for, first, as regards judgment mid discretion, a feme is trustee. 
 admitted to have capacity, though she cannot in all cases 
 freely exercise it; but an infant is said altogether to want 
 capacity (/). An infant cannot be steward of the court of a 
 
 {a) Daniel v. Ubley, Sir W. {d] Treat, on Equity, vol. i. p. 92. 
 
 Jones, 137. (e) Brook v. Brook, 1 Beav. 531. 
 
 (6) Daniel v. Ubley, Sir W. (/) Hearle v. Oreenhank, 3 Atk. 
 
 Jones, 138, per Whitlock, aiid 712, and 1 Ves. 305, per Lord Hard- 
 
 Dodridge, J. wicke; Grange v. living, 0. Bridg. 
 
 (c) See Mr. Hargrave's Observa- 108, ^er- Sir 0. Bridgman ; Compton 
 
 tions, Co. Lit. 112, a, note (6), and v. Collinson, 2 B. C. C. 387, per 
 
 Mr. Fonblanque's Treat, on Equity, BuUer, J. ; and see Sockett v. Wray, 
 
 voL i. p. 92. 4 B. C. C. 486. 
 
 D 2 
 
30 INFANTS. [CH. III. S. 3. 
 
 Has no legal manor (a), or attorney for a person in a suit (6), or guardian 
 to a minor (c), or be a bailiff or receiver {d) ; but can only 
 discharge such acts as are merely ministerial, as to be an 
 attorney to deliver seisin (e), or as lord of a manor to give 
 effect to the custom (/). So, as executor, he might, until a recent 
 act, have been the channel or conduit pipe through which the 
 assets found their way to the hands of the creditors in a due 
 course of administration (g) ; but had he acted otherwise than 
 ministerially, as by signing an acquittance without receipt of 
 the money, such an exercise of discretion had been actually 
 void (h). It follows that an infant cannot exercise even a 
 power simply collateral (of which kind are powers communi- 
 cated to trustees) if requiring the application of prudence and 
 discretion (i). 
 
 Power of passing With respect to an infant's ability to pass the estate, it 
 
 the estate. ^ J ir > 
 
 seems to be generally agreed that, at common law, a feoffment 
 
 Effect of feoff- r i i r •> o . 
 
 mert, or. delivery of lands (k), or an actual delivery of goods and chattels (Z), is an 
 act of so great solemnity, that it serves to carry the present 
 possession, and is voidable only, and not void. 
 
 Effect of delivery Where the property is of an incorporeal nature, as the de- 
 
 of a deed. . . . 
 
 livery of the thing itself is impossible, the common law has 
 Substituted the kindred precaution of delivery of the deed. The 
 effect of a deed delivered by an infant has been much disputed ; 
 by some it has been held to be absolutely null and void {in), 
 
 (a) Co. Lit. 3, b ; and see Mr. (i) See Grange v. Tivmg, 0. 
 
 Hargrave's note (4), ib. But acts Bridg. 109 ; Hearle v. Greenbank, 
 
 done by an infant in tbe character 3 Atk. 695; S. C. 1 Ves. 298. 
 
 of steward cannot be avoided by (k) Tlwmpson v. Leach, 3 Modi 
 
 reason of Us disability. Eddleston 311, ^er Gur.; Br. Ab. "Covert. 
 
 V. CoWiras, 3 DeGex, Mac. & Gord. 1. and Inf." pi. 1; and see Co. Lit. 
 
 (6) Co. Lit. 128, a ; Br. Ab. 42, b, 51, b ; WhittingTiam's case, 8 
 
 "Covert, and Infant," pi. 55, and Eep. 42, b; Br. Ab. "Covert, and 
 
 see Hearle v. Greenbank, 3 Atk. 710. Inf." pi. 40. 
 
 (e) Co. Lit. 88, b. (I) Perk. 14 ; Br, Ab. " Covert. 
 
 {d) Co. Lit. 172, a. and Inf." pi. 1. 
 
 (e) Co Lit. 52, a; Br. Ab. "Co- (m) Br. Ab. "Covert, and Inf." 
 
 vert, and Infant," pi. 55. pi. 1 & 10 ; Lloyde v. Gregory, Cr. 
 
 (/) 1 Watk. on Copyb. 24 ; and see Gar. 502, per Cur. ; Thompson v. 
 
 Halliburton v. Leslie, 2 Hog. 252. Leach, 3 Mod. 310, per Oar. See 
 
 [g) Toller on Executors, 31. observations on the two last cases in 
 
 [h) RusselVs case, 5 Re. 27, a ; Zouch v. Parsons, 3 Burr. 1806 & 
 
 €o. Lit. 172, a ; ib. 264, b ; 1 Roll. 1807 ; and see Humphreston^s case, 
 
 Ab. 730, F. 2. 2 Leon. 216. 
 
CH. ni. S. 2.] INFANTS. 37 
 
 by others to be voidable only (a), and by others again 
 to be void or voidable, as the validity of the execution is 
 taken to be for the infant's benefit or not (6). Another opinion 
 still (which is that of Perkins (c), and was adopted in the case 
 of Zouch V. Parsons (d), ini may therefore be regarded as the 
 doctrine of the present day) is, that an infant's deed, where the 
 delivery of it answers to the livery of seisin, and operates as . 
 the conveyance of an interest, is merely voidable ; but where 
 it does not take effect as an assurance by delivery of the hand, 
 as in a power of attorney (e), it is then actually void. Lord 
 Mansfield, however, subjoined the qualification, that if a case 
 should arise where it would be more beneficial to the infant 
 that the deed should be considered as void ; as, if he might 
 incur a forfeiture, or be subject to damage, or a breach of trust 
 in respect of a third person (/), unless it was deemed void, the 
 reason of an infant's privileges would in such case warrant an 
 exception from the rule {g). 
 
 Where the instrument carries no solemnity with it, the validity 
 of the act must then depend on the question how far the assu- 
 rance promotes the interest of the infant. Thus in Humphreston's 
 case (li), where a minor had made a lease for years by parol, it 
 was held by Justice Gawdy, that, the lease having been made ' 
 to try the title of the land, which was a good consideration, 
 and to the profit of the infant, and for his advancement, . the 
 lease was not void: but Justice Southcote and Chief Justice' 
 Wray conceived that the lease being without rent, profit, or ' 
 other recompence, it was void ab initio for want of a considera- 
 
 {a) Norton v. Turvil, 2 P. W. Conn. & Laws. 427, 2 Drur. & War. 
 
 145, per Sir J. Jekyll. 307. 
 
 (6) See Zouch v. Parsons, 3 Burr. (e) See Br. Ab. " Covert, and 
 
 1804 ; and see Humphreston's case, Inf." pi. 1 ; Whittingham's case, 8 
 
 2 Leon. 216 ; Lloyde v. Gregory, Rep. 45, a. 
 
 Cr. Car. 502 ; Nightingale v. Earl (/) Qucere if a Court of law ooidd 
 
 Ferrers, 3 P. W. 210. notice a breach, of trust. See War- 
 
 (c) Sects. 12 & 154 ; and see Br. wick v. Richardson, 10 Mees. & 
 Ab. " Dum fuit infra setatem," pi. Wels. 295. 
 
 1 ; id. " Covert, and Inf." pi. 12 ; [g) Zouchy.Parsons,^'&w:iA%(n. 
 
 Stone v. Wythipole, Cr. EL 126 ; (A) 2 Leon. 216 ; and see Lloyde 
 
 Marlow v. Bitfield, 1 P. W. 559. v. Gregory, Cr. Car. 502, Co. Lit, 
 
 [d) 3 Burr. 1807; confirmed by 51, b; Grange v. living, Sir 0. 
 the recent ease oi Allen v. Allen, 1 Bridg. 117. 
 
38 INFANTS. [oh. m. s. 2. 
 
 tion; so that all the judges agreed in making the infant's 
 benefit the criterion, though they differed in the application of 
 it to the particular circumstances of the case. 
 Power of sub- Supposing the infant's assurance not to have been a nullity 
 
 sequent aToi - ^^ initio^ ^ ig gtiU in his power to defeat the act by a subse- 
 quent avoidance. 
 
 Lord Mansfield's It is laid down, indeed, by Lord Mansfield, in Zoitch v. Par- 
 doctrine. ' I'll 7 J 
 sons (a), that if an infant do a right act, which he ought to do, 
 
 which he is compellable to do, it shall bind him ; as if he make 
 equal partition, if he pay rent, if he admit a copyholder upon 
 a surrender. And upon this principle the Court decided, in 
 that case, that a mortgagee's infant heir, who had conveyed the 
 trust estate by the mortgagor's direction, could not subse- 
 quently avoid it. But this determination seems open to objec- 
 tion; for, if the Court proceeded on the ground that the 
 conveyance was a right and proper act, on principles of eqmty, 
 such a doctrine would manifestly confound the legal and equi- 
 table jurisdictions ; for, independently of the trust, the avoid- 
 ance had been effectual, and if, on the equity of the case, it 
 was declared to be a nullity, the decree of the Court amounted 
 to a precedent for granting equitable relief. But if the Court 
 considered the infant as compellable to convey under the statute 
 of 7 Ann. c. 19, this appears not exactly the truth ; for the act 
 is not imperative, but discretionary ; it declares that it shall be 
 lawful for the infant to convey ; and the infant's assurance is 
 to be made upon the direction of the Court of- Chancery or 
 Exchequer ; so that a Court of common law, in deciding the 
 validity of the infant's conveyance, assumed to itself that dis- 
 cretion which the legislature had expressly delegated to one of 
 the courts of equity. Lord Mansfield in conclusion observed, 
 that by this decision circuity of suit was avoided ; for, if a 
 court of law should declare the conveyance inoperative, a court 
 of equity would not hesitate to decree a new conveyance. It 
 was under cover of this plea that the legal and equitable juris- 
 dictions were in the last century almost confounded ; but the 
 tendency of the courts at the present day is to keep the juris- 
 dictions distinct. 
 
 [a] 3 Burr. 1801. 
 
CH. in, S. 2.] AilENS. 39 
 
 Another objection to an infant trustee is, that hecannot he Infant cannot be 
 decreed to make satisfaction on the ground of a breach of ff 'trust.* 
 trust (a). However, an infant has no privilege to cheat men (&), 
 and therefore he will not be protected, if he be old and cunning 
 enough to contrive a fraud (c). 
 
 From the great inconveniences attending the appointment Consequent pre- 
 of an infant as trustee, there arises a strong presumption, te takes not as 
 wherever property is given to an infant, that he is intended to ^^^gg^jl"^* 
 take it beneficially (d). 
 
 An alieii may effectually be appointed a trustee in respect of Alien may be a 
 chattels personal, but not in respect of freeholds or chattels teis peisonli^*' 
 real. The policy of the law will not allow an alien to sue °^^y- 
 or be sued touching lands in any court, of law or equity (e) ; 
 and on inquisition found, the legal estate of the property 
 would vest by forfeiture in the Crown. 
 
 In a case where a testator devised real estate to his wife and Real estate 
 an alien upon trust to sell, and they sold accordingly, and g^^j^gj and'alien 
 executed a conveyance ; a question afterwards arcfse whether ^v°^ t™^*- 
 the purchaser had a good title, and with a view of curing the 
 defect an Act of Naturalisation was obtained : but it was held, 
 that the common form of the Act of Naturalisation did not 
 confirm the purchaser's title retrospectively, but that the objec- 
 tion remained. The parties had endeavoured to introduce into 
 the bill special words to meet the case, but a departure from 
 the usual course was found impracticable (/). 
 
 (a) See Whitmore v. Weld, 1 (d) Lamplugh v. Lamplugh, 1 P. 
 
 Vem. 328 ; RusseWs case, 5 fie. W". 112 ; BUnhhorne v. Feast, 2 
 
 27, a ; Hindmarsh v. Southgate, 3 Ves. 30 ; Mumma v. Mumma, 2 
 
 Kuss. 324. Vem. 19 ; Taylor v. Taylor, 1 Atk. 
 
 (J) Evroy v. NicTiolas, 2 Eq. Ca. 386; Smith v. King, 16 East, 283; 
 
 Ab, 489, per Lord King. and see King v. Denison, 2 V. & B. 
 
 (c) See Cory v. Gertcken, 2 Mad. 278. 
 40 ; Kvroy v. Nicholas, 2 Eq. Ca. (e) Gilb. on Uses, 43 ; and see 
 
 Ab. 488 ; Earl of Buckingham v. Fish v. Klein, 2 Mer. 431. See late 
 
 Drury, 2 Ed. 71, 72 ; Clare v. Earl act 7 & 8 Viot. c. 66. The exceptions 
 
 of Bedford, 13 Vin. 536 ; Watts v. in the 6th section enabling subjects 
 
 Cresswell, 9 Vin. 415 ; Beckett v. of a friendly state to hold lands for 
 
 Cordley, 1 B. C. C. 358 ; Savage v. 21 years for purposes of residence, 
 
 i<bsier, 9 Mod. 37 ; Overtone. Banis- &o., cannot, of course, apply to the 
 
 ter, 3 Hare, 503 ; Slikeman v. Daw- case of a trustee. 
 son, 1 De G-ex & Sm. 503 ; Wright (/) Fish v. Klein, 2 Mer. 431. 
 
 V. Snowe, 2 De Gex & Sm. 321. 
 
40 
 
 BANKETTPTCr. 
 
 [CH. m. S. 2. 
 
 Person domiciled 
 abroad not a fit 
 trustee. 
 
 Bankrupts and 
 insolvents not 
 absolutely dis- 
 qualified. 
 
 Cestuis que trust 
 should not, nor 
 should relatives, 
 as a general rule, 
 be appointed 
 trustees. 
 
 Proper number 
 of trustees. 
 
 If the alien be domiciled abroad, it is an objection to bis fit- 
 ness for the office of trustee, that he is not amenable to the 
 jurisdiction of the Court. But where the personal property of 
 a lady was settled on her marriage with a foreigner, who at 
 the time of the marriage was resident in England but domiciled 
 in America, and the settlement specially authorised an invest- 
 ment on American securities ; it was held that the subsequent 
 appointment of three Americans to be trustees, in contem- 
 plation of a residence in America and of an investment upon 
 American securities, was justifiable {a). 
 
 Bankrupts and insolvents may of course be appointed trus- 
 tees, should any one be disposed to commit the administration 
 of his property to those who have not been equal to the pru- 
 dent management of their own. The past or any subsequent 
 act of bankruptcy or insolvency will have no operation upon 
 the trust estate. 
 
 Similarly, cestuis que trust are not, as such, incapacitated 
 from being" trustees ; though, as a general rule, they are not 
 altogether fit persons for the office, in consequence of the pro- 
 babiUty of a conflict between their interest and that of some 
 co-cestui que trust, in which event they could hardly be ex- 
 pected to hold an even hand. So, although the present Master 
 of the Rolls considers it objectionable to appoint any relative 
 a trustee, from the frequency of breaches of trust committed 
 by trustees at the instance of cestui que trust nearly connected 
 with them (&), there is no positive legal objection to appointing 
 a relative. Indeed it is not always easy to find a trustee who 
 is neither a relative nor a cestuis que trust, and this the Court 
 itself has experienced ; for notwithstanding its repugnance, it 
 has been obliged, occasionally, to appoint not merely a relative, 
 but even a cestui que trust to be a trustee (c). 
 
 We may here remark, that care should be taken to provide 
 not only for the fitness of the trustee, but also for an adequate 
 number of trustees. A single trustee, whether originally 
 appointed such or become so by survivorship, has the absolute 
 and unlimited control over the property ; and. should he 
 
 (a) Meinertzhagen v. Davis, 1 
 Coll. 335. 
 
 (i) WildingY.Bulder,2\ Beav.222. 
 
 (c) Ex parte Clutton, 17 Jurist, 
 
 988. 
 
CH. in. S. 3.] PBOPEE NUMBER OF TEUSTEES. 41 
 
 become involved in difficulties, he is under a strong temptation 
 to sustain his credit by resorting to a fund of which he can 
 with certainty possess himself, and without the fear of imme- 
 diate detection. The fallacious hope of replacing the money 
 before the day of payment arrives, has lulled the conscience of 
 many, not the worst of mankind, when suffering under the 
 pressure of poverty. There can be no objection to the appoint- 
 ment of a single trustee, •where, as in uses to bar dow£r, the 
 trust reposed in him is merely a nominal confidence; but where 
 the administration of the trust involves the receipt and custody 
 of money, the safeguard of at least two trustees ought never 
 to he dispensed with. And on the death of one of the original 
 trustees, no time should he lost in restoring the fund to its 
 proper security by the substitution of a new trustee, a pre- 
 caution, it is feared, but too frequently neglected from motives 
 of delicacy, as the surviving trustee is sensitive, and conceives 
 his honesty is called into question : and the cestuis que trust, 
 often too ignorant of the world to see the necessity of taking 
 precautions against fraud, are apt to suspect their legal adviser 
 of a wish to create business at the expense of the estate. To 
 ■guard against the constant recurrence of appointment of new 
 trustees, it is common, at least where the property is consi- 
 derable, to appoint four trustees originally, for then, on the 
 decease of the first or even a second trustee, an immediate 
 substitution is not very material, but the safe rule is, to appoint 
 three, and keep the number always full. 
 
 More than four are hardly ever appointed, because it is a 
 general rule of the Bank not to allow stock to be transferred 
 into the names of more than four joint proprietors. But in 
 special cases, so many as five or six have been admitted. 
 
 SECTION III. 
 
 WHO MAT BE CESTTJI ftTJE lEtTSI. 
 
 It may be laid down as a general rule, that as cequitas sequitur 
 legem, those who are capable of taking the legal estate, may, 
 through the channel of the trust, be made the recipients of the 
 equitable. 
 
42 THE CROWN MAY BE CESTUI QUE TRUST. [CH. in. S. 3. 
 
 The Crown may te • A trust may be declared in favour of the Sovereign. While 
 I que 1WS. Qggg ^gj.g j]j their fiduciary state, it was held that in order 
 effectually to limit a use to the Crown, the title must have been 
 matter of record. " It behoveth," says Lord Bacon, " that 
 both the declaration of the use and the conveyance itself be 
 matter of record, because the king's title is compounded of 
 both ; I say not appearing of record, but by conveyance of 
 record. And, therefore, if I covenant with J. S. to levy a fine 
 to him to the king's use, which I do accordingly, and the deed 
 of covenant be not enrolled, and the deed be found by office, 
 the use vgsteth not. E converse, if enrolled. If I covenant 
 vnth J. S. to enfeoff him to the king's use, and the deed be 
 enrolled and the feoffment also, and it be found by office, the 
 use vesteth not. But if I levy a fine, or suffer a recovery to 
 the king's use, and declare the use by deed of covenant en- 
 rolled, though the king be not a party yet it is good enough " (a). 
 However, in trusts it is clear, that where the operation of law, 
 as in the case of bona vacantia, gives a right to the Crown, that 
 of itself is sufficient (6); and perhaps it may be laid down 
 generally that the Crown may now, in all cases, enforce an 
 equitable interest in the same manner as a private person. In 
 Burgess v. Wheats (c), Sir Thomas Clarke was of this opinion, 
 and apparently his colleagues, Lord Mansfield and Lord North- 
 ington, concurred in the same view. He laid down that it was 
 the prerogative of the Crown not to implead with the subject 
 before it took possession ; but that if the Crown intended to 
 take possession without suit, it was necessary, in order to 
 protect the subject and inform him of the point in issue, that 
 the foundation of the right in the Crown should appear upon 
 record : but that the Crown might waive the privilege of taking 
 possession before suit, and might seek the adjudication of the 
 Court without previous seizure : that an inquisition did not 
 give a title to the Crown, even where the legal estate was in 
 question, and indeed, as to the equitable interest, was nugatory 
 in itself {(i). 
 
 (ffl) Bac. on Uses, 60 ; and see C. 201 ; Brummell v. Macpherson, 
 (Jilb. on Uses, 44, 204. 5 Russ. 263. 
 
 (J) Middleton v. Spicer, 1 B. C. (c) 1 Ed. 188. 
 
 \d) Burgess v. Wheate, 1 Ed. 187. 
 
CH. in. S. 3.] ALIEN CESTUI QUE TRUST. 43 
 
 A trust of lands cannot be limited to a corporation without a A corporation. 
 license from the Crown ; both on general principles, and also 
 by analogy to the statutory enactment as to uses (a). 
 
 As regards an alien, a trust of lands may be declared in his Alien may not be 
 favour (6), but cannot be enforced by him for his own benefit (c) ; of real esta™ 
 it being contrary to law that an alien should plead, or be im- 
 pleaded, touching lands in any court in the kingdom (d); and the 
 king, on inquest found, will be entitled to the trust by forfeiture, 
 for the mischief is the same as if the alien had purchased the 
 lands themselves (e). But the forfeiture vests not in the king the 
 legal estate (/), but merely transfers to him the right of suing 
 a subpcena against the trustee in equity (g). A distinction has 
 been taken, that although where a trust is perfected in favour 
 of an alien the Crown may be entitled, yet where a trust in 
 favour of an alien is not in esse, but only m fieri and executory, 
 the Court will do no act to give it to an ahen, who, by law, 
 cannot hold (h). 
 
 In a recent case (i) it was decided, that where a testator Alien may be 
 directs an estate to be sold, and the proceeds divided amongst of proceeds of 
 certain persons, some of whom are aliens ; there, as according sale of land. 
 to the intention which is supposed to be executed at the time 
 of the death, the interest devised is money, the Crown is not 
 entitled, for the mere purpose of working a forfeiture, to exer- 
 cise an election by retainiag the property as land ; and, there- 
 fore, that the aliens are not debarred from enjoying their 
 
 (a) See Step. Touch. 509; Sand. Hard. 495, ^er Lord Hale; i^oMrrfWre 
 
 on Uses, 339, note E ; 15 Eic. II. v. Gowdey, 3 M. & K. 383. See 
 
 c. 5. Burney v. Macdonald, 15 Sim. 6. 
 
 (5) Dumoncel v. Dumoncel, 13 (/) King v. Holland, Al. 14 ; Sir 
 
 Jr. Eq. Rep. 92 ; and see Vin. at. John Dock's case, cited ib. 16 ; At- 
 
 Alien, A. 8; Godfrey v. Dixon, torney-Generalv. Sands, 'Kaii.'idd, 
 
 Grodb. 275. See Br. Feif. al. Uses, per Lord Hale. 
 
 389, a, pi. 29. {g) King v. Holland, Al. 16, per 
 
 (c) King v, Holland, Al. 16, per EoUe, J. ; Roll. Ab. 194, pi. 8. See 
 
 Bacon, J.; S. C. Styl. 21,^e?- Rolle, Burney v. Macdonald, 15 Sim. 6; 
 
 J. See Burney v. Macdonald, 15 Burgess v. WTieate, 1 Ed. 188, 
 
 Sim. 6. But of course the special {h) See Burney v. Macdonald, 15 
 
 exceptions in the 7 & 8 Vict. e. 66, Sim. 14. 
 
 s. 5, would apply to the case of an (j) Da Hourmelin v. Sheldon, 1 
 
 equitable interest. Beav. 79, 4 Myl. & Cr. 525 ; and see 
 
 {d) Grilb. on Uses, 43. ilfosiej-v. JJeCroismar, 11 Beav. 184. 
 
 (e) Attorney- General v. Sands, 
 
44 
 
 DISTINCTIONS. 
 
 [Ch. ni. S. 3. 
 
 Distinelions in 
 reference to 
 equitable and 
 legal interests. 
 
 legacies in the pecuniary character which the testator stamped 
 upon them. 
 
 It may be remarked, that in certain cases persons are capable 
 of taking an equitable interest, to whom the legal estate could not 
 have been similarly limited. Thus, at common law, no property, 
 real or personal, can be so limited to a married woman, as to 
 exclude the legal rights of the husband during coverture ; but, 
 by way of trust, the beneficial interest can be placed entirely at 
 the disposal of a married woman, so that she shall be regarded 
 as a feme sole, and the husband shall not participate in the 
 enjoyment. And this may be effected even without the inter- 
 position of a special trustee ; the only distinction being that, 
 where no trustee is interposed, the husband will, in respect of 
 his legal rights, be held by a Court of equity to be a trustee 
 for his wife (a), and would, it is conceived, be bound to deal 
 with any legal interest vested in him according to his wife's 
 direction ; while, in the case of the legal interest being vested 
 in a trustee, the husband's concurrence in any act of alienation 
 or other dealing of his wife is whoUy unnecessary. 
 
 So the legal estate cannot be limited to the objects of a 
 charity, as to the poor of a parish, in perpetual succession ; 
 but in a court of equity, where the feudal rules do not apply, 
 the intention of the donor will be carried into effect (6), pro- 
 vided of course the requisitions of the 9th G. 2. c. 36, be 
 compKed with. 
 
 It may here be observed, that the act just referred to ope- 
 rates, not by producing any incapacity to take as cestui que 
 trust, but by forbidding the alienation of land, or of property 
 savouring of the realty (except in the mode prescribed by the 
 act), for objects falling within the legal definition of charitable 
 purposes. 
 
 (a) Newlands v. Paynter, 4 M. & 
 Cr. 408 ; and compare Baggett v. 
 Meux, 1 Collyer, 188; 1 Phil. 627; 
 
 and Waters v. Wood, 14 M. & W. 
 166. 
 
 (6) Gilb. on Uses, 204. 
 
CHAPTER IV. 
 
 WHAT PROPERTY MAT BE MADE THE SUBJECT OP A TRUST. 
 
 As a general rule, all property, whether real or personal, 
 may be made the subject of a trust, provided the policy of the 
 law, or any statutory enactment, do not prevent the legal pro- 
 prietor from parting with the beneficial interest in favour of 
 another person. 
 
 As to lands regulated by a local custom, as copyholds, trusts Copyholds sub- 
 
 11 iiiiAiij" T jfict of trust, and 
 
 may also be created; thus. A., tenant of a manor, may surrender equitable interest 
 
 to the use of B. and his heirs, upon trust for C. and his heirs, descends as legal. 
 
 And as equity follows the law, the trust in C. will devolve 
 
 in the same manner as the legal estate. It will descend for 
 
 instance not to the heir at law, but the customary heir (a) ; and 
 
 as the copyholder might, until the late Act (&), have devised 
 
 the legal estate in the copyhold by a will, neither signed nor 
 
 attested, the cestui que trust might in like manner have passed 
 
 the equitable interest by a will equally informal (c). 
 
 The same principle would seem to require that where the Equitable inte- 
 legal estate in copyholds was not devisable at all (d), the cestui devisable, even 
 que trust should have no power of intercepting by his will the ^gt™ot''ff ™*^' 
 descent of the equitable interest upon the customary heir. The 
 Courts, however, have leaned strongly in favour of a power of 
 testamentary disposition, notwithstanding the want of a custom 
 in respect of the legal estate. Thus in Wilson v. Dent (e), A. 
 surrendered to the use of B. in fee upon trust for A. for his 
 life, and after his death upon the trusts of his will. The 
 
 (a) Trash v. Wood, 4 Myl. & Or. {d) As to the power of devising 
 
 324. the legal estate, even before the late 
 
 (6) 7 W. 4. & 1 Viet. c. 26. WUls Act, see Pike v. White, 3 B. 
 
 (c) Appleyard v. Wood, Select C. C. 286 ; Doe v. Thompson, 7 Q.. 
 
 Ch. Cas. 42 ; WagstaffY. Wagstaff, B. Rep. 897. 
 
 2 P. Will. 258 ; Tuffnell v. Page, (e) 3 Sim. 385. 
 2 Atk. 37. 
 
46 EQUITABLE INTEREST IN COPYHOLDS. [CH. IV. 
 
 custom of the manor did not recognise • any mode of passing 
 the estate by will, but the Court nevertheless decided that the 
 will operated as a testification, for whose benefit the trustee 
 was to hold the estate, and that the surrenderee was a trustee 
 ♦ for the devisees. 
 
 So in Lewis v. Lane (a), a copyhold was granted by the lord 
 to A., a purchaser for valuable consideration, for the successive 
 lives of himself and B A. in his lifetime could have passed 
 the estate by surrender for both lives, but lands held of the 
 manor were not devisable; and on the death of A., without 
 having surrendered, B., by the custom, could claim admittance 
 for his life. As A. had paid the purchase money, B. was held 
 to be a trustee for him ; and as A. could not have devised the 
 legal estate, the question was whether his will served to pass 
 the resulting trust. Lord Cottenham, then M. E.., observed: 
 " If there be an equitable interest, how can it be that the owner 
 has not the power of devising it ? Can it be said that if A. 
 purchase in the name of B. and pay the purchase money, the 
 property shall belong to B. and not to A. ? I cannot agree 
 that this is a question of custom at all, or that, if it were, it 
 would be reasonable." 
 Power to entail If the custom of the manor permit an entail of the legal estate, 
 
 equitable interest . , . , . i i /i\ 
 
 depends on an entail may in like manner be created in the equitable (b) ; 
 
 iegai"estate.'' ^^* ^^ there be no such custom as to the legal estate, there can 
 be no entail of the equitable. " The trust estate of a copy- 
 hold," said Lord Hardwicke, " can in no case be capable of an 
 entail when the legal estate is not, it being necessary that there 
 should be the same rule concerning property in law and in 
 equity " (c). Where, therefore, the equitable interest in lands 
 held of a manor not permitting an entail is limited to A., and 
 the heirs of his body, the estate is not construed as an entail 
 but as a fee conditional, that is, on issue born the condition is 
 fulfilled, and A. may alienate in fee. 
 
 Equitable inte- How far equitable interests may be engrafted on foreign 
 
 rests m foreign _ _ •' '^ j " 
 
 projjerty. property requires consideration. As regards personal estate 
 
 {a) 2 Myl. & Keen, 449. on Cop. p. 153, and following pages, 
 (6) Pullen v. Middleton, 9 Mod. that there may be an entail of copy- 
 Rep. 484 ; 1 Preston Conv. 162. holds without a special custom, 
 (c) The opinion of Watkius', Treat. cannot be maintained. 
 
CH. IV.] FOREIGN PEOPEETY. 47 
 
 there is no difficulty, for it follows the person, and if the settlor 
 himself be domiciled within the jurisdiction of the Court, all his 
 personal estate, whether in the East or West Indies, or else- 
 where, has no locality abroad, but is deemed to be at home, and 
 governed by the law of this country. A trust, therefore, may 
 freely be created of such interests, and would be enforced in 
 equity. In certain cases, however, there might be practical 
 obstructions in the way of executing the trust, from the circum- 
 stance of the property lying in fact beyond the reach of the Court. 
 
 As to lands lying in a foreign country, the Court wiU un- 
 questionably enforce natural equities, and compel the specific 
 performance of contracts, provided the parties be within the 
 jurisdiction, and there be no insuperable obstacle to the execu- 
 tion of the decree. 
 
 Thus in a West India estate, a tenant in common and con- Eqmties in rela- 
 signee had expended various sums in the management of the india property 
 property ; an inquiry was directed whether there was, by the ^"^ °^'"' ' 
 local law or usage, a lien by a consignee or tenant in common 
 for proper advances to the estate, and the master not finding 
 any such hen for want of evidence before him. Lord Eldon 
 said " that the estate could not be carried on without a con- 
 signee, and that as the person intrusted had made no complaint, 
 he should allow the lien upon the application of general prin- 
 ciples to estates in the West Indies (a). 
 
 In the leading case of Penn v. Lord Baltimore (6), the Court 
 enforced certain articles between the parties, for ascertaining 
 the boundaries of two provinces in America ; and Lord Hard- 
 wicke observed, that as to the Courts not enforcing the execu- 
 tion of this judgment, if that were so, it would be in vain to 
 make a decree ; but though the Court could not enforce the 
 decree in rem, it could in personam ; and though the decree 
 could not be enforced by putting the party in possession, 
 yet it could be by process of contempt, which had been ori- 
 ginally the only jurisdiction of the Court, and known long 
 before the writ of assistance to the sheriff; and his lordship 
 cited several precedents of a similar decree (c). 
 
 (c) See 1 Ves. 454 ; and see Ro- 
 herdean v. Rous, 1 Atk. 543 ; Angus 
 V. Angus, "West's Eep. 23. 
 
 {a) Scott V. Neshitt, 
 
 14 Ves. 
 
 438. 
 
 
 (6) 1 Yes. 444. 
 
 
48 FOREIGN LANDS. [CH. IV. 
 
 In other cases the Court has directed an account of the 
 rents and properties of lands abroad («), and has ordered an 
 absolute sale (&), and foreclosure of a mortgage (c) ; and has 
 relieved against a fraudulent conveyance of an estate abroad (d); 
 and has prevented a defendant by injunction from taiing 
 possession (e). 
 Equities admi- In Ex parte Pollard, a person entitled to lands in Scotland 
 
 respect of lands deposited the deeds on a money advance. By the Scotch law 
 m Scotland. ^j^g deposit did not create a lien upon the land, though the 
 transaction carried no illegality with it. The bankruptcy 
 judges held, that had the estate been in England the decree 
 would not only have affected the person, but have bound 
 the land; and as an estate in Scotland could not be affected 
 by the order of the Court, specific performance, which was 
 discretionary, would not be decreed (/). However, on appeal, 
 Lord Cottenham overruled this decision, and he observed that 
 though the deposit by the law of Scotland did not create any 
 lien upon the estate, yet he did not find anything in the Scotch 
 law contrary to the well-known rule that obligations to convey 
 perfected secundum legem domicilii, are binding against the 
 person : that contracts as to lands in England were enforced 
 here in personam and in rem, but as to contracts abroad in 
 personam only, which did not interfere with the lex loci rei 
 sitcB (g) : that if the law of the country where the land was situate 
 would not permit or not enable the defendant to do what the 
 Court might decree, it would be useless and unjust to direct 
 him to do the act ; but where there was no such impediment 
 the Courts of this country, in the exercise of the jurisdiction 
 over contracts made here, or in administering equities between 
 parties residing here, acted upon their own rules, and were not 
 influenced by any consideration of what the effect of such 
 contracts might be in the country where the lands are situate, 
 or of the manner in which the courts of such countries might 
 deal with such equities. 
 
 (o) Roherdean v. Mous, 1 Atk. (e) Cranstown v. Johnston, 5 Yes. 
 
 543. 278. 
 
 (J) Rolerdeanv. Rous,\ Atk. 544. (/) Ex parte Pollard, 3 Mont. & 
 
 (c) Toller v. Carteret, 2 Vern. 494. Ayr. 340. 
 
 {d) Arglasse v. Muschamp, 1 (g) Ex parte Pollard, Mout. & 
 
 Vern. 75. Chitt. 239. 
 
CH. IV.] EQUITIES IN FOEEIGN EEAl ESTATE. 49 
 
 Thus the general rule to be collected is that the power of 
 the Court to administer equities or enforce contracts as to 
 lands ahroad, extends as far as the actual ability of the parties 
 to carry the decree into effect. But should the foreign law- 
 present an insuperable obstacle, the Court will not make a 
 decree which must be nugatory for want of means to carry it 
 out. 
 
 The case of Waterhouse v. Stansfield {a) will illustrate this Mortgage of 
 distinction. There Moody had contracted to purchase an confers no lien 
 estate in Demerara, and by an indenture dated the 10th of ^e^ding'^trtUe 
 October, 1846, mortgaged the premises comprised ia the con- law of the colony, 
 tract to the plaintiffs, Waterhouse and Son, to secure 3000Z. 
 and interest: lOlOZ. was still due for the purchase money, 
 which the plaintiffs, with Moody's consent, discharged, and 
 thereupon the vendor authorised his agent in Demerara to 
 pass the estate to Moody or his mortgagees. Before this could 
 be done, Moody, by an indenture of the 15th of January, 1847, 
 mortgaged the same premises to Thompson Hankey and Co. 
 to secure a debt owing to them, who sent instructions to their 
 agent in Demerara to effectuate their mortgage. An interdict 
 was obtained by him from the Court of Demerara, to prevent 
 the completion of the plaintiffs' mortgage. On the 12th of 
 May, 1847, Moody became bankrupt, and his assignees sold 
 the premises, and received the purchase monies, and the 
 plaintiffs now filed their claim, alleging themselves to be 
 equitable mortgagees of the premises, and to have a lien upon 
 the proceeds. It appeared upon the evidence that a mortgage 
 ia Demerara could only be by Act of Court, and that the 
 iutention of passing a mortgage must be advertised for three 
 successive Saturdays in the official Gazette, and that every 
 creditor had a right, by an interdict, to prevent his debtor, 
 solvent or insolvent, from giving a preference by mortgage 
 to any other creditor. The Vice-Chancellor Turner held that 
 the contract, indeed, might bind the bankrupt and the assig- 
 nees, and yet, by the law of Demerara, might not be capable of 
 being fulfilled ; that if it could be decided in favour of the 
 plaintiffs, it must be upon the broad and general ground that 
 
 (o) 9 Hare, 234 ; 10 Hare, 254. 
 
50 EQUITIES IN FOREIGN EEAL ESTATE. [CH. .IV. 
 
 the property having been sold, and the proceeds received by 
 the assignees, the rights of the parties were no longer governed 
 by the law of Demerara, the lex loci rei sitce, but must be 
 governed by the law of this country, the lex loci contractus; 
 but the Vice-Chancellor was of opinion that the interest in 
 the proceeds was in substance and effect an interest in the 
 estate itself, and therefore he could not allow the Hen upon the 
 proceeds unless it existed by the law of Demerara; also that 
 the Hen alleged by the plaintiffs for the part of the purchase 
 money paid by them was equally a question of Demerara law ; 
 and he therefore directed inquiries whether the plaintiffs had, 
 by the law of Demerara, any Uen upon the premises or the 
 proceeds either under their mortgage or by payment of the 
 purchase money. 
 Partition of lands To a similar principle may be referred the case of Carteret 
 
 in Ireland will t. / \ mi n -n t ■ , • <■ 
 
 not be decreed V. Fctty {a). ihe bill was by a tenant m common ior a 
 ^^^' partition of lands in Ireland, and Lord Nottingham allowed 
 
 a demurrer to the bill, on the ground that when a defendant 
 could, by personal coercion, be compelled to perform the act, 
 the Court would decree it, as the payment of money, making a 
 conveyance, or the like ; but where no obedience of the per- 
 son imprisoned could execute the decree, it was in vain to 
 entertain the bill, and such was this case, for to a partition 
 in Chancery it was necessary to award a commission to some 
 neighbouring justices to divide the lands, and if they refused, 
 an attachment lay against them; but if they executed the 
 commission, the Court decreed a conveyance, and the enjoy- 
 ment of the lands in the interim ; and on disobedience followed 
 a sequestration and injunction, and a writ of assistance to the 
 sheriff, none of which could be awarded into Ireland, nor be 
 supplied by the obedience of the person imprisoned here. 
 The distinction between this case and Penn v. Lord Baltimore, 
 therefore, was, that in the former the Court was called upon to 
 make a partition, a jurisdiction that could not be exercised, for 
 the reasons stated in the judgment ; while in the latter the Court 
 compelled the defendant to execute a contract, and do all 
 
 (a) 2 Swans. 323, note (a), and 2 Supplement, and TuUochy, Hartley, 
 Ch. Ca. 214 : but see Penn v. Lord 1 T. & C. Ch. Ca. 114, 
 Baltimore, X Ves. 444, and Belt's 
 
CH. IV.] EQUITIES IN FOREIGN REAL ESTATE. -51 
 
 necessary acts for that purpose, and if he failed to comply he 
 became liable to a contempt. 
 
 Martin v. Martin (a) was a singular case, and is frequently cited. Covenant to 
 
 ° ' 1 J gg^tjg a Demerara 
 
 Maria Martin, an infant, was entitled to considerable personal estate not bind- 
 estate, and to a moiety of a plantation in Demerara. A suit was purchase'r with 
 instituted for the protection of her estate, and pending the suit, '""*''^- 
 and during the infancy, she intermarried, withqut the consent 
 of the Court, with Anthony Martin. An order was made, 
 referring it to the Master to approve of a settlement of her 
 real and personal estate, and by an indenture of the 27th of 
 August, 1802, executed with the sanction of the Court, Maria 
 Martin assigned her personal estate to trustees upon trust, 
 after raising a certain sum therein mentioned, to lay out the 
 trust estate in Government or real secv/rities for her separate 
 use during the coverture, and if she survived her husband, 
 upon trust as to one moiety for her absolutely ; and as to the 
 other moiety, upon trust for the children of the marriage, and 
 if no children, for her absolutely ; but if she died in the life- 
 time of her husband, upon trust, as to one moiety, for the 
 husband for life, and subject thereto, upon trust as to the 
 whole, for the children, and if no children for the husband for 
 life, and after his death upon trust as the wife should appoint, 
 or for her next of kin. And as to the Demerara estate, the hus- 
 band covenanted, and the wife agreed, that it should be con- 
 veyed to the trustees upon the like trusts as were before 
 declared concerning the trust monies, and the stocks, funds, 
 and securities in which the same should be invested, and that 
 the plantation should be considered as personal estate, and that 
 until the conveyance, the rents should be applied in like man- 
 ner as if the assurance had been actually made. In 1806, 
 A. Martin, and his wife who had now attained the age of 
 twenty-one, purported to convey the Demerara estate to the 
 ■trustees of the settlement, in pursuance of the articles. Sub- 
 sequently, Martin and his wife passed the estate, by an Act of 
 Court in Demerara, to a mortgagee, for securing advances by 
 him for the benefit of the wife and children, and supplies to 
 the estate. Mrs. Martin afterwards filed her bill to set aside the 
 
 (o) 2 Russ. & Myl. 507. 
 
 E 2 
 
52 EQUITIES IN FOEEIGN EEAL ESTATE, [CH. IT. 
 
 mortgage,, and have the articles and settlement established. 
 It was found by the Master, that by the law of Demerara 
 there was no mode of settling property upon the wife and 
 children : that the conveyance of 1806 was inoperative, iaas- 
 much as lands in Demerara could only be passed by an Act of 
 Court, and that the legal estate was in the mortgagee : that, 
 by the law of , Demerara, there was besides a lien upon the 
 property for monies allowed to a wife and her children, and 
 for supplies to the estate. For the plaintiff it was argued that, 
 under the articles, the Demerara estate ought to have been sold, 
 and converted into money, and invested upon the trusts of the 
 settlement, and that the mortgagee, having notice of the settle- 
 ment, was bound by the equity. However, the Court decided 
 that the plaintiff had no equity against the mortgagee, though, be 
 had notice, for, assuming that the plaintiff could compel a sale, it 
 must be subject to the prior lien found by the Master for 
 advances to the wife and children, and supplies to the estate. 
 Had the lien not existed, the Court thought the plaintiff might 
 have compelled a sale as against the husband, but that such 
 equity attached not to the estate, but to the person only: 
 that after the institution of a suit, the equity would have 
 bound the estate, but until bill filed, the husband could make 
 a good title even to a purchaser with notice; and the Court 
 instanced the case of a husband, the apparent owner of two 
 estates of equal value, and that he made a settlement of estate 
 A. under the direction of the Court, and that the trustees were 
 afterwards evicted by defect of the husband's title : in that 
 case the Court would oblige the husband to make a settlement 
 of B., but that until the bill was on the file the husband re- 
 mained the owner of estate B., and could effectually sell or 
 charge it {a). 
 
 The decree in the above case may be supported on the 
 single ground of the mortgagee's lien for advances and sup- 
 plies, but the distinction taken by the Court that the articles 
 could have been enforced against the husband himself, but did 
 not bind a purchaser from him with full notice, appears to be a 
 
 (o) As to personal equities, see fur- LI. & Go. temp. Sugden, 261; John- 
 ther, Morse v. Faulkner, 1 Anst. 11, son v. Holdsworth, 1 Sim. N. S, 108. 
 3 Sw. 429, note (a) ; Averallr. Wade, 
 
.CH. IV.^ .TEUSTS GF FOEEIGIT REAL ESTATE. 53 
 
 somewhat refined and subtle distinction, and scarcely in har- 
 mony with Ex parte Pollard and other cases. 
 
 A question still remains how far trusts not constructively Tniets of lands 
 but properly such can be applied to lands abroad. Should the *^™^'^- 
 foreign law itself recognise the distinction between the legal 
 and equitable estates, there could be no objection to the 
 execution of trusts here corresponding to those allowed abroad. 
 Should an equitable estate be not known to the foreign law, 
 stUl should the lands be capable of settlement there, a trust 
 might be legitimately created here, analogous to the limitations 
 permitted by the foreign code. But should the lex loci neither 
 permit an equitable estate, nor successive limitations of the 
 legal estate, it could hardly be contended that an English 
 settlement by way of trust could be ingrafted. The law 
 applicable to lands in England has a local character, and 
 the Courts act upon the principle that land universally must 
 be governed by the law of the country where it is situate. 
 How then could a system adapted exclusively to lands in 
 England be transplanted and affixed to lands abroad? Could 
 entails, for instance, be created where none are allowed, and 
 if created, by what machinery could they be barred? It 
 has been seen that in the case of copyholds, when the custom 
 of the manor does not allow entails of the legal estate, none 
 can be created of the equitable, and the same principle will 
 apply, to trusts of foreign lands. 
 
 ■ The few authorities upon the subject are in accordance with 
 this view. In Martin v. Martin (a), cited above, it wUl be 
 observed that though the Court was of opinion that, under the 
 marriage contract, the Demerara estate might have been sold 
 and the trusts attached to the proceeds, it did not occur either 
 to the bar or the bench that the legal estate could be held 
 upon the trusts of the settlement without a conversion. 
 
 Again, in Glover v. Strothoff (b), a testatrix had taken a 
 heritable bond charged upon lands in Scotland in the names 
 of trustees upon trust for her, and by her will executed 
 according to the Statute of Frauds, she devised the heritable 
 bond, and the question was whether the will was not in- 
 
 (a) 2 Euss. & Myl. 507. (6) 2 B. C. C. 33. 
 
54 TEUSTS OF rOEEIGN EEAL ESTATE. [CH. IV. 
 
 operative. The heir insisted that by the law of Scotland a 
 heritable bond was not devisable. Lord Thurlow asked, " Is 
 not the bond on a trust ? " but it was answered that the trust 
 was a scheme to get rid of the lex loci, and eventually the 
 Court directed an inquiry whether by the law of Scotland the 
 heritable bond had passed by the will. 
 
 In Nelson v. Bridport (a), Viscount Nelson, being entitled to 
 the duchy and estate of Bronte, in Sicily, by his will appointed 
 W. Nelson and W. Hazlewood to succeed to the duchy and estate, 
 and devised the same to them accordingly, upon trust neverr 
 theless to settle and convey the premises to the uses and upon 
 the trusts thereinafter mentioned, if the law of Sicily would 
 permit, and if not, then in such manner as in the discretion of his 
 trustees would best correspond with the purposes thereinafter 
 mentioned ; that was to say, to the use of W. Nelson for hfe, with 
 remainder to his first and other sons in tail, with remainder to 
 Mrs. Bolton for life, with remainder to her first and other sons 
 in tail, with remainders over, and the testator empowered his 
 trustees, at their will and pleasure, to sell the Bronte estate 
 and invest the proceeds in the purchase of lands in England, 
 Ireland, or Wales, to be settled to the like uses, and if the 
 testator's intention could be letter accomplished through the 
 medium oj a trust than an actual settlement, he authorised the 
 trustees to retain the legal estate until the trusts could be per- 
 formed, and to apply the rents accordingly. It appeared that 
 the duchy had been granted to Viscount Nelson, so that he 
 or the heirs lawfully descending of his body, or from the person 
 whom he should nominate as after mentioned, should be Dukes 
 of Bronte and hold the duchy according to the law of the 
 Franks ; and the charter gave him a power to nominate whom 
 he would, whether a relative or not, as a person to whom the 
 hke investiture should be granted. On the death of Viscount 
 Nelson, William Nelson, one of the trustees and tenant for life, 
 received investiture as Duke of Bronte, and some years after- 
 wards, a law having passed in Sicily enabling the alienation of 
 entailed estates, William devised the property to his daughter, 
 Lady Bridport, who, on his death, entered upon possession. 
 
 (a) 8 Beav. 647. 
 
CH. IV.] TRUSTS OF FOREIGN REAL ESTATE. 55 
 
 Plaintiff being the person entitled under the limitations in the 
 will of Viscount Nelson, filed his bill against Lady Bridport for 
 the recovery of the estate. There was great conflict of evidence 
 as to the law of Sicily, but the Court came to the conclusion 
 that the trustees could not have settled the estate in strict 
 accordance with the will, and that the investiture of William 
 Nelson, the first tenant for life, was the nearest approach that 
 could be made to the settlement, and that the absolute owner- 
 ship conferred by the subsequent law did not vary the rights of 
 the parties, and, therefore, that William Nelson, having lawfully 
 received investiture in the first instance, could afterwards 
 dispose absolutely of the estate in favour of his daughter. 
 William Nelson was regarded as having acquired the legal 
 estate under the will in execution of the power conferred by 
 the charter, but the Court apparently assumed throughout 
 that Enghsh trusts would have no effect upon a Sicilian estate ; 
 and the Master of the Eolls observed, " The incidents to real 
 estate, the right of alienating or limiting it, and the course of 
 succession to it, depend entirely on the law of the country 
 where the estate is situated. Lord Nelson haviag accepted 
 this Sicilian estate could deal with it only as the SiciUan law 
 allowed ; he had a right to appoint a successor, but no right to 
 modify the estate, interest, or power of disposition to which the 
 successor was entitled by the law of Sicily " (a). 
 
 (a) 8 Beav. 570. 
 
CHAPTER V. 
 
 OF THE FORMALITIES REQUIRED FOR THE CREATION 
 OF A TRUST. 
 
 Upon this subject we propose to treat, First, Of declarations 
 ■of trusts at common law. Secondly, Of the Statutes of Frauds* 
 Thirdly, Of the Statutes of Wills. And Fourthly, Of trans- 
 mutation of possession. 
 
 SECTION I. 
 
 OF lEUSTS AT COMMOIT LAW. 
 
 Teusts like uses are of their own nature averrable, i. e., may 
 be declared by word of mouth without writing (a) ; as, if before 
 the Statute of Frauds am estate had been conveyed unto and 
 to the use of A. and his heirs, a trust might have been raised 
 by parol in favour of B. (6), and since the statute, though in 
 respect of lands a trust cannot be declared by mere parol, 
 no other formality is requisite than a simple note in writing 
 not under seal (c). 
 Averment must But the Court, following the analogy of uses, will not per- 
 
 not contradict -j. ^i i j> i x • i t i- j 
 
 the instrument. ™'* ^he averment 01 a trust m contradiction to any expression 
 
 of intention on the face of the instrument itself (cQ. 
 Nor be repugnant Nor is it iiecessary in order to exclude averment that the 
 
 to the scope of r- ■ ■, 
 
 the instrument, beneficial ownership should be conferred upon the grantee 
 of the legal estate expressly, for a trust cannot be raised by 
 
 {a) See Fordyce v. Willis, 3 B. (c) Adlington v. Cann, 3 Atk. 
 
 C. C. 587; Benhow v. Townsend, 1 151, ^er Lord Hard wioke; Boson r. 
 
 M. & K. 506 ; Bagley v. BoulcoH, Statham, 1 Ed. 513, per Lord 
 
 4 Russ. 347 ; Crabh v. Crabb, 1 M. Keeper Henley. 
 
 AX. 511; Kilpiny. Kilpin,ld. 520. {d) Lewis v. Lewis, 2 Ch. Rep. 
 
 (6) See Bellasis v. Compton, 2 77 ; Finch's case, 4 Inst. 86 ; For- 
 
 Vern. 294 ; Fordyce v. Willis, 3 B. dyce v. Willis, 3 B. C. C. 587. 
 C. C. 587 ; Thruxton. v. Attorney- 
 General, 1 Vern, 341. 
 
dH. V. «. 1.] TRUSTS AT COMMON LAW. 67 
 
 parol, if, from the nature of the instrument, ov any circunlstance 
 of evidence appearing on the face of it, an intention of making 
 the legal holder the beneficiary also, can be clearly implied. 
 Thus a trust cannot be averred, where a valuable consideration 
 is paid (a) ; and if a pension from the Crown be granted to A., 
 a trust cannot be raised by parol in favour of B. ; for a pension 
 is conferred upon motives of honour, and the inducements to 
 the bounty are the personal merits of the annuitant (6). 
 
 And it was a principle of uses, that, on a feoffment, which Trusts not aver- 
 could be made by parol, a use might be declared by parol; but required To pats 
 where a deed was necessary for passing the legal estate, there *^® ^^^*' ^^*^*^" 
 the use which was ingrafted could not be raised by aver- 
 ment (c). As trusts have been modelled after the likeness of 
 the use(i), the distinction at the present day may deserve 
 consideration. It is laid down by Duke expressly, that, where 
 the things given may pass without deed, there a charitable use 
 jnay be averred by witnesses; but, where the things cannot 
 pass without deed, there charitable uses cannot be averred 
 without a deed proving the use (e). And Lord Thurlow, it is 
 probable, alluded to the same distinction when he observed, 
 " I have been accustomed to consider uses as averrable, but 
 perhaps when looked into, the cases may relate to feoffmentj 
 not to conveyances by bargain and sale, or lease and re- 
 lease "(/). And in AdUngton v. Cann{g), where a testator 
 devised the legal estate in lands to A. and B.,and their heirs 
 by a will duly executed, and left an unattested paper referring 
 to trusts for a charity, Mr. Wilbraham in the argument 
 .observed, " If this were a voluntary deed, would a paper, even 
 declaring a trust, be sufficient to take it from the grantee ? no, 
 certainly (^) ; " and it is very observable that Lord Hardwicke, in 
 
 ■ (fl) See Gilb, on Pses, 51, 57; W-iS-i:; Attorney- General y. Scott, 
 
 Pilhington v. Bayley, 7 B. P. C. Eep. t. Talb. 139 ; Burgess v. 
 
 526. Wheate, 1 Ed. 195, 217, 248; 
 
 (5) Fordyce v. Willis, 3 B. C. C. Geary v. Bearcroft, Sir 0. Bridg. 
 
 ■587. 488. 
 
 (c) Gilb. on Uses, 270. (e) Duke, 141. 
 
 \d) See Fordyce v. Willis, 3 B. (/) Fordyce v. WUlis, 3 B. C. C. 
 
 C. C. 687 ; Lloyd v. Spillet, 2 Atk. 587. 
 
 150; Attorney-General y. Lockley, (g) 3 Atk. 141. 
 
 Append, to Vend. & Purcb. No. 16, {h) lb. 145. 
 11th ed. ; Chaplin v. Chaplin, 3 P. 
 
58 TRUSTS AT COMMON LAW. [CH. V. S. 1, 
 
 referring to this observation, excludes the case of a deed, and 
 lays it down that " if the testator had made a feoffment to him- 
 self and his heirs, and left such a paper, this would have been 
 a good declaration of trust " (a). 
 Trusts not aver- The averment of a trust was never permitted as against a 
 
 ratle on a devise ,. , ■, • in-rr i •!■ 
 
 even at common devtsee. A devise, as was resolved m Vernon s case, implies a 
 ' consideration, and therefore cannot be averred to the use of 
 
 another (b) ;• for that, observes Lord Chief Baron Gilbert, were 
 an averment contrary to the design of the will appearing in the 
 words (c); and accordingly in Lady Portington's case{d), the 
 Court of Queen's Bench refused to admit evidence against the 
 devisees, both from the Statute of Frauds and also from the 
 nature of the thing. It is laid down, indeed, by Jenkins, that 
 an averment might be at common law upon a will, though it was 
 in writing ; but his only authority in support of this position 
 is a case that has evidently been mistaken. " A devise," he 
 says (by the custom of London before the Statute of WUls), 
 " was to A., B., and C, and that A. should have all the profits 
 during his life. Upon a suit in Chancery by the heir of A., 
 the trust of this land was averred to be reposed in the said 
 A., B., and C, to the use of A. and his heirs; and it was so 
 proved. The Chancellor made a decree, by the advice of the 
 judges, that A. being dead, his heir should have the land(e)." 
 But the case, as stated by Fitzherbert (/), from whom it is cited 
 by Jenkins, involved a very different question. A citizen of 
 London had devised to his son and three others, and his will 
 was that one of the three should have the profits for life. The 
 cestui que trust for life died, and the heir (viz. of the testator, 
 and not of the cestui que trust) filed his bill in Chancery as 
 entitled to the resulting interest, and prayed a conveyance. It 
 was argued for the trustees, that in a feoffment the use would 
 have resulted ; but in a will the devisees were intended to take 
 every beneficial interest, that was not expressly disposed of 
 from them. But the Court refused to recognise the distinction, 
 and decreed a resulting trust to the testator's heir. 
 
 Nor on a Request Upon the Same principle the averment of a trust was always 
 
 or appointment 
 
 of an executor. ^^^ 3 ^^^_ ^g^^ ^^^ ^ g^j^_ jg2_ 
 
 (b) 4 Rep. 4, a. (e) Jenk. 3 Cent. Ca. 26. 
 
 (c) Glib, on Uses, 162. (/) Pitzherb. Ab. Devise, 22. 
 
CH. V. S. 1.] TRUSTS AT COMMON LAW. 59 
 
 inadmissible as against a legatee, and though the law for a long 
 time fluctuated in respect of an executor claiming the surplus 
 of the personal estate (a), it was at length determined that even 
 the executor's beneficial title could not be defeated by parol. 
 Upon the latter point the following distinctions were observed : — 
 1st. Where a person was simply appointed executor, which Admission and 
 
 rejection of parol 
 
 conferred upon him a legal title to the surplus, averment was eridence as 
 not admissible to make him a trustee for the next of kin (&). ofexecutors.^ 
 2dly. If from any circumstance appearing on the face of the 
 will, as the gift of a legacy to the executor, the law presumed 
 he was not intended to take the surplus beneficially, the 
 executor was at liberty to rebut that presumption by the pro- 
 duction of parol evidence (c), and of course the next of kin 
 might then fortify the presumption by opposing parol evidence 
 in contradiction. But, 3dly. Where the will itself invested the 
 executor with the character of trustee, as by giving him a 
 legacy " for his trouble," or by styling him a " trustee " ex- 
 pressly, the pri7)id facie title to the surplus was then in the 
 next of kin, and parol evidence was not admissible to disprove 
 the express intention (d). 
 
 By the late Act 11 G. 4. & 1 W. 4. c. 40, an executor is 
 prima facie a trustee for the next of kin (e). But where there 
 are no next of kin the title of the executor, as against the Crown, 
 is not affected by the statute, but he may still take beneficially. 
 
 The declaration of a use by the king must have been by Declaration of 
 
 , . , , . . Trust by or to 
 
 letters patent (/) ; and it seems the same doctrine is now the king. 
 applicable to trusts (g). Nor could a use have been declared to 
 the king in the ordinary mode. The king, says Chief Baron 
 Gilbert, " cannot have a feoffee to his use, because he cannot 
 take but by matter of record ; but, if the use be found by office 
 upon record, then he may take" {h). However, Lord Bacon 
 
 (a) See Povei/ v. Juxon, Nels. Ves. 435 ; S. C. 19 Ves. 641 ; 
 
 135 ; Fane v. Fane, 1 Vern. 30. Golding v. Yapp, 5 Mad. 69 ; 
 
 (J) Langham v. Sandford, 19 White v. Evans, 4 Ves. 21 ; TFo/- 
 
 Ves. 644, per Lord Eldon ; White ton v. Walton, 14 Ves. 322, per Sir 
 
 V. WtUiams, 3 V, & B. 72 ; 8. 0. W. Grant. 
 
 Coop. 58. («) See Love v. Gaze, 8 Beav. 472. 
 
 (c) Walton V. Walton, 14 Ves. (/) Bacon on Uses, 66. 
 
 322, per Sir W. Grant. {g) Fordyce v. Willis, 3 B. C. C. 
 
 {d) Rachfield v. Careless, 2 P. 577. 
 
 W. 158 ; Langham v. Sandford, 17 (A) Gilb. on Uses, 44, 204. 
 
60 
 
 STATUTE OF FEAUDS. 
 
 [CH. V. S. 2. 
 
 seems to have thought, that the purpose of the inquest was not 
 to make, but to find the title ; for he says, " It behoveth both 
 the declaration of the use, and the conveyance itself, to be matter 
 of recoi:d, because the king's title is compounded of both " (a). 
 
 Copyholds. 
 
 Hargrave's 
 opinion that 
 uses of copy- 
 holds were 
 within the act. 
 
 SECTION II. 
 
 OP THE SIATT7IE OF TEAtrDS. 
 
 By the seventh section of the Statute of Frauds (b) it is 
 enacted, that " all declarations or creations of trusts or con- 
 fidences of any lands, 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 they shall be utterly void and of none effect." 
 
 Upon the subject of this enactment we shall first briefly 
 point out what interests are within the act, and, secondly, what 
 formalities are required by it. 
 
 1. Of the interests within the act. 
 
 Copyholds are to be deemed within- the operation of the 
 clause, for, as a trust is ingrafted on the estate of the copyhold 
 tenant, the rights of the lord, who claims by title paramount, 
 cannot in any way be injuriously affected (c). A trust, there- 
 fore, cannot be declared by parol so as to make the copyholder 
 a trustee for another. 
 
 Mr. Hargrave seems to have thought, that even the uses of a 
 surrender were trusts within the intention of the act ; for, in a 
 note to Coke on Littleton he observes, " A nuncupative will of 
 copyholds was a valid declaration of the uses, where the sur- 
 render was silent as to the form, tUl the 29 Car. 3. required all 
 declarations of trusts to be in writing " (1). But the surrender 
 
 (a) Bacon on Uses, 60. 
 (6) 29 Car. 2. c. 3. 
 (c) See Withers v. Withers, Amb. 
 151 ; Qoodright v. Hodges, 1 Watk. 
 
 on Cop. 227; 8. C. Lofft. 230; 
 Acherley v. Acherley, 7 B. P. C. 
 273 ; but see jbevenish v. Baines, 
 Pr. Ch. 5. 
 
 (1) Mr. Watkins argues, and apparently both on principle and authority 
 (see Devenish v. Saines, Pr. Ch. 3), that a nuncupative will of copyholds 
 was effectual. 1 Wat. Cop. 130. Now by the late Will Act (1 Vict. o. 26) 
 copyholds have been put on the same footing with otber property. 
 
CH. y. S. 2.] CHATTELS EEAL AND CHARITABLE USES. 61 
 
 of a copyhold to uses is merely a direction to the lord in what 
 manner to regrant the estate, and the surrenderee is a cestui 
 que use by misnomer only, and not in fact; and indeed the 
 Court of Queen's Bench has expressly decided that uses of 
 copyholds are not within the Statute of Frauds, on the ground 
 that a surrender to uses is not the creation of a trust or confi- 
 dence apart from the legal estate, but a mode established by 
 custom of transferring the legal estate itself (a). 
 
 Chattels real are within the purview of the act, and a trust Chattels real 
 of them must therefore be evidenced by writing as in the case 
 of freeholds (&). 
 
 But chattels personal are not within the act, and a trust by Chattels personal 
 •averment will be supported (c). It has even been held that a act. 
 sum of money secured upon a mortgage of real estate, is not 
 an interest within the act, and that a parol declaration is 
 good (cZ). And if a trust be once created by parol declaration, 
 it cannot be affected by any subsequent parol declarations of 
 the settlor (e). 
 
 An attempt was formerly made to have a charitable use CharitaWe uses 
 excepted from the statute, but Lord Talbot decreed (/), and 
 Lord Hardwicke af&rmed the decision (g), and Lord Northington 
 said every man of sense must subscribe to it (/i), that a gift to 
 a charity must be treated on the same footing with any other 
 disposition. 
 
 (o) Doe V. J)anvers, 7 East, 510, per Sir J, Leaoh ; JFane v. 
 
 299. Fane, 1 Vern. 31, per Lord Notting- 
 
 (6) Skett Y. Whitmore, Preem. ham; Nab v. Nab, 10 Mod. 404. 
 
 280 ; Forster v. Hale, 3 Ves. 696 ; But this case, as reported 1 Eq. Ca. 
 
 Middle V. Emerson, 1 Vern. 108 ; Ab. 404, appears an authority the 
 
 and see Sutchins v. Lee, 1 Atk. other way. 
 
 447 ; Bellasis v. Compton, 2 Vern. {d) Benbow v. Townsend, 1 M. & 
 
 294. E. 506 ; and see Bellasis v. Comp- 
 
 (c) Bayley v. Boulcott, 4 Euss. ton, 2 Vern. 294. 
 
 347, per Sir J. Leach ; M^Fadden, (e) Xilpin r. Kilpin, 1 M. & K. 
 
 v. Jenkyns, 1 Hare, 461, per Sir J. 520, see 539 ; Crahb v. Crdbb, 1 M. 
 
 Wigram; S. C. 1 Ph. 157, per & E. 511. 
 
 Lord Lyndhurst ; Thorpe v. Owen, (/) Loyd v. Spillet, 3 P. W. 
 
 5 Beav. 224 ; George v. Bank of 344. 
 
 England, 7 Price, 646 ; Hawkins v. [g) 8. C. 2 Atk. 148 ; S. C. Barn. 
 
 Gardener, 2 Smale & Grif. i51, per 384; and see Adlington v. Cann, 
 
 V. C. Stuart ; Fordyce v. Willis, 3 3 Atk. 150. 
 
 B. C. C. 587, per Lord Thurlow ; (A) Boson v. Statham, 1 Ed. 613. 
 Benbow v. Townsend, 1 M, & K. 
 
6-3 
 
 STATUTE OP FBAUDS. — CEOWN. [CH. V. S. 2i 
 
 Whether the 
 crown is hound 
 by the statute. 
 
 Colonial lands. 
 
 Whether the sta- 
 tute to be a bar 
 must be pleaded. 
 
 Trusts to be 
 proved hy, not 
 declared in, 
 writing. 
 
 In Lady Portingtori's case (a) it was held by the Court of 
 Queen's Bench, that the Crown was bound by the Statute of 
 Frauds, and therefore was not at liberty to prove a superstitious 
 use by parol ; but in the Court of Exchequer it was ruled, on 
 the contrary, that the Statute of Frauds did not bind the Crownj 
 but took place only between party and party. Lord Hardwicke 
 expressed his doubts upon the latter doctrine, that the Crown 
 is not bound by a statute unless specially named ; but at the 
 same time mentioned a case in which that doctrine had been 
 followed (&). 
 
 It seems the statute will not apply to lands situate in a 
 colony planted before the Statute of Frauds was passed (c). 
 Planters carry out with them their own laws as they were sub- 
 sisting at that time ; but sixbsequent enactments at home will 
 not follow them across the seas, unless it be so specially pro- 
 vided. A fortiori the Statute of Frauds will not affect foreign 
 lands not subject to the crown of England. 
 
 If a bill be filed to have the benefit of a parol trust of lands, 
 is a defendant, who would rely on the Statute of Frauds as a 
 bar, bound to plead it ? The analogy of the section of the 
 same statute relating to contracts touching interests in lands, 
 would lead to the inference that to a bill for the execution of a 
 parol trust, the defendant must plead the statute or he wiU be 
 deemed to waive the bar. The point, however, remains to be 
 decided (d). 
 
 2. What formalities are required by the statute. 
 
 The principal point to be noticed is, that trusts are not 
 • necessarily to be declared in writing, but only to be manifested 
 and proved by writing; for, if there be written evidence of the 
 existence of such a trust, the danger of parol declarations, 
 against which the statute was directed, is effectually removed (e). 
 It may be questioned whether the act did not intend that the 
 
 (a) King" -v. Partington, 1 Salk. 
 162 ; and see Adlington v. Cann, 3 
 Atk. 146. 
 
 (6) Adlington v. Cann, 3 Atk. 
 154. 
 
 (e) See 2 P. W. 75 ; and see Gar- 
 diner V. Fall, IJ. & W. 22. 
 
 {d) See Cottington v. Fletcher, 2 
 Atk. 155. 
 
 (e) Forster v. Hale, 3 Ves. 707, 
 per Lord Alvanley ; S. C. 5 Yes. 
 315, per Lord Loughborough. 
 
CH. V. S. 3.] STATUTE OF FRAUDS. FOEMALITIES. 63 
 
 declaration itself should be in writing ; for the ninth section 
 enacts, that " all grants and assignments of any trust or con- 
 fidence shall likewise be in writing, signed by the party granting 
 or assigning the same, or by such last will or devise {a) ; " but, 
 whatever may have been the actual intention of the legislature, 
 the construction put upon the clause in practice is now firmly 
 established. 
 
 The statute will be satisfied, if the trust can be manifested As by a letter, 
 by any subsequent acknowledgment of the trustee, as by an ' ' 
 
 express declaration by him (&), or any memorandum to that 
 effect (c), or by a letter under his hand {d), by his answer in 
 Chancery (e), or by a recital in a bond (/) or deed {g), &c. ; and 
 the trust, however late the proof, takes effect from the creation 
 of the trust. Even where a lease was granted to A., who after- 
 wards became bankrupt, and then executed a declaration of 
 trust in favour of B., a jury having found upon an issue 
 directed from Chancery that A.'s name was bond fide used in 
 the lease in trust for B., it was held the assignees of A. had 
 no title to the property Qi). In another case, on the marriage 
 of Lord Windsor with Miss Tovey, certain estates of his lord- 
 ship, called Breedon and Eedmarley, were omitted from the 
 settlement with a view of selling them and purchasing others 
 more convenient, which when purchased were to be settled. 
 About the same time Lord Windsor, by Ernes, his agent, con- 
 tracted for the purchase of the manor of Bromsgrove, and Lord 
 Windsor and Emes bound themselves to pay the purchase- 
 money. The conveyance was made to Lord Plymouth, who 
 
 (o) i, e, A ■will executed in con- (e) Hampton v. Spencer, 2 Vem. 
 
 foimity with section 5. Note that 288 ; Nah v. Nah, 10 Mod. 404 ; 
 
 Croohe v. Brooking, 2 Vein. 50, 106, Cottington v. Fletcher, 2 Atk. 155 ; 
 
 was before the Statute of Frauds. Ryall v. Myall, 1 Atk. 69, per Lord 
 
 (J) Ambrose v. Ambrose, 1 P. W. Hardwicke ; Wilson v. Dent, 3 Sim. 
 
 321 ; Crop v. Norton, 9 Mod. 233. 385. A bill differs from an answer, 
 
 (c) Bellamy v. Burrow, Rep. t. as it is not signed by the party. 
 
 Talb. 97. See, however, Butler v. Portarling- 
 
 {d) Forster v. Hale, 3 Ves. 696 ; ton, 1 Conn. & Laws. 1. 
 JS. a 5 Ves. 308 ; Morton v. Tewart, (/) Moorcroft v. Dowding, 2 P. 
 
 2 T. & C. Ch. Ca. 67 ; Bentley v. W. 314. 
 
 Machay, 15 Beav. 12 ; Smith v. {g) Beg v. Deg, 2 P. W. 412. 
 
 W^iftinsore, cited3Ves.705; O'Hara (h) Gardner v. Howe, 2 S. & S. 
 
 V. O'Neill, 7 B. P. C. 227 ; and see 346 ; S. C. affirmed, 5 Russ. 258. 
 Gardner v. Howe, 2 S. & S. 354. 
 
64 
 
 STATUTE OF FEAUDS. FOEMALITIES. [CH. V. S. 3. 
 
 Relation to sub- 
 ject-matter, and 
 nature of trust 
 must be clear. 
 
 The writing must 
 be signed. 
 
 paid the purchase-money himself^ and raised it by a mortgage 
 of his property. Two years afterwards Lord Windsor raised 
 the same sum by a mortgage of Breedon and Bromsgrove, and 
 paid it to Lord Plymouth, who signed a receipt for it. Lord 
 Plymouth devised Bromsgrove for payment of his debts, but it 
 was held that a trust for Lord Windsor was sufQciently proved 
 ■within the Statute of Frauds. Creditors, the Court said, are 
 favourites, but we must not pay them out of other men's 
 estates ; nor, as Justice Twisden was wont to say, steal leather 
 to make poor men shoes (a). 
 
 But with regard to letters and loose acknowledgments of 
 that kind, the Court expects demonstration that they relate to 
 the subject matter (6); nor will the trust be executed if the 
 precise nature of the trust cannot be ascertained (c) ; and if 
 the trust be established on the answer of the trustee, the terms 
 of it must be regulated by the whole answer as it stands, and 
 not be taken from one part of the answer to the rejection of 
 another {d) ; and the plaintiff, if he read the answer in proof of 
 the trust, must at the same time read from it the particular 
 terms of the trust (e). When the trust is manifested and 
 proved by letters, parol evidence may be admitted to show the 
 position in which the writer then stood, the circumstances by 
 which he was surrounded, and the degree of weight and credit 
 to be attached to the letters, independently of any question of 
 construction (/). 
 
 It will be observed, that the words of the statute require the 
 writing to be signed (g) ; and not only the fact of the trust, but 
 also the terms of it, must be supported by evidence under 
 signature Qi) ; but, as in the analogous case of agreements 
 under the fourth section of the act (i), the terms of the trust 
 may be collected from a paper not signed, provided such paper 
 
 (a) Plymouth v. Hichman, 2 
 Vern. 167. 
 
 (S) Forster v. Hale, 3 Ves. 708, 
 per Lord Alvanley. 
 
 (c) Forster v. Hale, 3 Yes. 707, 
 per Lord Alvanley ; Morton v. Te- 
 wart, 2 Y. & C, Ch. Ca. 80, per Sir 
 J. L. K. Bruce. 
 
 (d) Hampton v. Spencer, 2 Vern. 
 288 ; Nab v. Nab, 10 Mod. 404. 
 
 (e) Freeman v. Tatham, 5 Hare, 
 329. 
 
 (/) Morton v. Tewart, 2 T. & C. 
 Ch. Ca. 67, see 77. 
 
 {'g) See Denton v. Davis, 18 Yes. 
 503. 
 
 (A) Forster v. Hale, 3 Yes. 707, 
 per Lord Alvanley. 
 
 (j) See Vend. & Purch. ch. 3, s. 2. 
 
CH. V. S. 3.] STATUTES OF WILLS. 65 
 
 can be clearly connected with, and is referred to by, tbe writing 
 that is signed (a). The signature must be by the party " who 
 is by law enabled to declare such trust." It has been occa- 
 sionally contended, that by this description is meant the person 
 seised or possessed of the legal estate ; but it has been decided 
 that whether the property be real (6) or personal (c), the person 
 enabled to declare the trust is the owner of the beneficial 
 interest, and who has therefore the absolute control over the 
 property, the holder of the legal estate being a mere instrument 
 or conduit-pipe [d). 
 
 SECTION III. 
 
 OF IHH STATUTES OP WILLS. 
 
 By the fifth section of the Statute of Frauds (e) aU devises 
 of lands are required to be in writing and signed by the 
 testator, or by some person in his presence and by his direc- 
 tion, and to be attested or subscribed in his presence by three 
 witnesses ; and by the nineteenth section, aU bequests of 'per- 
 sonal estate are required to be in writing, with the exception of 
 certain specified cases in which nuncupative wUls are allowed. 
 
 To trace the operation of these enactments (/) we must bear Principle of 
 in mind that the absolute owner of property combines in him- rations not tes- 
 self both the legal and equitable interest, and when the legis- ^^"'^''^YwUis 
 lature enacts that no devise or bequest of property shall be 
 valid without certain ceremonies, a testator cannot by an 
 informal instrument affect the equitable, any more than the 
 legal, estate, for the one is a constituent part of the ownership 
 as much as the other. Thus a person cannot but by a will 
 duly signed and attested give a sum of money originally and 
 primarily out of land, for the charge is a part of the land, and 
 to be raised out of it by sale or mortgage (g) ; and if a testator 
 by will duly signed and attested give lands to A. and his heirs 
 
 (a) Forster v. Hale, 3 Ves. 696. («) 29 Car. 2, c. 3. 
 
 (6) TierneyY. Wood, 19Beav. 330. (/) The statute now in force is 1 
 
 (c) Bridge v. Bridge, 16 Beav. Vict. o. 26, but the cases were de- 
 315 ; ex parte Pye, 18 Ves. 140, &c. cided on the Statute of Frauds. 
 
 [d) See Donohoe v. Conrahy, 2 {g) See Brudenell v. Boughton, 2 
 Jones & Lat. 688. Atk. 272. 
 
66 STATUTES OF WILLS. [CH. V. S. 3. 
 
 " upon trust," but without specifying the particular trust in- 
 tended, and then by a paper, not duly signed and attested as 
 a will or codicil, declare a trust in favour of B., the beneficial 
 interest under the will is a part of the original ownership, 
 and cannot be passed by the informal paper, but will descend 
 to the heir-at-law (a). Again, if a legacy be bequeathed by a 
 will, in writing, to A. " u;pon trust," and the testator, by parol, 
 express an intention that it shall be held by A. upon trust for 
 B., such a direction is in fact a testamentary disposition of the 
 equitable interest in the chattel, and therefore void by the 
 statute, which imposes the necessity of a written will. If it be 
 said that such expression of intention, though void as a devise 
 or bequest, may yet be good as a declaration of trust, and there- 
 fore that where the legal estate of a freehold is well devised, a 
 trust may be engrafted upon it by a simple note in writing; 
 and where a chattel personal is well bequeathed, a trust of it, 
 as excepted from the seventh section of the Statute of Frauds, 
 may be raised by a mere parol declaration ; the answer is, that 
 a wide distinction exists between testamentary dispositions and 
 declarations of trust. The former are ambulatory until the 
 death of the testator, but the latter take effect, if at all, at the 
 time of the execution. " The deed," observed Lord Lough- 
 borough, in a similar case, " is built on the will ; if the will 
 was destroyed, the deed I should consider absolutely gone; 
 the will without the deed is incomplete, and the deed without 
 the will is a nullity" (6). And Mr. Justice Buller observed, 
 " A deed must take place upon its execution, or not at aU ; it 
 is not necessary for a deed to convey an immediate interest in 
 possession, but it must take place as passing the interest to 
 be conveyed at the execution ; but a will is quite the reverse, 
 and can only operate after death" (c). "We may therefore 
 safely assume, as an established rule, that if the intended dis- 
 position be of a testamentary character, and not to take effect 
 in the testator's lifetime, but ambulatory until his death, such 
 disposition is inoperative unless it be declared in writing in 
 
 («) See Adlington v. Cann, 3 Atk. (c) Hdbergham v. Vincent, 2 Ves. 
 
 151. jun. 230. 
 
 (i) Habergham v. Vincent, 2 Ves. 
 jun. 209. 
 
CH. V. g. 3.] STATUTES OF WILLS. 67 
 
 strict conformity with the statutory enactments regulating 
 clevises and bequests (a). 
 
 Lord Northington once enunciated the proposition, that a Lord NortHng- 
 writing signed by a party who had power to make a trust, opinion, 
 declaring the trust upon the will, is good though such writing 
 be not attested by three witnesses according to the solemnities 
 of the Statute of Frauds (6) ; but this is a solitary dictum, and 
 has been long overruled by the highest authorities (c). 
 
 Inchiquin v. French (d) may be mentioned, as the case has incMquin v. 
 been mistaken. A testator devised all his real estate, charged 
 with debts and legacies, in strict settlement, and gave a legacy 
 of 20,000i. to Sir Wm. Wyndham ; by a deed poll of even date 
 with his will, the testator declared that the 20,0O0Z. was given 
 to Sir Wm. Wyndham upon trust for Lord Clare. " The deed 
 poll," adds Mr. Cox, the reporter, " does not appear to have 
 been proved as a testamentary paper ; " and according to the 
 same report. Lord Hardwicke decreed that the legacy of 20,000Z. 
 given to Sir Wm. Wyndham, and by the codicil declared to be 
 in trust for Lord Clare, was a subsisting legacy. It might be 
 inferred from this statement, that Lord Hardwicke admitted the 
 deed poll as a declaration of trust ; but it will be observed that 
 he calls it a codicil, and from the report of the same case in. 
 Ambler (e) we learn the facts, viz., that Lord Clare was out of 
 the jurisdiction, aind Lord Hardwicke declined to entertain the 
 question as to Lord Clare's right in his absence ; but the 
 counsel, for all parties, desiring his Lordship to determine 
 whether, assuming the legacy to be valid, it was to be paid out of 
 
 (a) In Metham v. Devon, 1 P. W. taiy character. If the deed was not 
 
 629, a testator directed his executors proved, or assumed to have been 
 
 to pay 3000/. as he should by deed proved, as part of the will, it is 
 
 appoint, and subsequently the tes- difBcult to find any principle upon 
 
 tator by a deed appointed the 3000?. -which the case can be supported 
 
 to the children of his son by Mrs. H., from the brief statement of it in the 
 
 and the Court established the gift to report. 
 
 the children on the ground that the (6) Boson v. Statham, 1 Ed. 514. 
 
 deed referred to the will, and was (c) Adlington v. Cann, 3 Atk. 
 
 part thereof and in the nature of a 151 ; Muchleston v. Brown, 6 Yes. 
 
 codicil. It does not appear in this 67 ; Stiekland v. Aldridge, 9 Ves. 
 
 case whether the deed had been 519 ; and see Puleston v. Puleston, 
 
 proved with the will, but undoubtedly Finch. 312, Jenk. 3 Cent. Ca. 26. 
 
 it might have been, as, though a {d) 1 Cox, 1. 
 
 deed in form, it was of a testamen- {e) Amb. p. 33. 
 
 F 2 
 
68 
 
 STATUTES OF WILLS. 
 
 [CH. V. S. 3. 
 
 Where no trust 
 appears on the 
 will and no 
 fraud. 
 
 Where the de- 
 visee is made by 
 the will a trustee, 
 and the testator 
 leaves an in- 
 formal declara- 
 tion of trust. 
 
 Parol evidence. 
 
 the real or personal estate, his Lordship held, that as the will 
 contained a general charge of legacies and the gift hy the codicil, 
 though not attested hy the Statute of Frauds, was a legacy, it 
 was raisahle primarily out of the personal estate, and then out 
 of the real estate. This was the only point determined hy him. 
 If a testator, by his will, devise an estate, and the devisee, 
 so far as appears on the face of the will, is intended to take 
 the beneficial interest, and the testator leave a declaration of 
 trust not duly attested, and not communicated to the devisee 
 and assented to by him in the testator's lifetime, the devisee is 
 the party entitled both to the legal and beneficial interest; 
 for the estate was well devised by the will, and the informal 
 declaration of trust is not admissible in evidence {a). This 
 doctrine, of course, does not interfere with the known rule, 
 that a testator may, by his will, refer to and incorporate therein, 
 any document which at the date of the wUl has an actual 
 existence, and is thus made part of the will. 
 
 Should the testator devise the estate in such language that 
 the will passes the legal estate only to the devisee, and mani- 
 fests an intention of not conferring the equitable, in short, 
 stamps the devisee with the character of trustee, and yet does 
 not define the particular trusts upon which he is to hold; 
 in this case, no paper not duly attested (except of course 
 papers existing at the date of the will, and incorporated by 
 reference) will be admissible to prove what were the trusts 
 intended. Nor will the devisee be allowed to retain the 
 beneficial interest himself; but while the legal estate passes 
 to him, the equitable will result to the testator's heir-at- 
 law (6). And under the present Statute of Wills, the law is 
 the same in reference to a bequest of personal estate (c). 
 And if it appear by the will that the devisee was meant to 
 
 (a) Adlington v. Cann, 3 Atk. 
 141 ; and see Stichlandy. Aldridge, 
 9 Ves. 519 ; and observations of Sir 
 J. L. K. Bruco in Briggs v. Penny, 
 3 De Gex and Sm. p. 547. 
 
 (6) Muchleston v. Brown, 6 Ves. 
 52. Bishop V. Talbot, as cited ib. 60, 
 ■was a devise to trustees in trust, 
 but on consulting the Reg. Lib. it 
 
 appears there was no notice of the 
 trust upon the will, Reg. Lib. 1772, 
 A. fol. 137. In Boson v. Siatham, 
 1 Ed. 508, the devisees were de- 
 scribed as trustees, but this circum- 
 stance was not adverted to by the 
 counsel or the Court. 
 
 (c) Johnson v. Ball, 5 De Gex & 
 Sm. 85. 
 
CH, V. S. 3.] STATUTES OP WILLS. 69 
 
 be a trustee, and not to take the beneficial interest, parol 
 evidence cannot be deceived in support of a contrary inten- 
 tion, for this would be not to rebut an equitable presump- 
 tion, but to act upon parol testimony in contradiction to a 
 written instrument (a). 
 
 We now proceed to notice two exceptions to the general rule. Exceptions to 
 that a trust cannot be created by devise or bequest, except with ^^^"^^ 
 the formalities required by the enactments relating to wills. 
 
 The first exception existing, however, in the case only of Charge of debts 
 testamentary instruments executed before Jan. 1, 1838 (6), was, 
 that a testator might, by a will duly attested, charge his real 
 estates with debts and legacies ; and then a debt subsequently 
 contracted, or a legacy given by a codicil, though not 
 attested, would under the general charge contained in the 
 formal instrument, be raisable out of the real estate. The 
 reason is, that debts and legacies being primarily payable out 
 of the personal estate, are a fluctuating charge upon the 
 real estate. The lands only are affected to the extent of 
 the deficiency of the personalty, and the amount of the latter 
 must be uncertain up to the time of the testator's death. The 
 testator, by contracting debts or giving legacies by an un- 
 attested codicil, exercised the power which the law allowed him 
 of reducing the personal estate ; and as regards the Statute 
 of Frauds, it was conceived to be immaterial whether the 
 testator diminished the personal assets in this or any other 
 manner (c). But the exception does not extend to a wHl so 
 worded as to amount to a reservation of a power to charge by 
 unattested codicil (d) ; nor, it is conceived, to a charge by wiU 
 of lands with debts and legacies, and a subsequent gift by 
 unattested codicil of legacies to be raised enclusively out of 
 the real estate ; this last amounting to the devise of a direct 
 interest in land. 
 
 (o) It should be borne in mind Oolding v. Yapp, 5 Madd. 59; 
 
 that the point may yet qootit in prao- White v. JSvans, 4 Yes. 21 ; Walton 
 
 tiee in reference as well to testators v. Walton, 14 Ves. 322. 
 
 dying after as those dying hefore (c) Hahergham v. Vincent, 2 Ves. 
 
 1838. jun. 236. 
 
 (5) See Langham v. Sandford, 17 {d) Mose\. Cunningliame, 12 Ves. 
 
 Ves. 442 ; S. C. 19 Ves. 643 ; Bach- 29 ; Swift v. Nash, 2 Keen, 20. 
 field V. Careless, 2 P. W. 168; 
 
70 
 
 STATUTES OF WILLS. 
 
 [CH. V. S. 3. 
 
 Case of fraud 
 in heir. 
 
 Fraud. Anotlier exception to the rule, that parol trusts cannot be 
 
 declared upon a will, is in the case of fraud. The Court will 
 never allow a man to take advantage of his own wrong, and 
 therefore if an heir, or devisee, or legatee, or next of kin, con- 
 trive to secure to himself the succession of the property through 
 fraud, the person to whom, but for the intervention of fraud, 
 the property would have passed, may affect the conscience of 
 the legal holder, and convert him into a trustee, and compel 
 him to execute the disappointed intention. 
 
 Thus if the owner of an estate hold a conversation with the 
 heir, and be led by him to believe that if the estate be suffered 
 to descend, the heir will make a certain provision for the 
 mother, wife, or child of the testator, a Court of Equity, not- 
 withstanding the Statute of Wills, will oblige the heir to make 
 a provision in conformity with the express ov impUed engage- 
 ment ; for the heir ought to have informed the testator that he, 
 the heir, would not hold himself bound to give effect to the 
 intention, and then the testator would have had the opportunity 
 of intercepting the right of the heir by making a will (a). 
 
 In de-risee. So if a father devises to his youngest son, who promises that 
 
 if the estate be given to him he will pay 10,000J. to the eldest 
 son, the Court, at the instance of the eldest son, will compel 
 the youngest son to disclose what passed between him and the 
 testator, and if he acknowledge the engagement, though he 
 pray the benefit of the statute in bar, he will be a trustee for 
 the eldest son to the extent of 10,000Z. (6) 
 
 And so, generally, if a testator devises an estate to A. the 
 beneficial owner upon the face of the will, but upon the under- 
 standing between the testator and A. that the devisee will 
 as to a part or even the entirety of the beneficial interest 
 hold upon any trust which is lawful in itself, in favour of B., 
 the Court, at the instance of B., will affect the conscience of A., 
 and decree him to execute the testator's intention (c). 
 
 (a) Sellach v. Harris, 5 Vin. Ab. Vern. 559 ; Draheford v. Wilks, 3 
 
 521 ; Stieldand v. Aldridge, 9 Ves. 
 519, per Lord Eldon. ; Harris v. 
 Harwell, Gilb. Eq. Rep. 11. 
 
 (h) Stieldand v. Aldridge, 9 Ves. 
 619. 
 
 (c) Kinffsman v. Kingsman, 2 
 
 Atk. 539 ; Barrow v. Green, 3 
 Vqs. 152 ; Marriot v. Marriof, 1 
 Strange, 672, per Cur. ; Seagrave 
 V. Kirwan, 1 Beatt. 164, per Sir A. 
 Hart ; Leister v. Foxcroft, cited 
 ib. ; Chamherlaine v. Chamberlaine, 
 
CH. V. S. 3.] STATUTES OF WILLS. 71 
 
 It often happens that a proposed devisee enters into ain Engagement to 
 
 execute an 
 unlawful trust. 
 
 engagement with the testator in his lifetime to execute a secret ^*^°"*^ *° 
 
 trust of an unlawful character, one which the policy of the law 
 does not allow to be created by wiU. In this case the Court 
 will not suffer the devisee to profit by his fraud, but on proof 
 of the fact raises a resulting trust in favour of the testator's 
 heir-at-law. If, therefore, a testator devise an estate in words 
 carrying upon the face of the will the beneficial interest, and 
 obtain a promise from the devisee that he will hold the estate 
 upon trust for a charitable purpose, the heir-at-law, as entitled 
 to a resulting trust, may file a bill against the devisee, and 
 compel him to answer whether there existed any such under- 
 standing between him and the testator ; and if the defendant 
 acknowledge it, he will be decreed a trustee for the plaintiff, 
 and to convey the estate to him accordingly {a). " Surety," 
 said Lord Eldon, " the law will not permit secret engagements 
 to evade what, upon grounds of public policy, is established ? 
 Is the Court to feel for individuals, and to oblige persons to 
 discover in particular instances, and not feel for the whole of 
 its own system, and compel a discovery of frauds that go to the 
 roots of that system ? There is surely a stronger call upon the 
 justice of the Court to say, upon a private bargain, between 
 the testator and those who are to take apparently under the will, 
 which is to defeat the whole of the provisions and policy of the 
 law, that they shall be called on to say whether they took the 
 estate, as they legally may not do, for charitable purposes " (6). 
 
 In Bishop v. Talbot (c), a testator by will duly attested gave Bishop «. Talbot. 
 
 2 Eq. Ca. Ab. 43 ; ib. 465 ; Thynn {a) Adlington v. Cann, Barn. 
 
 V. Thynn, 1 Vern. 296; Devenish 130; King v. Zady Partington, 1 
 
 V. Baines, Prec, in Ch. p. 3 ; Old- Salk. 162 ; Muckleston v. Brown, 6 
 
 ham V. Litchford, 2 Vern. 506 ; Ves. 52 ; Stichland v. Aldridge, 9 
 
 same case, Freem. 284; Beech v. Ye&. 6\&; 3.-B.dL&e& Attorney- General 
 
 Kennigate, Amb. 67 ; S. C. X Ves. v. Duplessis, Park. 144 ; Bussell 
 
 123 ; Newhurgh v. Newburgh, 5 v. Jachson, 10 Hare, 204 ; Tee v. 
 
 Madd. 366, per Sir John Leaoli; Jferm, 2 Kay & J. 357 ; Lomax y. 
 
 Chamberlain v. Agar, 2 Ves. & B. Bipley, 3 Sm. & Gif. 48. 
 
 259; Nah v. Nah, 10 Mod. Rep. (6) Jfactesion v.5roton,6 Yes.69. 
 
 404 ; Strode v. Winchester, 1 Dick. (e) Cited Muckleston v. Brown, 6 
 
 397 ; S. C. stated from Keg. Lib. Ves. 60, 67 ; Re^. Lib. A. 1772, fol» 
 
 App. Wo. 1 ; and see Alison's case, 137, A. 1773, fol. 686. 
 9 Mod. Rep. 62 ; Dixon v. Ohnius, 
 1 Cox, 414. 
 
72 STATUTES OF WILLS. [CH. V. S. 3. 
 
 his real estate to A. and B. in fee, and by a memoranduni 
 signed, but not attested, declared certain charitable trusts. A 
 bUl was filed by the heir-at-law against the devisees, who by 
 their answer insisted that the devise was not upon any secret 
 trust, nor for other purposes than what appeared on the will, 
 but admitted they had the memorandum in their possessioB, 
 and submitted the effect thereof to the judgment of the Court, 
 Sir Thomas Sewell is reported to have said, " He did not think 
 the principal matter would be the validity of the paper 
 writing; the question was, what would be the effect of the 
 answer, supposing there was no paper; admitting there was 
 no trust for charitable purposes except what was mentioned 
 in the answer, this was a sort of disclaimer upon their part, 
 and the question was, who should have it ?" And his Honor 
 decreed the heir-at-law to be entitled to a resulting trust. 
 " Sir Thomas Sewell," said Lord Eldon, " went a great length 
 in that case. If he had said the law would authorise him to 
 hold the memorandum a suf&cient denotation of intention 
 that the devisees should be trustees, the difficulty would be, how 
 he came to read the memorandum. But he took it in another 
 way, that as they set forth the memorandum, they admitted the 
 purpose of the testator, and put it, not upon the effect of the me- 
 morandum, vi sua, if I may so express it, but as taken as their 
 admission. I doubt whether that is quite correct reasoning ; but 
 though Sir Thomas Sewell might be wrong in the fact that that 
 was an admission, his opinion is ah authority in point of 
 law, that if there was an admission he would execute the trust. 
 Then it comes to this, that the doctrine of the Court is, that 
 the defendant shall answer in such a case ; and if he answers 
 in the affirmative, there is a resulting trust for the heii- " (a). 
 Barney v. Mac- In a recent case (b) the Court was much more favourable to 
 the devisees in the construction put upon this act. A testator 
 devised certain freeholds to four persons during the life of A. 
 for their own use and benefit, and three of them at the same 
 time signed and delivered to the testator letters of acknow- 
 ledgment that, although the estate was expressed to be devised 
 to them beneficially, they would hold the same upon trust for 
 
 (o) MucMeston v. Brown, 6 Ves. (6) Burney v. Macdonald, 15 
 
 68. Sim. 6. 
 
CH. V. S. 3.J STATUTES OF WILLS. 73' 
 
 an alien. A bill was filed, by two of tbe trustees who had 
 signed the letters, against the two other trustees, the alien 
 and the Crown, in the absence of the heir, to have the rights 
 of all parties ascertained and declared. The trustee who had 
 not signed an acknowledgment did not admit any trust, and 
 was held to be clearly entitled to the beneficial interest ; and 
 even as to the three devisees who had signed the acknowledg- 
 ment, the Vice-Chancellor was of opinion that the devisees 
 had so signed under the impression that the trust for an alien 
 was good, and that, acting under a misapprehension in that 
 respect, they were not bound by the letters as an admission of 
 trust. The Court therefore declared that all four devisees 
 were beneficially entitled. 
 
 "Where a devise is to several persons, as tenants in common. Devise may he 
 it may be void as to one to whom the testator's unlawful inten- and void "as to 
 tion was communicated in his Hfetime, and good as to the ^°"*''«'^- 
 others who were not privies to the intention {a). 
 
 And where no trust is imposed by the will, and no commu- Devise not void 
 
 ,. J ■ j.1. i J. i. > Tjr i.' i.1, J • -n 1 because devisee 
 
 nication was made m the testator s metime, the devise will be means to execute 
 good, although the devisee may, notwithstanding the absence f^^ uula-rful 
 of legal obligation, be disposed from the bent and impulse of 
 his own mind, to carry out what he believes to have been 
 the testator's wishes {b). 
 Another case may occur, as follows: — A devise may, be a An engagement 
 
 to hold an in- 
 
 benefieial one upon the face of a will, but there may have definite part of 
 existed an understanding between the testator in his lifetime au^niawfur'' 
 and the devisee, that, without any particular part of the estate t'^^st. 
 being specified, such portions of it as the devisee, in the 
 exercise of his discretion, might think proper, should be ap- 
 plied to a charitable purpose. Under such circumstances the 
 heir of the testator would have a right to interrogate the 
 devisee whether he has exercised that discretion, and to call 
 for a conveyance of so much as the devisee may have made 
 subject to the unlawful purpose (c). 
 In the above cases it is not a sufficient answer to a biU for Defendant must 
 
 the defendant to say that the secret trust is not for the plaintiff, the secret trust 
 
 was. 
 
 (a) Tee v. Ferris, 2 Kay & J. 3. 313 ; Lomax v. Ripley, 3 Sm. & 
 357. Gif- 48. 
 
 {b) Wallyrave ^. Tchhs, 2, Kay & {c) MucMeston,-^. Brown, QNes.Qd. 
 
74 
 
 STATUTES OF WILLS. 
 
 [CH. V. S. 3, 
 
 Engagement to 
 execute a trust 
 and no trust 
 declared. 
 
 for thus the devisee makes himself the judge of the title. 
 The trust may be for a charity, and if so, the beneficial interest 
 would result for want of a lawful intention, or the equitable in- 
 terest may, on some other ground, enure to the heir as undisposed 
 of (ft). If the defendant deny the trust by his answer, the fact 
 in this as in other cases of fraud may be established against 
 him by the production of parol evidence (&). 
 
 It is clear that if a devisee enter into an engagement with 
 the testator to execute an unlawful trust, the heir may file a 
 biU, and claim the beneficial interest ; but suppose the devise 
 is a beneficial one upon the face of it, and the testator com- 
 municates his will to the devisee, and requests him to .be a 
 trustee for such purposes as the testator shall declare, which 
 the devisee undertakes to do, but the testator afterwards dies 
 without having expressed any trust, it seems that in this case alsd 
 the devisee will not be allowed to take the beneficial interest, 
 but the heir-at-law will be entitled. > 
 
 Thus in Muckleston v. Brown (c) the testator applied to 
 three persons to act as trustees for the execution of certain 
 trusts, which he intended to declare, and upon their undertaking 
 the trust, the testator devised all his real estate to them, subject 
 only to the payment of his debts and legacies. The testator 
 died without having declared any trust as he had proposed. 
 Upon a bill filed by the heir. Lord Eldon was of opinion, 
 though very guardedly expressed, that the devisee was bound 
 to answer. He observed, " I am not quite prepared to say it is 
 clear that if the testator made the devise, meaning, at the time,; 
 thereafter duly to declare trusts, and it happened that he did 
 not declare any, that sort of case would not be within the equity 
 of this Court, and whether, if they admitted his will was made 
 upon an undertaking that they would execute such trusts, the 
 heir would not have a right to say no trust was duly declared, 
 the purpose therefore failed, and the trust results by law to 
 him, not upon the intention, but upon the ground that there 
 is no intention, and he is entitled to avail himself of that." 
 
 [a) Newton v. Pelham, cited Bo- 
 son V. Statham, 1 Ed. 514. 
 
 (6) Kingsman v. Kingsman, 2 
 Ver. 599 ; Pring v. Pring, 2 Ver. 99. 
 
 (c) 6 Ves. 52. See too the obser- 
 tions of V. C. (now L. J.) Turner, in 
 Russell V. Jackson, 10 Hare, p. 214. 
 
CH. V. S. 3.] STATUTES OF WILLS; 75 
 
 Another case, distinct from all the preceding, is where a Case of devisee 
 testator devises an estate to persons as trustees, but no trusts m^'faoe of the^^ 
 are declared by the will, so that the equitable interest would, J^' ™? p^™^ 
 upon the face of the instrument, result to the heir-at-law, and trust for a 
 the testator informs the devisees that his intention in making 
 the devise was, that they should hold the estate in trust for 
 certain persons, which the devisees undertake to do. WUl the 
 Court, under such circumstances, compel the devisee to ex- 
 ecute the parol intention, or will the equitable interest result 
 to the heir ? In favour of the parol trust, it will be argued 
 that the testator left his will in the form in which it appears, 
 under the impression that his object, verbally communicated, 
 would be carried out, and that the trust can therefore be sup- 
 ported, on the ground of mistake in himself, or fraud in 
 the devisee in not apprising the testator that the trust could 
 not be executed. To this the answer is, that, upon the face 
 of the will, the equitable interest results to the heir-at-law, 
 and that, if the testator had not disposed of the equitable 
 interest, as required by the statute, the Court cannot make a will 
 for him, on the plea of mistake or fraud (a) : that the Court 
 has interfered in the case of fraud in those instances only 
 where the devisee, taking the beneficial interest under the will, 
 was the contriver of the fraud, and, as no man may take 
 advantage of his own wrong, the Court compelled the devisee to 
 execute the intention fraudulently intercepted : but in the case 
 supposed, the legal estate only is in the devisee, while the bene- 
 ficial interest is in the heir-at-law, who is wholly disconnected 
 from the fraud. What jurisdiction, therefore, has the Court 
 to act upon the conscience of the heir, to deprive him of that 
 estate which has not been devised away according to the 
 Statute of Wills ? and how can the trustees for the heir be held 
 to be trustees for another in the absence of all fraud on the 
 part of the heir ? It would seem, upon principle, that where 
 a trust results upon the face of the wUl, the circumstance of 
 an express or implied promise on the part of the devisee to 
 execute a certain trust is not a sufficient ground for authorising 
 the Court to execute the trust as against the heir-at-law. 
 
 [a] Newhurgh v. Newhurgh, 5 Madd. 364. 
 
76, STATUTES OF WILLS. [CH. T. S, 3, 
 
 The point' might have arisen in each of the four following 
 cases, but except in the latest of the four, it does not appear 
 to have been taken. 
 
 Pring ». Pring. In Pring v. Pring (a), a man by his will appointed A., B., 
 and C. his executors in trust, and gave them a legacy of 201. 
 a-piece : the wife brought her bill against the executors, 
 alleging that the defendants had been made executors in trust 
 for her. Two of the defendants admitted the trust ; but the 
 third denied it, and insisted that at all events, if the will 
 stamped them as trustees, it must be taken to be a trust not 
 only for the wife but also for the next of kin. The will decla- 
 ring that the executors were only in trust, and not declaring for 
 whom, the Court held that the person might be averred; 
 and two of the executors having, by their answer, confessed the 
 trust, and it being likewise fully proved that it was the intent 
 of the testator, and that he declared it a trust for his wife, 
 the Court decreed the trust for the plaintiff, with costs against 
 the adversary defendant. It is presumed that in this case a com- 
 munication had passed between the testator and the executors, 
 and that if a trust had not resulted upon the face of the will, 
 the Court, on the ground of fraud, might have compelled the 
 executors to give the beneficial interest which they took under 
 the will, to the person to whom they had promised it in the tes-. 
 tator's life-time. Whether the Court was right, as a trust 
 appeared upon the will, in giving away the beneficial interest,, 
 not of the fraudulent executors, but of the innocent next of 
 kin, appears open to question. 
 
 Crooke v. In Crooke v. Brooking (&), a testator by his will gave to his 
 
 Brooking. _ , 
 
 brothers Simon and Joseph, 1500Z. for such uses as he had 
 declared to them, and by them not to be disclosed ; charging 
 them that they would perform the same, as they would answer 
 it at God's tribunal. The money was paid to Simon and 
 Joseph ; and Simon, in a letter to Joseph, acknowledged the 
 trusts to have been for Ann Crew for life and then for her 
 sister's children. Joseph died, and one of the children filed 
 his bill against Simon for an execution of the trust, which the 
 Court decreed ; but the question argued appears to have been, 
 
 (a) 2 Vern. 99. (6) 2 Vern. 50 and 107. 
 
CH. V. S. 3.] STATUTES OF WILLS. 7'? 
 
 not between the plaintiff and the next of kin whether a valid 
 trust was created, but as the money had been actually paid to 
 the trustees, what class of children were the cestuis que trust, 
 on the assumption that the trust itself was valid. And besides, 
 this was a case before the Statute of Frauds. 
 
 In the more recent case of Smith v. Attersoll{a) a testator Smith w. 
 by his will gave fifty commercial dock shares to his two sons, 
 Joseph and John, who were also his executors, in trust for 
 certain purposes which the will stated had been fully 
 explained to them. On the same day on which the will was 
 executed, Joseph and John signed an acknowledgment that 
 they would hold the shares upon trust for the testator's six 
 natural children. The acknowledgment was not proved as a 
 testamentary paper. The bill was filed by one of the six 
 children to have the trusts of the dock shares, as expressed 
 in the acknowledgment, carried into execution. The executors 
 by their answer admitted the trust. It does not appear that 
 the testator's next of kin were made parties. Lord Gifford 
 decreed the execution of the trusts on the ground that the 
 paper writing, though not testamentary, was an admission 
 of the trust by the executors ; but the observation occurs that 
 the executors had not the beneficial interest in themselves, 
 and therefore no admission by them could give a title to 
 another. Several cases were cited by the Court in support of 
 :the decision, but all of them, except Crooke v. Brooking, men- 
 tioned above, are distinguishable (&). It is a very material 
 circumstance that the question was litigated between the 
 executors and a cestui que trust only in the absence of the 
 next of kin, to whom, in fact, the equitable interest had 
 resulted. 
 
 In Podmore v. Gunning (c), the principal question litigated Po^mpre ■>:. 
 was whether the testator had in fact stamped the devisee with 
 
 (a) 1 Euss. 266. vations, ante, p. 67. Metham v. 
 
 (J) As Jones v. Hahhs, Gilb. Eq. Devon, 1 P. "W. 529, but the Court 
 
 •Rep. 146, but there the money treated the deed as testamentary 
 
 passed, and the parol trust was de- and in the nature of a codicil; and 
 
 Glared in the life-time of the tes- no doubt it might have been proved 
 
 tator. Inchiquin v. French, 1 Cox, as such, even if it had not been 
 
 1, but this case was mistaken, see proved already. 
 
 Ambler's Eep. p. 33, and the obser- (c) 7 Sim. 644. 
 
78 STATUTES OF WILLS. [CH. Y. S. 3. 
 
 the character of a trustee, so that the equitable interest upon 
 the face of the instrument resulted; and, in the event of the 
 Court being of that opinion, a contest would have arisen be- 
 tween the heir and next of kin on the one hand, and the secret 
 cestuis que trust on the other. 
 
 In the case under consideration. Sir Thomas Staines devised 
 his residuary estate to his wife, her heirs, administrators, and 
 assigns, " having a perfect confidence that she would act up to 
 the views which he had communicated to her in the ultimate 
 disposal of his property after his decease {a)." A bill was filed 
 by the two natural daughters of Sir Thomas, alleging that Sir 
 Thomas at the time of making his will had expressed to Lady 
 Staines his desire of providing for the plaintiffs, and that Lady 
 Staines had promised that if the residuary estate were devised 
 to her she would execute his intention in the plaintiffs' favour. 
 The Vice-Chancellor was of opinion that the language of the will 
 did not declare Lady Staines to be a trustee ; that the words 
 "having a perfect confidence that she would act up to the 
 views which he had communicated to her," did not necessarily 
 imply that any absolute direction had been given to her as to 
 the disposition of the property, but were consistent with the 
 testator having given to his wife either an absolute dis- 
 cretion, or, a general recommendation leaving it to her dis- 
 cretion to act upon it or not in such manner as she might 
 think fit; but the Vice-Chancellor admitted that if the plaintiffs 
 had proved that Lady Staines had undertaken to dispose of the 
 estate in a given manner, she would have been boimd by the 
 engagement. The plaintiffs, therefore, failed in converting 
 Lady Staines into a trustee for themselves, and as Lady Staines 
 was not distinctly invested with the character of trustee upon 
 the face of the will, no equitable interest resulted. 
 Effect of the We have stated the rule that if a testator make a devise 
 
 Mortmain. Carrying the beneficial interest on the face of the will, but it 
 
 appears from the admission of a devisee or by evidence that the 
 devisee was pledged to the testator to execute a charitable trust, 
 the Court will not allow the execution of such a trust, but wUl 
 give the estate to the heir-at-law. The question here suggests 
 
 (a) Compare Briggs v. Penny, 3 De Gex & Sm. 525 ; 3 Mae, & Grord. 546. 
 
CII. V. S. 3.] STATUTES OF WILLS. 79 
 
 itself, whether the Statute of Mortmaia(a), which declares a 
 devise "intrust or for the benefit of" a charity to be abso- 
 lutely void, applies to such a case, so as not only to defeat the 
 equitable interest admitted or proved to have been intended for a 
 charity, but also to make void the devise of the legal estate itself, 
 so that by the effect of the statute, when the fact has been estab- 
 lished, the devisee takes no interest either at law or in equity. 
 
 Lord Hardwicke determined in Adlington v. Cann{b), that 
 the Statute of Mortmain did not extend to trusts by parol. 
 " I am of opinion," he said, " that the Statute of Mortmain 
 has not abrogated the Statute of Frauds, which, being made 
 for the public good, ought normam imponere futuris. It is 
 true the Statute of Frauds cannot govern the particular pro- 
 visions of the Statute of Mortmain, but it must govern the 
 .construction of subsequent acts ; for they must be construed 
 by rules of law, and by what is laid down in precedent acts. 
 If it should be admitted that the Statute of Mortmain took all 
 these cases out of the Statute of Frauds, and was intended to 
 introduce parol evidence, it would do more mischief, by laying 
 the foundation of a great deal of perjury, than it can possibly 
 do good in any other respect whatsoever (c). Besides, very 
 little inconvenience can arise from my determination to this 
 effect, for the instances of trustees abusing a trust for charity 
 are so frequent, that they are a sufficient warning to reason- 
 able men not to leave their estates under such uncertainty, as 
 to put them absolutely under a person's power, and then trust 
 to his generosity for the disposing of them in charity (ci)." 
 Thus, in Lord Hardwicke's view of the subject, a parol trust 
 in mortmain, where the devisee entered into no engagement 
 with the testator, could not be established against the devisee to 
 deprive him of the beneficial interest (e) ; and where the devisee 
 did enter into such an engagement, and the fact was either ad- 
 mitted by the defendant, or established against him by evidence, 
 the trust only was void upon principles of equity, and not the 
 devise of the legal estate by force of the Statute of Mortmain. 
 
 * (o) 9 Gr. 2, 0. 36. (e) And this is now settled law. 
 
 (5) 3 Atk. 141. Walgrave v. Tebhs, 2 Kay & J. 313; 
 
 (c) Id. 150. and cases cited supra. 
 {d) Id. 153. 
 
80 STATUTES OF WILLS. [CH. V. S. 3. 
 
 Lord NortMngton, on the contrary, thought that secret 
 trusts were within the letter of the Statute of Mortmain; 
 and he therefore decided, that, whether the testator had held 
 communication with the devisee (a) or not (6), the intention 
 of creating an honorary trust would, if established, avoid 
 the devise of the legal estate itself. "What," he says, 
 "stands in my way? One objection is, that the beneficial 
 devise to the trustees and their heirs by the wUl is not to be 
 revoked or controlled by the second instrument, it not being 
 executed according to the Statute of Frauds, and therefore it 
 only can be taken as an honorary trust, and as such is not 
 within the Statute of Mortmain. This is as much as to say, 
 that, being a fraud within both acts, it is not within either. 
 And the objection is, that it will be more inconvenient to let 
 in fraud and perjury by opening the Statute of Frauds, than 
 to let in devises to charities by opening the Statute of Mort- 
 main. My opinion is, that the Statute of Mortmain meant 
 to prevent honorary trusts or devises for charities qudcunque 
 arte vel ingenio ; and the honorary trust infects the wiU, as 
 much as if it were declared in the most solemn manner (c)." 
 Sir Thomas Sewell, in the case of Bishop v. Talbot, before 
 stated, where the fact of the trust was established on the 
 admission of the devisee, considered the heir as entitled to a 
 resulting trust. His Honor therefore was apparently of 
 opinion with Lord Hardwicke, (as appears the more correct 
 view) that, in the case of a trust in mortmain not declared with 
 the formalities required for a wUl, the devise of the legal estate 
 was good, as not affected by the Statute of Mortmain, though 
 equity where there was any mala fides in the devisee would set 
 it aside on the ground of fraud upon public policy. 
 Statute of wills ' The provisions of the Statute of Frauds relating to wills have 
 
 now in force, ° 
 
 now been repealed, and the distinction which before existed 
 between devises of real and bequests of personal estate has been 
 abolished {d). The principles, however, established by the fore- 
 going cases with reference to the Statute of Frauds still apply mu- 
 tatis mutandis to the enactments of the statute at present in force. 
 
 (a). Edwards v. Pike, 1 Ed. 267. (c) Boson v. Statham, 1 Ed. 512, 
 
 (J) Boson V. Statham, 1 Ed. 514. 
 508. {d) 1 Vict. c. 26. 
 
CH. V. S. 4.] TRANSMUTATION OF POSSESSION. 81 
 
 SECTION IV. 
 
 OF TEANSMTJTATION OP POSSESSION. 
 
 Whebe there is valuable consideration, and a trust is 
 intended to be created, formalities are of minor importance, 
 since if the transaction cannot take effect by way of trust 
 executed, it may be enforced by a Court of equity as a contract 
 for value. Where there is no valuable consideration, it has 
 been not unfrequently supposed that, in order to give the 
 Court jurisdiction, there must be a transmutation of possession, 
 i. e., the legal interest must be divested from the settlor, 
 and transferred to some third person. But upon a careful 
 examination of the authorities the principle appears to be, 
 that whether there was transmutation of possession or not, 
 the trust will be supported — provided it was in the first 
 instance perfectly created (a). 
 
 To elucidate this subject it may be convenient to marshal 
 the cases under the following heads. 
 
 First. It is evident that a trust is not perfectly created wieresome 
 where there is a mere intention or voluntary agreement to jjjtended" 
 establish a trust, the settlor himself contemplating some fur- 
 ther act for the purpose of giving it completion. 
 
 Thus in Cotteen v. Missing (&), Ann Lee Missing was entitled Cotteen v. 
 to a residuary personal estate in the hands of the executors, 
 and Charlotte Missing being in destitute circumstances, the 
 executors applied to Ann Lee to make her some allowance. 
 Ann Lee wrote in reply, " As to the money to be allowed to 
 Charlotte, when you ascertain what the property is, whatever 
 you and Mr. Missing think right that I should give, I shall 
 abide by." The executors answered, that they thought 500Z. 
 
 (a) See Ellison v. Ellison, 6 Ves. Meeh v. Kettlewell, 1 Hare, 469 ; 
 
 662 ; Pulvertoft v. Pulvertoft, 18 Fletcher v. Fletcher, 4 Haxe, 74 ; 
 
 Ves. 99 ; Shane y. Cadogan, Yeni. Price y. Price, liTie,a,y. 5^%; Bridge 
 
 & P. Append. No. 24 ; Edwards v. v. Bridge, 16 Beav. 315 ; Beech v. 
 
 Jones, 1 M. & Or. 226 ; Wheatley Keep, 18 Beav. 285 ; Donaldson v. 
 
 \. Purr, 1 Keen, 551; Garrard y. Donaldson, 1 Kay, 711; Scales y. 
 
 Lauderdale, 2 R. & M. 453 ; Col- Maude, 6 De Gex, M. & Gr. 43. 
 linson v. Patrick, 2 Keen, 123 ; (6) 1 Mad, 176. 
 
 Dillon V. Coppin, 4 M. & Cr. 647 ; 
 
83 WHEN A TRUST IS [CH. V. S. 4. 
 
 would be a proper sum ; and Ann Lee then replied, " With 
 respect to Charlotte, as you and Mr. Missing say she ought to 
 be allowed 5001., I will readily consent to it. I am willing to 
 do anything that is right." Under these circumstances Sir T. 
 Plumer thought that the gift was still in fieri. " To make a 
 complete gift there must not only be a clear intention, but the 
 intention must be executed and carried into effect. At the 
 date of the first letter to the executors the gift was inchoate, 
 the quantum of property not having been ascertained. The 
 second letter amounted to a declaration of the propriety of 
 giving her 5001., and shews her approval of a gift to that 
 amount, but does not give effect to the gift and carry it into 
 execution. Nothing is said as to who is to pay the money, or 
 when it is to be paid. The executors were not warranted in 
 paying it out of the money in their hands. If they had done 
 so, Mrs. Missing might have said, I meant to give the money 
 on terms and conditions as to marriage and age. Nothing is 
 said as to what part of her property this money was to be 
 raised out of, whether out of the money in the funds, or out of 
 the estate. Nothing is to be found in the letters but an inten- 
 tion to give, and therefore this case widely differs from the 
 cases alluded to, where acts were done carrying the gift into 
 execution. Here the gift was not completed. Supposing it 
 were anything like an authority to an agent, the subsequent 
 marriage of Mrs. Missing was a revocation of such authority, 
 as was likewise her death. This was a mere inchoate im- 
 perfect gift not carried into feXecution, and which has therefor^ 
 failed." 
 Where the settlor Secondly. If the settlor propose to convert himself into a 
 a trustee. trustee, then the trust is perfectly created so soon as the 
 
 settlor has executed an express declaration of trust, intend- 
 ing to be final and binding upon him, and in this case it is 
 immaterial whether the nature of the property be legal or 
 equitable. 
 Ex parte Pye. Thus in Ex parte Pye, or Ex paHe Dubost (a), J. M. had 
 
 authorised C. D. to purchase an annuity for M. G. G. for life. 
 
 {a) 18 Yes. 140 ; and see Thorpe Stapleton, 14 Sim. 186 ; Searle v. 
 V. Owen, 5 Beav. 224 ; Stapleton y. Law, 15 Sim, 99 ; Drosier T. £rere- 
 
CH. V. S. 4.] PEEFECTLT CBEATED, 83 
 
 The annuity was purchased, but in the name of J. M., who 
 thereupon sent over a power of attorney to transfer the annuity 
 into the name of M. G. G. Before the commission could be 
 executed J. M. died, but Lord Eldon determined that a valid 
 trust had been created. " The question," he said, " involves 
 the point, whether the power of attorney amounts here to a 
 declaration of trust. It is clear, that this Court wiU not assist 
 a volunteer ; yet if the act is completed, though voluntary, the 
 Court will act upon it. It has been decided, that, upon an 
 agreement to transfer stock, this Court will not interpose ; but 
 if the party has declared himself to be the trustee of the stock, it 
 becomes the property of the cestui que trust without more, and 
 the Court will act upon it. From the documents before me it 
 does appear, that though in one sense this may be represented 
 as the testator's personal estate, yet he has committed to writing 
 what seems to me a sufficient declaration that he held this part 
 of the estate in trust for the annuitant." In this case it wiU 
 be observed, that the gift was perfected as soon as the agent had 
 laid out the money in the purchase of the annuity. Had the 
 purchase been made in the name of J. M. as beneficial owner, 
 the execution of the power of attorney, as it failed to transfer 
 the possession, would not have been a valid declaration of 
 trust ; but the purchase was made in the name of J. M. as 
 trustee for the annuitant, and the power of attorney and other 
 documents were read, not as instruments originating the 
 trust, but as proofs of the trust which had been previously 
 created. 
 
 In a late case (a) Sir J. Wigram expressed himself more 
 cautiously than was necessary, as to the jurisdiction of the 
 Court in enforcing a trust against the settlor himself, and 
 suggested several accompanying circumstances as material to 
 the establishment of such a trust. " In the case," he said, " of 
 a formal declaration by the legal or even beneficial owner of 
 property, declariug himself in terms the trustee of that property, 
 
 ton, 15 Beav. 221 ; Bentley v. {a) Meek v. Kettlewell, 1 Hare, 
 
 Machay, 15 Beav. 12 ; Bridge v. 470 ; and see Hughes v. Stubhs, 1 
 Bridge, 16 Beav. 315 ; Gray v. Hare, 478. 
 Gray, 2 Sim. N.S. 273 ; Wilcocks v. 
 Hannyngton, 5 Ir. Ch, Ee. 38. 
 
84 
 
 /WHEN A TEUST IS 
 
 [CH..V..S..4. 
 
 Where the settlor 
 appoints a 
 stranger the 
 trustee. 
 
 Where the pro- 
 perty is a legal 
 interest. 
 
 Colman v. Sard. 
 
 for a volunteer the Court might not he hound to look heyond' 
 the mere declaration. If the owner of property having the, 
 legal interest in himself, were to execute an instrument by 
 which he declared himself a trustee for another, and had 
 disclosed that instrument to the cestui que trust, and afterwards 
 acted upon it, that might perhaps he sufficient ; for a Court of 
 equity, adverting to what Lord Eldon said in Ex parte 
 Duhost, might not be bound to inquire further into an equitable 
 title so established in evidence." 
 
 Thirdly. Where the settlor purposes to make a stranger the, 
 trustee, then to ascertain whether a trust has been perfectly 
 created or not, we must take the following distinctions : — 
 
 1. If the subject of the trust be a legal interest, and one 
 capable of legal transmutation, as land or chattels which pass 
 by conveyance, assignment, or delivery, or stock which passes 
 by transfer, in this case the trust is not perfectly created unless 
 the legal interest be actually vested in the trustee : it is not 
 enough that the settlor executed a deed affecting to pass it, 
 and that he believed nothing to be wanting to give effect to the 
 transaction : the intention of divesting himself of the legal 
 property must in fact have been executed, or the Court will 
 not recognise the trust (a). " I take the distinction," said 
 Lord Eldon, " to be, that if you want the assistance of the 
 Court to constitute you cestui que trust, and the instrument is 
 voluntary, you shall not have that assistance for the piupose 
 of constituting you cestui que trust, as upon a covenant to 
 transfer stock, &c. : if it rests in covenant and is purely, volun-, 
 tary, this Court will not execute that voluntary covenant; but 
 if the party has completely transferred stock, &c., though it is 
 voluntary, yet the legal conveyance being effectually made, the 
 equitable interest will be enforced by this Court " (&). 
 
 In Colman v. Sarel (c), George Davy having lOOOZ. Bank 
 
 [a] See Garrard v. Lauderdale, 
 2 Russ. & M. 452 ; Meeh v. Kettle- 
 well, 1 Hare, 469 ; Dillon v. Coppin, 
 4 M. & Cr. 647 ; Coningham v. 
 Plunhett, 2 Y. & C. Ch. Ca. 245 ; 
 Searle v. Law, 15 Sim. ,95 ; Price 
 V. Price, 14 Beav. 598 ; Bridge v. 
 Bridge, 16 Beav. 315; Weale v. 
 
 Ollive, 17 Beav. 252; Beech v. 
 Keep, 18 Beav. 285. 
 
 (6) Ellison V. Ellison, 6 Tes. 662 ; 
 and see Puhertoft v. Pulvertoft, 18 
 Yes. 89. 
 
 (c) 1 Yes. jun. 50 ; S. C. 3 B. C 
 C. 12. 
 
,CH. V. S. 4.] PERFECTLY CREATED. 85 
 
 Annuities standing in his name, assigned that sum by deed 
 upon trust for Joan Sarel for life, with remainder to her 
 children, and covenanted to pay the dividends accordingly, hut 
 no actual transfer of the stock was ever made. The children 
 filed a bill for the execution of the trust, and Lord Thurlow, 
 in dismissing the bill, observed, " When a deed is not sufficient 
 in truth to pass the estate out of the hands of the settlor, 
 but the party must come into equity, the Court has never yet 
 ■executed a voluntary agreement. To do so would be to malce 
 him who does not sufficiently convey, and his executors after 
 his death, trustees for the person to whom he has so defectively 
 conveyed, and there is no case where a Court of equity has 
 ever done that." 
 
 , In Antrohus v. Smith (a), a Mr. Crawfurd being entitled to Antrotus®. 
 ,ten shares of the Forth and Clyde Navigation, wrote, upon the ™' 
 receipt for one of the subscriptions, and signed the following 
 indorsement, " I do hereby assign to my daughter, A. Crawfurd, 
 all my right, title, and interest of and in the enclosed call, and 
 ,all other calls of my subscription in the Clyde and Forth 
 ;Navigation." After Mr. Crawford's death, the representative 
 of A. Crawfurd filed a bill to have the shares transferred. Sir 
 W. Grant dismissed the bill, and observed, " This instrument, 
 of itself, was not capable of conveying the property. It is said 
 to amount to a declaration of trust. Mr. Crawfurd was no 
 otherwise a trustee than as any man may be called so who 
 professes to give property by an instrument incapable of con- 
 veying it. He was not in form declared a trustee, nor was 
 that mode of doing what he proposed in his contemplation. 
 He meant a gift. He says he assigns the property. But it 
 was a gift not complete. The property was not transferred by 
 the act. Could he himself have been compelled to give effect 
 to the gift, by making an assijpiment ? There is no case in 
 which a party has been compelled to perfect a gift which, in 
 the mode of making it, he has left imperfect." 
 
 2. If the subject of the trust be a legal interest, but not one Where tie pro- 
 capable of legal transfer, as a bond or other chose en action, interest incapaUe 
 which cannot be assigned at law, then whether we look to of legal transfer. 
 
 (o) 12 Ves. 39, 
 
86 WHEN A TRUST IS [CH. V. S, 4. 
 
 principle or authority, there is considerable difficulty. On the 
 one hand, it may be argued that as the settlor cannot divest 
 himself of the legal interest, to say that he shall not constitute 
 another a trustee without passing the legal interest would be 
 debarring him from the creation of a trust in the hands of 
 another at all, and that the rule therefore should be that if the 
 settlor make all the assignment of the property in his power 
 and perfect the transaction as far as the law permits, the Court 
 in such a case should recognise the act, and support the ralidity 
 of the trust. On the other hand, it may be urged, that in 
 equity the universal rule is that a Court will not enforce a 
 voluntary agreement in favour of a volunteer ; and as by the 
 supposition the legal interest remains iu the settlor (who there- 
 fore at law retains the full benefit), a Court of equity will not 
 in the absence of any consideration deprive him of that interest 
 which he has not actually parted with. 
 
 Some Judges have adopted the one view of the question, and 
 some the other. 
 Fortescue v. In Fortescue v. Barnett (a), A. assigned a policy to trustees, 
 
 but retained possession of it, and afterwards received a bonus 
 upon it, and then surrendered it to the insurance office. The 
 surviving trustee filed a bill against the settlor himself for an 
 account of the proceeds. The counsel for the defendant, 
 the settlor, argued that there was no difference between an 
 attempted assignment of stock, and of a bond or policy, and 
 therefore that no trust was created; but Sir J. Leach ruled 
 otherwise, and said, " In the case of a voluntary assignment of 
 a bond, where the bond is not delivered but kept in the pos- 
 session of the assignor, this Court would undoubtedly, in the 
 administration of the assets of the assignor, consider the bond 
 as a debt to the assignee. There is a plain distinction between 
 an assignment of Stock where the stock has not been trans- 
 ferred, and an assignment of a bond. In the former case, the 
 material act remains to be done by the grantor, and nothing is 
 in fact done which will entitle the assignee to the aid of this 
 Court until the stock is transferred ; whereas the Court will 
 admit the assignee of the bo7id as a creditor. In, the present 
 
 (o) 3 M. & E. 36. 
 
CH. V. S. 4.] PERFECTLY CREATED. 87 
 
 case the gift of the policy appears to me to have been perfectly- 
 complete without delivery ; nothing remained to be done by the 
 grantor, nor could he have done what he afterwards did to 
 defeat his own grant if the trustees had given notice of the 
 ■assignment to the assurance office. The question does not 
 bere turn upon any distinction between a legal and an equitable 
 title, but simply upon whether any act remained to be done by 
 the grantor, which, to assist a volunteer, this Court would not 
 compel him to do. I am of opinion that no act remained to 
 be done to complete the title of the trustees. The trustees 
 ought to have given notice of the assignment, but their omis- 
 sion to give notice cannot affect the cestms que trust." 
 
 And in Roberts v. Lloyd (a), where Mrs. Roberts assigned a Koberts v. LloyJ. 
 bond to a trustee with a power of attorney, and both trustee 
 and cestuis que trust had notice of it, and after the death of the 
 settlor, a bill was filed by one of the cestuis que trust against 
 the trustee and the obligor, on the ground that the trustee had 
 by his agent received and misapplied the money, and that the 
 obligor with a knowledge of the settlement had been a party 
 to the misapplication, Lord Lang'dale said, " I think Mrs. 
 Eoberts did everything incumbent on her to make the trust 
 complete and valid, and that the plaintiff is entitled to have 
 the benefit of it;" and both trustee and obligor were held 
 liable. 
 
 So in Blakely v. Brady (b), A. had a promissory note to pay Blakeiyi;. Brady, 
 the sum of 1620L on a certain notice, and interest in the 
 mean time, and assigned it to B. by deed, and gave him a 
 power of attorney, and then A. died, and B. filed his bill against 
 his administrator to have the benefit of the trust. Lord Plunket 
 decreed the money to the plaintiff. " The doctrine," he said, 
 ■" that a chose en action is not legally assignable, does not 
 appear to me to be one that a Court of equity is called on to 
 ■extend beyond the exact limits to which it has been already 
 carried by distinct authority. If the transaction is not in itself 
 illegal, and if no act remains to be done by the grantor, why 
 is it not to be acted on as a valid and complete transaction 
 beween the parties ? " (c) 
 
 (a) 2 Beav. 376. (6) 2 Drur. & Walsh, 311. (c) lb. 326. 
 
88 WHEN A TRUST IS [CH. V.S. 4. 
 
 Edwards ». Jones. On the other hand in Edwards v. Jones (a), Mary Custance 
 being entitled to a bond wrote and signed the following endorse- 
 ment upon it, " I, Mary Custance, of, &c., do hereby assign 
 and transfer the within bond, &c. unto and to the use of my 
 niece, E. Edwards, of, &c., with full power and authority for 
 the said E. Edwards to sue for and recover the amount thereof, 
 &c.," and deKvered the bond to the assignee. On the death of 
 Mary Custance, her niece E. Edwards filed a bill against the 
 executor for an assignment of the bond. The Vice- Chancellor 
 of England dismissed the bill with costs, and on appeal to the 
 Lord Chancellor the decision was affirmed. In the course of 
 his judgment, Lord Cottenham referred to the case of For- 
 tescue v. Barnett, and endeavoured to distinguish it from the 
 case before him, but it is evident that Sir J. Leach's decision 
 did not meet with his approbation. 
 
 Wardi).Audland. Again, in Ward V. Audland{b), where A. assigned to trustees 
 a policy, mortgages, and other choses in action, to trustees, 
 and the cestuis que trust filed a bUl against the executors of A. 
 for the establishment of the trust, the Vice -Chancellor of 
 England dismissed the bill with costs, and said, " There was 
 no equity for the Court to interfere, but what the plaintiffs 
 got by their deed they might maintain by their deed." The 
 case was carried on appeal to the Lord Chancellor, who dis- 
 missed the biU, from error in the form of the pleadings, and 
 without prejudice to the institution of another suit; but 
 apparently he adhered to the doctrine laid down in Edwards 
 V. Jones (c). A suit was subsequently instituted at the KoUs, 
 and his Lordship dismissed the bill on the same grounds on 
 -which the Vice- Chancellor had refused relief in the former 
 .suit {d). 
 
 The opinion of Sir J. Wigram in the late case of Meek v. 
 KettleweU{e) was strongly expressed in support of the view 
 taken by the Vice-Chancellor of England and Lord Cottenham. 
 However, in a more recent case (/) Lord Justice K. Bruce 
 observed, " It is upon legal and equitable principle, we appre- 
 
 (a) 1 M. & Cr. 226. (e) 1 Hare, 464 ; and see Scales 
 
 [b) 8 Sim. 571. v. Maude, 6 De Gex, M. & G. 43. 
 (e) Cooper's Ca. 1837-8, p. 146. (/) Kekewich v. Manning, 1 De 
 
 ■ Id) 8 Beav. 201. ofex, Mac. & Gord. 187, 188. 
 
<3H. V. S. 4.] PERFECTLY CREATED. 89 
 
 hend, clear that a person sui juris acting freely, fairly, arid with 
 ■sufficient knowledge, ought to have and has it in his power to 
 make in a binding and effectual manner a voluntary gift of any 
 part of his property, whether capable or incapable .of manual 
 delivery, whether in possession or reversionary or howsoever 
 circumstanced," and it is conceived that this principle wUl for 
 the future prevail. 
 
 3. If the subject of the trust be an equitable interest, then Where the pro- 
 a trust is perfectly created when the settlor has executed an table interest."" 
 assignment of it to a new trustee ; for an equitable interest 
 is capable of transmission from one to another ; and here the 
 Court finds the relation of trustee and cestui que trust estab- 
 lished without the necessity of calling on the settlor to join in 
 any act for giving it completion. 
 
 This was decided by Sir "W. Grant in the case of Sloane v. Sloaner.Cadogan. 
 Cadogan{a). W. B. Cadogan was entitled, subject to his 
 father Lord Cadogan's life interest therein, to one quarter 
 share of a sum of 20,000L, invested in Bank annuities in the 
 ■names of the trustees of Lord Cadogan's marriage-settlement, 
 and this reversionary interest he assigned to four trustees 
 upon trust as to lOOOZ. for himself, his appointees or assigns, 
 and as to the residue upon trust for himself for life, with 
 remainder to Jane his wife for life, with remainder to their 
 issue as they should jointly appoint, and in default of issue 
 as W. B. Cadogan should by deed or -will appoint, and in 
 default of such appointment upon trust for Lord Cadogan, 
 the father, his executors, administrators, and assigns. W. B. 
 Cadogan by will appointed Jane his wife sole executrix, and 
 gave her " all his estate and effects." There was no issue, and 
 on the death of W. B. Cadogan Jane his widow filed a bill 
 ■against the executors of Lord Cadogan (who were in posses- 
 sion of the trust fund, but in what character does not appear) 
 to have her right to the whole one quarter share of the 20,000Z. 
 
 (o) Append, to Vend. & Puroli, date of settlement the legal estate 
 
 -Queere, also, if the same point was was not in the settlor; and see 
 
 notinleimMlisonY.Mlison,6Yes. Seed v. O'Brien, 7 Beav. 32; 
 
 656 ; for though the facts are very Bridge v. Bridge, 16 Beav. 315 ; 
 
 imperfectly stated, it would seem Gannon v. White, 2 Ir. Eq. Ee. 
 
 from some expressions that at the 207. 
 
90 WJISN A TRUST IS [CH. V. S. 4. 
 
 established. Her claim was advanced upon two grounds, 1, 
 That supposing the assignment by W. B. Cadogan to be validi, 
 the plaintiff took as appointee under the will in execution of 
 the power. 2. That if the assignment were invalid, then the 
 plaintiff took as executrix of W. B. Cadogan. The defendr 
 ants, the executors of Lord Cadogan, insisted that the assign- 
 ment was valid, but that the will was not an execution of the 
 power, and, therefore, that the ultimate limitation to Lord 
 Cadogan (subject to the plaintiff's life interest) took effect; and 
 so it was decided. In the course of the argument Sir W. 
 Grant remarked, "The assignment was as good an assign- 
 ment as could be made of this reversionary interest ; you may 
 be a trustee for a volunteer; " and in his judgment he observed, 
 "It was said that the gift to Lord Cadogan was merely 
 voluntary, and Lord Cadogan could not have had any assist- 
 ance from this Court, that the question is the same as if the 
 representatives (of Lord Cadogan) were seeking relief, as the 
 circumstance of his executors having the money makes no 
 difference, and I think that that circumstance is immaterial. 
 But as agaiast the party himself and his representatives a 
 voluntary settlement is binding. The Court wUl not interfere 
 to give perfection to the instrument, but you may constitute 
 one a trustee for a volunteer. Here the fund was vested in 
 trustees. W. B. Cadogan had an equitable reversionary 
 interest in that fund, and he has assigned it to certain 
 trustees, and then the first trustees are trustees for his 
 •assigns, and they may come here, for when the trust is created 
 no consideration is essential, and the Court will execute it 
 though voluntary." 
 
 " If," said Sir J. Wigram, " the equitable owner of pro- 
 perty, the legal interest of which is in a trustee, should ex- 
 ecute a voluntary assignment and authorise the assignee to 
 .sue for and recover the property from that trustee, and the 
 assignee should give notice thereof to the trustee, and the 
 trustee should accept the notice and act upon it, by paying 
 the interest and dividends of the trust property to the assignee 
 during the life of the assignor, and with his consent, it 
 might be difficult for the executor or administrator of the 
 assignor afterwards to contend that the gift of the property 
 
CH. V. S. 4.] PEErECTLY CREATED. '91 
 
 was not perfect in equity (a). The Vice-Chancellor tere 
 enumerates all the safeguards and confirmatory acts of which 
 the transaction was capable, but it must not be inferred that if 
 some of these were wanting the trust would not be supported. 
 
 In one case(&) the late Vice-Chancellor of England ques- 
 tioned the principle of Shane v. Gadogan. But in Kekewich 
 V. Manning (c), Lord Justice K. Bruce observed, " Suppose 
 stock or money to be legally vested in A. as a trustee for B. 
 for life, and subject to B.'s life interest for C. absolutely; 
 surely it must be competent to C. in B.'s lifetime, with or 
 without the consent of A. to make an effectual gift of C.'s 
 interest to D. by way of pure bounty, leaving the legal interest 
 and legal title untouched. If so, can C. do this better or 
 more effectually than by executing an assignment to D. ? It 
 may possibly be thought necessary that notice should be given 
 to A., but upon that we express no opinion." 
 
 These principles have since been acted upon in Voyle v. 
 Hughes (d), and Shane v. Gadogan may now be regarded as 
 established law. It had before been contended that the 
 assignment operated by way of contract, and as there was no 
 consideration the Court could not enforce it; but the rule now 
 is, that the assignment passes the equitable estate, and even if 
 .notice be not given to the trustees of the fund, the assignment 
 is good as against the assignor (e). 
 
 In other cases a party entitled to an equitable interest, where new trust 
 instead of assigning it to new trustees, has directed the old out new trustees 
 trustees to stand possessed of it upon the new trusts (/), and, 
 of course, it has been considered quite immaterial whether the 
 -settlor selected new trustees or was content with the original 
 trustees. 
 
 In other cases the owner of an equitable interest has simply Assignment to a 
 assigned it to a stranger for the stranger's own benefit (gf), own benefit. 
 
 (a) Meeh v. Kettlewell, 1 Hare, (/) Byeroft v. Christy, 3 Beav. 
 
 471. 238 ; M'Fadden v. Jenkins, 1 Hare, 
 
 (J) Beatson v. Beatson, 12 Sim. 458, 1 Phill. 153. 
 281. {g) Cotteen v. Missing, 1 Mad. 
 
 ■ (c) 1 De Gex, Mac. & Gord. p. 188. 176 ; Collinson v. Patrick, 2 Keen, 
 
 • Id) 2 8m. & Gif. 18. 123 ; and see Godsall v. Webb, 2 
 
 (e) Donaldson v. Donaldson, 1 Keen, 99. 
 Kay, 711. 
 
93 VOLUNTARY SETTLEMENTS. [CH. V, S. 4. 
 
 ■which also in principle is the same as Sldane v. Cadogan, for 
 there can be no difference between the gift of an equitable 
 interest to A. and the gift of it to B. in trust for A. 
 
 Meek v. Kettle- In a late case (a) it was decided by Sir J. Wigram, that 
 a voluntary assignment of a mere expectancy (as of an heir 
 or next of kin) in an equitable interest, and not comnmnicated 
 to the trustees, did not amount to the creation of a trust. This 
 .was the only point actually decided, and perhaps a distinction 
 may be said to exist between the settlement of an actual 
 interest and an expectancy, for a trust to be enforced must be 
 perfectly created, whereas any dealing with what a person has 
 not, but only expects to have, must necessarily in some sense 
 be in fieri. However, in the course of his argument the 
 learned Judge denied that any distinction existed between 
 settlements of a legal interest, as in Edwards v. Jones, and of 
 an equitable interest, as in Sloane v. Cadogan, two cases which 
 it is submitted, both on principle and authority, ought not to 
 be confounded. Great importance was also attached by his 
 Honor to the circumstance that notice of the assignment was 
 not given to the trustees. But notice in these cases is not 
 indispensable. As against the .settlor, an equitable interest is 
 perfectly transferred without notice. It is only as between 
 purchasers that the service of notice on the trustee, or the 
 want of it, has a material effect upon the transfer (6). Meek v. 
 Kettlewell was afterwards heard on appeal before Lord Lynd- 
 hurst, who affirmed the decision (c). 
 
 Voluntary settle- I^ * Complete voluntary settlement be once executed it 
 
 Sust defeated"by ^^^^°^ ^^ revoked by a subsequent voluntary settlement ((i) ; 
 
 subsequent sale, but a voluntary settlement of land by way of trust, perfectly 
 created is liable, under the 27 Eliz. cap. 4, like a settlement 
 of the legal estate, to be defeated by a subsequent sale to a 
 purchaser, even with notice. And the cestid que trust can neither 
 obtain an injunction against the sale, though the settlement was 
 founded on meritorious consideration, as a provision for a wife 
 
 (o) Meek v. Kettlewell, 1 Hare, (c) 1 PMU. 342. 
 
 464. (d) Newton v. Askew, 11 Beav. 
 
 (6) See Burn Y. Carvalho, 4: M.. & 145; Rycroft v. Christy, 3 Beav. 
 
 Cr. 690; Donaldson v. Donaldson, 238. 
 1 Kay, 711. 
 
CH. V. S. 4. J VOLUNTARY SETTLEMENTS.' 93' 
 
 or child («), nor can follow the estate into the hands of the 
 purchaser (b), nor charge him with misapplication of the pur- 
 chase money, if, with notice of the voluntary settlement, he 
 paid it to the vendor (c), nor can come upon the settlor him- 
 self to compensate the cestuis que trust for their loss (d). 
 However, the trust will be executed by the Court until the 
 estate be actually sold (e) ; and the author of the settlement, 
 if he contract for the sale, cannot himself file a bill to enforce 
 the specific performance (/), though the purchaser may do so (g), 
 and though the settlor himself may defeat the trust by a sub- 
 sequent sale, the heir or devisee of the settlor has no such 
 power (h) ; but chattels personal (in which respect they differ 
 from chattels real (i) ) are not within the statute of 27 Eliz. 
 c. 4, relating to purchasers, and therefore a voluntary settle-^ 
 ment of chattels personal cannot be defeated by a subsequent 
 sale {k). 
 
 Again, a voluntary settlement either of real or personal estate 
 by one virtually insolvent or largely indebted at the time, wUl 
 by the 13 Eliz. c. 5, be void as against creditors (l). ■Whether Court 
 
 As every agreement under hand and seal carries a consider- enforce mecifie 
 ation upon the face of it, and wUl support an action at law, the performance of 
 
 ^ -^ -^ _ _ agreements 
 
 inference has not unfrequently been drawn, that equity in such 
 
 (a) Pulvertoft v. Tulvertoft, 18 (ff) Willats v. Bushy, 5 Beav. 193. 
 
 Yes. 84. {h) Doe v. jtusham, 17 Q.. B. 
 
 (5) Williamson v. Williamson, 1 E,ep. 723. 
 
 Yes. 516, per Lord Hardwicke. («) Saunders v. Dehew, 2 Vern. 
 
 (c) Evelyn v. Templar, 2 B. C. C. 272, second note. 
 
 148 ; and see Pulvertoft v. Puher- {k) Pill v. Cureton, 2 M. & E. 
 
 toft, 18 Ves. 91, 93; Buckle v. bdZ; M'Donel\.Hesilrige,lQ'&ea.Y. 
 
 Mitchell, 18 Ves. 112; but compare 346; Jones v. Croucher, 1 Sim. & 
 
 Leach v. Dean (1 Ch. Ee. 146) with Stu. 315 (this case cites also the 
 
 Pulvertoft v. Pulvertoft, 18 Ves. 91 ; authority of Sir W. Grant in Shane 
 
 and see 18 Ves. 92, note (b). . v. Cadogan, Append, to Vend. & 
 
 (d) Williamson v. Codrington, 1 Purch., but the dictum does not 
 Ves. 516, per Lord Hardwicke ; but appear) ; Meek v. Kettlewell, 1 Hare, 
 see Leach v. Dean, 1 Ch. Ee. 146 ; 473, per Sir J. 'Wigram. 
 
 .S. C. cited Pulvertoft v. Pulvertoft, (1) Fletcher v. Sidley, 2 Vern. 
 
 X8 Ves. 91. 490; Taylor v. Jones, 2 Atk. 600; 
 
 (e) Pulvertoft v. Pulvertoft, 18 Townsendy. Westacott, 2 Be&Y.SiO; 
 Yes. 94. Skarfy. Soulhy, 1 Mac. & Gor. 364; 
 
 (/) Johnson v. Legard, Turn. & Re Magawley's Trust, 5 De Gex & 
 Euss. 294; Smith v. Garland, 2 'Bm.\;JenkynM.raughan,Z^iewvy, 
 Mer. 123. 419. 
 
94 
 
 AGREEMENTS UNDER SEAL. 
 
 [CH. V. S. 4. 
 
 under seal 
 where there is 
 no valuable 
 consideration. 
 
 a case, tliougTi the triist has not been perfectly created, will, 
 specifically execute the contract in favour of volunteers. But 
 the doctrine is at once contradicted by the circumstance that, 
 equity never enforced a covenant to stand seised to the use of 
 a stranger in hlood ; and, if we examine the authorities, we 
 shall find there is very little ground in support of the position. 
 In Wiseman v. Roper (a) the covenant was entered into for 
 the purpose of reconciling family differences — a consideration 
 always held to be good (6). Beard v. Nutthall (c) was the ease 
 of a bond from a husband to the wife, which is not an agree- 
 ment to do a future act, but the perfect creation of a present 
 debt. In Husband v. Pollard (d), a lease was assigned to a 
 volunteer, with a covenant to renew, and a Court of equity 
 compelled the execution of the covenant as incidental to the 
 lease. In other cases the covenant has been enforced in order 
 to avoid circuity, inasmuch as the trustees, with whom the 
 covenant was entered into, might have recovered at law, not 
 merely nominal damages, but the full value of the estate (e). 
 At all events, it is well settled at the present day, that a 
 voluntary covenant, notwithstanding the solemnity of the seal, 
 will not be specifically executed (/). 
 
 It has also been sometimes supposed that where the trust is 
 
 (a) 1 Ch. E,e. 158. 
 ' (6) See Persse v. Persse, 7 CI. & 
 Pin. 279 ; Heap v. Tmge, 9 Hare, 
 90 ; Dimsdale v. Dimsdale, 3 Drew, 
 556. 
 
 (c) 1 Vern. 427. 
 
 {d) Cited Randal v. Randal, 2 P. 
 "W. 467 ; and see Williamson v. 
 Codrington, 1 Ves. 511 ; Harvey v. 
 Audland, 14 Sim. 531. 
 
 (e) Vernon v. Vernon, 2 P. W. 
 594 ; Goring v. Nash, 3 Atk. 186 ; 
 2nd ground ; S. C. cited 1 Ves. 513 ; 
 Stephens v. Trueman, 1 Ves. 73. 
 
 (/) Hale V. Lamhe, 2 Ed. 294, 
 per Lord Northington ; Fursaker t. 
 Robinson, Pr. Ch. 475 ; Evelyn v. 
 Templar, 2 B. C. C. 148 ; Colman 
 y. Sarel, 3 B. C. C. 12 ; Jefferys v. 
 Jefferys, Cr. & Phil. 138 ; Meeh v. 
 Kettlewell, 1 Hare, 474, per Sir J. 
 
 Wigram ; Fletcher v. Fletcher, 4 
 Hare, 74, per eundem ; Newton v. 
 Askew, 1 1 Beav. 146 ; Dillon v. Cop- 
 pin, 4 Cr, & M. 647 ; Kehewich v. 
 Manning, 1 De G. M. & G. 188. 
 But a voluntary covenant to pay a 
 sum to A. in trust for B. lias been 
 allowed to create a debt in favour of 
 B. ; Fletcher v. Fletcher, 4 Hare, 
 67 ; and see Bridge v. Bridge, 16 
 Beav, 315. But as the ground of this 
 is, that the covenant is perfect at law 
 and the covenantee could recover 
 upon it, it seems to follow that where 
 only nominal damages would be 
 given at law, a Court of equity would 
 not allow proof of the whole sum. 
 See Pulvertoft v. Puhertoft, 18 
 Ves. 93 ; Holloway v. Headington, 
 8 Sim. 324; Cox v. Barnard, 8 
 Hare, 310. 
 
CH. V. S. 4.] MERITORIOUS CONSIDERATION. 95 
 
 imperfectly created, the Court, without proof of valuable con- Meritorious 
 sideration, will act upon meritorious consideration, as payment 
 of debts, or provision for a wife or child (a). 
 
 The covenant to stand seised to uses, and the jurisdiction of 
 the Court in supplying surrenders, and aiding the defective exe- 
 cution of powers, have generally been referred to as establishing, 
 or at least countenancing, this doctrine. 
 
 As regards the covenant to stand seised to uses, it is evident Analogy of cove- 
 
 . . ... „ . , nant to stand 
 
 that mere meritorious consideration was not a sufficient ground seised to uses. 
 to attract the jurisdiction of the Court ; for no use would have 
 arisen in favour of a wife or child, unless there had been a 
 covenant. " There are several ways in the law," said Lord 
 Chief Justice Holt, " for declaring of uses, whether upon trans- 
 mutation of possession or without it. If a use be declared 
 upon transmutation of possession, as in a fine or feoffment, it 
 is sufficient for the party on the transmutation to declare that 
 the use shall be to such a party, and of such an estate ; but if 
 a use arise without transmutation of possession, the use then 
 does not arise by virtue of any declaration or appointment, but 
 there must be some precedent obligation to oblige the party 
 declaring the use, which must be founded on some considera- 
 tion; for a use, having its foundation generally on grounds of 
 equity, could not be relieved in Chancery without transmutation 
 of possession, or an agreement founded on a consideration; 
 and, therefore, if bargain and sale were made of a man's lands^ 
 on the payment of the money the use would have arisen without 
 deed by parol; hut, if the use was in consideration of blood, then 
 it could not arise by parol agreement without a deed, because 
 that agreement was not an obliging agreement — it wanted a con- 
 sideration, and therefore, to make it an obliging agreement, there 
 was necessity of a deed " (&). Thus, if equity be governed by 
 the strict analogy of uses, the Court cannot act upon meri- 
 lorious consideration where the contract is by parol; and 
 though, where the agreement is under seal, the argument of 
 analogy applies, yet it follows not that equity will now raise a 
 
 (a) A cMld may plead meritorious it as against the child ; Downing 
 consideration as against the parent, v. Townsend, Amb. 592. 
 hut of course a parent cannot plead (J) Jones v. Morley, 12 Mod. 161. 
 
9S 
 
 MERITORIOUS CONSIDERATION. 
 
 [CH. V. S. 4. 
 
 Analogy from 
 supplying 
 surrenders of 
 copyholds. 
 
 Analogy of aiding 
 the defective 
 execution of 
 powers. 
 
 trust, because formerly it would have created a use : a bargain.- 
 and sale for 5s. consideration still operates by way of convey- 
 ance to transfer the estate : but, should the bargain and sale be 
 void as such for want of an indenture, or an indenture duly 
 inroUed, it could not be argued that the agreement at the 
 present day would be specifically executed upon the basis of a 
 trust. It may further be remarked, that, if the covenant ta 
 stand seised to uses were now to regulate the administration of 
 trusts, there would still be no ground for extending the relief 
 to creditors, who, however, it is admitted on all hands, are 
 equally entitled to the benefit of meritorious consideration. 
 And the covenant to stand seised to uses extended, we must 
 remember, not only to a wife and child, but also to hrothersi 
 nephews, and cousins ; but no one, at the present day, would 
 think of admitting th« same latitude in the execution of a 
 trust. 
 
 With respect to the jurisdiction of the Court in supplying 
 surrenders of copyholds, the principle upon which the relief is 
 founded appears to be this, that as the heir was never meant 
 by the law to take otherwise than in default of the ancestor's 
 will, if the ancestor manifest any intention in favour of a meri- 
 torious object, the Court will not suffer the mere want of form 
 to carry a benefit to the representative. " I have looked," said 
 Lord Alvanley, " at all the cases I can find, upon what principle 
 this Court goes in supplying a defect. It is this — Whenever a 
 man, having power over an estate, whether ownership or not, 
 in discharge of moral or natural obligation shows an intention 
 to execute such power, the Court will operate upon the 
 conscience of the heir to make him perfect this intention. 
 This is not to be confounded with the case of the heir's being 
 disinherited by a will of freeholds not duly executed : there is 
 no will at all : the Court cannot see there is such an in- 
 strument: but whenever there is such a power, it has been 
 executed" (a). 
 
 The ground, upon which the Court aids the defective execu- 
 tion of powers, will be found upon examination to be precisely 
 
 (a) Chapman v. Oibson, 3 B. C, C. 230 ; and see Ellis v. Nimmo, Lloyd 
 & Goold, t. Sugden, 341, 348, 
 
PH. V. S.-4.] JIEEITORIOUS CONSIDEEATION: 97 
 
 that upon which it supplies the surrenders of copyholds. The 
 power, to the extent to which it may be exercised, is regarded 
 in equity as part of the dominion — as a portion of the actual 
 estate ; and the donee of it is pro tanto the iond fide owner of 
 the property, and the person taking in default of the donee's 
 disposition is a quasi heir (a). The only distinction between 
 an actual heir and the person taking in default of the power, is 
 this, that the former is so constituted by course of law, while 
 the latter is a quasi heir specially appointed by the settlor. 
 Thus, in aiding the defective execution of powers, the Court 
 says, as in supplying surrenders, — the donee of the power, who 
 is the owner of the property to the extent of that power, has 
 indicated an intention of providing for a meritorious object; 
 and the person taking in default of the power, who is a kind of 
 heir, shall not, through want of form, run away with the estate 
 from those who are much better entitled. 
 
 The authorities upon the subject of meritorious consideration 
 are somewhat conflicting, but the results appear to be these (6) : — 
 
 It is clear that an agreement founded on meritorious con- Agreement 
 
 founded on me- 
 
 sideration wUl not be executed as against the settlor himself (c). ritorfous con- 
 Indeed, relief in such a case would oifend against the security not be enforced 
 of property ; for if a man will improvidently bind himself by a tbr^mS^^'' 
 complete alienation, the Court will not unloose the fetters he 
 hath put upon himself, but he must lie down under his own 
 ■folly (d) ; but if the Court interpose where the act is left incom- 
 plete, what is it but to wrest property from a person who has 
 not legally parted with it ? Another observation that suggests 
 itself is, that during the life of the settlor the ground of the 
 meritorious consideration scarcely seems to apply; for can it 
 
 {a) See Holmes v. Coghill, 12 v. Nash, 3 Atk. 186 ; Barley v. 
 
 Ves. 213 ; Coventry v. Coventry, Darley, 3 Atk. 399 ; Hale v. Lamh, 
 
 at the end of Francis's Maxims of 2 Ed. 292 ; Evelyn v. Templar, 2 
 
 Equity. B. C. C. 148 ; Colman v. Sarell, 1 
 
 (i) See Bonham v. Newcomb, 2" Ves. jun, 50; S. C. 3 B. C. C. 12 
 
 Vent. 365; Leech v. Leech, 1 Ch. Antrohus v. Smith, 12 Ves. 39 
 
 Ca. 249 ; Fothergill v. Fothergill, Rodger s v. Marshall, 17 Ves. 294 
 
 Preem. 256 ; Sear v. Ashwell, cited Ellis v. Nimmo, Lloyd & Goold. 333 
 
 Gordon v. Gordon, 3 gw. 411, see cases discussed, App. No. III. 
 note ; Watts v. Biillas, 1 P. W. 60 ; (c) Antrohus v. Smith, 12 Ves. 39. 
 
 Bolton V. Bolton, Serjt. Hill's MSS. (<^) Tillers v. Beaumont, 1 Vern. 
 
 77; S. C. 3 .Sw. 414, note ; Goring 101, per Cur. 
 
 H 
 
98 MEEITORIOUS CONSIDEEATION. [CH. V. S. 4. 
 
 be thought to be the duty of a husband to endow his wife, 
 during the coverture, with a separate and independent pro- 
 vision ? or is a parent bound by any natural or moral obHgation 
 to impoverish himself (for such a case may be supposed) for 
 the purpose of enriching a child ? or has a Court of equity the 
 jurisdiction to appropriate a specific fund to creditors, when, 
 the debtor stiU living, the presumption of law is, that the 
 creditor can obtain satisfaction of his debt by the usual legal 
 process ? It is after the decease of the settlor that meritorious 
 consideration becomes such a powerful plea in a court of equity. 
 The wife and the children have" then lost the personal support 
 of the husband and parent, and who can then have a juster 
 claim to the inheritance of his property ? The creditor is then 
 barred by the act of God of his remedy against the debtor, 
 and, should the assets prove insufficient, how but by the 
 assistance of equity can he hope to be satisfied his demand ? 
 Another objection to the execution of a voluntary contract 
 against the settlor himself, at least in respect of land, is the 
 principle expressed by Lord Cowper, that Equity, like Nature, 
 will do nothing in vain {a) ; as if money be directed to be con- 
 verted into land, or land into money, the devisee or legatee 
 may elect to take the property in its original state, for, should 
 the Court direct an actual conversion, the devisee or legatee 
 might immediately annul the order by resorting to a re-coa- 
 version. And so, should the Court decree the specific per- 
 formance of a contract regarding realty for meritorious con- 
 sideration, the property the next moment might be disposed of 
 to a hond fide purchaser, and the settlement become perfectly 
 nugatory. Again, if the imperfect gift can be enforced against 
 the settlor himself, then the equitable right must form a lien 
 upon the property, and, upon the death of the settlor, his heir 
 would, in all events, be bound to convey ; but, even in aiding 
 the defective execution of powers and supplying surrenders of 
 copyholds, a previous inquiry by the Master is invariably 
 directed, whether the heir of the settlor has any other adequate 
 provision. 
 
 But will a contract founded on meritorious consideration, 
 
 (a) Seeley v. Jago, 1 P. W. 389 ; Ch. Ca. 243 ; but see Puhertoft v. 
 aud see Bellingham v. Lowther, 1 Puhertoft, 18 Yes. 99. 
 
CH. V. S. 4.] MERITORIOUS CONSIDERATION. 99 
 
 though void as against the settlor himself, he enforced as How far enforced 
 . . , , - _ , as against parties 
 
 between "parties claiming under the settlor ? It seems to have claiming under 
 
 been always admitted, that if the settlor sell the estate or ™' 
 become indebted, the equity of the cestui que trust claiming on 
 the ground of meritorious consideration, will not bind a pur- 
 chaser or creditors {a). But if he subsequently make a voluntary 
 settlement, or die without disposing of the estate by act inter 
 vivos, will the equity attach as against the volunteers under the 
 settlement (6), or a devisee (c), or the heir at law {d) ? The old 
 cases would rather lead to the conclusion that the agreement 
 would be specifically executed, with however the savitig clause, 
 that the Court would not have enforced it even as against these 
 classes of persons, where they too could plead meritorious 
 consideration (as if they were the children of the settlor), with- 
 out a previous inquiry by the Master, whether they had any 
 adequate provision independently of the estate (e). At the 
 present day, however, it seems to be established that even as 
 against volunteers claiming under the settlor, whether with or 
 without any provision aliunde, a voluntary agreement whether 
 under seal or not, whether coupled with a valid trust of other 
 property settled at the same time or not, cannot be enforced 
 on the mere ground of meritorious consideration (/). 
 
 We have laid down the rule that the trust will be enforced 
 when it has been perfectly created, whether there was transmuta- 
 tion of possession or not. It is equally clear that a trust once 
 perfectly created, whether by transmutation of possession or 
 not, cannot be defeated by the subsequent act of the settlor, 
 and that the circumstance of the legal interest becoming 
 revested in the settlor is immaterial (g). 
 
 (a) Bolton v. Bolton, 3 Serjt. (e) See Goring v. Nash ; Hodgers 
 
 Hill's MSS. 77 ; S. a S Sw. 414, v. Marshall, ubi supra. 
 
 note; Goring v. Nash, 3 Atk. 186; (/) Jefferys v. Jefferys, 1 Cr. & 
 
 Finch v. Earl of Winchelsea, 1 P. Ph.. 138 ; Antrohus v. Smith, 12 
 
 W. 277 ; and see Garrard v. Lau- Ves. 39 ; Evelyn v. Templar, 2 B. 
 
 derdale, 2 R. & M. 453, 454. C, C. 148 ; Holloviay v. Seadington, 
 
 (6) Bolton V. Bolton, uM supra. 8 Sim. 325. The high authority, 
 
 (e) lb. however, of Lord St. Leonards is iu 
 
 [d) Watts V. Bullas, 1 P. "W. 60 ; the opposite scale ; Ellis v Nimmo, 
 
 Goring J.Nash, 3 Atk. 186; Badgers Lloyd & Goold, t. Sugd. 333. 
 
 V. Marshall, 17 Ves. 294. {g) Ellison v. Ellison, 6 Ves. 656 ^ 
 
 Smith V. Lyne, 2 T & C. Ch. Ca. 345. 
 H 2 
 
100 
 
 INTENTION. 
 
 [CH..V..S. 4. 
 
 GJaskell v, 
 
 6askeU, 
 
 No trust unless Again, in every case of the creation of a trust, it is the 
 
 there be an m- _ ° ' •' 
 
 tentiou to create intention that governs ; and if upon a consideration of all the 
 circumstances the Court is of opinion that the settlor did not 
 mean to create a trust, then, whether there was transmutation 
 of possession or not, the Court will not raise up a trust where 
 none in fact was contemplated. 
 
 Thus where a person wrote a letter to his bankers, and 
 directed them to transfer certain sums into the names of him- 
 self and three others, as trustees for his wife during her life, 
 and after her death for his son during his minority, and the 
 transfers were effected accordingly, but it appeared in evidence 
 that the settlor never communicated the facts to the other 
 trustees, and that he gave the directions under the impression 
 that he could thus avoid the legacy duty, it was held that the 
 fund had never been placed out of the settlor's power, but he' 
 might at any time have revoked the directions, and therefore 
 the money was to be considered as stUl part of his personal 
 estate ia). 
 
 And in another case (&), where a testatrix gave a legacy of 
 100?. to A., and after making her will drew a cheque for 150J. 
 in favour of B. ; and at the same time gave him verbal direc- 
 tions, when the legacy was paid, to make up to the legatee the 
 difference for the lOOZ. and the price of a share in the London 
 and Birmingham Railway Company, and the sum of 150i. was 
 transferred by the bankers, in the testatrix's lifetime, from her 
 account to the account of B. ; the Court held that it was a 
 private arrangement between the testatrix and B., and meant 
 to be revocable like the will ; and therefore, that B. was 
 merely A.'s agent, and that no trust was created. 
 
 Again, where a person directed his agents to invest a sum 
 in the purchase of 4000Z. stock in the names of himself and 
 his wife in trust for his son ; and the agents wrote that they 
 had purchased the stock, but that it could not be done as 
 he desired, as the bank did not admit notice of any trust 
 upon their books, and the settlor thereafter treated the 
 stock as his own by receiving the dividends ; the Court held. 
 
 Hughes V. 
 Stubbs. 
 
 (a) Oaskell v. Oashell, 2 Y. & J. 
 502. 
 
 (6) Hughes v. StuUs, 1 Hare, 
 476. 
 
CH. V. S. 4.] INTENTION. | / OFC, 101 
 
 I I 8 
 
 that as the intention had not been carried out, no trusi was '^25 
 created {a). ' • ' j^, . 
 
 Again, where a person, having deposited in a savings hank Keld v. Londs- 
 as much money in his own name as the rules allowed, deposited 
 a further sum in his name as trustee for his sister, but without 
 making any communication to her ; and it appeared that he 
 made such deposit with a view of evading the rules of the bank 
 ,and not to benefit his sister ; and by the act of parliament he 
 retained the control of the fund; the Court held that no trust 
 was created (b). 
 
 So a trust for payment of debts, created without the con- Voluntary trust 
 currence of the creditors, is construed, though there be trans- dTbteT"^^" ° 
 mutation of possession, not as conferring an interest which 
 the creditors could enforce in equity, but as an arrangement 
 between the settlor and his trustees for his own private con- 
 venience, and revocable at pleasure (c). 
 
 Upon a similar principle, it has been held that a grant from 
 the Crown of prizes taken in war, to trustees upon trust to dis- 
 tribute in a particular manner amongst the captors, gives them 
 no right which they can enforce in equity; but the Crown 
 may, at any time before the final distribution, recall its direc- 
 tions and substitute others (d). 
 
 So an ostensible, but not actual cestui que trust, exists where Trusts to pay 
 
 expenses, &o. in 
 
 the trustees are directed to pay out of the estate the costs and the first place. 
 charges of the management and administration of the trust; 
 for the persons employed by the trustees have, notwithstanding 
 that declaration, no lien upon the trust fund, but only a remedy 
 against the trustees upon the ground of the contract (e). How- 
 ever, if there be a positive direction to the trustees to employ A. 
 as auditor or receiver, and allow him a proper salary, it has been 
 held to constitute a trust in favour of A. (/). But if a testator 
 
 (a) Smith v. Warde, 15 Sim. 56. {d) Alexander v. Duke of Wel- 
 
 (J) Field V. Lonsdale, 13 Beav. lington, 2 R. & M. 35. 
 
 78. (e) Worrall v. Harford, 8 Ves. 
 
 (c) Wallwyn v. Coutts, 3 Mer. 4 ; Hall v. Laver, 1 Hare, 671. 
 
 707 ; S. C. 3 Sim. 14 ; Garrard v. (/) Williams v. Corbett, 8 Sim. 
 
 lord Lauderdale, 3 Sim. 1 ; 2 R. 349 ; Hibbert v. Hibbert, 3 Mer. 
 
 & M. 451. This subject will he 681 ; Consett v. Bell, 1 Y. & C. Ch. 
 
 treated of under the head of Trusts Ca. 569. 
 for the payment of debts. 
 
102 INTENTION. [CH. V. S. 4. 
 
 • 
 
 merely recommend or express a desire that his trustees should 
 employ A. as receiver, the question is, whether the words used 
 amount to a trust, or only to an expression of opinion and 
 advice : and to discover the meaning, the Court examines the 
 provisions of the will, and if it finds that, to consider the 
 words as a trust would he inconsistent with the general cha- 
 racter of the wUl, which assumes that the administration of 
 the estate is to be unfettered by such a trust in favour of A., 
 the Court comes to the conclusion that the words were meant 
 only by way of suggestion and advice (a). 
 
 [a] Shaw v. Lawless, 1 L. & Gr. Q-.i. Plunk. 559; Findeny, Stephens, 
 t. Sugd. 154; reversed 1 Dr. & 2 Phill. 142; KnoU v. Cottee, 2 
 Walsli, 512 ; 6 CI. & F. 129 ; LI. & PkiU. 192, 
 
CHAPTER VL 
 
 OF THE OBJECT PROPOSED BY THE TRUST- 
 
 Trusts, with reference to their object, may he distributed 
 into Law/id and Unlawful ; the former, such as are directed to 
 some legitimate purpose ; the latter, such as are in contraven- 
 tion of the policy of the law. It is almost unnecessary to 
 observe, that, in creating a trust, care must be taken to confine 
 it within allowable bounds. 
 
 SECTION I. 
 
 OE lAWniL TEtrSTS. 
 
 As a general rule, the intention of the settlor, whatever it 
 may be, shall be carried into effect (a). 
 
 And if the object of the trust do not contravene the policy No objection to a 
 
 „, ,, . trust because the 
 
 01 tne law, the mere circumstance that the same end cannot be legal estate can- 
 efifectuated by moulding the legal estate, is no argument that ^^^^^ ^^ ^^^^ 
 it cannot be accomplished through the medium of the equi- 
 table. The common law has interwoven with it many technical 
 rules, the reason of which does not appear, or at the present 
 day does not apply ; but a trust is a thing sui generis, and, 
 where puhKc policy is not disturbed, will be executed by the 
 Court agreeably to the settlor's intention. 
 
 In legal estates a fee cannot, except by executory devise, be Fee upon a fee. 
 limited upon a fee ; but this modification of property was allow- 
 able in uses, and by the statute of Hen. 8. has gained admit- 
 
 (a) Attorney- General v. Sands, on Uses, 79 ; Burgess v. Wlieate, 1 
 Hard. 494, per Lord Hale ; Pawlett Ed. 195, per Sir T. Clarke. 
 V. Attorney- General, ib. 469; Bacon 
 
104 
 
 LAWFUL TEUSTS. 
 
 [CH. VI. S. 1. 
 
 Contingent 
 remainders. 
 
 Limitations of 
 chattels. 
 
 tance into legal estates, and is now matter of daily occurrence 
 in settlements by way of trust (a). 
 
 At law, except in executory devises a freehold contingent 
 limitation must be supported by a freehold particular estate, 
 and if the contingent limitation do not vest at the determina- 
 tion of the particular estate, it is extinguished ; but to trusts 
 the rule is held not to be applicable^ or, as the doctrine is 
 expressed, the legal estate in the trustees is sufficient to sup- 
 port all the equitable interests (b). 
 
 At law a chattel real can by will only, and not by deed, and 
 a chattel personal can neither by will nor deed, be limited to 
 one person for life, with remainder to another ; but in trusts 
 a chattel interest, whether real or personal, can be subjected to 
 any number of limitations, provided there be no perpetuity. 
 "It is objected," said Lord Nottingham, "that a lease for years, 
 which is a chattel, will not bear a contingent limitation in 
 regard of the poverty and meanness of the estate. Now, as to 
 this point, the difference between a chattel and an inheritance 
 is a difference only in words, but not in substance or reason, 
 or in the nature of the thing ; for the owner of a lease has as 
 absolute a power over his lease, as he that hath an inheritance 
 hath over that ; and therefore, when no perpetuity is introduced, 
 nor any inconveniency doth appear, there no rule of law is 
 broken. It hath happened sometimes, and doth frequently, 
 that men have no estates at all, but what consist in leases for 
 years ; now, it were, not only very severe, but, under favour, 
 very absurd to say, that he who has no other estate, but what 
 consists in leases for years, shall be incapable to provide for 
 the contingencies of his own family " (c). 
 
 A testator had devised to one that served the cure of a 
 church, and to all that should serve the cure after him, all the 
 tithes, profits, &c. ; but, as the successive curates were not a 
 body corporate, they were incapable of taking the legal estate : 
 however, equity carried the intention into effect, and decreed 
 the devisee and his heirs to be trustees for the persons intended 
 
 (a) Duke of Norfolk's case, 3 Ch. Talb. 145 ; Hopkins v. Sopkins, 
 Ca. 35. ib. 43. 
 
 (b) Chapman v. Blisset, Cas. t. (c) See Duke of Norfolk's case, 3 
 
 Ch. Ca. 32. 
 
CH. VI. S. 1.] LAWFUL TRUSTS. 105 
 
 to be benefitted (a). So on the erection of a chapel, the benefit 
 of the endowment cannot, without an act of parliament, be 
 transmitted at law to the successive preachers and their con- 
 gregations, but the ordinary mode of accomplishing the object 
 is by vesting the legal estate of the property in trustees (with 
 a power of renewing their number on vacancies by death, &c.), 
 upon trust to permit the preacher and congregation for the 
 time being to have the use and enjoyment of the chapel. 
 
 The limitation of an estate to the poor of a parish would, at Trust for the 
 law, be void (6), because the rules of pleading require the 
 claimants to briug themselves under the gift, and no indefinite 
 multitude, without public allowance, can take by a general 
 name ; but by way of trust they are capable of purchasing, for 
 they assert no title in themselves, but call upon the trustees 
 to observe the dictates of good conscience (c). What persons 
 are designated by the description of " poor of a parish " was 
 at one time matter of considerable doubt. Lord Eldon thought, 
 that the fund should be administered without reference to 
 parochial relief; for assistance might be given to, a pauper 
 without exonerating the rich from their usual contribution to 
 the rates — to the relief, which the law had provided, further 
 rehef might be added, which the parish was not bound to 
 afford (<i). Besides, the appropriation of the fund to the poor 
 not in receipt of parochial relief might still have the effect of 
 •conferring a benefit on the rich; for persons who could not 
 otherwise have maintained themselves might, by means of the 
 charity, be prevented from seeking assistance from the rate(e). 
 However, it has been determined in several cases, and seems, 
 therefore to be now settled, that the charity must be confined 
 to those not in the receipt of parochial relief (/). 
 
 (o) Anon, case, 2 Vent. 349. General v. Bovill, M. R. 1 July, 
 
 (6) Co. Lit. 3. a. 1839. But see Attorney- General 
 
 (c) Gilb. on Uses, 44. v. Bovill, 1 Phill. 768, where Lord 
 
 \d) Attorney- General v. Corpo- Cottenham is reported to have said, 
 
 ration of Exeter, 2 Russ. 51—54. "I am inclined to think that the right 
 
 (e) See S. C. 3 Russ. 397. course is, to administer the charity, 
 
 (/) Attorney-General r. Corpo- and leave to chance to what extent 
 
 ration of Exeter, 2 Russ. 47; S. C. it may operate to the relief of the 
 
 3 Russ. 395; Attorney-General v. poor-jates." The decree, however, 
 
 Wilkinson, 1 Beav. 372 ; Attorney- seems in the main to he in accord- 
 
106 PAEISH PEOPEETY. [CH. VI. S. 1. 
 
 59 G. 3. c. 12. By the 59 Geo. 3. c. 13, s. 17, it is enacted, " That all build- 
 ings, lands, and hereditaments which shall be purchased, hired, 
 ortaken on lease by the churchwardens and overseers of thepoor 
 of any parish, by the authority or for any of the purposes of 
 that act, shall be conveyed, demised, and assured to the church- 
 wardens and overseers of the poor of every such parish respec- 
 tively and their successors, in trust for the parish ; and such 
 churchwardens, and overseers, and their successors, shall and may, 
 and they are hereby empowered, to accept, take, and hold in the 
 nature of a tody corporate, for and on behalf of the said parish, 
 all such buildings, lands, and hereditaments, and also all 
 other buildings, lands, and hereditaments belonging to such 
 parish." 
 
 Construction By virtue of this enactment, all hereditaments belonging to 
 
 the parish at the time of the act, or subsequently acquired, 
 whether for a chattel (a) or freehold interest ; and though 
 originally conveyed to express trustees for parish purposes, if 
 it be unknown or uncertain in whom the legal estate is now 
 vested (6) ; or generally where it is unascertained in whom the 
 legal estate is outstanding, but the parish have exercised 
 all the rights of ownership, and the property belongs to them 
 in the popular sense (c) ; are now transferred to the church- 
 wardens and overseers of the parish, not indeed as a cor- 
 poration and having a common seal(^), but as persons 
 taking, by parliamentary succession, in the nature of a cor- 
 poration (e). 
 
 The act does not extend to copyholds (/), nor to freeholds 
 of which the trusts are not exclusively for the parish, but also 
 embrace other objects (51); nor to lands vested in existing trus- 
 tees, and who are actually in discharge of their duties in that 
 
 anoe with, the previous decisions; {d) Ux parte Annesley,2Y. &C. 
 
 and see Attorney- General v. £li- 350. 
 
 zard, 21 Beav. 233. («) Smith v. Adkins, 8 Mees. & 
 
 (a) Alderman v. Neate, 4 Mees. Wei. 362. 
 
 & Wei. 704. (/) Attorney- General Y.Zewin,8 
 
 (6) Doe V. Siley, 10 B. & Or. Sim. 366 ; In re Paddington Cha- 
 
 885 ; and see Churchwardens of rities, ib. 629. 
 
 Deptford v. Sketchley, 8 Q,. B. B,ep. {g) Allasony. Spark, 9 Ad. &E11. 
 
 394. 255; Attorney-Generaly. Letein,S 
 
 (c) Doe V. Terry, 4 Ad. & Ell. Sim. 366; In re Paddington Cha- 
 
 274 ; Doe y. Cockell, ib, 478. rities, ib. 629. 
 
GH. VI. S. 1.] TRUSTS FOE PARISHIONEES. 107 
 
 character (a). However, though all the trusts must be for the 
 parish, they may be directed to some special trust, if exclu- 
 sively parochial, as a trust for aiding the church-rates (6), or 
 furnishing a poor-house (c), or for the relief of the poor of the 
 parish, whether the objects of the charity be or not held to 
 include those in the receipt of parochial relief; for if non- 
 recipients only of parochial relief are to be admitted, the parish 
 is still benefitted by keeping that class of poor, by means of 
 the charity, off the parish books {d ). 
 
 Again, an advowson may be vested in trustees, upon trust Trust of an ad- 
 
 ... Towson for the 
 
 for the " ^parishioners and inhabitants," that is, the parishioners, parishioners. 
 being inhabitants (e) of a parish. 
 
 A trust of this kind is not considered a charity, but is 
 administered on the footing of any ordinary trust, and applica- 
 tion must be made to the Court not by way of information, but 
 by bill (/). 
 
 From the infinite mischiefs arising from popular election {g), Who shall elect 
 the Court, where the settlement does not expressly give the 
 election to the parishioners, or usage has not put such a con- 
 struction upon the instrument, will infer the donor's intention 
 to have been, that the trustees should themselves exercise 
 their discretion in the election of a clerk for the benefit of the 
 parish Qi); but if the language of the instrument, or the 
 
 (a) Churchwardens of Depfford by Ridg. 66, per Lord Hard- 
 
 V. Sketchley, 8 CI. B. Eep. 394, wicke. 
 
 overruling Bumhall v. Munt, ib. {/) Attorney- General v. Forster, 
 
 382; aniaeeGouMsworthv. Knight, 10 Ves. 344; Attorney- General v. 
 
 11 M. & W. 337. Newcomhe, 14 Ves. 1 ; Fearon v. 
 
 (5) Doe V. Hiley, 10 B. & Cr. 885 ; Wehh, ib. 19. 
 
 Doe V. Terry, 4 Ad. & Ell. 274 ; [g) See, in addition to tbe cases 
 
 and see Allason v. Stark, 9 Ad. & cited in the next note, the observa- 
 
 EU. 266, 267 ; Doe v. Cochell, 4 Ad. tions of Vice-ChanceUor Knigbt 
 
 & EU. 478. Bruce, Attorney-General y. Cuming, 
 
 (c) Alderman v. Neate, 4 Mees. 2 T & C. Ch. Ca. 158, and 19 & 20 
 
 & Wei. 704. Vict, cap, 50, authorising the sale 
 
 {d) Ex parte Annesley, 2 Y. & C. of advowsons held upon trust for 
 
 350; Churchwardens of DeptfordY. parishioners. 
 
 Sketchley, 8 Q,. B. Rep. 394. {h) See Bdenhorough v. Arch- 
 
 (e) Fearon v. Wehh, 14 Ves. 24, hishop of Canterhury, 2 Russ. 106, 
 
 per Chief Baron M'Donald; ib. 26, 109; Attorney- General y. Scott, 1 
 
 per Baron Graham; Wainwright Yes. 4:13 ; Attorney-General y. Fo~ 
 
 Y. Bagshaw, Rep. t. Hardwicke, ley, cited ib. 418, 
 
108 
 
 TEUSTS OP ADVOWSONS. 
 
 [CH. VI. S. 1. 
 
 Meaning of "pa- 
 rishioners and 
 inhabitants." 
 
 "Chiefest and 
 disoreetest." 
 
 evidence of common usage, prevent such a construction, then 
 the parishioners, as the cestms que trust and beneficial owners of 
 ihe advowson, will be entitled to elect, and the trustees will be 
 bound to present the person upon whom the choice of the 
 electors shall fall (a). Had the point been unprejudiced by 
 decision, Lord Eldon doubted whether the Court could execute 
 such a trust, at least otherwise than cy pres (&) ; but, as autho- 
 rity has now clearly settled that the Court must undertake the 
 trust notwithstanding the difficulties attending it, the only 
 subject for inquiry is, in what manner a trust of this kind shall 
 be executed. 
 
 The expression " parishioners and inhabitants " is in itself 
 extremely vague, and has never acquired any very exact and 
 •definite meaning (c) ; but, this doubt removed, another question 
 to be asked is, are women, children, and servants, who are 
 parishioners and inhabitants, to be allowed to vote ? It seems 
 the extent of the terms must be taken secundum subjectam 
 materiam, with reference to the nature of the privilege the 
 cestuis que trust are to exercise (d), and, if so, none should be 
 admitted to vote, who, from poverty, infancy, or coverture, are 
 presumed not to have a wiU of their own (e). In a case, where 
 the election was given to " the inhabitants and parishioners, or 
 the major part of the chiefest and discreetest of them," it was 
 held that, by chiefest, was to be understood those who paid the 
 church and poor rates, and by discreetest, those who had 
 attained the age of twenty-one (/) ; but Lord Hardwicke said, 
 that, even where " parishioners and inhabitants " stood without 
 any restriction at all, it was a reasonable limitation to confine 
 the meaning to those who paid scot and lot, that is, who paid 
 to church and poor (g) ; and so, in a previous case, it seems 
 
 (a) Attorney- General Y. Parher, 
 3 Atk. 677, per Lord Hardwicke ; 
 Attorney- General v. Forster, 10 
 Ves. 338, 341, per Lord Eldon ; At- 
 torney-General V. Newconibe, 14 
 Ves. 6, 7, per eundem. 
 
 (5) Attorney-General \. Forster, 
 10 Ves. 340, 342. 
 
 (c) See Attorney- General v. 
 Parker, 3 Atk. 577 ; Attorney^ 
 
 General r. Forster, 10 Ves. 339; 
 342. 
 
 [d) See Attorney-General v. 
 Forster, 10 Ves. 339. 
 
 (e) See Fearon v. Wehh, 14 Ves. 
 27. 
 
 (/) Fearon v. Wehh, 14 Ves. 13. 
 ((/) Attorney-General y. Parher i 
 3 Atk. 577 -,8.0.1 Ves. 43. 
 
CH. VI. S. 1.] FOR PAEISHIONEES. 109 
 
 his Lordship had actually determiaed (a). The Court of Ex- 
 chequer adopted a similar construction in the Clerkenwell 
 case (6), though it does not appear how far the Court -was 
 guided in its judgment by the evidence of the common usage (c) ; 
 and Lord Eldon, in a subsequent case, restricted the election 
 to the same class {d), but his Lordship's decree was possibly 
 founded on the circumstance, that those only who paid scot 
 and lot were admitted to the vestry (e) ; (not that, for the 
 purposes of election, the vestry is the representative of the 
 parish (/), but in one of the oldest documents the trust was 
 said to be for " the parishioners of the said parish at a vestry 
 or vestries to be from time to time holdenfor the said parish " (g).) 
 But, where the instrument creating the trust contaias merely 
 the words " parishioners and inhabitants," the Court will not 
 confine the privilege of voting to those paying scot and lot, if 
 it appears from constant usage that the terms are to be taken 
 in a wider and more extensive signification, to include, for 
 rustance, aU housekeepers, whether paying to the church and 
 poor or not (/i). By persons paying to the church and poor " Eate-payers." 
 must be understood persons liable to pay, though they may not 
 have actually paid (i) ; but it seems to be a necessary qualifica- 
 tion that they should have been rated (k), unless, perhaps, the 
 name has been omitted by mistake {I), or there is the taint of 
 fraud (m). 
 
 With respect to the mode in which the votes are to be taken. Mode of electing. 
 it is clear that the election cannot be conducted by ballot, not 
 only on the general principle that the ballot is a form of pro- 
 ceeding unknown to the common law of England («), but also 
 
 (a) Attorney- General v. Davy, [ff) See Edenhorough v, Arch- 
 
 cited ib. ; S. C. 2 Atk. 213. bishop of Canterbury, 2 Rusa. 94. 
 
 (J) Attorney- General v. Sutter, {h) Attorney- General y. Parker, 
 
 stated 2 Russ. 101, note. 3 Atk. 576 ; S. 0.1 Ves. 43. 
 
 (c) See Attorney- General Y. Fors- (i) See Attorney-General y. Fors- 
 ter, 10 Ves. 345. ter, 10 Yes. 339, 346. 
 
 (d) Edenborough v. Archbishop of {k) Edenborough v. Archbishop 
 Canterbury, 2 Russ. 93. of Canterbury, 2 Russ. 110. 
 
 (e) See ib. 110. (J) Edenborough v. Archbishop 
 
 (f) Attorney- General Y. Parker, of Canterbury, 2 Russ. 110. 
 3 Atk. 678, per Lord Hardwieke; {m) S. C. ib. 111. 
 
 Attorney- General v. Forster, 10 {n) Faulkner v. Elger, 4 Barn, & 
 
 Ves. 340, 344, per Lord Eldon. Cress. 449. 
 
110 
 
 TEUSTS FOB ACCUMULATION. 
 
 [CH. VI. S. 1, 
 
 Trusts for accu- 
 mulation. 
 
 Trusts for acou- 
 mulatiou must 
 not lead to a per- 
 petuity. 
 
 on the ground, that the trustees have a right to be satisfied, 
 that the person they present to the bishop has been the suc- 
 cessful competitor ; whereas in election by ballot there are no 
 means of ascertaining for whom each particular elector voted (a). 
 The choice of the candidate must therefore be determined by 
 one of the modes known to the common law, viz. either by poll 
 or a show of hands (&). However, the cestids que trust may 
 expressly agree among themselves that they will abide by the 
 declaration of the result of the ballot, and will ask no questions 
 how the individual votes were given ; or such a contract may 
 be inferred from long and clear antecedent usage (c). But it is 
 said an agreement of this kind can apply only to each par- 
 ticular election as it occurs, for any one parishioner has a right 
 to insist that the coming election shall be conducted on a 
 different principle : it would be a bold thing to say, that the, 
 parish of to-day could bind the parish of to-morrow to deviate 
 from the original and legitimate mode (d). A contract between 
 the cestuis que trust in favour of the ballot is also open to 
 the objection, that the right of voting in the election of a clerk 
 is a privilege coupled with a public duty, and it may be doubtful 
 whether a Court of equity would enforce the result of an elec- 
 tion, where it cannot be ascertained whether the voters, in the 
 exercise of their right, have fairly and honestly discharged that 
 duty (e). 
 
 Again, upon principles founded on the Law of Tenure, the 
 freehold in prcesenti must be vested in some person in esse ; but 
 under the system of trusts, which are wholly independent of 
 feudal rules, a settlor may direct the accumulation of rents and, 
 profits, and it does not vitiate the trust that there is no ascer- 
 tained owner of the equitable freehold in possession (/). 
 
 But trusts for accumulation must be confined within the 
 limits established against perpetuities. A settlor is permitted 
 (by analogy to the duration of a regular entail under a common 
 law conveyance) to fetter the alienation of property for a life or 
 
 (a) JEdenborough v. Archbishop 
 of Canterbury, 2 Russ. 105, 108, 
 109, per LordEldon. 
 
 (6) See ib. 106, 110. 
 
 (c) See ib. 105, 106, 108, 109. 
 
 {d) See ib. 106. 
 (e) See ib. 109. 
 
 (/) See Feaxne's C. R. by Butler, 
 537, note (x). 
 
CH. VI. S. 1.] TRUSTS FOE ACCTMULATION. Ill 
 
 lives in being and twenty-one years; and the power of pre- 
 venting the enjoyment of property, by directing the accu- 
 mulation of the annual proceeds, is restricted to the same 
 period. If the trust exceed this boundary, it is void in toto, 
 and cannot be cut down to the legitimate extent (a). Thus, 
 where an estate was limited to trustees for a term of 1000 
 years, and subject thereto in strict settlement, and the trusts 
 of the term were, as often as any tenant for life or in tail 
 should be a minor, to accumulate the rents, and apply them 
 in discharge of incumbrances, and to pay the surplus to the 
 first tenant for life, or in tail, who should attain twenty-one, 
 the trust was declared void ab initio, as the minorities of the 
 successive tenants for life and in tail might travel through 
 a century (b). 
 
 But there is no accumulation, and therefore no danger of a phippg v. 
 perpetuity, where the rents are applicable as a vested interest de ^^^y^s"- 
 anno in annum. Thus, where a testatrix devised a term which 
 had 33 years to run, upon trust, from time to time, to lay out 
 the profits in the purchase of lands to be settled on A. for 
 life, remainder to B. in tail, remainders over, inasmuch as the 
 cestuis que trust could at any time call for the investment of the 
 rents in land ; and when B. attained his age, and could suffer 
 a recovery, A. and B. were entitled to call for the assignment 
 of the lease; it was held the trust was good (c). And, in Bacon «. Proctor, 
 another case, where the rents were directed to be accumulated, 
 at compound interest, until they amounted to a sufficient sum 
 to discharge two incumbrances on the estate, amounting to 
 2500Z. each; and then to be further accumulated until they 
 amounted to a suf&cient sum to discharge two other incum- 
 brances of 4000Z. and 2000L; Baron Graham observed, "there 
 was no accumulation for the purpose of suspension " (d). In 
 
 (a) Marshall v. EoUoway, 2 Sw. (J) Lord /Southampton v. Mar- 
 
 432 ; Lord Southampton y. Marquis quis of Hertford, 2 V. & B. 54. 
 of Hertford, 2 V. & B. 54 ; Curtis (c) Ffiipps v. Kehjnge, 2 V. & B. 
 
 V. Lukin, 5 Bear. 147 ; Boughton 67, note (6). 
 
 v. James, 1 CoU. 26; S. C. on ap- (d) Bacon v. Proctor, 1 T. & E. 
 
 peal, 1 House of Lords Cases, p. 406 ; 31 ; and see Bateman v. Hotchkin, 
 
 Browne v. Stoughton, 14 Sim. 369 ; 10 Beav. 426, where the trust was 
 
 Scarisbrick v. Skelmersdale, 17 Sim. supported on the ground that there 
 
 j^g- was no perpetuity, but that on the 
 
112 
 
 TRUSTS FOB ACCUMULATION. 
 
 [CH. VI. S. 1. 
 
 this case, however, there seems to have been strictly and 
 substantially an accumulation. It is possible that the 
 amount of the annual rents being ascertained, and the 
 incumbrances known, it was found that the time required for 
 discharging the incumbrances would not exceed the proper 
 limits. 
 
 Curtis V. Lukin. In Curtis V. Lukin (a) a testator gave to the trustees certain 
 leaseholds in Church-street, which had more than 60 years to run, 
 upon trust for A. for life, with remainder to her children, and in 
 default of children to B. He then gave other leaseholds to the 
 same trustees upon trust to accumulate the rents until the lease 
 in Church-street should he nearly expired, and then to apply a 
 competent sum in the renewal of that lease for the benefit of 
 the parties entitled thereto under the wiU, and the residue of 
 the accumulations he gave to A., B., and C. The lessor of the 
 premises in Church-street was under no obligation to renew, 
 and therefore the sum to be paid if a renewal could be obtained 
 was uncertain. It was argued, that aU interests must be 
 vested within a Kfe in being and 31 years, so that there was 
 no perpetuity ; but it was answered, that the amounts of the 
 respective interests were uncertain until the renewal was 
 effected ; and if all the parties could not agree in the distribu- 
 tion of the fund, the accumulation must proceed, and the Court 
 was of opinion that the trust was void. 
 
 ThellussonAct. The 39 & 40 Geo. 3. c. 98, commonly called the Thellusson 
 
 Act, or Lord Loughborough's Act, has now further restricted 
 the period of accumulation, by declaring that " no person shall, 
 by deed, surrender, wiU, codicil, or otherwise howsoever, settle 
 or dispose of any real or personal property, so as that the rents, 
 issues, profits, or produce thereof shall be wholly or partially 
 accumulated for any longer period than the life or lives of any 
 such grantor or grantors, settlor or settlors ; or the term of 21 
 years from the death of any such grantor, settlor, devisor, or 
 testator ; or during the minority, or respective minorities, of any 
 person or persons who shall he living, or in ventre sa mere, at 
 
 eldest son attaining twenty-one, lie 
 could dispose of the estate, and stop 
 the acoumnlation ; and see Sriggs 
 
 V. Earl of Oxford, 1 De Gex, M. & 
 G. 363. 
 (a) 5 Beav. 147. 
 
CH. VI. S. 1.] .TRUSTS FOR ACCUMULATION. 113 
 
 the time of the death of such grantor, devisor, or testator ; or 
 during the minority, or respective minorities, of any person or 
 persons who, under the uses or trusts of the deed, surrender, will, 
 codicil, or other assurance directing such accumulations, would, 
 for the time being, if of full age, he entitled unto the rents, issues, 
 and profits, or the interest, dividends, or annual produce so 
 directed to be accumulated." 
 
 The following pointa have been resolved upon the con- Act embraces 
 struction of this act: — 1. The statute embraces simple as well compound accu- 
 as compound accumulation. By the former is meant the col- ™"lation. 
 lection of a principal sum by the mere addition of the annual 
 proceeds, while the interest upon the accumulating fund either 
 results undisposed of to the settlor or his representative, or 
 passes to the residuary devisee or legatee. Compound accu- 
 mulation is, where not only the rents are added together, but 
 the fund is further increased by the interest upon the rents. 
 2. The act applies, though the accumulating fund be from the Applies to case 
 first a vested interest, so that not the right to the enjoyment, joymentrtLugh 
 but only the actual enjoyment, is suspended; as where a settlor t^^ '•»s'''* to the 
 
 •' J ^ ' r ' enjoyment te 
 
 directs the rents to be accumulated for a life in being and Tested. 
 twenty-one years, for raising a certain sum for A., to be paid to 
 him on the completion of the accumulation ; so that A. has a 
 vested interest in the rents as they arise, but the settlor having 
 directed simple accumulation only, the interest on the rents is 
 applicable to other purposes, and A. cannot call for the transfer 
 till the rents have amounted to the requisite sum. 3. An 
 accumulation can be directed for one only of the periods 
 allowed by the statute, and not for two of the periods com- 
 bined (a). 4. The accumulation, though directed to com- 
 mence not at the testator's death, but at some subse- 
 quent period, must still terminate at the expiration of 
 twenty-one years from the testator's death (b), and the term 
 of twenty-one years is to be reckoned exclusive of the day 
 on which the testator died (c). 5. If the trust exceeds the where the limit 
 limits prescribed by the statute, but not the limits allowed trust is good^ 
 
 pj-o tanto. 
 
 (o) Wtlson V. Wilson, 1 Sim. (c) Gorst v. Lowndes, 11 Sim. 
 
 288, N. S. 434. 
 
 (6) Attorney- General v.Poulden, 
 3 Hare, 555. 
 
114 
 
 TRUSTS FOB ACCUMULATION. 
 
 [CH. VI. S. 1. 
 
 by the common law, the accumulation will he estahlished to 
 the extent permitted by the act, and wiU be void for the excess 
 only (a). 
 Shaw v. Ehodes. A leading case upon this subject is Shaw v. Rhodes (&). A 
 testator, having three children, devised aU his estates to trus- 
 tees upon trust to pay them certain annuities, and subject 
 thereto, 1, upon trust to accumulate the rents for the benefit 
 of his grandchildren, born or to be born, until the youngest 
 should attain twenty-one, at which time the accumulations 
 should be distributed amongst the grandchildren then living; 
 2, and in case any of his three children should be living at the 
 time the youngest grandchild attained twenty-one, he directed 
 the rents to be further accumulated tiU. the death of the 
 survivor of the children, the accumulation to be divided be- 
 tween the grandchildren then living ; 3, and after the decease 
 of the survivor of the children, that his estates " should stand 
 charged for twenty years with the payment (out of two-third 
 parts of the rents) of so much money as would in fifteen years 
 make 30,000L ; the said sum, and the interest and produce 
 thereof, to be divided amongst his grandchildren who should 
 live to attain twenty-one ;" and, subject thereto, he devised the 
 estates to his eldest son in tail, with remainder over. The 
 testator died in 1813. The youngest grandchild attaiaed his 
 age in 1830. The surviving child died in 1831. The first 
 accumulation, which expired in 1830, and the second accumu- 
 lation, which expired in 1831, were both established, as falling 
 within twenty-one years from the testator's decease. With 
 respect to the third accumulation, the clause was construed to 
 mean that 1500Z. per annum (if two-thirds of the rents would 
 yield so much) should be laid by for fifteen years, and if the 
 30,000?. were not then raised, the like accumulation should 
 be made for five years more, tiU the 30,000?. should be com- 
 pleted ; that the proceeds arising out of the rents, until the 
 30,000?. should be raised, were not meant to fall into the 
 
 (a) Griffiths Y. Vere, 9Ves. 127 
 Longdon v. Simson, 12 Ves. 295 
 Haley v. Bannister, 4 Mad. 275 
 Shaw V. Rhodes, 1 M. & C. 135 
 Crawley v. Crawley, 7 Sim. 427 
 
 Attorney- General v. Poulden, 3 
 Hare, 555. 
 
 (J) 1 M. & C. 135; S. a, as 
 Dvans v. Hellier, 5 CI. & Fin. 
 114. 
 
CH. VI. S. 1.] TRUSTS FOR ACCUMULATION. 115 
 
 accumulating fund, and increase the capital, but should pass 
 to the residuary devisee of the estates. It was urged that the 
 act contemplated a compound accumulation only, and not, as 
 this was, a simple accumulation ; and that here the right to 
 the rents was not suspended, but each instalment, as it was 
 paid, became a vested interest: but the Court held, that 
 allowing the annual instalments to be vested interests, yet, as 
 the produce of the fund, till the 30,000Z. should be completed, 
 would belong to other parties, the rents until that time were 
 not actually recoverable by the legatees, and must therefore be 
 considered as accumulated within the act. The trust, there- 
 fore, was supported up to 1833, the expiration of twenty-one 
 years from the testator's death, and for the residue was de- 
 clared void. 
 
 In another case a testator gave his general personal estate WUbv. Maxwell. 
 to trustees in trust for all the children of A. and B. (who both 
 outlived twenty-one years from the testator's death), to be a 
 vested interest in the children, being sons, at their ages of 
 twenty-one years, or, being daughters, at those ages, or on 
 their days of marriage, with a clause of survivorship ; but 
 the shares were not to be paid until the death of the survivor 
 of A. and B., and the testator appointed C. residuary legatee. 
 An accumulation was thus implied until the death of the sur- 
 vivor of A. and B., as up to that time it could not be ascer- 
 tained how many children would be born ; but at the expiration 
 of twenty-one years from the testator's death the accumulation 
 would be void, unless it fell under some exception in the sta- 
 tute. At the testator's death, A. and B. had no children, but 
 B. afterwards had children. It was argued, that as the shares 
 vested at twenty-one or marriage, the accumulation of each 
 child's share during the minority of such child was good, it 
 being within the exception of the act which allows an accumu- 
 lation " during the minority of a person who would, for the 
 time being, if of full age, be entitled to the annual produce." 
 It was further argued, that the accumulation of each child's 
 share, after his interest vested, was good, as the Thellusson act 
 had no application where the right was vested, and only the 
 enjoyment suspended; but the Court overruled both grounds, 
 and held aU accumulations after twenty-one years from the 
 
 I 2 
 
116 TRUSTS FOR ACCUMULATION. ,[CH. VI. S. 1. 
 
 testator's 'death to he void, and to pass with the residue (a). 
 It will he observed that in this instance the accumulation was 
 not expressly directed hut impUed in the nature of the hequestj 
 and it has been held in other cases that the statute applies to 
 such a gift (6). The late Vice-Chancellor of England, however, 
 observed that the statute was meant only to put an end to 
 accumulations expressly directed (c) ; and in a subsequent case 
 before him decided in accordance with this view (d). And in a 
 more recent case, where a sum was given to the eldest daughter 
 of A., and if there should be none such, then to the eldest 
 daughter of B., and A. had no daughter, and twenty-one years 
 from the testator's death elapsed in the lifetime of A.j it was held 
 that the fund must go on accumulating until a recipient of the 
 legacy could be ascertained, and that the case was not within 
 the statute, and as A. died afterwards without issue, the Master 
 of the EoUs held that the eldest daughter of B. was entitled 
 to the legacy and the accumulations (e). And the same principle 
 was again applied by the Master of the Eolls in the case of 
 Tench v. Cheese (/). The latter case was reversed on appeal 
 by the Lord Chancellor and Xiords Justices, but upon the 
 ground that as the will was worded, an accumulation was 
 expressly directed (^). The Lord Chancellor, however, took 
 occasion to observe that 'the distinction taken by the Master of 
 the Eolls between an accumulation expressed and an accu- 
 mulation implied was unsound and impossible; and he justly 
 remarked as to the case of infancy, that if of age, the infant, 
 instead of spending, might accumulate the rents, and the Court 
 did no more than exercise a discretion for the infant, which 
 was a very different thing from creating a suspense fund to go 
 to somebody who had no title during the accumulation. 
 To -whom the The statute proceeds to declare, that " the produce of the 
 
 6XC6SS shSill 
 
 belong. property, so long as the same shall be directed to be accumu- 
 
 lated contrary to the provisions of the act, shall go to and be 
 
 (o) UllisY. Maxwell, M. S., and {d) Corporation of Bridgenorth ■^. 
 
 3 Beav. 587. Collins, 15 Sim. 538. 
 
 (J) M' Donald v. Bryce, 2 Keen, (e) Bryan v. Collins, 16 Beav. 14. 
 
 276 ; Morgan v. Morgan, 4 De Gex (/) Tench v. Cheese, 19 Beav. 3. 
 
 & Sm. 170. (V) 1 Jur. N. S. 689. 
 
 (c) Elborne v, Goode, 14 Sim. 165. ; 
 
GH. VI. S. 1.] TRUSTS FOR ACCUMULATION. 117 
 
 received by such, person or persons as would have been entitled 
 
 thereto if such accumulation had not been directed." 
 
 . In a case before Lord Eldon, a testatrix had directed her Qriffitlia v. Vere. 
 
 trustees to pay an annuity to A., and the rest, of the interest 
 
 to B. and C. equally for their lives, and the whole to the 
 
 survivor for her life, provided that the interest due to B. during 
 
 the life of her husband should not be paid to her, but should, 
 
 during his life, be accumulated ; the fund on his decease to be 
 
 paid to B., if living, or, if dead, to D. The accumulation was 
 
 established for twenty-one years from the testator's death; 
 
 but in case B. and her husband survived that period, to whom. 
 
 was the excess during the residue of the husband's life to 
 
 belong? "Was the gift to B. to stand alone, and the sub-^ 
 
 sequent proviso for accumulation to be struck out; or were 
 
 the gift and the accumulation to be coupled together, and both 
 
 to be void, so that the excess of interest should result ? It 
 
 was not necessary to decide the question, and Lord Eldon 
 
 merely observed, " it was not clear upon the will that there 
 
 was a gift in prasenti, if the declaration for accumulation were 
 
 struck out, for the whole must be taken together (a).'' 
 
 In a subsequent case, where a fund was given upon trust Trickey v. 
 
 . Trickey. 
 
 for the testator's daughter for life with remainders over, and 
 
 the testator directed that if the income exceeded 200L per 
 
 annum, the surplus should be accumulated, but the period of 
 
 accumulation was not limited to twenty-one years, the Master 
 
 of the Rolls held that the testator's daughter was entitled to 
 
 the excess beyond 200Z.. per annum from the expiration of the 
 
 twenty-one years, but in what character the daughter was so 
 
 entitled does not appear. Probably the daughter was the 
 
 testator's heiress-at-law, so that it was immaterial to consider 
 
 whether the heiress-at-law or the tenant-for-life was entitled (6). 
 
 In another ease (c), a testator directed accumulations, and Shaw v. Modea. 
 
 then devised the estates, charged and chargeable as aforesaid, 
 
 to Thomas, the eldest son of the testator's son, James Shaw, 
 
 jn taU,. with remainder over, and it appears that Thomas took the 
 
 (a) Griffiths v. Vere, 9 Ves. 127, (c) Shaw v. Rhodes, 1 M. & Cr. 
 
 see 135. ' 135 ; 8. C. by the name of Evans v. 
 
 (6) Trichey v. Trickey, 3 M. & K. Hellier, 5 Clarke & Fin. 114. 
 560. 
 
118 TRUSTS FOE ACCUMULATION. [CH. VI. S. 1.. 
 
 benefit of tlie void accumulations. But the question, who was 
 entitled to the accumulations, supposing them to be void, was not 
 argued in the Court below, and only glanced at on the appeal (a). 
 James Shaw, who was probably the testator's heir, had died 
 before the institution of the suit, and his eldest son Thomas 
 may have been also the heir-at-law of the testator. 
 
 Charge. If there be a series of limitations, and one of them be upon 
 
 trust to accumulate the rents beyond the limits allowed by 
 the act, the subsequent limitations are not accelerated, but 
 the interim limitation, which is void under the act, will result 
 for the benefit of the heir-at-law (6), and if the resulting trust 
 be a chattel interest, it will devolve, on the death of the heir, 
 on his personal representative (c) ; and if the resulting interest 
 be an estate pur autre vie, it is the better opinion that it also 
 goes to the heir's personal representative (c?). If the heir of the 
 heir be entitled to an estate pur autre vie, under the words of 
 the Thellusson Act, why not also to a chattel interest ? But 
 under the late Wills Act, 1 V. c. 26, s. 25, if the will con- 
 tains a residuary devise, and there be no evidence of a con- 
 trary intention on the face of the will, the void accumulations 
 will go to the residuary devisee. In personal estate, if there 
 
 Eesitlue. be a residuary legatee, the excess beyond the allowed period of 
 
 accumulation will fall into the residue (e), and where the 
 residue is settled on A. for life, remainder to B., will form part 
 of the capital (/). And if the subject of the accumulation be 
 the income of the residue itself, the void accumulations wUl, 
 according to the nature of the residue, i. e. real or personal, 
 result to the heir-at-law or to the next of kin (g). 
 
 (a) See 5 CI. & Tin. 127. Attorney- General v. Poulden, 3 
 
 (J) Uyre v. Marsden, 2 Keen, Hare, 555 ; Jones v. Maggs, 9 Hare, 
 
 564 ; Nettleton v. Stephenson, 3 De 605 ; Me Draheley's Trust, 19 Bear. 
 
 Gex & Sm. 366 ; Edwards v. Tuch, 395. 
 
 3 De Gex, Mae. & Gord. 40 ; Re (/) Crawley v. Crawley, 7 Sim, 
 
 Draheley's Trust, 19 Beav. 395. 427. 
 
 (c) iSewellY. Denny, 10 Beav. 315. (g) M'Donald v. Bryce, 2 Keen, 
 
 (d) Barrett Y. JBucJc, 12 Jut. Ill ; 276; JEyre v. Marsden, 2 Keen, 
 see Salford v. Stains, 16 Sim. 488, 564 ; Pride v. Fooks, 2 Beav. 430; 
 conird,. Elborne v. Goode, 14 Sim. 163; 
 
 (e) Haley v. Bannister, 4 Mad. Bourne v. Buckton, 2 Sim. N.S. 91 ; 
 275 ; O'JVeill v. Lucas, 2 Keen, Edwards v. Tuck, 3 De Gex, Mac. & 
 313 ; WeU v. Webh, 2 Beav. 493 ; Gord. 40. 
 
GH. VI. S. 1.] TRUSTS FOE ACCUMULATION. 119 
 
 Lastly, the statute provides, that " nothing in the act con- Exceptions from 
 tained shall extend to any provision for payment of debts (a) of 
 any grantor, settlor, or devisor, or other person or persons (6), 
 or for raising portions for any child of the settlor or devisor, 
 or any person taking an interest under the settlement or devise, 
 or to any direction touching the produce of timber or wood." 
 By children must, of course, he exclusively understood legiti- 
 mate children (c) ; and by the words taking an interest, the act 
 has been construed to mean taking a substantial interest. A 
 small annuity, for instance, to the parent, would not justify an 
 accumulation of the residue of the rents beyond the limits 
 of the act for raising portions for the children (ci). And the 
 accumulation to be protected by the clause must be a pro- 
 vision for raising portions out of the corpus, not an accumu- 
 lation of the corpus itself, for the purpose of making a gift of 
 the aggregate fund (e), and must be a provision for children 
 certain, and not a chance limitation in favour of any child that 
 may happen to survive certain persons not necessarily standing 
 in the relation of parent and child, but uncles or aunts, &c. (/) 
 And by " taking an interest under the devise " it was once con- 
 sidered that not any interests in a large sense under the tvill were 
 meant, but under the particular gift, devise, or bequest, which 
 contains the provision for accumulation (g). But this view has 
 been since overruled, so that now, if the person take a substan- 
 tial interest in any property, under the will, it is sufficient (/i). 
 
 (a) Batemdn v. Hotehhin, 10 N.S. 91 ; Tuch v. Edwards, 3 De 
 
 Beav. 426. Gex, Mac. & Gord. 40; Jones v. 
 
 (6) The words " any other person Maggs, 9 Hare, 605 ; Wildes t. 
 
 or persons " mean the dehts of any Davies, 1 Sm. & Gif. 475 ; and see 
 
 stranger whomsoever ; see Barring- Beech v. St. Vincent, 3 De Gex & 
 
 ton V. Liddell, 2 De Gex, Mao. & Smale, 678. In Burt v. Sturt, 10 
 
 Gord. 497 ; 10 Hare, 415. Hare, 427, this was said to be " a 
 
 (c) Shaw V. Rhodes, 1 M. & C. shadowy distinction." 
 
 135, see 159. (/) Surt v. Sturt, 10 Hare, 415. 
 
 {d) S. C. see 159 ; and see Bourne {g) Bourne v. Buckton, 2 Sim. 
 
 V. Buckton, 2 Sim. N.S. 91 ; but see N.S. 91, see 101 ; Morgan v. Mor- 
 
 Evans v. Sellier, 5 01. & Fin. 127 ; gan, 4 De Gex & Smale, 164. 
 
 Barrington v. Liddell, 2 De Gex, (A) Barrington v. Liddell, 10 
 
 Mac. & Gord. 500 ; Edwards v. Hare, 416, 2 De Gex, Mao. & Gord. 
 
 Tuck, 3 De Gex, Mac. & Gord. 63. 500 ; Edwards v. Tuck, 3 De Gex, 
 
 (e)Eyre v. Marsden, 2 Keen, Mao. & Gord. 40; Burt v. Sturt, 
 
 564 ; Bourne v. Buckton, 2 Sim. 10 Hare, 415. 
 
120 
 
 • TRUST FOE SEPABATE USE. 
 
 [CH. VI. S. 1. 
 
 Scotland and 
 Ireland. 
 
 Trusts for sepa- 
 rate use of a 
 feme covert. 
 
 The portions intended by the act are not necessarily portions 
 created by the deed or will directing the accumulation, but 
 may be portions pre-existing {a). 
 
 Scotland is expressly excepted from the act; and, as the 
 statute was passed a short time before the union with Ireland, 
 it is presumed that freeholds in that country are also un- 
 affected by it. 
 
 Another modification of property, unknown to the common 
 law, but which has been admitted into trusts, is, where pro- 
 perty, real or personal, is settled to the separate use of a feme 
 covert, so as to exclude the control of her husband. The 
 principle at common law is, that, as the husband undertakes 
 the debts and liabilities of the wife, he is entitled, absolutely 
 or partially, according to the circumstances of the case, to the 
 enjoyment of her property ; but in equity a feme is allowed to 
 contract with the husband before marriage, for the exclusive 
 enjoyment of any specific property (b) ; or a person may make 
 a gift to the wife during the coverture, and shut out the hus- 
 band's interference by clearly expressing such an intention. 
 Where the separate estate is the result of a special agreement 
 between the parties, the policy of the law can scarcely be said 
 to be transgressed, for the old rule was established for the 
 benefit and protection of the husband, and quisque renuntiare 
 potest juri pro se instituto ; but that equity should have 
 allowed a stranger to vest property in the wife independently 
 of the husband during the coverture, appears a more ques- 
 tionable doctrine ; though it may be said, that even in this 
 case, there is no violation of the marital rights, for the pro- 
 perty never vested in the feme herself, and the donor may 
 limit any estate which the law does not refuse to recognise. 
 The Court has also permitted the further anomaly of a restric- 
 tion upon the feme's anticipation (where such an intention 
 has been expressed) of the growing proceeds of the separate 
 estate ; but this indulgence appears not a distinct inroad 
 upon the common law incidents of property, but rather an 
 
 (a) Halford v. Stains, 16 Sim. 
 488 ; Burrington v. Liddell, 2 De 
 Gex, Mao. & Gord. 498 ; Middleton 
 
 V. Losh, \ Sm. & Gif. 61 ; and see 
 Burt V. Sturt, 10 Hare, 415. 
 
 (J) See Parkes v. White, 11 Yes. 
 228. 
 
CH. VI. S. l.J TEXJST FOR SEPARATE USE. 121 
 
 appendage to the separate use for the purpose of more 
 effectually excluding the influence of the husband. If the 
 wife were not debarred from anticipating the proceeds, she 
 might, where the husband was not actuated by proper motives^ 
 be induced to divest herself of the property, and place it at the 
 husband's disposal. Where the clause against anticipation has 
 once attached, even a court of equity cannot discharge it, 
 though it were for the feme's own advantage (a). 
 
 At the first introduction of the settlement to the separate Not necessary 
 use it was doubted, whether, to accomplish the object, the tean express 
 interposition of an express trustee was not necessary (&) ; but *'^"^*^°" 
 it has since been determined that this precaution may be dis- 
 pensed with, for, rather than the intention shall be disappointed, 
 the husband himself shall be construed a trustee for the 
 wife (c). But, whether a trustee be expressly appointed or 
 not, the intention of excluding the husband must not be left 
 to inference, but must be clearly and unequivocally declared ; 
 for, as the husband is bound to maintain the wife, and bears 
 the burden of her incumbrances, he has prima facie a right to 
 her property (cZ) ; but, provided the meaning be certain, the 
 Court will execute the intention, though the settlor may not 
 have expressed himself in technical language (e). 
 
 The marital claims will be defeated if the gift be to the wife What words will 
 for her " sole and separate use (/)," or " her sole use ((/)," (which trust. 
 
 (a) Robinson v. Wheelwright, 21 C. Pepys ; Kensington v. Dollond, 
 
 Beav. 214. 2 M. & K. 188, per Sir J. Leaoh. 
 
 (6) Harvey v. JTarveij, 1 P. W. (e) Barley v. Darky, 3 Atk. 399, 
 
 125 ; Burton v. Pierpoint, 2 P. W. per Lord Hardwicke ; Stanton v. 
 
 78. Sail, 2 R. & M. 180, per Lord 
 
 (c) Sennet v. Davis, 2 P. W. Brougham. 
 
 316; Parker v. Broohe, 9 Ves. (/) Parte- v. 5?-ooie, 9 Ves. 583; 
 
 583 ; Pollfe v. Budder, Bunb. 187 ; Archer v. Rooke, 7 Ir. Bq. Eep. 
 
 Prichard v. Ames, 1 Turn. & Buss. 478. 
 
 222; JVewlandsY. Paynter, 10 Sim. [g) Adamson v. Armitage, 19 
 
 377 ; 4 M. & Cr. 408 ; Turnley v. Ves. 416 ; S. C. Coop. 283 ; Ex 
 
 Kelly, Wallis's Rep. by Lyne, 311 ; parte Ray, 1 Mad. 199 ; Ex parte 
 
 Archer v. Raoke, 7 Ir. Eq. Rep. Killich, 3 Mont. D. & D. 480; 
 
 478. Davis v. Prout, 7 Beav. 288; 
 
 {d) Ex parte Ray, 1 Mad. 207, Arthur v. Arthur, 11 Ir. Eq. Rep. 
 
 per SirT. Plumer; Wills \. Sayers, 511 ; Lindsell v. Thacher, 12 Sim. 
 
 4 Mad. 409, per eundem; Massey 178 (the marginal note in the last 
 
 V. Parker, 2 M. & K. 181, per Sir case is altogether erroneous) ; and 
 
122 
 
 TEUST FOE SEPARATE USE. 
 
 [CH. VI. S. 1. 
 
 What words not 
 sufficient. 
 
 is construed as separate use), or " solely for her own use " (a), 
 or for " her livelihood (6)," or " that she may receive and enjoy 
 the profits (c)," or " to be at her disposal {d)," or " to be by her 
 laid out in what she shall think fit (e)," or " for her own use, 
 independent of her husband (/)," or " not subject to his con- 
 trol (g)," or " for her own use and benefit, independent of any 
 other person (h);" for such expressions as these are clearly 
 inconsistent with the notion of any interference on the part of 
 the husband. So, if the gift be accompanied with such expres- 
 sions as " her receipt to be a sufficient discharge (i)," or " to 
 be delivered to her on demand (k) ; " for in these cases the 
 check put upon the husband's legal right to receive could only 
 have been with the intention of giving the wife a particular 
 benefit. 
 
 But if the trust be merely " to pay to her," or " to her and 
 her assigns {I)," or the gift be " to her use (m)," or " her own 
 use («)," or " her own absolute use (o)," or " to pay into her own 
 proper hands for her own use (pi)," or "to pay to her to be 
 applied for the maintenance of herself and such child or 
 
 see Massey v. Parker, 2 M. & K. 
 
 181 ; v. Lyne, Tounge, 562 ; 
 
 but the latter seems not to have 
 been correctly reported. The facts 
 are stated from the registrar's book 
 in Tullett v. Armstrong, 4 M. & Cr. 
 403. 
 
 (a) Inglefield v. Coghlan, 2 Coll. 
 247. 
 
 (h) Darley v. Barley, 3 Atk. 
 399 ; and see Cape v. Cape, 2 Y. & 
 C. 543 ; Ex parte May, 1 Mad. 208 ; 
 but see Lee v. Prieaux, 3 B. C. C. 
 383 ; Wardle v. Claxton, 9 Sim. 524. 
 
 (c) Tyrrell Y. Hope, 2 Atk. 558. 
 
 {d) Prichard v. Ames, 1 Turn. & 
 Euss. 222 ; Kirh v. Paulin, 7 Vin. 
 96. 
 
 (e) Atcherley v. Vernon, 10 Mod. 
 531. 
 
 (/) WagstaffY. Smith, 9 Yes. 520. 
 
 {g) Bam v. Lescher, 11 Sim. 397. 
 
 (h) Margetts v. Barringer, 7 
 Sim. 482. 
 
 (i) Lee v. Prieaux, 3 B. C. C. 
 381 ; Woodman v. Horsley, cited 
 
 ib. 383 ; and see Stanton v. Hall, 2 
 R. & M. 180. 
 
 {h) Dixon v. Olmius, 2 Cox, 414. 
 
 (T) Dakins v. Berisford, 1 Ch. 
 Ca. 194 ; Lumh v. Milnes, 5 Yes, 
 517. 
 
 (»]) Jacobs V. Amyatt, 1 Mad. 
 376, n ; Wills v. Sayers, 4 Mad. 411, 
 per Sir T. Plumer ; Anon, case, 
 cited 7 Yin. 96. 
 
 (») Johnes v. Lockhart, in note 
 to Lee V, Prieaux, 3 B. C. C. 383, 
 ed. by Belt (this case is erroneously 
 cited as an authority to the contrary 
 in Lumb v. Milnes, 5 Yes. 520, 
 and Ex parte Ray, 1 Mad. 207) ; 
 Wills V. Sayers, 4 Mad. 409 ; Mo- 
 herts V. Spicer, 5 Mad. 491 ; Beales 
 V. Spencer, 2 T. & C. Ch. Ca. 651. 
 
 (o) JRycroft v. Christy, 3 Beav. 
 238. 
 
 (p) Tyler v. Lake, 2 E. & M, 
 183 ; Kensington v. Dollond, 2 M. 
 & K. 184; Blacklow v. Laws, 2 
 Hare, 48 ; but Hartley v. Eurle, 5 
 Yes. 545, eontrd. 
 
GH. VI. S. 1.] TRUST FOB SEPARATE USE. 133 
 
 children as the testator might happen to leave at his 
 death (a)," there is no such unequivocal evidence of an 
 intention to exclude the husband. 
 
 Where property was vested in the husband jointly with Husband made a 
 another, as general trustees of the will, upon trust {inter alia), ^^'^^ ^™ *^ 
 for the wife, it was held not to be a gift to her separate use (6). 
 Had the husband alone been appointed a trustee for the wife, 
 the decision might have been different (c). 
 
 The clause against the feme's anticipation is of comparatively Clause restrain- 
 modern growth. In Hulme v. Tenant (d) it was held that a ^s ^"t'oip^ti™- 
 limitation to the separate use simply did not prevent the feme 
 from aliening. In Pybus v. Smith (e) great pains had been 
 taken in framing the separate use, and the income was made 
 payable as the feme should by 'writing under her proper hand 
 from time to time appoint, but it was again decided that the 
 feme could even then dispose of her interest. After this Lord 
 Thurlow happened to be nominated a trustee of Miss Watson's 
 settlement, and he directed the insertion of the words "and 
 not by anticipation" if), from which time this has been the 
 usual formulary, and the effect of it for the purpose of exclu- 
 ding the power of disposition has never been questioned. 
 
 But although these words are now almost universally 
 employed they are not absolutely indispensable, for if the 
 intention to restrain anticipation can be clearly collected from 
 the whole instrument it is su£6.cient (gf), as if there be a 
 direction to pay the income to such persons as the feme shall 
 after it is become due appoint (h), but, as we have seen, if the 
 limitation be merely to the sole and separate use, or to pay 
 from time to time upon her receipt under her own proper 
 hand(«), or if the trust be to pay to her upon her personal 
 
 (o) War die v. Claxton, 9 Sim. 524. Mer. 487 ; Parkes v. White, 11 Ves. 
 
 (h) Ex parte Beilby, 1 Glyn & J. 221. 
 
 IGI ; ani aee Kensinffton y. Bolhnd, (g) See Re Ross's Trust, 1 Sim. 
 
 2 M. & K. 184. N. S. per V. C. Kindersley, p. 199. 
 
 (c) Ex parte Beilby, ubi supra ; (A) Field v. Evans, 15 Sim. 
 and see Barley v. Darley, 3 Atk. 375. 
 
 399. (»■) Ellis V. Atkinson, 3 B. C. C. 
 
 (d) 1 B. C. C. 16. 565 ; Clarke v. Pistor, cited ib. 568; 
 
 (e) 3 B. C. C. 340. Brown v. Zike, 14 Ves. 302; Acton 
 (/) See Jackson v. Holhouse, 2 v. White, 1 S. & S. 429 ; Witts v. 
 
124- 
 
 TRUST FOR SEPARATE USE. 
 
 [CH. VI. S. L 
 
 The validity of 
 such trusts ' 
 where the feme 
 is sole at the 
 time of the gift. 
 
 Effect tefore 
 marriage of the 
 clause against 
 anticipation. 
 
 Effect after 
 marriage of the 
 ti-ust for separate 
 use. 
 
 appearance (a), the feme is left at liberty to part with her 
 interest, for such expressions are, as Lord' Eldon observed, 
 " only an unfolding of all that is implied in a gift to the 
 separate use " (&). 
 
 Of late years the doctrine of the separate use has given rise to. 
 the following questions :■ — first, Whether a fund given in trust 
 for the separate use of a feme sole without power of anticipation 
 may be disposed of by her at any time previously to marriage ? 
 secondly. Whether a fund given merely for her separate use, 
 without words in restraint of anticipation, will, in default of 
 any previous disposition by her, vest by the marriage in the 
 husband, or the trust for the separate use of the vdfe will be 
 supported against his legal rights ? and, thirdly. Where words 
 in restraint of anticipation are added, whether, supposing the 
 separate use to be good in the event of marriage, the clause 
 against anticipation will also operate ? 
 
 1. With reference to the first of these questions, it is now 
 clearly established, that a feme sole may, before marriage, dis- 
 pose absolutely of a gift to her separate use, though coupled 
 with words restrictive of anticipation (c) ; and the principle is 
 briefly this — that wherever a person possessing an interest, how- 
 ever remote a possibility, is sui juris, that person cannot he 
 prevented by any intention of the donor from exercising the 
 ordinary rights of proprietorship. The fund may be limited 
 "in trust for the separate use of the feme," or "in trust for 
 her, and, in the event of her marriage, to her separate use," 
 or "in trust for her separate use in the event of her mar- 
 riage," without the gift of any estate independently of that 
 contingency ; but in all these cases the interest, whether vested 
 or contingent, is in favour of one who is now sui juris, and who 
 therefore cannot be restrained from disposing of property to 
 which she either now is, or may eventually become, entitled. 
 
 2. Upon the subject of the , second question, there are 
 
 Dawhins, 12 Ves. 501 ; WagstaffY. 
 Smith, 9 V6a. 520 ; Sturgis v. Corp, 
 13 Yes. 190 ; and see Scott v. Davis, 
 4 M. & Cr. 87, Qucere ; Hovey v. 
 Blakeman, cited 9 Ves. 524. 
 
 {a) Re Rosa's Trust, 1 Sim. N.S. 
 196. > ' • 
 
 (6) ParkesY. White, 11 Yes. 222; 
 
 (e) Jones v. Salter, 2 E. & M. 
 208 ; Woodmeston v. Walker, 2 K. 
 & M. 197 ; Brown v. Pocock; ib. 
 210 ; ;S. C. 2 M. & K. 189 ; and see 
 Massey v. Parker, 2 M. & K- 
 174. 
 
CH. TI. S. 1.] lEUST FOE SEPARATE USE, 125 
 
 difficulties upon principle in the way of Holding the trust for 
 the separate use to arise upon the marriage. Thus, it cannot 
 he said there is any necessity for such a doctrine with the view 
 of protecting the feme in the due enjoyment of her property ; 
 for, having an absolute power of disposition over the interest 
 hefore her marriage, she may settle it in whatever manner she 
 pleases by express contract ; and, if she marry without such 
 special agreement, the legal presumption ought to be, that she 
 intended the marriage itself to operate as a gift of it to the 
 husband. It may be thought hard perhaps that a father 
 should not be allowed to tie up the property of his daughter 
 against the effects of a future coverture (a) ; but is it not 
 equally hard that he should not be allowed to fetter the owner- 
 ship of a weak and extravagant son ? In fact, the law must 
 proceed upon general principles; and the rule is, that every 
 person, whether male or female, who is sui juris, has a legal 
 capacity, and therefore cannot be restrained in the exercise of 
 the rights of property, even at the will of a parent. Besides^ 
 if the father were allowed to tie up the property of his 
 daughter, his will should be imperative ; whereas it is now on 
 all hands agreed, that the feme, while sole, may dispose of the 
 property at pleasure by an express assignment, whether in 
 favour of her intended husband or any other person. But the 
 principal objection is, that the exclusion of the marital rights 
 would be a repugnancy to the estate itself; for when the feme 
 is so absolutely the owner of the fund that it may be paid into 
 her own hands by the trustees, or may be assigned by her to 
 a mere volunteer, or may become vested by bankruptcy or 
 insolvency in her assignees, it is surely inconsistent to say- 
 that the marriage shall not be a transfer of it to the husband, 
 a purchaser for valuable consideration. 
 
 However, Lord Cottenham, in the cases of Tullett v. Artn- Tullett v. Arm- 
 strong, and Scarborough v. Borman {b), anxious to prevent ^ "°^' 
 
 (a) See Benson v. Benson, 6 Sim. 478, where a Tjequest of chattels real 
 
 130. was to the testator's daughter, who 
 
 (6) 4 M. & C. 377 ; and see New- was then sole and without the inter7 
 
 lands v. Paynter, ib. 408 ; Russell vention of any trustee, and on her 
 
 v. Dickson, 2 Drur. & War. 138 ; marriage the husband was deemed &. 
 
 Archer v. Rooke, 7 Ir. Eq. Kep. 'trustee for her. , 
 
126 TEUST FOE SEPAEATE USE. [CH. VI. g. 1. 
 
 the consequences that would have flowed from a different 
 decision, and not finding any other safe ground upon which to 
 base his judgment, asserted an inherent power in the Court 
 of Chancery to modify estates of its own creation, and in 
 virtue of that jurisdiction established the validity of the 
 separate use to its fullest extent. " It is said," he observed, 
 "to have been very generally understood in the profession, 
 that the separate estate would continue to operate during a 
 subsequent coverture, and that conveyancers have acted so 
 extensively upon that supposition, that very many families are 
 interested in the decision of this question. That circumstance 
 ought to have great attention paid to it. For the future it 
 would not probably be found dif&cult to obtain the desired 
 security for the future wife by other means consistent with the 
 well-established rules of property, but the existing arrange- 
 ments must depend upon the decision of this case. I have 
 over and over again considered this subject with a great 
 anxiety to find some principle of property consistent with the 
 existing decisions upon which the preservation of the separate 
 estate during a subsequent coverture could be supported. I 
 have been anxious to find means of preserving it, not only to 
 maintain those existing arrangements which have proceeded on 
 the ground of its validity, but because I think it desirable that 
 the rule should, if possible, be established for the future, 
 believing, as I do, that when a marriage takes place, the wife 
 having property settled to her separate use, aU the parties in 
 general suppose that it will so continue during the coverture. 
 To permit the husband therefore to break through such a 
 settlement, and himself to receive the fund, would, in general, 
 be contrary to the intention of the parties, and unjust towards 
 the wife. This view of the case has led to a suggestion which 
 has often been made in argument, by which the object might 
 be attained without violating any rule of property, viz. by 
 supposing the husband marrying a woman with a property so 
 settled, tacitly to assent to such settlement, or, at least, to be 
 bound by an equity not to dispute it. I was for some time 
 much disposed to adopt this view of the subject, and in all 
 cases in which the husband was cognizant of the fact, there 
 would be much of equitable principle to support the gift or 
 
CH, VI. S. 1.] TEUST FOE SEPAEATE USE. 137 
 
 settlement against lim ; but putting the title of the wife upon 
 such assent of the husband, assumes that but for such assent 
 it would not exist. It abandons the idea of the old separate 
 estate continuing through the subsequent coverture, and sup- 
 poses a new separate estate to arise from the act of the 
 husband. If the title of the wife were to rest upon that sup- 
 position, I fear that the remedy would be very inadequate, and 
 that questions would constantly arise as to how far the circum- 
 stances of each case would afford evidence of assent, or raise 
 this equity against the husband. After the most anxious con- 
 sideration, I have come to the conclusion that the jurisdiction 
 which this Court has assumed in similar cases justifies it in 
 extending it to the protection of the separate estate, with its 
 qualification and restrictions attached to it, throughout a sub- 
 sequent coverture, and that resting it upon such jurisdiction 
 is the broadest foundation, and that the interests of society 
 require that this should be done(l). When this Com-t first 
 established the separate estate, it violated the laws of property 
 as between husband and wife, but it was thought beneficial, 
 and it prevailed. It being once settled that a wife might 
 enjoy separate estate as a feme sole, the laws of property 
 attached to this new estate, and it was found as part of such 
 law, that the power of alienation belonged to the wife, and 
 was destructive of the security intended for it. Equity again 
 interfered, and by another violation of the laws of property, 
 supported the validity of the prohibition against alienation. 
 In the case now under consideration, if the after-taken hus- 
 band be permitted to interfere with the property given or 
 settled before the marriage to the separate use of the wife, 
 much of the benefit and security of the rules which have been 
 
 (1) Yet the Lord Chancellor, in a subsequent case, is made to say, " The 
 principle of my decision was, that a person marrying a woman with property 
 so circumstanced is considered as adopting the property in the state in 
 which he finds it, and bound by equity not to disturb it. That is the only 
 principle which I could find upon which to support limitations to the 
 separate use under such circumstances." Newlands v. Paynter, 4 M. & 
 Cr. 417. There appears evidently to have been a struggle in the mind of 
 the Court, between the wish to support the separate use (from a fear of the 
 consequences in a different decision), and the difficulty of finding a principle 
 upon which to maintain it. 
 
riage. 
 
 128 EESTRAINT ON ANTICIPATION. [CH. VI. S. 1. 
 
 SO established will be lost. Why then should not equity in 
 this case also interfere, and if it cannot protect the ■wife con- 
 sistently with the ordinary rules of property, extend its own 
 rules with respect to the separate estate, so as to secure to her 
 the enjoyment of that estate which has been so invented for 
 her benefit ? It is, no doubt, doing violence to the rules of 
 property to say, that property, which being given with qualifi- 
 cations and restrictions which are held to be void, belonged 
 absolutely to the woman up to the moment of her marriage, 
 shall not be subject to the ordinary rules of law as to the 
 interest which the husband is to take in it; but it is not a 
 stronger act to prevent the husband from interfering with 
 such property, than it was originally to establish the separate 
 €state, or to maintain the prohibition against alienation." 
 The clause 3. With reference to the third question, viz., whether not 
 
 tbn'wiir°*"^'^t^' °^^^ *^^ separate use, but also the clause against anticipation, 
 upon the mar- shall operate upon the marriage, it was formerly held by Sir L. 
 Shadwell, V. C. E., that while the separate use was good (a), the 
 clause against anticipation was nugatory (b). Lord Langdale, 
 M. R., with more consistency, supported both the separate use 
 and also the clause against anticipation (c). The case of Tullettv, 
 Armstrong (d) has now decided the validity of the clause against 
 anticipation as well as of the separate use. " If," said the Court, 
 "the case be of a separate estate, without power of antici- 
 pation, it must exist with that qualification or fetter, if it exist 
 at all, and there is no principle upon which it can be held 
 that the separate estate operates during a coverture subse- 
 quent to the gift, but that the provision against anticipation 
 with which the gift was qualified does not. It is obvious that 
 such a rule would in practice defeat the intention of the 
 donor, and, in many cases, render the provision which he had 
 made for the protection of the object of his bounty the means 
 and instrument of depriving her of it. When once it was 
 established that the separate estate of a married woman was to 
 be so far enjoyed by her as a feme sole, as to bring with it all 
 
 (a) Davis v. Thornycroft, 6 Sim. (e) Tullett v. Armstrong, 1 
 
 420, Beav. 1. 
 
 (i) Brown v. PococTc, 5 Sim. 663 ; (rf) 4 M & C. 390. 
 Johnson v. Freeth, 6 Sim. 423. 
 
CH. VI, S. ] .] RESTRAINT ON ANTICIPATION. 129 
 
 ihe incidents of property, and tliat she might therefore dispose 
 of it as a feme sole might do, it was found that to secure to 
 her the desired protection against the marital rights, it was 
 necessary to qualify and fetter the gift of the separate estate 
 by prohibiting anticipation. The power to do this was esta- 
 blished by authority not now to be questioned, but which 
 could only have been founded upon the power of this Court to 
 jnodel and qualify an interest in property, which it had itself 
 created, without regard to those rules which the law has 
 established for regulating the enjoyment of property in other 
 cases. If any rule, therefore, were now to be adopted by 
 which the separate estate should, in any case, be divested 
 of the protection of the clause against anticipation, it would, 
 in such cases, defeat the object of the power so assumed. A 
 feme covert with separate estate not protected by a clause 
 against anticipation, is, in most cases, in a less secure situ- 
 ation than if the property had been held for her simply upon 
 trust. In the latter case this Court, with the assistance of 
 her trustees, can effectually protect her; in the other, her 
 sole dependence must be upon her husband not exercising that 
 influence or control, which, if exercised, would, in all proba- 
 bility, procure the destruction of her separate estate. In the 
 case of a gift of separate estate, with a clause against antici- 
 pation, the author of the gift supposes that he has effectually 
 protected the wife against such influence or control. Upon 
 what principle can it be that this Court should subject her to 
 it, and by so doing defeat his purpose, and completely alter 
 the character and security of his gift ? The separate estate, 
 and the prohibition of anticipation, are equally creatures of 
 equity, and equally inconsistent with the ordinary rules of 
 property. The one is only a restriction and qualification of the 
 other. The two must stand or fall together." 
 It was held in a case (a) before the late Vice- Chancellor of Brown*. Bam- 
 
 ford. 
 
 England, that if a fund be vested m trustees upon trust to 
 pay the proceeds to such persons and for such purposes as 
 a feme covert shall, when and as they become due, appoint, but 
 so as not to charge or anticipate the same, and in default of 
 
 (a) Brown v. Bamford, 11 Sim. 127. 
 
130 EESTEAINT ON ANTICIPATION. [CH. VI. S. 1. 
 
 appointment to pay tlie same into the hands of the feme, for 
 her separate use (without the addition of any words to restrain 
 her 'power of anticipation), if the feme covert assign the Ufa 
 I estate limited to her in default of appointment, it destroys the 
 •power, and the restriction upon the anticipation annexed to it is 
 nugatory. Such a doctrine would have led to great incon- 
 Tenience, as the precedents of the most approved conveyancers 
 were known to have been frequently expressed in that form, 
 and the decision after failing to secure the assent of other 
 judges (a) was ultimately reversed on appeal (&). The sub- 
 stantial intention was taken to be, that the payment into her 
 hands, as well as the power to appoint, was not to operate 
 until the annual proceeds had become actually due. 
 Medley v. In another case the trust was to pay to such person or persons 
 
 Horton. i /. . . . 
 
 as the feme should appoint, and m default into her own proper 
 hands, the receipts of the feme or her appointee to be sufficient 
 discharges, and that the trustees should be at liberty to require 
 from the /eme a separate receipt for each quarterly payment, "it 
 being the testator's intention that the annual interest and pro- 
 ceeds should not be sold, charged, or otherwise disposed of;" and 
 the Vice-Chancellor of England held that the testator having 
 previously given a general power of disposition, the concluding 
 words were inconsistent with such a gift, and therefore nuga- 
 tory (c). This, however, was before his Honor's decision in 
 Brown v. Bamford had been overruled by the Lord Chancellor, 
 and the decision it is conceived could not be supported. 
 Effect of separate If a fund be settled to the separate use of a feme, which is 
 
 use on second 
 
 marriage. meant to be confined to that particular marriage, and the hus- 
 
 band afterwards die, and the widow marry again, the second 
 husband shall not be excluded from his ordinary marital 
 rights ((i). The question simply is. What was the intention 
 of the settlement ? for Tullett v. Armstrong has now decided, 
 that if the exclusion of any future husband was also in con- 
 
 (a) Moore v. Moore, 1 Collyer, (c) Medley v. Horton, 14 Sim. 
 
 54 ; Harrop v. Howard, 3 Hare, 222. 
 
 624 ; Harnett v. Macdougall, 8 (d) Barton v. Briscoe, Jac. 603 ; 
 
 Beav. 187. Benson v. Benson, 6 Sim. 126; 
 
 [h] 1 Phill. 620. Knight v. Knight, ib. 121 ; Jones 
 
 V. Salter, 2 R. & M. 208. 
 
CH. TI. S. 2.] UNLAWFUL TEUSTS. 131 
 
 templation, it shall be carried into effect {a), and if the separate 
 use extend to any marriage, present or future, even the 
 arrears due to the feme at the time of the subsequent marriage 
 are protected from the after-taken husband (&). 
 
 SECTION II. 
 
 OF XTNLAWPTIL TETJSTS. 
 
 The Court will not permit the system of trusts to be Trusts against 
 directed to any object that contravenes the policy of the 
 law (c). Thus, if the trust of a chattel be limited to A. and 
 his heirs, it wiU nevertheless be personal estate, and vest in 
 the executors (rf), for to hold the contrary would shake the first 
 principles of law and confound the great landmarks of pro- 
 perty. So the trust of a chattel cannot be entailed, as, if it 
 be limited to A. and the heirs of his body, with remainder to 
 B., the absolute interest vests in A., and the remainder to B. 
 is a nullity (e). But trusts of terms attendant upon the in- 
 heritance were always excepted from the rule ; for these, partly 
 to protect the estate from secret incumbrances, and partly to 
 keep the property in the right channel (/), were made to follow, 
 as shadows, the devolution of the freehold (gi). 
 
 Again, a person cannot settle property upon trust for illegitimate 
 
 illegitimate children to be thereafter horn, but the declaration of 
 
 trust is void, and the beneficial interest results to the settlor (h). 
 
 So a trust of real estate cannot be declared in favour of a Trusts for Cor- 
 porations. 
 corporation without a licence from the Crown (i). 
 
 (o) AsMon V. M'Bougall, 5 Beav. Lord Gruildford ; Hunt v. Saker, 2 
 
 56; iJe Go/ee, 7 Haie, 101; 1 Mao. Freem. 62; Attorney- General v. 
 
 & Gor. 641. Sands, Nels. 133. 
 
 (5) Ashfon V. M'Bougall, 5 Beav. (e) Duke of Norfolk's case, 3 Ch. 
 
 56 ; and see Newlands v. Paynter, Ca. 9, 11 ; Sunt v. Baker, 2 Freem. 
 
 4 M. & Cr. 418 ; England v. Downs, 62. 
 
 6 Beav. 269. (/) See Willoughly v. Willoughhy, 
 
 (c) See Attorney - General v. 1 T. R. 765. 
 
 Pearson, 3 Mer. 399 ; Hamilton v. [g) For the law upon tHs subject, 
 
 Mainwaring, 2 Bligh, 209 ; Earl see Vend. & Purch. Ch. 15. 
 
 of Kingston v. Lady Piereppint, 1 (A) Wilkinson v. Wilkinson, 1 T. 
 
 Vern. 5. & C. Ch. Ca. 657. 
 
 ((f) Buhe of Norfolk's case, 3 Ch. ( t) See Sheph. Touch. 509 ; Sand. 
 
 Ca. 9, 11 -,8.0.1 Vern. 164, per on Uses, 339, note E. 15 Ric. 2. c. 5. 
 
 . K 2 
 
132 
 
 UNLAWFUL TEUSTS. 
 
 [CH. TI. S. 2, 
 
 Perpetuities. 
 
 Trust for alien. And a trust of real estate declared in favour of an alien will 
 vest in the Crown without the form of a previous inquisition (a). 
 
 Trust for charity. go, neither lands nor property savouring of the realty can be 
 conveyed upon trust for a charity, unless the requirements of 
 the 9 G. 2. c. 36, as respects execution and inrolment (J), 
 and ahsence of any reservation for the henefit of the grantor (c), 
 be complied with. And where lands were conveyed to trustees 
 for a charity by a deed duly inroUed, and without any reser- 
 vation upon the face of it to the grantor, but upon a secret 
 trust that the deed should not operate until after the settlor's 
 death, the deed was, upon biU filed, declared void, and decreed 
 to be set aside (d). 
 
 A perpetuity will no more be tolerated when it is covered 
 with a trust, than when it displays itself undisguised ia a 
 settlement of the legal estate (e). " A perpetuity," said Lord 
 Guildford, " is a thing odious in law, and destructive to the 
 commonwealth. It would put a stop to commerce, and pre- 
 vent the circulation of the riches of the kingdom, and therefore 
 is not to be countenanced in equity. If in equity you could 
 come nearer to a perpetuity, than the rules of common law 
 would admit, all men, being desirous to contiaue their estates 
 in their families, would settle their estates by way of trust, 
 which might indeed make well for the jurisdiction of the Court, 
 but would be destructive to the commonwealth " (/). 
 
 So trusts cannot be created with a proviso, that the interest 
 of the cestui que trust shall not be aliened (g), or shall not be 
 made subject to the claims of creditors (h). If it can only be 
 ascertained that the cestui que trust was intended to take a 
 vested interest, the mode in which, or the time when, the cestui 
 que trust was to reap the benefit, is perfectly immaterial — the 
 
 Kestriction of 
 alienation. 
 
 (a) See Dumoncel v. Dwmoncel, 
 13 Ir. Bq. Rep. 92; Vin. Ab. AKen, 
 A, 8 ; Godfrey v. Dixon, Godb. 
 275 ; Br. Feff. al. Uses, 389 ; King 
 V. Holland, Al. 16, Styl. 21 ; Bur- 
 ney v. Maodonald, 15 Sim. 6. 
 
 (J) Doe V. Hawthorn, 2 B. & Aid. 
 96 ; Boe v. Munro, 12 M. & W. 845. 
 
 (c) Limhrey v. Ourr, 6 Mad.; 
 Attorney- General v. Munby, 1 
 Mer. 327. 
 
 {d) Way V. East, 2 Drewry, 44. 
 
 (c) See Duhe of Norfolk's ease, 3 
 Ch. Ca. 20, 28, 35, 48. 
 
 {/) A 0. 1 Vern. 164. 
 
 {(/) Snowdon v. Dales, 6 Sim. 
 624; Green v. Spicer, 1 R. & M. 
 395 ; Graves v. Dolphin, 1 Sim. 66 ; 
 Brandon v. Mobinson, 18 Ves. 429. 
 
 (7j) Graves v. Dolphin, Snowdon 
 v. Dales, Brandon v. Bobinson, itti 
 supra ; Bird v. Johnson, 18 Jul. 976. 
 
CH. Vr. S. 2.] UNLAWFUL TRUSTS. 133 
 
 entire interest may either be disposed of by the act of the 
 cestui que trust, or may become vested in his assignees by 
 operation of law on his bankruptcy or insolvency. Thus, if 
 the trust be to pay the interest of a fund to a person for life 
 " at such times and in such manner as the trustees shall think 
 proper " (a), or " from time to time as and when it shall become 
 due and payable " Q>), or " in such smaller or larger portions, 
 at such times immediate or remote, and in such way and 
 manner as the trustees shall think best" (c), the discretion of 
 the trustees is determined by the bankruptcy or insolvency of 
 the cestui que trust, and the entirety of the life estate becomes 
 vested in the assignees. Even where the trustees were directed 
 to pay the interest of a sum " to A. for life or during such part 
 thereof as the trustees should think proper, and at their will 
 and pleasure, but not otherwise, and so that A. should not have 
 any right, title, claim, or demand other than the trustees should 
 think proper; " and after A.'s decease, to pay the interest to his 
 widow for her life, and after her decease to assign the prin- 
 cipal and " all savings or accumulations of interest, if any," to 
 the children, the Court thought, that, taking the whole instru- 
 ment together, the trustees had no power to withhold and 
 accumulate any portion of the interest during the life of A., 
 and therefore, on his bankruptcy, the assignees became abso- 
 lutely entitled {d). 
 
 However, where a fund was given to trustees upon trust Trusts for main- 
 to apply the whole or such part of the interest as they ^°*'"^^' "• 
 should think fit during the life of A., for his support and 
 maintenance, and for no other purpose, it was held by the 
 Vice-Chancellor of England that nothing passed to the 
 assignees (e). And where a residuary estate was given to the 
 testator's son for life, but if he did any act whereby the interest 
 vested in him would become forfeited to others, the trustees 
 were to apply the annual produce " for the maintenance and 
 support of the son, any wife and child or children he might 
 have, as the trustees should in their discretion think fit," 
 and the son became bankrupt, having a wife and children, 
 
 (<i) Green v. Spicer, uhi supra. {d) Snowdon v. Dales, uhi supra. 
 
 (6) Graves v. Dolphin, uhi supra. (e) Twopeny v. Peyton, 10 Sim. 
 
 (c) i'}ercyv.22o6erfs,lM.&K.4. 487. 
 
134 TJ^LAWFTJL TRUSTS. [CH. VI. S. 2. 
 
 the Vice-Chancellor of England said, " It did not follow from 
 the gift that anything was of necessity to be pmd, but the 
 property was to be applied ; and there might be a maintenance 
 of the son, and of the wife and children, without their receiv- 
 ing any money at all. For instance, the trustees might take a 
 house for their lodging, and they might give directions to 
 tradesmen to supply the son and the wife and children with 
 all that was necessary for maintenance, and if so the assignees 
 were not entitled to anything " (a). But where property was 
 vested in trustees upon trust for A. for life, until his bank- 
 ruptcy, &c., and on his bankruptcy, &c., upon trust to apply 
 the proceeds "in such manner and to such persons for the 
 hoard, lodging, and subsistence of himself and his family as the 
 trustees should think proper," and A. became bankrupt, having 
 lost his wife, and having three children, it was held by the 
 Master of the Kolls that the assignees were entitled to one- 
 fourth part for the life of A. (&). And in another case, where 
 real and personal estate was vested by a marriage-settlement 
 in trustees upon trust to. apply the annual produce thereof 
 "for the maintenance and support of A. B., his wife and, 
 children, if any, or otherwise, if they thought proper, to permit 
 the same to be received by A. B. for his life," and A. B. 
 became bankrupt, leaving a wife but no children, the Master 
 of the EoUs said, " There could be no doubt of the intention 
 of the settlement, that the wife should be supported out of the 
 property, and he was of opinion that so long as the wife and 
 children were maintained by A. B., the trustees had a dis- 
 cretion to give him the whole income, but that it was their 
 duty to see that the wife and children were maintained ; that 
 the assignees took everything, subject to what was proper to 
 be allowed for the maintenance of the wife and children, and 
 that it must be referred to the Master to settle a proper allow- 
 ance " (c). In a subsequent case, freehold and leasehold pro- 
 perty was vested in trustees upon trust for A. B. for life, but if 
 
 {a) Oodden v. Crowhurst, 10 Sim. the benefit of the husband. Com- 
 
 642. If this case can he supported pare Younghusband v. Oishorne, 1 
 
 at all, it must be on the ground that Collyer, 400. 
 
 the trustees were not obliged to (5) Rippon v. Norton, 2 Beav. 63. 
 
 apply more than an illusory part for (c) Page v. Way, 3 Beav. 20. 
 
CH. VI. S. 2.] UNLAWFUL TRUSTS. 135 
 
 he became bankrupt or insolvent the trustees were, during bis 
 life, to apply the annual produce " in and towards the main- 
 tenance, clothing, lodging, and support of A. B. and bis then 
 present or any future wife and his children, or any of them as 
 the trustees should in their discretion think proper." A. B. 
 became insolvent, having a wife and children, and it was argued 
 that the power in the trustees was destroyed by the insolvency, 
 and that the life estate vested in the assignee ; but Vice-Ghan- 
 cellor Knight Bruce held that the trustees had a right under 
 the power to appoint in favour of the insolvent, his wife and 
 children, or any of them in exclusion of any other of them, 
 but that any benefit which the insolvent might take would 
 belong to the assignee (a.). And the same doctrine has been 
 held in the more recent case of Kearsley v. Woodcock (&). The 
 question to be asked in these cases is, On the decease of the 
 cestui que trust would his executor have a right to call upon 
 the trustees retrospectively to account for the arrears ? If he 
 would, then the assignees are prospectively entitled to the 
 payments in futuro. 
 
 But though a person cannot put a restraint upon alienation, Limitation over 
 or exclude the rights of creditors, he may settle property upon ^ ^ ™^ ^™' 
 A. until alienation, bankruptcy, or insolvency, with a limitation 
 over to B. on the happening of either of those events ; or he 
 may give the fund to A. for life, or absolutely in the first 
 instance, with a proviso that on ahenation, bankruptcy, or 
 insolvency, the estate shall shift over to B. (c) But a clause 
 divesting the property on " alienation " will extend only to a 
 disposition by the act of the party, and not to a transfer by 
 operation of law, as bankruptcy (d), unless it can be collected 
 
 (o) Lord V. Bunn, 2 T & C. Ch. Sochford v. Sachman, 9 Hare, 475 ; 
 
 Ca. 98. Sharp v. Cossent, 20 Beav. 470. 
 
 (J) 3 Hare, 185. (d) Lear v. Legffet, 2 Sim. 479 ; 
 
 (c) Shee v. ITale, 13 Ves. 404 ; & C. 1 R. & M. 690 ; Whitfield v. 
 
 Cooper T. Wj/att, 5 Mad. 482; Prickett, 2 Keen, 608; Wilhinson 
 
 Yarnold v. Moorhouse, 1 E. & M. v, Wilkinson, Sir Geo. Coop. R. 259 ; 
 
 364 ; Lockyer v. Savage, 2 Stra. and see S. C. 3 Sw. 528. Wkere the 
 
 947 ; Stephens v. James, 4 Sim. 499 ; clause was against " anticipating or 
 
 JEx parte Stnton, 14 Ves. 598 ; otherwise assigning or inoumbering "^ 
 
 Lewes v. Lewes, 6 Sim. 304 ; JEx the annual proceeds, and the cestui 
 
 parte Oxley, 1 B. & B. 2-57 ; Stanton que trust assigned, so far as he law- 
 
 V. Sail, 2 li. & M. 175 ; and see fully could without a forfeiture, the 
 
136 
 
 UNLAWFUL TRUSTS. 
 
 [CH. VI. S..2.i 
 
 Direction to pur- 
 clistse presenta- 
 tion for particu- 
 lar person. 
 
 Insiu'ances for 
 life. 
 
 from the context that the term was intended by the settlor to' 
 have so wide a signification (a). Insolvency is not a process in 
 invitum, hut the act of the insolvent himself (except it be on 
 the petition of a creditor under the late statute (6)), and 
 therefore comes within the meaning of a restraint against 
 " alienation " (c). However, a person cannot settle his own 
 property on himself, with a limitation over in the event of his 
 own alienation (d), or on his own bankruptcy or insolvency («). 
 But if on his marriage he receive a portion with his wife, 
 he may settle a fund of his own to the extent of the wife's 
 fortune, for, though apparently a settlement by the husband, 
 it is in fact a settlement of the money advanced by the wife (/). 
 
 It is not unusual to find a clause in a will directory to 
 trustees to purchase a presentation in favour of some par- 
 ticular object; but, it seems, if the purchase be made with 
 the intention of presenting the cestui que trust, though the 
 patron himself was ignorant of the purpose in view (g), it falls 
 within the statutes enacted for the prevention of simony (A). 
 A patron is forbidden to present for money, either directly or 
 indirectly ; and, the object being determined upon at the time 
 of the purchase, the construction put upon the transaction by 
 the Court is, that the patron presents indirectly by selling to a 
 person who purchases with the sole intention of presenting. 
 
 It has been ruled that the statute relating to insurances on 
 
 arrears already accrued, but not the 
 future income, it waa held the 
 assignment being confined to the 
 arrears was valid ; He Stuh's Trusts, 
 4 De Gex, Mao. & Gord. 404. 
 
 (a) Dommett v. Bedford, 6 T. E. 
 684 ; Cooper y. Wyatt, 5 Mad. 482. 
 
 (J) 1 & 2 Yict. 0. 110, s. 36; see 
 Pym r. Lockyer, 12 Sim. 394. 
 
 (c) Shee v. Hale, 13 Ves. 404 ; 
 Brandon v. Aston, 2 Y. & C. Ch. Ca. 
 24; Churchill v. Maris, 1 Coll. 441 ; 
 Martin v. Margham, 14 Sim. 230. 
 
 {d) Phipps V, Lord JSnnismore, 4 
 Kusa. 131. 
 
 («) Higinhotham v. Holme, 19 
 Ves. 88 ; Ex parte Sill, 1 Cooke's 
 Bank. Law, 291 ; Ex parte Bennet, 
 ib. 293 ; In re Murphy, 1 Sch. & 
 
 Lef. 44 ; In re Meaghan, ib. 179 ; 
 Ex parte Hodgson, 19 Ves. 206; 
 Rs Casey's Trust, 3 Ir. Ch. Eep. 419, 
 4 Ir. Ch. Eep. 247. 
 
 (/) Ex parte Coohe, 8 Ves. 353; 
 Higginson v. Kelly, 1 B. & B. 252 ; 
 Ex parte Verner, ib. 260 ; In re 
 Meaghan, 1 Sch. & Lef. 179; Bx 
 parte Hodgson, 19 Ves. 206; but 
 see Ex parte Hill, 1 Cooke's Bank. 
 Law, 291, and compare Ex parte 
 Hodgson, 19 Ves. 208. 
 
 {g) King v. Trussel, 1 Sid. 329. 
 
 (A) Kitchen v. Calvert, Lane, 
 102, per Baron Snig ; WTiinchcombe 
 V. Pulleston, Noy, 25, per Lord 
 Hobart; Godbolt, 390; and see 
 Fearne's P. W. 404 ; but see Fox v. 
 Bishop of Chester, 6 Bing. 1. 
 
CH. tl. S. 2.] -UNLAWFUL TRUSTS. 137 
 
 lives does not prohibit an insurance on the' life of A, in tlie 
 name of B. upon trust for A. when both names appear upon 
 the policy (a). 
 
 Fictitious, fraudulent, or collusive conveyances, for the SpUttmg votes. 
 purpose of splitting votes for members of parUament, as when 
 the conveyances are in form only, and there is a private 
 arrangement between the parties that no interest shall pass, 
 are null and void ; but if A. bond fide and without any secret 
 understanding in derogation of the deed, though for the pur- 
 pose of multiplying votes, convey to B. in trust for a number 
 of persons as tenants in common, that they may thereby 
 acquire a qualification, the deed is unimpeachable (6). 
 
 Where a trust is created for an unlawful and fraudulent Consequences to 
 purpose, the Court will neither enforce the trust in favour of creawT trust 
 the parties intended to be benefited, nor will assist the settlor ^'^^^ *i unlawful 
 
 purpose. 
 
 to recover the estate. 
 
 Thus in Cottington v. Fletcher (c), before Lord Hardwicke, a 
 papist had assigned an advowson to A. B. for a term of ninety- 
 nine years, for the purpose of evading the statutes which vested 
 in the two universities presentations of livings in the gift of 
 papists. The grantor afterwards conformed to the Protestant 
 rehgion, and filed a bill against A. B., praying a discovery of 
 the secret trust. The defendant pleaded the Statute of Frauds, 
 by which all declarations of trust are required to be in writing, 
 but admitted by his answer for what purposes the assignment 
 had been made. Lord Hardwicke held, that, if the plea had 
 stood by itself, it might have been good enough, but, coupled 
 with the answer, which was a full admission of the facts, it 
 ought to be overruled ; but his Lordship added, ** If the de- 
 fendant had demurred to the bill, it might have been of a 
 different consideration ; for, as the assignment was done in 
 fraud of the law, he doubted at the hearing, whether the 
 plaintiff could be relieved, such fraudulent conveyances being 
 made absolute against the grantor." The opinions of Lord 
 Eldon are expressed in the following remarks upon this case : 
 
 (a) Collett V, Morrison, 9 Hare, B. Eep. 160 ; Alexander v. New- 
 162. man, 2 Com. B. Rep. 122. 
 
 (*). Thornley v. Aspland, 2 Com. (c) 2 Atk. 155. 
 
138 
 
 UNLAWETTIi TRUSTS. 
 
 [CH. VI. S. 2. 
 
 — ^"Lbrd Hardwicke," he observed, "is made to say; that, 
 upon the admission of the trust by the defendant, he would 
 act. I do not know whether he did act upon it, but it is 
 questionable whether he should, for there is a great difference 
 between the case of an heir coming to be relieved against the 
 act of his ancestor in fraud of the law, and of a man comiag 
 upon his own act under such circumstances. It is said it 
 might be different, if it had come on upon demurrer. Lord 
 Hardwicke means to say, that, if the defendant admits the 
 trust, though against the policy of the law, he would relieve; 
 but if he does not admit the trust, then, the plaintiff stating 
 he had been gililty of a fraud upon the law to evade the pro-; 
 vision of the legislature to which he was bound to submit, and 
 coming to equity to be relieved against his own act, and the 
 defence also being dishonest, the Court, betwefen the two 
 species of dishonesty, would not act, but would say. Let the 
 estate lie' where it falls (a).'' 
 
 The distinction here taken by Lord Eldon between a bill 
 
 filed by the author of the fraud himself, and by a person 
 
 recovered by per- ta]Ji^g through him but not a party to the fraud, is supported 
 
 sons claimmg o o jr j > x-x- 
 
 under the settlor, by other authority (6), and may be illustrated by the two 
 following cases, both arising out of the same transaction, the 
 one before Lord Redesdale, and the other before Lord 
 Manners : — 
 
 John Brown, a trader in partnership with his brothers 
 William and Thomas, resolved on commencing business as a 
 banker ; and, for the purpose of avoiding the penalties of the 
 statute against a banker's trading, he assigned all his interest 
 in the mercantile concern to his brother William in trust for 
 himself; and William executed a declaration of trust accord- 
 ingly. Shortly afterwards, William also, intending to enter 
 into a banking-house, prevailed on Thomas to become trustee 
 
 Property settled 
 ■with an unlawfvil 
 purpose may be 
 
 (a) Muckleston y. Brown, 6 Ves. 
 68 ; and see Chaplin v. Chaplin, 3 
 P. W. 233 ; Hamilton v. Ball, 2 Ir. 
 Eq. Eep. 191 ; Groves v. Oroves, 3 
 Y. & Jer. 163. 
 
 [h) Matthew v. Ilanhury, 2 Vern. 
 187 ; Brackenhury v. Brackenhury, 
 
 2 J. & W. 391 ; Miles v. JDurnford, 
 2 Mae. & Gord. 643 ; and see Fhill- 
 potts V. Phillpotts, 10 Com. B. Eep. 
 85 ; Oroves v. Groves, 3 Y. & Jer. 
 163. See a classification of the cases 
 in reference to cohabitation bonds, 3 
 Mao. & Gor. note (c), page 100. 
 
en. VI. S. 2.] UNLAWFUL TEUSTS. 139 
 
 both for himself and John, for their respective shares in the 
 partnership. William Brown died, and Thomas Brown, the 
 trustee, became bankrupt. The legatees of William filed a biU 
 against the assignees and others to have the benefit of the 
 secret trust, and Lord Eedesdale said, " I will not enter into 
 the question, whether William might not have compelled 
 Thomas to account with him as trustee, if he had brought a 
 bill in his lifetime ; btit, as between the creditors and legatees 
 of WiUiam (on the one side) and Thomas (on the other), there 
 is no doubt, in point of conscience, Thomas was bound to con- 
 sider this a trust for them ; and accordingly he dofis, after the 
 death of William, acknowledge himself to be a trustee. I 
 remember a case, where a person, who was executor to a 
 smuggler, on being called on to account for the estate of the 
 testator, endeavoured to avoid a considerable part of the 
 amount, by saying that they were smuggling transactions, on 
 which the Courts would not allow any action to be maintained. 
 The answer was. All that died with the smuggler ; he could 
 not have himself sued, but his executor shall not set up that 
 as a defence against his creditors and legatees " (a). 
 . Afterwards, John Brown himself filed a bill in Chancery to 
 have the benefit of the trust ; but Lord Manners said, " The 
 bill in this case is brought by John Brown himself, and I am 
 quite clear that he cannot recover ; and, as he has endeavoured 
 to make this Court ancillary to his plan for evading the pro- 
 visions of a positive law, I must dismiss the bill with costs " <6). 
 
 Where, however, the trust, though unlawful, and therefore or by settlor 
 inoperative, is not tainted with fraud, the Court may grant tCe'kloposi- 
 relief even to the settlor. Thus, A. settled personal property ti^e fi-aud. 
 upon B. and C, and such other illegitimate children of D. as 
 should be thereafter born, if they respectively attained the age 
 of 25. B. and C. died under 25, but other children were born, 
 and then A. filed a bill for the retransfer of the fund, and there 
 being no fraud on the part of the settlor it was so' directed (c). 
 
 [a] Joy V. Campbell, 1 Soli. & (c) Wilhinson v. Wilkinson, 1 Y. 
 
 Lef. 328, see 335, 339. & C. Ch. Ca. 657. 
 
 ' (6) Ottley V. Browne, 1 B. & B. 
 360. 
 
CHAPTER VII. 
 
 IN WHAT LANGUAGE A TRtJST MAT BE DECLARED. 
 
 A PERSON may declare a trust either directly or indirectly : 
 the former, by creating a trust eo nomine in the form and terms 
 of a trust ; the latter, without affecting to create a trust in 
 words, by evincing an intention, which the Court will effectuate 
 through the medium of an implied trust (1). 
 
 SECTION I. 
 
 OP BIEECT OK EXPEESS BECIAEATIOlfS OF TETJST. 
 
 General rule. ^^ creating a trust, a person need only make his meaning 
 
 clear as to the interest he intends to give, without regarding 
 the technical terms of the common law in the limitation of 
 legal estates: an equitable fee may be created without the 
 
 Distinction he- (^) '^^® terms Implied Trusts, Trusts hg Operation of Law, and Con- 
 
 tween Implied structive Trusts, appear from tlie books to be almost synonymous expressions ; 
 
 trusts, Trusts by ^ut for the purposes of tbe present work the following distinctions, as 
 
 and^Constructive ''"''s^'isred the most accurate, will-be observed :— 1. An implied trust is one 
 
 trusts. declared by a party not directly, but only by implication ; as where a 
 
 testator devises an estate to A. and his heirs, not doubting that he wUl' 
 
 ^hereout pay an annuity of 201. per annum to B. for his life, in which case 
 
 A. is a trustee for B. to the extent of the annuity. 2. Trusts hy operation 
 
 of law are such as are not declared by a party at all, either directly or 
 
 indirectly, but result from the effect of a rule of equity ; as where an estate 
 
 is devised to A. and his heirs, upon trust to sell and pay the testator's 
 
 debts, in which case the surplus of the beneficial interest results to the 
 
 testator's heir. 3. Constructive trusts (which form one branch of trusts 
 
 by operation of law, while resulting trusts constitute the other) are such 
 
 trusts as the Court elicits by a construction put upon certain acts of parties, 
 
 as where a tenant for life of leaseholds renews the lease on his own account, 
 
 in which case the law gives the benefit of the renewed lease to those who; 
 
 were interested in the old lease. 
 
CH. VII. S. 1.] EXPRESS TRUSTS. 141 
 
 word " heirs," and an equitable entail without the words " heirs 
 of the body " (a) ; provided words which though not technical 
 are yet popularly equivalent be used, or the intention otherwise 
 sufficiently appear upon the face of the instrument. 
 
 And if an estate be devised unto and to the use of A. and Equitatie fee 
 
 . may be liniited 
 
 his heirs, upon trust for B., without any words of limitation, without the 
 B. takes the equitable fee; for the whole estate passed to the pUed^oit^"^^' 
 trustees, and whatever interest they took was given in trust 
 for B. (6) But if an estate be conveyed by deed unto and to the 
 use of a trustee, and his heirs, in trust for the settlor for life, 
 and after her death upon trust for her children, simply without 
 the words heirs, the children by analogy to legal limitations 
 take an estate for life only (c). 
 
 But though technical terms be not absolutely necessary, yet Force of technical 
 no rule is better established than that where technical terms 
 are employed, they shall be taken in their legal and technical 
 sense (cZ). 
 
 Lord Hardwicke indeed said that, in limitations of a trust Lord Hard- 
 either of real or personal estate to be determined in that court, ^'° ^ opinion. 
 the construction ought to be the same as in limitations of the 
 legal estate, with this distinction, unless the intention of the 
 testator or author of the trust plainly appeared to the contrary (e). 
 But this position has since been repeatedly and expressly over- since overruled. 
 ruled. " I am of opinion," said Lord Henley, " that a limita- 
 tion in a trust, perfected and declared by a testator, must have 
 the same construction as the devise of a legal estate executed ; 
 and to hold the contrary would make property very precarious 
 and uncertain ; the testator would mean one thing in this court, 
 and the direct contrary on the other side of the hall " (/). And 
 on another occasion he observed, " I am very clear that this 
 
 (a) See Shep. Touch, by Preston, Taylor, 1 Ed. 367, per eundem ; 
 
 106. Sijnge v. Hahs, 2 B. & B. 507, per 
 
 . (S) Moore v. Cleghorn, 10 Beav. Lord Manners ; Jervoise v. Buke of 
 
 423; affirmed on appeal, 12 Jurist. Northumberland, 1 J. & W. 571, 
 
 591; £ra!>/t<v. 'Se%,3Man.&Gran. per Lord Eldon ; Lord Qlenorehy 
 
 92 ; Doe v. Cafe, 7 Exoh. Eep. 675. t. Bosville, Cas. t. Talb. 19, per 
 
 (c) Holliday v. Overton, 14 Beav. Lord Talbot ; Sale v. Coleman, 8 
 
 467, 15 Beav. 480. Yin. 268, per Lord Haroourt. 
 
 {d) Wright v. Pearson, 1 -Ed. ' (e) Garth v. Baldwin, 2 Ves. 655. 
 
 125, per Lord Henley ; Austen v. (/) Wright v. Pearson, 1 Ed. 125. 
 
14a EXPRESS TRUSTS. [CH. Vn. S. 1. 
 
 Court cannot make a different construction in the limitation of 
 a trust, than Courts of law could make on a limitation in a will, 
 for in both cases the intention shall take place " (a). 
 Rule in SheUe/a As the rule in Shelley's case is not one of construction, that 
 ti-ustsf^ "^ ^ is, of intention, but of law, and was established to remedy 
 certain mischiefs, which, if heirs were allowed to take as pur- 
 chasers, would be introduced into feudal tenures ; it may be 
 thought, that, as trusts are wholly independent of tenure, they 
 ought not to be affected by the operation of the rule ; and the 
 cases of Withers v. Allgood (&), and Bagshaw v. Spencer (c), seem 
 to lend some countenance to the doctrine. But not to mention 
 that Lord Hardwicke himself appears in Garth v. Baldwin (d) 
 to have doubted the position advanced by him in Bagshaw v, 
 Spencer, other subsequent authorities have now perfectly esta- 
 blished the principle, that although the rule may not be equally 
 applicable to trusts, it shall be equally applied (e). 
 Coape V. Arnold. In a recent case (/), a testator by his will devised an estate 
 to his eldest son, George Henry Arnold, for 99 years if he so 
 long lived, and subject to the term to Henry Hoare and 
 Thomas Gilbert, and their heirs, during the life of the termor 
 to preserve contingent remainders, and after the determination 
 of the said estates to the heirs of the body of the said G. H. 
 Arnold. Had the testator left the devise in this form, it is 
 clear that the heirs of the body of G. H. Arnold would have 
 taken as purchasers. The testator afterwards, by a codicil, con- 
 firmed the will, but devised all his estates to the use of H. J. 
 Arnold, H. Peters, H. Hoare, and E. Morrison, and their 
 heirs, upon trust to convey such parts thereof as they should 
 think fit for securing a jointure of 1200Z. to his wife, the said 
 H. J. Arnold. Thus, by the codicil, the legal fee simple became 
 vested in the four trustees, and the limitations of the wiU 
 
 (a) Austen v. Taylor, 1 Ed. 367 ; 128 ; Brydges v. Brydges, 3 Ves. 
 
 and see Philips v. Brydges, 3 Ves. 120 ; Jones v. Morgan, 1 B. C. C. 
 
 jun. 125; Jervoise v. Buke of 206; Webh y. Barl of Shaftesbury, 
 
 Northumberland, 1 J. & W. 571. 3 M. & K. 599 ; Roberts v. Dixwell, 
 
 (6) Cited in Bagshaw v. Spencer, 1 Atk. 610, West, 536 ; Britton v. 
 
 1 Ves. 150 ; 1 Coll. Jur. 403. Twining, 3 Mer. 176. 
 
 (c) 1 Ves. 142 ; 1 CoU. Jur. 378. (/) Coape v. Arnold, 2 Sm. & Gif. 
 
 {d) 2 Ves. 646. 311. 
 
 (e) Wright v. Pearson, X Ed. 
 
CH. YII. S. IJ EXPEESS TRUSTS. 143 
 
 hecame equitable, and.it was contended that as the equitable 
 estate for the life of G. H. Arnold resulted to him as the heir- 
 at-law, it united with the limitation to the heirs of his body 
 by the operation of the rule in Shelley's case, and that G. H. 
 Arnold consequently became tenant in tail. It was decided, 
 however, that under the circumstances the heirs of the body 
 of G. H. Arnold took as purchasers. The cases of Adams v. 
 ■Savaye, 2 Salk. 679 ; and Rawley v. Holland, 22 Vin. Ab. 
 189, PL 11, (in which it was held that where a term of years 
 is expressly limited to the grantor, with a use after his death 
 to the heirs of his body, no resulting use to the grantor for 
 his life can be implied, as it would be repugnant to the term 
 expressly limited to him, and in fact destroy it), were adverted 
 to in the judgment of the Vice- Chancellor with seeming appro- 
 bation ; though the decision was not rested upon them. The 
 authority of these cases, however, has been much disputed, 
 the question being one, not of implied intention but of legal 
 operation {a). And with reference to the decision itself it may 
 be observed that the equitable freehold could not during the 
 life of G. H. Arnold be in suspense, and could be vested in no 
 one but G. H. Arnold, the heir-at-law ; and if so, the life estate 
 to G. H. Arnold, and the limitation to the heirs of his body, 
 ought, according to the general acceptation of the rule in 
 Shelley's case, as one not of intention but of legal [operation, to 
 have united and formed an estate tail. The true ground to 
 ■which the decision should be referred appears to be this : the 
 codicil was made for a particular purpose, viz., for securing the 
 jointure, and as it confirmed the will in all other respects, 
 .the testator's intention evidently was, that after securing the 
 jointure, the trustees of the codicil should convey the estate to 
 the uses declared by the will. It was, therefore, an executory 
 trust, and the question was not whether in mere equitable 
 estates a life interest resulting to the heir-at-law would unite 
 .with a limitation to the heirs of his body, but whether accord- 
 ing to the true construction of the will the settlement was not 
 meant to be executed in such a form as to make the heirs of 
 the body purchasers. In this light the • question was one of 
 
 (a) Se& note by Butler to Fearne's Contingent Remainders, p. 41. 
 
144 EXPEESS TEUSTS. [CH. VH. S. 1. 
 
 intention, and not of legal operation. The case was sub- 
 sequently affirmed on appeal by Lord Cranworth, and it is 
 conceived substantially, though not in terms, upon the ground 
 above indicated as the true principle (a). 
 Trusts executed "We have said, that, if technical words be employed, they 
 
 and trusts execu- , . t •■,•■, i ■,,■,■■, ■, , 
 
 tory distin- must be taken m their legal and technical sense ; but as to this, 
 
 ^"^ ^ ■ a distinction must be drawn between trusts executed, and trusts 
 
 that are only executory : for to trusts executed the position is 
 
 strictly applicable, but in the case of trusts that are executory 
 
 it must be received with considerable allowance. 
 
 A trust executed is where the limitations of the equitable 
 interest are complete and final ; in the executory trust, the 
 limitations of the equitable interest are intended to serve merely 
 as minutes or instructions for perfecting the settlement at some 
 future period. 
 The two con- The distiQction we are considering was very early esta- 
 
 H^wickJin"' blished, and was recognised successively by Lord Cowper (6), 
 Bagahaw»i. Spen- L^pd King (c), Lord Talbot (d^, and by no one more frequently 
 than by Lord Hardwicke himself (e); yet in Bagshawy. 
 Spencer {/). Lord Hardwicke almost denied that any such 
 distinction existed. " As to the difference," he said, "between 
 trusts executed and trusts executory, no one is more unwiUing 
 than I am quieta movere ; but this distinction never has been 
 established by any direct resolution, though said arguendo, and 
 was it to be examined to the bottom, it might sound strange 
 how it should be established. All trusts in notion of law are 
 executory (g), and to be carried into execution here by subpoena,. 
 The first essential part of a trust is, that the trustee is to 
 convey the estate some time or other, whether the testator has 
 directed it or not, which every testator is presumed to know ; 
 
 (o) Coape V. Arnold, 4 De Gex, 607 ; Basherville v. Saskerville, 2 
 
 Mac. & Gord. 574. Atk. 279 ; Marryat v. Townly, 1 
 
 (5) Bale v. Coleman, 8 Vin. 267 ; Ves. 102 ; Read v. Snell, 2 Atk. 
 
 Earl of Stamford v. Sir John So- 648 ; Wbodhouse v. Hoshins, 3 Atk, 
 
 hart, 3 B. P. C. 33. 24. 
 
 (c) Papillon v. Voice, 2 P. W. (/) 1 Ves. 152 ; and see Eopldns 
 
 471. V. Hopkins, 1 Atk. 594. 
 
 {d) Lord Olenorchy v. Bosville, {g) See Lord Eldoa's observations, 
 
 Cas. t. Talb. 3. JervoiseY. Duke of Northumberland, 
 
 (e) Gower v. Grosvenor, Barnard, 1 J. & W. 570 ; and Lord Henley's, 
 
 62 ; Roberts v. Dixwell, 1 Atk. Austen v. Taylor, 1 Ed. 366. 
 
CH. VII. S. 1.] EXECUTORY TRUSTS. 145 
 
 therefore a doubt may be reasonably made how there can be a 
 difference, whether the testator has directed a conveyance or 
 not." But in a subsequent case (a) his Lordship felt himself 
 called upon to offer some explanation. " He did not mean," 
 he said, " in Bagshaw v. Spencer, that no weight was to be laid 
 on the distinction, but that, if it had come recently before him, he 
 should then have thought there was little weight in it, although 
 he should have had that deference for his predecessors, as not 
 to lay it out of the case, not intending to say that all which his 
 predecessors did was wrong founded, which he desired might 
 be remembered." 
 
 But whatever doubts may formerly have existed upon the The distinction 
 subject, they have long since been dispelled by the authority of tulhed.'^ 
 succeeding judges. " The words executory trust," said Lord 
 Northington, " seem to me to have no fixed signification. Lord 
 King describes an executory trust to be, where the party must 
 come to this Court to have the benefit of the will. But that is 
 the case of every trust ; and I am very clear, that this Court 
 cannot make a different construction on the limitation of a 
 trust, than courts of law would make on a limitation in a will, 
 for in both cases the intention shall take place. The true 
 criterion is this : Wherever the assistance of this Court is 
 necessary to complete a limitation, in that case, the limitation 
 in the will not being complete, that is sufBcient evidence of the 
 testator's intention that the Court should model the Umitations ; 
 but where the trusts and limitations are already expressly 
 declared, the Court has no authority to interfere, and make 
 them different from what they would be at law" (b). And Lord 
 Eldon observed, " Where there is an executory trust, that is, 
 where the testator has directed something to be done, and has 
 not himself completed the devise, the Court has been in the 
 habit of looking to see what was his intention ; and if what he 
 has done amounts to an imperfection with respect to the execu- 
 tion of that intention, the Court inquires what it is itself to do. 
 
 (a) Exel V. Wallace, 2 Ves. 323. (J) Austen v. Taylor, 1 Ed. 366, 
 
 And Lord Henley once said, he 368 ; and see Stanley v. Lennard, 
 
 believed Lord Hardwicke had at last 1 Ed. 95 ; Wright v. Pearson, 1 
 
 renounced his opinion, Barnard v. Ed. 125, 
 Prohy, 2 Cos, 8. 
 
146 
 
 EXECUTORY TRUSTS. 
 
 [cH. vn. S. 1. 
 
 and it will mould what remains to be done, so as to carry that 
 intention into execution : I repeat, where there is a trust 
 executory; because one is a good deal confused by the 
 inaccuracy of the expressions 'trust executory,' and 'trust 
 executed.' The latter, no doubt, in one sense of the word is a 
 trust executory, that is, if A. B. is a trustee for C. D., or for 
 C. D. and others, that in this sense is executory, that C. D., or 
 C. D. and the other persons, may call upon A. B. to make a 
 conveyance, and execute the trust. But these are cases where 
 the testator has clearly decided what the trust is to be ; and, 
 as equity follows the law, where the testator has left nothing 
 to be done, but has himself expressed it, there the effect must 
 be the same, whether the estate is equitable or legal " (a). 
 Executory trusts We proceed to the inquiry to what extent in executory trusts 
 cles distinguished a latitude of construction is admissible : and, to draw the hne 
 f u°te ^^ w^ll correctly, we must again distinguish between executory trusts 
 in marriage articles, where the Court has a clue to the intention 
 from the very nature of the contract, and executory trusts in 
 wills, where the Court knows nothing of the object in view a 
 priori, but in collecting the intention must be guided solely by 
 the language of the instrument. 
 
 This distinction was at first but very imperfectly imderstoodj 
 Because executory trusts under wills admitted a degree of 
 latitude, it was held by some, they were to be treated precisely 
 on the same footing as executory trusts in marriage articles ; 
 while, because trusts under wiUs did not admit an equal 
 latitude of construction, it was held by others they were not to 
 be distinguished from trusts executed (6). Even Lord Eldon 
 once observed, " There is no difference in the execution of an 
 executory trust created by will, and of a covenant in marriage 
 articles; such a distinction would shake to their foundation 
 the rules of equity (c)." But Lord Manners said he could not 
 assent to this doctrine {d) ; and Lord Eldon some time after 
 took an opportunity of correcting himself (e). 
 
 Occasionally 
 confounded. 
 
 (o) Jervoise v. Duke of North- 
 umberland, 1 J. & W. 570 ; and see 
 Coape V. Arnold, 4 De Gex M. & G. 
 585. 
 
 (b) SeeBale v. Coleman, 8 Vin. 267. 
 
 (c) Countess of Lincoln v. Dttke 
 
 of Newcastle, 12 Ves. 227, 230 ; and 
 see Turner v. Sargent, 17 Beav. 519- 
 
 {d) Strafford Y. Powell,! 'B.&B. 
 25 ; Synge v. Sales, 2 B. & B. 508. 
 
 (e) Jervoise v. Duke of North- 
 umberland, 1 J. & "W. 574. 
 
Cil. VII. S. 1.] EXECDTOEY TRUSTS. 147 
 
 The distinction we are considering has been put in a very Distinction 
 clear light by Sir W. Grant. " I know of no difference," he sir™ Grant. 
 said, " between an executory trust in marriage articles and in 
 a will, except that the object and purpose of the former furnish 
 an indication of intention which must be wanting in the latter. 
 Where the object is to make a provision by the settlement of 
 an estate for the issue of a marriage, it is not to be presumed 
 that the parties meant to put it in the power of the father to 
 defeat that purpose, and appropriate the estate to himself. If, 
 therefore, the agreement be to limit an estate for life, with 
 remainder to the heirs of the body, the Court decrees a strict 
 settlement in conformity to the presumable intention. But if 
 a wiU directs a limitation for life, with remainder to the heirs 
 of the body, the Court has no such ground for decreeing a 
 strict settlement. A testator gives arbitrarily what estate he 
 thinks fit ; the subject being mere bounty, the intended extent 
 of that bounty can be known only from the words in which it 
 is given. But if it is clearly to be ascertained from any thing 
 in the will, that the testator did not mean to use the expressions 
 which he has employed, in their strict proper and technical 
 sense, the Court, in decreeing such settlement as he has 
 directed, will depart from his words in order to execute his 
 intention (a)." 
 
 To apply the foregoing distinction to the cases that have "Heirs of the 
 occurred : if in marriage articles the real estate of the husband construed first 
 or wife be so limited to the heirs of the body, or the issue (6) ^d other sons. 
 of the contracting parties, or either of them, that heirs of the 
 body, or issue, if taken in their ordinary legal sense, would 
 enable one or other of the parents to defeat the provision 
 intended for the children, these words wUl then be construed 
 in equity to mean first and other sons ; and the settlement will 
 be made upon them successively in tail, as purchasers (c). 
 
 (a) Blackburn v. Stables, 2 V. & 622 ; Jones v. Langton, 1 Eq. Ca. 
 B. 369 ; and see Maguire v. Scully, Ab. 392 ; Cusack v, Cusack, 5 B. 
 2 Hog. 113; Rochford y. Fitzmau- P. C. 116; Griffith v. Buckle, 2 
 rice, 1 Conn. & Laws. 173 ; 2 Drur. Vern. 13 ; Stonor v. Curwen, 5 Sim. 
 & War. 18 ; 4 Jr. Eq. Kep. 375. 269, per Sir L. Shadwell ; Davies 
 
 (b) Bod Y. Bod, Amb. 274. v. Bavies, 4 Beav. 54 ; Rochford v. 
 
 (c) Hartdich v. Wilkes, 1 Eq. Ca. Fitzmaurice, ubi supra. 
 Ab. 393 ; Trevor v. Trevor, 1 P. W. 
 
 1 2 
 
148 
 
 EXECUTORY TRUSTS 
 
 [CH. VII. S. 1. 
 
 Distinction wliere 
 the settlement 
 was after the 
 marriage, and 
 where before it 
 
 Limitation of the 
 husband's pro- 
 perty to the heirs 
 of the body of 
 the wife. 
 
 Where the settle- 
 ment also con- 
 tains a limitation 
 to the parent for 
 life, with remain- 
 der to first and 
 nther sons in tail. 
 
 If the settlement has been already made, then, provided the 
 execution of it was after the marriage, it will be rectified by the 
 articles (a) ; but if the execution of it was prior to the marriage, 
 the Court will presume the parties to have entered into a 
 different agreement (fc), unless the settlement expressly state 
 itself to be made in pursuance of the articles, when that 
 presumption will be rebutted, and the settlement will be 
 rectified (c), or unless it can be shewn that the settlement was 
 intended to be in conformity with the articles, and there is 
 clear and satisfactory evidence that the discrepancy has arisen 
 from mistake {d). 
 
 Under the law as it stood prior to the Fines and Recoveries 
 Act (e) a strict settlement was not decreed, where the property 
 of the husband was limited to the heirs of the body of the wife; 
 for this created an entail which neither husband nor wife 
 could bar without the concurrence of the other, and the intent 
 might have been, that the husband and the wife jointly should 
 have the power of destroying the entail (/) ; but, it is conceived, 
 that as to articles executed subsequently to the Act referred to, 
 the case would be otherwise (g). 
 
 Nor will the Court read heirs of the body as first and other 
 sons, where such a construction is negatived by any thing in 
 the articles themselves : as if one part of an estate be limited 
 to the husband for life, remainder to the wife for life, remainder 
 to the first and other sons in tail, and another part be given to 
 the husband for life, remainder to the heirs male of his body; 
 for, as it appears the parties knew how a strict settlement 
 
 (a) Streatfield v. Streatfield, Cas. 
 *. Talb. 176 ; Warrick v. Warrick, 
 3 Atk. 293, per Lord Hardwioke ; 
 Legg v. Ooldwire, Cas. t. Talb. 20, 
 per Lord Talbot ; Burton v. Hast- 
 ings, Gilb. Eq. Rep. 113 ; S. C. I 
 Eq. Ca. Ab. 393, overruled. 
 
 (6) Legg v. Ooldwire, Cas. t. 
 Talbot, 20 ; and see Warrick v. 
 Warrick, 3 Atk. 291. 
 
 (c) Honor v. Honor, 1 P. "W. 
 123 ; Roberts v. Kingsley, 1 Ves. 
 238; West V. Brrissey, 2 P. W. 
 349; but not it seems against a 
 
 purchaser, Warrick v. Warrick, 2 
 Atk. 291. 
 
 {d) Bold ST. Hutchinson, 5 DeQis, 
 M. & Gr. 568. 
 
 (e) See 3 & 4 W. 4. c. 74, a. 16, 
 17. 
 
 (/) Howel V. Howel, 2 Yes. 358 ; 
 Whately v. Kemp, cited ib. ; Honor 
 V. Honor, 1 P. W. 123 ; Green r. 
 Skins, 2 Atk. 477, per Lord Hard- 
 wioke ; Highway v. Banner, 1 B. C. 
 C. 587, per Sir L. Kenyon. 
 
 {g) Bochfort v. Fitzmaurice, 2 
 Drur. & War. 19. 
 
CH. Vn. S. 1.] IN MAEEIAGE AETICLES. 149 
 
 should be framed, the limitation of part of the estate in a 
 different mode could only have proceeded from a different 
 intention (a). 
 
 It was formerly arguedj that daughters in marriage articles Heirs female, 
 were not entitled to the same consideration as sons, on the 
 ground that they do not, like sons, continue the name of the 
 family, and are generally provided for, not by the estate itself, 
 but by portions out of the estate ; but it is now clearly settled, 
 that, as they are purchasers under the marriage, and are 
 entitled to some provision, the Court will in their favour 
 construe heirs female to mean daughters (&) ; and, except the 
 articles themselves make an express provision for them by way 
 of portion, &c. (c), will hold daughters, as well as sons, to be 
 included under the general term of heirs of the body (d), or 
 issue (e). And the settlement will be executed on the daugh- 
 ters, in default of sons, as tenants in common in tail general, 
 with cross remainders between them (/). 
 
 If chattels be articled to be settled on the parents for life, Limitation of 
 and then on the heirs of the body of either, or both, it seems of the body. 
 the chattels will not vest absolutely in the parents, but in the 
 eldest son as the heir, though taking by purchase, and if there 
 be no son, in the daughters as co-heiresses (g) ; and for the son 
 or daughters to take, it is not necessary that they should Sur- 
 vive the parents and become the actual heir (h), unless there 
 be words in the articles- to give it to the heirs of the body 
 living at the death of the surviving parent, as " if the parent 
 die without leaving heirs of the body" (i). 
 
 Again, if in marriage articles a party covenant to settle goods Articles to settle 
 
 o ' i> i ./ ^ chattels on same 
 
 (a) Howel v. Howel, 2 Ves. 359 ; (e) Hart v. MiMlehurst, 3 Atk. 
 
 and see Powell v. Price, 2 P. W. 371 ; and see Maguire v. Scully, 2 
 
 535; ChambersY.Chambers, Fitzgib. Hog. 113 ; S. C. 1 Beat. 370. 
 Eep. 127 ; S. C.2 Eq. Ca. Ab. 35 ; (/) See Marryat v. Townly, 1 
 
 Bochford v. Fitzmaurice, 1 Conn. & Ves. 105. 
 Laws. 174. [g) Hodgeson v. JBussey, 2 Atk. 
 
 (5) WestY.i:rrissey,2'P.W.3i9. 89; S. C. Barn. 195. See Bartlett 
 
 (c) Powel V. Price, 2 P. W. 535 ; v. Green, 13 Sim. 218. 
 and see Mr. Feame's observations. (A) Theehridge v. Kilburne, 2 
 
 Conting. Rem. 103. Ves. 233. 
 
 {d) Burton v. Hastings, Gilb. Eq. (i) Bead v. Snell, 2 Atk. 642. 
 
 Rep. 113 ; S. C.\ Eq. Ca. Ab. 393, 
 per Lord Cowper. 
 
150 
 
 EXECUTOKY TRUSTS 
 
 [CH. Vn. S- I.' 
 
 trusts as real 
 estate. 
 
 Limitation over 
 on dying under 
 21, or under 21 
 ■without issue. 
 
 and chattels upon the same trusts, and for the same intents 
 and purposes, as the freeholds are settled, the Court will not 
 apply the limitations to the personal estate literally, the effect 
 of which would be to vest the absolute interest in remainder in 
 the first son on his birth, but will insert a proviso that will have 
 the effect, at least to a certain extent, of making the personal 
 estate follow the course of the real. 
 
 Sir Joseph Jekyll said, the practice of conveyancers was to 
 insert a limitation over on "dying under 21" (a); but Lord 
 Hardwicke conceived the common limitation over to be on 
 "dying under 21 without issue " (&). In The Duke of Newcastle 
 V. The Countess of Lincoln (c), the chattels were articled to be 
 settled to the same uses as the realty, viz. to A. for hfe, 
 remainder to the first and other sons in tail male, remainder to 
 B. for life, remainder to B.'s first and other, sons in tail male, 
 remainders over. A. died, having had a son who lived only nine 
 months. Lord Loughborough said, " I perfectly agree that in 
 wills you are not to do for the testator all that can be done by 
 law ; you are to do for the testator no more than what he has 
 intended to be done, and according to the common acceptation 
 of the words. But I put it to you whether in the nature of 
 things there is not a radical and essential difference between 
 marriage-settlements and wills. The parties contract upon a 
 settlement for all the remainders ; they are not voluntary, but 
 within the consideration ; the issue are aU purchasers. Sup- 
 pose then a settlement to be made of freehold estate, and as to 
 the leasehold estate there is only this article, that the settle- 
 ment shall be analogous to that of the freehold : do I execute 
 it, and make a like settlement, by giving an interest which cuts 
 off all the issue ? Suppose a bill was brought to carry the 
 Settlement into effect after a child had lived a single day, should 
 I permit the father to say it was his property ? It is utterly 
 impossible to make the identical settlement of the leasehold 
 estate as of the freehold ; but if I am to make it in analogy to 
 the settlement of the freehold, shall I not carry it on to all the 
 
 (a) Stanley v. Leigh, 2 P, W. 
 690. 
 
 (J) Gower v. Grosvenor, Barn, 
 63 ; S. C.6 Mad. 348. 
 (e) 3 Ves, 3S7. 
 
CH. Vn. S. 1.] IN MARRIAGE ARTICLES. 151 
 
 near events, or shall they fail because I cannot embrace all the 
 remote events ? {a) My opinion decidedly is, that, in the case 
 of marriage articles, the settlement should be such that no 
 child born and not attaining 21 should, by his birth, attain a 
 vested interest to transmit to his representatives, and thereby 
 defeat the ulterior objects of the articles, which are not 
 decidedly in favour of one son, but equally extended to every 
 son ; and that I take to be the settled rule and established 
 practice" (h). His Lordship therefore held that the leaseholds 
 had not vested absolutely in the deceased son of A., and 
 ordered a proviso to be inserted in the settlement, that they 
 should not vest absolutely in any son of B. who should not 
 attain 21, or die under that age leaving issue male. From this 
 decision an appeal was carried to the House of Lords (c) ; but, 
 before the cause could be heard, a son of B. having attained 21, 
 the decree was, that the son of B. had become absolutely 
 entitled. Thus the House of Lords decided that the absolute 
 interest had not vested in the first tenant in tail on his birth ; 
 but what proviso ought to have been inserted, whether a 
 hmitation over " on dying under 21," or " on dying under 21 
 without issue male," the House in event was not called upon 
 to determine. The order of the House of Lords in this case 
 was made with the approbation of Lord EUenborough and 
 Lord Erskine, who took part in the debate : and also of Lord 
 Thurlow (d). But Lord Eldon denied before the House that 
 there was any distinction between articles and wills, and there- 
 fore relying upon Foley v. Burnell, and Vaughan v. Burslem, 
 two cases upon wills decided by Lord Thurlow, he said, had 
 the cause come originally before him, he should have decreed 
 the absolute interest to have vested in the eldest child upon 
 birth ; that, notwithstanding several dicta in favour of a limita- 
 tion over, no case could be found in which articles had been 
 actually so executed; that assignments had been made of 
 leasehold property under the notion that a son when born 
 would take an absolute interest; and, were the House to 
 sanction the decree of Lord Loughborough, it would shake a 
 
 (a) 3 Ves. 394. (c) 12 Ves. 218. 
 
 (6) lb. 397. {d) 12 Ves. 237. 
 
152 
 
 EXECUTOEY TRUSTS 
 
 [CH. vn. s. 1. 
 
 Persoualty can- 
 not be knit to 
 realty entirely. 
 
 Joint-tenancy in 
 articles con- 
 strued tenancy 
 in common. 
 
 very large property (a). However, his Lordship conceived that 
 Lord Hardwicke's doctrine was originally the best, and there- 
 fore, recollecting the opinion of that great Judge, the opinion 
 of Sir Joseph Jekyll, and the decision of the Court below, and 
 knowing the concurrent opinions of Lord EUenborough and 
 Lord Erskine, and also the opinion of Lord Thurlow (whose 
 present sentiments, however, he could not reconcile with the 
 cases of Foley v. Burnell, and Vaughan v. Burslem, formerly 
 decided by his Lordship (6),) he bowed to all these authorities, 
 and, though he was in some degree dissatisfied with the de- 
 termination, he nevertheless would not move an amendment (c). 
 
 It must be observed, that a settlement of the personalty 
 cannot be made exactly analogous to a settlement of the realty, 
 whether the limitation adopted be " on dying under 21," 
 or " on dying under 21 without issue." For if the former 
 be supposed, then, the object of the articles being to knit 
 the leasehold estate to the freehold, if the son die under 
 age leaving issue who will succeed to the freehold, the two 
 estates will go in different directions. But, if the limitation 
 over be " on dying under 21 without issue," then, if the 
 son die leaving issue, the grandchild may die under age 
 and unmarried, when the leaseholds will go to the son's per- 
 sonal representative, while the freeholds will devolve on the 
 second son (d). The case of the Countess of Lincoln v. The 
 Duke of Newcastle appears to be the only authority upon the 
 subject, and that has sanctioned the insertion of the proviso, 
 " on dying under 21 without issue." 
 
 Again, in marriage articles, as joint-tenancy is an inconvenient 
 mode of settlement on the children of the marriage (for, during 
 their minorities no use can be made of their portions, as the 
 joint-tenancy cannot be severed (e),), the Court will rectify the 
 articles by the presumed intent of the contract, and will permit 
 
 (a) 12 Ves. 236, 237. 
 
 (J) Lord Eldon could not recon- 
 cile Lord Thurlow's opinion with 
 these cases, because his lordship 
 refused to admit the distinction 
 between articles and wills. 
 
 (c) The Countess of Lincoln v. 
 The Duke of Newcastle, 12 Ves. 237. 
 
 [d) Countess of Lincoln v. Duke 
 of Newcastle, 12 Ves. 228, 229. 
 
 (e) Taggart v. Taggart, 1 Sch. & 
 Lef. 88, per Lord Redesdale ; and 
 see Eigden v. Vallier, 3 Atk. 734, 
 and Marryat v. Townley, 1 Ves. 
 103. 
 
CH. VII. S. 1.] IN WILLS. 153 
 
 words that would be construed a joint-tenancy at law, to create 
 in equity a tenancy in common (a). 
 
 In other cases the Court has varied the literal construction Words supplied 
 by supplying words, as where the agreement was to lay out 
 2001. in the purchase of 30Z. a-year, to be settled on the hus- 
 band and wife for their lives, remainder to the heirs of their 
 bodies, remainder to the husband in fee, and, until the settle- 
 ment should be made, the 200Z. was to be applied to the 
 separate use of the wife ; and, if no settlement were executed 
 during their joint lives, the 200Z. was to go to the wife, if 
 living ; but, if she died before her husband, then to her brother 
 and sister; and the wife died before her husband, but left 
 issue ; it was held the brother and sister had no claim to the 
 fund, the words " if she died before her husband " intending 
 plainly if she so died "without leaving issue " (6). 
 
 Next as to wills ; and here, as no presumption arises a priori, How "leirs of 
 that " heirs of the body " were intended as words of purchase, stnied in exe- 
 if the executory trust of real estate be to " A. and the heirs of i^^^jjj;™'*" 
 his body " (c), or to " A. and the heirs of his body and their 
 heirs " (d), or to A. for life and after his decease to the heirs of 
 his body" (e), the legal and ordinary construction will be 
 adopted, and A. will be made tenant in tail. So, where the . 
 estate was directed to be settled on the testator's " daughter 
 and her children, and, if she died without issue," the re- 
 mainder over, the Court said, that, by an immediate devise of 
 the land in the words of the wiU, the daughter would have 
 been tenant in tail, and in the case of a voluntary devise the 
 Court must take it as they found it, though upon the like 
 words in marriage articles it might have been otherwise (/). 
 
 And where a testator directed lands to be settled on his '' f- ^°\¥^' ^""^ 
 
 neirs of uis body, 
 
 (o) Taggart v. Taggart, 1 Soh. & 151, ^er Lord Hard wioke; Marshall 
 
 Lef. 84. V. Bousfleld, 2 Mad. 166. 
 
 (J) Kentish v. Newman, 1 P. W. (d) Marryat v. Townley, 1 Ves. 
 
 234 ; and see Targus v. Puget, 2 104, per Lord Hardwioke. 
 
 Ves. 194 ; Master v. De Croismar, (e) Blackburn v. Stables, 2 V. & 
 
 11 Beav. 184; Martin v. Martin, 2 B. 310, per Sir W. Grant; Seale v. 
 
 K. & M. 507. Seale, 1 P. W. 290 ; Meure v. 
 
 (c) Harrison v. Naylor, 2 Cox, Jfewre, 2 Atk. 266,^er Sir J. Jekyll. 
 
 247 ; Bagshaw v. Spencer, 1 Ves. (/) Sweetapple v. Bindon, 2 Vern. 
 
 536. 
 
154 
 
 EXECUTOBY TETJSTS 
 
 [CH. vn. S. 1. 
 
 and their heirs 
 male succes- 
 sively." 
 
 "Proper entail 
 on the heir 
 male." 
 
 Heirs of the body 
 construed to 
 mean sons, even 
 in wills, where 
 any expression 
 of intention to 
 that effect. 
 
 " nephew for life, remainder to the heirs male of his body, and 
 the heirs male of the body of every such heir male, severally 
 and successively one after another as they should be in seni- 
 ority of age and priority of birth, every elder and the heirs 
 male of his body to be preferred before every younger," Lord 
 Cowper said, the nephew took by a voluntary devise, and, 
 although executory, it was to be taken in the very words of 
 the will as a devise, and was not to be supported or carried 
 further in a Court of Equity than the same words would 
 operate at law in a voluntary conveyance (a). The decision 
 apparently went upon the ground that the words " and the 
 heirs male of the body of every such heir male, severally and 
 successively, &c." were all included in the notion of an entail, 
 and expressio eorum, quce tacite insunt, nihil operatur. 
 
 And in a more recent case, where the executory trust was for 
 A. generally, with a direction, that the trustees should not give 
 up their trust till " a proper entail was made to the heir male 
 by liim," it was determined that A. took an estate tail (6). 
 But, in another case, where the devise was extremely similar, 
 viz., to A. with a direction that the estate should be entailed 
 on his heir male, Lord Eldon, on the assumption that it was 
 an executory trust, and not a legal devise, considered the entail 
 so doubtful that he would not compel a purchaser to accept a 
 title under it (c). 
 
 But " heirs of the body " will in the case of executory trusts 
 in wills as well as in articles be read first and other sons, 
 provided the testator expressly manifest such an intention, as 
 if he direct a settlement on A. for life " without impeachment 
 of waste " (d), or with a limitation to preserve contingent 
 remainders (e), or if he desire that " care be taken in the settle- 
 ment that the tenant for life shall not bar the entail " (/) ; and 
 
 (a) Legatt v. Sewell, 2 Vern. 551. 
 
 (J) Blaehhurn v. Stables, 2 V. & 
 B. 367 ; reoognised in Marshall v. 
 Bousfield, 2 Mad. 166 ; and see 
 Dodaon v. Hay, 3 B. C. C. 405. 
 
 (c) Jervoise v. Duke of North- 
 umberland, 1 J. & W. 559 ; and see 
 Woolmore v. Burrows, 1 Sim. 512. 
 
 , {d) Glenorchy v. Bosville, Cas. t. 
 Talbot, 3. 
 
 (e) Papillon v. Voice, 2 P. W. 
 471 ; and see Rochford v. Fltxmau- 
 rice, 1 Conn. & Laws. 138. 
 
 (/) Leonard v. lord Sussex, 2 
 Torn. 526. . 
 
GH. Vn. S. 1.] IN WILLS. 155 
 
 in one case " heirs of the hody " was so construed, where a 
 testator had devised to the separate use of a /erne covert for life, 
 so as she alone should receive the rent, and the husband should 
 not intermeddle therewith, and after her decease in trust for 
 the heirs of her body ; for, from the limitation to the heirs 
 immediately after the wife's decease, coupled with the direction 
 that the husband should not intermeddle with the estate, the 
 Court collected the intention of excluding the husband's cur- 
 tesy, an object which could only be accomplished by giving to 
 " heirs of the body " the construction of words of purchase (a). 
 
 And a direction to settle on A. and the heirs of his body " as " A.^ and the 
 counsel shall advise " (b), or " as the executors shall think a?oomserBhalf' 
 fit " (c), is strong collateral evidence, that something more was ^^^^e, &c." 
 intended than a simple estate tail. 
 
 And Sir L. Shad well thought that if a testator directed an Rule in Shelley's 
 estate to be settled on a feme covert for life, for her separate ^bie"where'tiie 
 use, and at her death on her issue, the feme would not be ^^ ^^^'^ '^ *" 
 
 the separate use. 
 
 tenant in tail, for the separate use requiring the life estate to 
 be vested in trustees, the equitable estate in the feme could 
 not unite with the legal estate in the issue, and therefore the 
 rule in Shelley's case would not apply (ci). And where the trust Trevor «. Trevor, 
 was to settle on A. for life, without impeachment of waste, 
 with remainder to his issue in strict settlement, the Court 
 directed the estates to be settled on A. for life, without im- 
 peachment of waste, with remainder to his sons successively 
 in tan male, with remainder to the daughters, as tenants in 
 common in tail male, with cross remainders in tail male, and 
 the proper limitations to trustees were inserted to preserve 
 contiugent remainders (e). 
 
 "We may here remark that " heirs of the body " and " issue " "Heirs of the 
 are far from being synonymous expressions. The former are "issue"°not of 
 properly words of limitation, whereas the latter term is in its ^^^ ^''™^ ^""P"^- 
 
 (a) Roherts v. Dixwell, 1 Atk. 268 ; Harl of Verulam v. Bathurst, 
 
 607 ; 8. C. West'a Rep. *. Lord 13 Sim. 386. 
 Hardwioke, 536. (e) Trevor v. Trevor, 13 Sim. 
 
 (J) White V. Carter, 2 Ed. 366 ; 108 ; affirmed on tMs point, 1 H. of 
 
 reheard, Amb. 670. ■ L. Ca. 239; and see Coape v. Arnold, 
 
 (c) Bead v. Snell, 2 Atk. 642. 2 Sm. & Gif. 311 ; 4 De Gex, Mac. & 
 
 [d) See Stonor v. Curwen, 5 Sim. Gord. 574. 
 
156 
 
 EXECUTORX TRUSTS 
 
 [cH. vn. S. 1. 
 
 Daughters in- 
 cluded in "heirs 
 of the body " and 
 "issue." 
 
 Limitation to 
 preserve con- 
 tingent remain- 
 ders. 
 
 First freehold 
 in trustees. 
 
 primary sense a word of purchase. In several cases the Court 
 appears to have ordered a strict settlement from the use of the 
 term "issue," where, had the expression been "heirs of the body," 
 the estate would probably have been construed an estate tail (a). 
 
 Of course, daughters as well as sons will be included under 
 " heirs of the body " (6), or " issue " (c) ; for they equally answer 
 the description, and are equally objects of bounty; and the 
 settlement wUl be made upon them in default of sons, as tenants 
 in common in tail, with cross remainders between (or amongst) 
 them (d). 
 
 In executing a strict settlement the Court, before the 8 & 9 
 Vict. c. 106, always took care that proper limitations to trustees 
 should be inserted after the life estates for the preservation of 
 contingent remainders (e) ; and, although by the effect of the 
 Act last referred to, contingent remainders are no longer 
 destructible by the forfeiture, merger, or surrender of the pre- 
 vious life estate, the limitations to trustees to preserve ought 
 still, it is conceived, to be interposed, as well with the view 
 of affording a convenient means of protecting the interests of 
 contingent remaindermen in the event of wilful waste or 
 destruction being committed by the tenant for life before any 
 remainderman comes in esse (/), as with the view of preserving 
 the protectorship, under the Fines and Eecoveries Act, in the 
 event of the destruction of the previous life estate. 
 
 In a case occurring before the Fines and Eecoveries Act 
 (3 & 4 W. 4. c. 74), where the testator had shown an anxious 
 
 (a) Ashton v. AsMon, cited in 
 Bagshaw v. Spencer, 1 Coll. Jur. 
 402 ; Meure v. Meure, 2 Atk. 265 
 and see Some v. Barton, Coop. 25 
 Dodson V. Hay, 3 B. C. C. 405 
 Stonor V. Curwen, 5 Sim. 264 
 Crazier v. Crazier, 2 Conn. & Laws. 
 311 ; and see Rochfard v. Fitz- 
 maurice, 1 Conn. & Laws. 158 ; 
 Bastard v. Prohy, 2 Cox, 6. 
 
 (6) Bastard v. Prahy, 2 Cox, 6. 
 
 (c) Meure v. Meure, 2 Atk. 265 ; 
 Ashton V. Ashton, cited in Bagshaw 
 v. Spencer, 1 Coll. Jur. 402 ; Trevor 
 V. Trevor, 13 Sim. 108. 
 
 {d) Meure v. Meure, Ashton v. 
 Ashton, Bastard v. Prahy, and 
 Trevor v. Trevor, uhi supra ; Mar- 
 ryat v. Tawnley, 1 Ves. sen. 105. 
 
 (e) Harrison v. Naylor, 2 Cox, 
 247 ; S.C. Z B. C. C. 108 ; Wool- 
 more V. Burrows, 1 Sim. 512 ; 
 Basherville v. Basherville, 2 Atk. 
 279; Trevor v. Trevor, 13 Sim. 
 108 ; Stamford v. Hobart, 3 B. P. 
 C. 31 ; and see Hopkins v. Hopkins, 
 1 Atk. 593. 
 
 (/) Garth v. Cotton, 1 Ves. 
 554. 
 
CH. VII. S. 1.] IN WILLS. 157 
 
 wish that the power of defeating the entail should be as much 
 restricted as possible, the Court, instead of giving the first 
 freehold to the tenant for life, which would have enabled him 
 to make a tenant to the praecipe, ordered the freehold during 
 his life to be vested in trustees in trust for him (a). 
 
 However in a case occurring after the Fines and Recoveries Bankes ». Le 
 Act where an estate was vested in a trustee upon trust to execute ^^p™"^"^- 
 a strict settlement on Lady Le Despencer and her family, and 
 the Master, to whom a reference was directed, approved of a 
 settlement on Lady Le Despencer for life, &c., but refused to 
 appoint a protector under the 32nd section of the Act, the Court 
 held that, though in certain cases it might be advisable to 
 appoint a protector, there should be special circumstances to 
 warrant it. That the trustee was the " settlor " within the 
 meaning of the 32nd section, and had the power to appoint a 
 protector ; and as he did not desire it, the Court, unless there 
 were good reasons to the contrary, would not control his dis- 
 cretion : that a protector under the Act was an irresponsible 
 person, and was at liberty to act from caprice, ill-will, or any 
 bad motive, and might even take a bribe for consenting to bar 
 the entail, without being amenable to the Court, and therefore, 
 on the whole, it was better not to clog the settlement with a 
 protector (b). 
 
 "Where gavelkind lands are the subject of the executory Gavelkind 
 
 lands- 
 trust, the circumstance of the custom will not prevent the 
 
 settlement upon the first and other sons successively, for the 
 
 heirs take not by custom, but under the construction of a 
 
 Court of Equity, which must be guided by the rules of 
 
 the Common Law (c). 
 
 In the foregoing cases the Court has rectified the will on Where the tes- 
 
 the ground of the limitations having been imperfectly declared ; settlement, but 
 
 but if a testator direct a settlement, and be his own convey- theTmftationT^ 
 
 ancer, that is, declare the limitations himself, intending them 
 
 to be final, the hands of the Court are bound, and the words 
 
 must be taken in their natural sense (d). Thus a testator 
 
 (a) Woolmore v. Burrows, 1 Sim. (c) Moherts v. Dixwell, 1 Atk. 
 
 512, see 527. 607. 
 
 (6) Banhes v. Ze Despencer, 11 {d) Franks v. Price, 3 Beav. 
 
 Sim. 508. 182 ; and see Rochford v. Fitz- 
 
158 EXECUTORY TBDSTS [CH. VH. S. 1. 
 
 devised to A. for life without impeachment of waste, re- 
 mainder to trustees to preserve contingent remainders, remaiti- 
 der to the heirs of the body of A., remainders over, and then 
 directed the residue of his personal estate to be laid out in 
 a purchase of lands, and declared that the lands when pur- 
 chased " should remain and continue to, for, and upon such 
 and the like estate or estates, uses, trusts, intents, and pur- 
 poses, and under and subject to the like charges, restrictions, 
 and limitations, as were by him before limited, and declared 
 of and concerning his lands and premises thereinbefore 
 devised, or as near thereto as might be, and the deaths of 
 parties would admit." Lord Northington observed, " It is 
 said, that if the limitations had been repeated, it would have 
 been the same with Pajpillon v. Voice (2 P. W. 471) ; but I think 
 not; because the testator refers no settlement to his trustees to 
 complete, but declares his own uses and trusts, which being 
 declared, I know no instance where the Court has proceeded 
 so far as to alter or change them" (a). However, the decision 
 to which his Lordship came seems not to have met with the 
 entire approbation of Lord Eldon (6). 
 Executory trusts In the cases relating to executory trusts of chattels in 
 wills. wills, the bequest, instead of being direct, has generally been 
 
 by way of reference to a previous strict settlement of realty. 
 
 The law upon this subject was for a long time in a very 
 fluctuating state, as will appear from a review of the cases. 
 Gower V. In Gower v. Grosvenor (c), a testator devised his real estate 
 
 to Sir Thomas Grosvenor for life, with remainder to his first 
 and other sons in tail, and in default of issue to Robert 
 Grosvenor for life, with remainder to his first and other sons 
 in taU, and the testator then proceeded, " My wiU and 
 mind is, that my library of books, &c., shall go as heir-looms, 
 as far as they can by law, to the heirs male of my family 
 successively, as my real estate is hereby settled." Sir 
 Thomas died without issue, and the bill was filed by a legatee 
 
 maurice, 1 Conn. & Laws. 173 ; 2 Ves. 76 ; Jervoise v. Buke ofNorth- 
 
 Drur. & "War. 21. umherland, 1 J. & "W. 572. 
 
 (o) Austen v. Taylor, 1 Ed. 361. (c) 5 Madd. 337 ; Barnardiston, 
 
 (J) See Green v. Stephens, 17 54. 
 
CH. Vn. S. 1.] OF CHATTELS. IN WILLR. 159 
 
 of Sir Thomas against Eobert Grosvenor, who was the exe- 
 cutor of Sir Thomas, and the tenant ia possession of the real 
 estate, to have the books, &c., applied as part of Sir Thomas's 
 personal estate. It was argued for the plaintiff that the 
 chattels had vested absolutely in Sir Thomas, inasmuch 
 as he had a son who, as tenant in tail of the real estate, might 
 have claimed the chattels absolutely, and that the limitations 
 after the entail, intended for the second son, were void for 
 remoteness; but Lord Hardwicke held the meaning of the 
 limitations as regards the chattels on the death of Sir Thomas 
 to be in the alternative, that is, if Sir Thomas should have a 
 son, then such son was to take, but if he should have no son, 
 then to go to Robert for life, with remainder to his first 
 and other sons, so that the limitation to Robert and his 
 son was not in remainder after an entail, but a contingency 
 to be determined on the death of Sir Thomas ; that as the 
 heir-looms were to go as far as they could by law, the testator 
 intended a settlement to be made by the Court, and the trust 
 being executory, the proper Hmitations would be to Sir 
 Thomas for Ufe, with remainder to his first son absolutely : 
 but if he died under 21 without issue, then to the second 
 son in like manner; and if he had no such son, then to 
 Robert Grosvenor for life, &c. The Court, therefore, decided 
 that the chattels had not vested absolutely in Sir Thomas, 
 the tenant for life. The point actually determined, viz., that 
 Sir Thomas did not take absolutely, was clearly right; but 
 the doctrine laid down by Lord Hardwicke, that the trust was • 
 executory, and that the chattels would be settled in the 
 manner suggested by him, has been much questioned (a). The 
 direction that chattels shall go along with strictly settled real 
 estate, "as far as the law will allow," may either mean 
 that the chattels shall be held upon the same trusts as the 
 real estate, so far as the diff'erent natures of the two properties 
 wiU permit, in which case the first tenant in tail of the real 
 estate will be entitled to the personal estate absolutely ; or it 
 may intend, that the Court shall make such a settlement of 
 the chattels, and insert in it such limitations as will carry 
 
 (a) See Countess of Lincoln v. JDicke of Newcastle, 12 Yes. 228. 
 
Trafford. 
 
 160 EXECUTORY TRUSTS [CH. VII. S. 1. 
 
 them in the same channel with the real estate, for as long a 
 period as by any device in the law can be effected. In the 
 former construction the testator is said to be his own 
 conveyancer, that is, he has declared the limitations himself, 
 and the legal consequence must follow, though it may dis- 
 appoint the object, by giving the tenant in tail of the real estate 
 the absolute interest in the personal. In the latter construc- 
 tion the trust is executory; that is, the testator has only 
 expressed the general intention, and has committed to the 
 trustees the duty of giving it effect by inserting the proper 
 limitations in making the settlement. Lord Hardwicke enter- 
 tained the first view, but the latter has been adopted in more 
 recent decisions. 
 Trafford v. In Trafford v. Trafford (a), a testator devised lands in trust 
 
 for Sigismund for life, remainder to his first and other sons in 
 tail male, remainder to Clement for life, remainder to his first 
 and other sons in tail male, with remainders over, and then 
 bequeathed as follows : " I devise all my plate, &c., to such 
 male person (when he shall attain the age of 21 years) 
 who shall then be entitled to the trust in possession of the 
 real estate; and I direct that till such male person shall 
 attain 21, the said plate, &c., shall be kept on D., and be 
 used by such male person residing there : and I declare it to 
 be my express wish and desire that the said plate, &c., may, 
 in the nature of heir-looms, go with the said estate, and be 
 used therewith, as long as the law of the realm will permit." 
 ■ Sigismund died without issue. Clement died, and the bill was 
 filed by his eldest son, then an infant, to have the heir-looms 
 delivered to him, which the executrix of Sigismund resisted, 
 on the ground that Sigismund, who was under 21 at the date 
 of the will, had afterwards, on attaining that age, become 
 absolutely entitled. Lord Hardwicke declared that the plain- 
 tiff, on attaining 21, would take the property of the heir- 
 looms, and in the mean time was entitled to the use. The 
 first observation that occurs is, that as the limitation of the 
 heir-looms was not to such son of the tenants for life, but 
 to such male person as should attain 21, a century might 
 
 (ffl) 3 Atk. 347. 
 
PH. VII. S. 1.] OF CHATTELS IN WILLS. 161 
 
 Occur, through successive infancies, before the heir-looms 
 would be vested. The legality of the direction might there- 
 fore have been questioned in limine {a). However, to pass by 
 this point, which was overlooked by the Court, the case is 
 remarkable, as the only instance in which, under a will, the 
 Court has inserted a limitation over on the death of the 
 tenant in tail under 21. Possibly Lord Hardwicke might 
 have executed the trust in this manner, in pursuance of the 
 general principles laid down by him in Gower v. Grosvenor ; 
 but Lord Eldon has justly observed (&) that in Trafford v. 
 Trafford, the testator himself had expressly said that the 
 property should not vest until that age. The case, therefore, 
 has been regarded by subsequent judges as resting upon its 
 own special circumstances, and not as an authority for the 
 iusertion of such a limitation in ordinary cases. 
 
 In Foley v. Burnell (c), a testator bequeathed all the stan- Foley v. Burneii. 
 dards, fixtures, &c., " to be held and enjoyed by the several 
 persons who, from time to time, should respectively and suc- 
 cessively be entitled to the use and possession of the houses 
 before devised by him in strict settlement, as and in the nature 
 of heir-looms, to be annexed to and go along with such houses 
 respectively," and then added, " it is my will and intention, 
 that one of the services of plate should go to and be enjoyed by 
 the possessor of W., and the other by the possessor of S. for 
 the time being." Edward Foley was first tenant for life of the 
 real estate, and the heir-looms were taken by the sheriff under 
 an execution against E. Foley, and the bill was filed by the 
 first remainderman in tail to have the heir-looms restored. 
 Lord Thurlow, in looking over the evidence, discovered that 
 a son had been born to E. Foley, which son had died a few 
 days after birth, and so dismissed the bill, on the ground that 
 the absolute interest had vested in E. Foley, as adminis- 
 trator of his deceased child. From this decision the plain- 
 tiffs appealed to the Lords Commissioners, and the ques- 
 tion was, whether the absolute interest had vested in the 
 
 (o) See Lord Southampton v. JMeisora v. /6iei!sore, 5 Myl. &Cr. 26. 
 
 Marquis of Hertford, 2 Ves. & Be. (h) See Countess of Lincoln v. 
 
 54; The Countess of Lincoln v. J)M/ce ofiVejocasiSfe, 12 Ves. 231. 
 
 Buhe of Newcastle, 12 Ves. 231 ; (c) 1 B. C. C. 274. 
 
162 EXECUTORY TRUSTS. [CH. VH. S. 1. 
 
 child absolutely, or whether the Court ought not, as the trust 
 was executory, to have inserted a limitation over to the 
 remainderman on the death of the child under 21. Lord 
 Loughborough said there was no rule of law against the 
 latter construction, if the intention sufficiently appeared ; but 
 that the Court would not act upon mere conjecture. Lord 
 Commissioner Ashurst was of opinion that the testator had 
 been his own conveyancer, and had declared his own limi- 
 tations. Lord Commissioner Hotham concurred, and the bill 
 was dismissed. An appeal was carried to the House of 
 Lords (a), when the decree of the Lords Commissioners was 
 affirmed. This case, if it stood alone, might have been dis- 
 tinguished from Gower v. Grosvenor, as in the latter the will 
 was merely directory, while in Foley v. Burnell there was a 
 direct bequest of the heir-looms : so that in the former case the 
 trust was executory, while in the latter it was a trust executed. 
 However, this distinction has not been observed in more recent 
 cases. 
 
 In Vaughan v. Burslem (6), the testator said, " I direct that 
 all my plate, &c., shall go as heir -looms, with my real estate, 
 and be held and enjoyed by the person or persons that shall, 
 for the time being, by virtue of my will, be entitled to my real 
 estate, as far as the rules of law and equity will permit." 
 Lord Thurlow considered the words " as far as the rules of 
 law and equity will permit " to refer only to the known rule 
 that the personal property could not go as far as the real, and 
 that there was no case where the settlement had been carried 
 to the utmost extent of what the law might do. That the 
 words were not sufficient to prevent the vesting of the absolute 
 interest in the first tenant in tail, and the bill which was 
 filed by a remainderman, on the supposition that the heir- 
 looms had not vested absolutely in a prior tenant in tail who 
 had died an infant, was dismissed. Here, if in any case, 
 the trust was executory ; and yet, notwithstanding the words, 
 " that the plate, &c., should go as heir-looms," and " as far as 
 the rules of law and equity would permit," the Court held the 
 property to vest absolutely in the first tenant in tail, though he 
 did not attain 21. 
 
 {a) 4 Brown's P. C. 328.. (6) 3 B. C. C. 101. 
 
CH. Vn. S. 1.] OF CHATTELS IN WILLS. 163 
 
 Other decisions to the same effect have since followed (a), 
 and Gower v. Grosvenor, and Tr afford v. Tr afford, may be 
 considered as overruled. The law at the present day appears 
 to be, that where a testator devises lands in strict settlement, 
 and then bequeaths heir-looms to be held by or in trust for 
 the parties entitled under the limitations of the real estate, 
 or without making any bequest, directs or expresses a desire 
 that the heir-looms shall be held upon the like trusts, even 
 though the testator should add the words " as far as the rules 
 of law and equity will permit," the use of the heir-looms will 
 belong to the tenant for life of the real estate for his life 
 only, and the property of the heir-looms will vest absolutely 
 in the first tenant in tail immediately on his birth, though he 
 afterwards die an infant. The Court, in these cases, either 
 regards the trust as executed, and not of a directory cha- 
 racter, or if the trust be executory, the Court considers it 
 has no authority in making a settlement to insert a limi- 
 tation over on the tenant in tail dying under 21. However, 
 there is no unlawfulness in such a limitation, so that if a 
 bequest of heir-looms in a will be clearly executory, and the 
 testator manifests a distinct and unequivocal intention that 
 a settlement shall be made of the heir-looms, and that such 
 clauses shall be inserted as will' render them inalienable for as 
 long a period as the law will permit, the Court would probably 
 execute the intention by settling the heir-looms, and inserting 
 a limitation, by which the absolute interest in the first 
 tenant in tail should, by his death under 21, be carried 
 over, as in the Countess of Lincoln v. Duke of Newcastle, a 
 case of marriage articles, to the person next entitled in 
 remainder {b). 
 
 Again, in wills, if the words taken in their usual sense would Whether joint- 
 
 ^ . . ^ . tenancy in execu- 
 
 create a joint-tenancy, the Court has no authority, as it has in tory trusts in 
 articles, to execute the trust by giving a tenancy in common; ^ruedas tenancy 
 
 m common. 
 
 (a) Carr v. Errol, 14 Ves. 478 ; of Lincoln v. Duke of Newcastle, 12 
 
 Lord Deerhurst v. Duke of St. Ves. 217. 
 
 Albans, 5 Madd. 232 ; Stratford v. (6) See the observations of Lord 
 
 Powell, 1 B. & B. 1 ; Rowland v. Loughborough in Foley v. JSurnell, 
 
 Morgan, 6 Hare, 463 ; S. C. on ap- 1 B. C. C. 284, and of Lord Thurlow 
 
 peal, 2 PhiU. 764 ; and see Countess in Vaughan v. Burslem, 3 B. C. C. 
 
 p. 106. 
 
 M 2 
 
164 
 
 POWEES AUTHORISED 
 
 [cH, vn. S. 1. 
 
 but, where the testator has shown a desire of providing for his 
 children (a), or putting himself in loco parentis for his grand- 
 children (6), the Court has adopted the. same construction, as 
 in articles : however, in the cases which have occurred, there 
 has always been some accompanying circumstance to denote a 
 tenancy in common, as the estate really intended. 
 
 Executory trusts in post-nuptial settlements, whether 
 voluntary or founded on a valuable consideration, will 
 be construed in the same manner as executory trusts in 
 wills (c). 
 
 We shall conclude this branch of our subject with a few 
 observations upon the powers to be introduced in the execution 
 of settlements, where the trust is executory. 
 
 If the testator or contracting parties give no directions as to 
 the insertion of powers, the Court cannot, upon the ground of 
 implied intention, order a power to be introduced {d), except 
 possibly a power of leasing, which diifers from all other powers 
 in being an almost necessary adjunct for the preservation of 
 the estate itself (e). If the authority be expressed in general 
 Usual powers." terms, as "to insert all usual powers," the trustees may then 
 introduce powers of leasing for 21 years (/), of sale and ex- 
 change (g), of varying securities by investing in government or 
 real securities (h), and of appointment of new trustees (i) ; and, 
 it seems, where the property is joint, or contains mines, or is 
 fit for building, they may also insert powers of partition, of 
 
 Post-nuptial 
 settlements. 
 
 Of powers in 
 executory trusts, 
 
 Powers not in- 
 serted without 
 a direction. 
 
 (a) Marryaty. Townly, lYes. 102. 
 
 (6) Synge v. Sales, 2 B. & B. 
 499. 
 
 (c) JRochford v. Fitzmauriee, 1 
 Conn. & Laws. 158. 
 
 {d) Wheate v. Hall, 17 Ves. 80, 
 see 85 ; and see Brewster v. Angell, 
 1 J. & "W. 628. In a recent case, 
 however, where a will had simply 
 directed a settlement without autho- 
 rising any powers expressly, the 
 M. R. held a tacit intention to be 
 implied that powers of leasing, sale 
 and exchange, and appointment of 
 new trustees, and of signing receipts, 
 with provisions for maintenance, 
 education, and advancement, should 
 
 be inserted, Turner v. Sargent, 17 
 Beav. 515. 
 
 (e) See Fearne's P. "W. 310; IFboZ- 
 more v. Burrows, 1 Sim. 518. 
 
 (/) See Hill V. Hill, 6 Sim. 144; 
 The Duke of Bedford v. The Mar- 
 quis of Alercorn, 1 Myl. & Cr. 312. 
 
 [g) Hill V. Hill, 6 Sim. 136; 
 Peake v. Penlitigton, 2 V. & B. 
 311 ; and see Williams v. Carter, 
 Append, to Treat, of Powers, No. 5. 
 
 (A) Sampayo v. Gould, 12 Sim. 
 426. 
 
 («') Lindow v. Fleetwood, 6 Sim. 
 152 ; Brewster v. Angell, 1 J. & W. 
 628, per Lord Eldon ; Sampayo \. 
 Gould, 12 Sim. 426. 
 
CH. Vn. S. 1.] BY EXECUTORY TRUSTS. 165 
 
 leasing mines, and of granting building leases (a). " But 
 there is a palpable distinction," said Sir Launcelot Shadwell, 
 " between powers for the management and better enjoyment of 
 the settled estate, as powers of leasing, of sale and exchange, &c., 
 which are beneficial to all parties, and powers which confer 
 personal privileges on particular parties, such as powers to 
 jointure, to charge portions to raise money for any particular 
 purpose, &c." (6). The latter, therefore, may not be introduced 
 under a direction to insert usual powers, for they have the 
 effect of diminishing the corpus of the settled estate, and the 
 Court has no rule by which to determine the quantum of the 
 charge (c). And if the wiU or articles direct the insertion of 
 some particular powers by name, then, as expressio unius 
 exclusio alterius, the meaning of the words " usual powers " 
 will be materially qualified. Thus, where it was stipulated 
 that the settlement should contain a power of leasing for 21 
 years in possession, a power of sale and exchange, of appoint- 
 ment of new trustees, and other usual powers, it was held that 
 a power of granting building leases could not be inserted (d). 
 So, if the trustees be authorised to insert a power of sale and 
 exchange of estates in the county of Hereford, and all other 
 usual powers, they would not be justified in extending the power 
 of sale and exchange to estates lying in a different county (e). 
 And where a testator directed that the settlement should 
 contain all proper powers for making leases, and otherwise 
 according to circumstances, and that provision should also be 
 made for the appointment of new trustees, and the Court was 
 asked to insert a power of sale and exchange, Lord Eldon said, 
 " It was held by Sir "W. Grant, that unless the insertion of a 
 power were authorised by the direction to make a settlement, 
 it could not be introduced ; and if, where nothing is expressed, 
 nothing can be implied, it is impossible, where something is 
 expressed, I can imply more than is expressed ; and particularly 
 where the will notices what powers are to be given " (/). But, 
 
 {a) See Silt v. Hill, 6 Sim. 145 ; {d) Pearse v. Baron, Jao. 158. 
 
 The Buke of Bedford v. The Mar- (e) Bill v. Hill, 6 Sim. 141, per 
 
 guis of Ahercorn, 1 Myl. & Cr. 312. Sir L. Shadwell. 
 
 (6) Hill Y. Hill, 6 Sim. 144. (/) Brewster Y.Angell, IJ. & W. 
 
 (c) Higginson v. Barnehy, 2 S. & 625 ; and see Home v. Barton, Jao. 
 
 S. 516, see 518. 439. 
 
166 
 
 PEOPER POWERS. 
 
 [CH. vn. S. 1. 
 
 "Proper 
 powers.'' 
 
 Power of sale. 
 
 where a testator directed the insertion of powers of leasing, 
 and sale or exchange, or partition, and then added, " And my 
 will is, that in such intended settlement shall be inserted all 
 such other proper and reasonable powers as are usually inserted 
 in settlements of the like nature," and the question was raised, 
 whether, under these words, a power of appointment of new 
 trustees might be introduced, Lord Cottenham, then M. E., 
 said, " He had referred to the will, and as he found that those 
 general words were in a separate and distinct sentence, he was 
 of opinion they would authorise the insertion of the power " (a). 
 
 A testator had directed the insertion of proper powers for 
 making leases or otherwise to be reserved to the tenants for 
 life, while qualified to exercise them, and, whenever disquaUfied, 
 to the trustees. In the execution of the settlement, a power of 
 sale and exchange was introduced, and was limited to the 
 trustees with the consent of the tenant for life ; but it was held 
 by Lord Eldon, that the insertion of the power in that mode 
 was not in conformity with the instructions (6). It was after- 
 wards debated before Sir T. Plumer, whether a power of sale 
 and exchange could, in any form, be admitted ; when his 
 Honour said, " The first point to be considered is, in whom 
 the powers are to be vested ; and it is clear that they are to 
 be given to the tenants for life, if qualified, and if they should 
 not be able to act, to the trustees. — Now, if the power of sale 
 and exchange is to be given to the tenant for life without check 
 or control, I cannot say that it is a proper power; on the 
 contrary, it may be very dangerous, as the tenant for life may, 
 for many reasons, be induced to seU, when it may not be for 
 the benefit of the remaindermen ; nor is it usual to give him 
 this power without the check of requiring the assent of the 
 trustees. Take it' the other way: if the tenant for life is 
 disqualified, as by infancy, can the Court say it is a proper 
 power to be given exclusively to the trustees ? " And therefore 
 his Honour thought the power of sale and exchange could not 
 be introduced (c). 
 
 If a settlement of stock with a power of varying securities 
 
 [a] Lindow v. Flcettoood, 6 Sim. 
 152. 
 
 (i) £rewstery.Angen,lJ.&W.625. 
 (c) Some V. Sarton, Jac. 437. 
 
CH. Vn. S. 2.] IMPLIED TRUSTS. 167 
 
 contain a covenant to settle real estate upon the like trusts, 
 and with the like powers, a power of sale and exchange is 
 implied, as corresponding with the power oi varying secwrities (a). 
 Trusts are often created by words of reference to other trusts, 
 and where this is the case, care should be taken to insert a 
 proviso where such is the intention, that charges on the estate 
 shall not be increased or multiplied. Should the clause, how- 
 ever, be omitted, the Court will exercise its judgment on the 
 question whether the duplication of charges was or not intended 
 by the parties (6). 
 
 SECTION II. 
 
 OF IMPLIED TKirSIS. 
 
 Wherever a person, having a power of disposition over pro- General rule, 
 perty, manifests any intention with respect to it in favour of 
 another, the Court, where there is sufficient consideration, or in 
 a will where consideration is implied, will execute that intention, 
 through the medium of a trust, however informal the language 
 in which it happens to be expressed. 
 
 A frequent case of implied trust arises where a testator Words precatory, 
 employs words precatory, or recommendatory, or expressing a 
 belief (c). Thus if he " desire " (^, " will " (e), " request " (/), 
 " will and desire " (g), " wish and request " (h), " entreat " (i), 
 
 (a) Williams v. Carter, 2 Sug. & G. 154 ; S. C. 5 CI. & Kn. 129 ; 
 
 Vow. 635 ; and see Home v. Barton, 8. C. LI. & G. temp. Plunkett, 559. 
 
 Jao. 440. (e) Bales v. England, Pr. Ch. 200 ; 
 
 (J) Hindu v. Taylor, 5 De G-ex, Clowdsl^ v. Pellham, 1 Vern. 411. 
 
 Mac. & Gord. 577. (/) Pierson v. Garnet, 2 B. C. C. 
 
 (c) Cary r. Gary, 2 Sch. & Lef. 38 ; S. C. affirmed, id. 226 ; Bade 
 
 189, ^er Lord Redesdale ; Paul v. v. Bade, 5 Mad. 118; Moriarty v. 
 
 Compton, 8 Ves. 380, per Lord Martin, 3 Ir. Ch. Rep. 26. 
 
 Eldon. ig) Birch v. Wade, 3 V. & B. 
 
 {d) Harding v. Glyn, 1 Atk. 469 ; 198 ; Forhes v. Ball, 3 Mer. 437. 
 
 Mason v. Limhury, cited Vernon v. (h) Foley v. Parry, 5 Sim. 138 ; 
 
 Vernon, Amb. 4 ; Trot v. Vernon, affirmed, 2 M. & K. 138. 
 
 8 Vin. 72 ; Pushman v. Filliter, 3 («) Prevost v. Clarke, 2 Mad. 
 
 Ves. 7 ; Brest v. Qfley, 1 Ch. Rep. 458 ; Meredith v. Heneage, 1 Sim. 
 
 246 ; Cary v. Cary, 2 Sch. & Lef. 553, 555, per Chief Baron Wood ; 
 
 189 ; Crutvys v. Caiman, 9 Ves. and see Taylor v. George, 2 V. & B. 
 
 319 ; and see Shaw v. Lawless, L. 378. 
 
168 
 
 IMPLIED TRUSTS. 
 
 [CH. vn. S. 2. 
 
 No trust raised 
 where there is 
 uncertainty. 
 
 " most heartily beseech " (a), " order and direct " (b), " authorise 
 and empower " (c), " recommend " (d), " hope " (e), " do not 
 doubt " (/), " be well assured " {^), " confide " Qi), " have the 
 fullest confidence ' (i), " trust and confide " {k), " have full 
 assurance and confident hope " (I), " well know " (m), or use such 
 expressions as " of course the legatee will give " (m), " in con- 
 sideration the legatee has promised to give" (o), &c. In these 
 and similar cases, the intention of the testator is considered 
 imperative, and the devisee or legatee is bound, and may be 
 compelled to give effect to the injunction. 
 
 But such a construction will not in general prevail where 
 either the objects intended to be benefited are imperfectly 
 described {p), or the amount of the property to which the trust 
 
 (o) Meredith v. Heneage, 1 Sim. 
 553, per Chief Baron Wood. 
 
 (5) Cary v. Gary, 2 Soh. & Lef. 
 189; finiite v. Briggs, 2 Phill. 
 583. 
 
 (c) Brcwn v. Siggs, 4 Ves. 708 ; 
 5 id. 495 ; affirmed, 8 Ves. 561 ; and 
 in D. P. 18 Ves. 192. 
 
 (d) Tibbits v. Tibbits, Jac. 317 ; 
 S. C. affirmed, 19 Ves. 656 ; Hor- 
 wood v. West, 1 S. & S. 387 ; Paul 
 V. Compton, 8 Ves. 380, per Lord 
 Eldon ; Malim v. Keighley, 2 Ves. 
 jun. 333 ; S. C. ib. 529 ; Malim v. 
 Barker, 3 Ves. 150; Meredith v. 
 Heneage, 1 Sim. 553, per Chief 
 Baion Wood ; Kingston y. Lorton, 
 2 Hog. 166 ; Cholmondeley v. Chol- 
 mondeley, 14 Sim. 590 ; Hart v. 
 Tribe, 18 Beav. 215 ; and see Meg- 
 gison v. Moore, 2 Ves. jun. 630 ; 
 ■Sale V. Moore, 1 Sim. 534 ; JSx 
 parte Payne, 2 Y. & C. 636 ; Sandal 
 Y. Hearle, 1 Anst. 124. As to 
 Cunliffe v. Cunliffe (Amb. 686), see 
 Pierson v. Garnet, 2 B. C. C. 46 ; 
 Malim v. Keighley, 2 Ves. jun. 532 ; 
 Pushman v. Filliter, 3 Ves. 9. 
 
 (e) Harland v. Trigg, 1 B. C. C. 
 142 ; and see Paul v. Compton, 8 
 Ves. 380. 
 
 (/) Parsons v. Baker, 18 Ves. 
 476; Taylor v. George, 2 V. & B. 
 378; Malone v. O^ Connor, Lloyd & 
 
 Goold. temp. Plunkett. 465 ; and 
 see Sale v. Moore, 1 Sim. 534. 
 
 {g) Macey v. Skurmer, 1 Atk. 
 389 ; S. C. Amb. 520. See Ray v. 
 Adams, 3 M. & K. 237. 
 
 {h) Griffiths v. Evans, 5 Beav. 
 241. 
 
 (i) See Wright v. Athyns, 17 
 Ves. 255, 19 Ves. 299, Coop. Ill, 
 1 T. & R. 143 ; Webb v. Wools, 2 
 Sim. N. S. 267 ; Palmer v. Sim- 
 monds, 2 Drewry, 225. 
 
 {k) Wood V. Cox, 1 Keen, 317; 
 S. C. 2 M. & C. 684 : Pilkington v. 
 Boughey, 12 Sim. 114. 
 
 [1] Macnab v. Whitbread, 17 
 Beav. 299. 
 
 (in) BardsweUy.Bardswell,9&m. 
 323 ; Nowlan v. Nelligan, 1 B. C. C. 
 489 ; Briggs v. Penny, 3 Mac. & 
 Gord. 546, 3 De G. & Sm. 525. 
 
 {n) Robinson v. Smith, 6 Mad. 
 194 ; but see Lechmere y. Zavie, 2 
 M. & K. 197; and see Leach v. 
 Leach, 13 Sim. 304. 
 
 (o) Clifton V. Lombe, Amb. 519. 
 
 {p) Harland v. Trigg, 1 B. C. C. 
 142 ; Tibbits v. Tibbits, 19 Ves. 664, 
 per Lord Eldon ; Richardson, v. 
 Chapman, 1 Burn's Ecoles. Law, 
 245 ; Pierson v. Garnet, 2 B. 0. C. 
 45, per Lord Kenyon, S. C. id. 230, 
 per Lord Thurlo w ; Knight v. Knight, 
 3 ]5eav. 173, per Lord Langdale ; 
 
CH. Vn. S. 2.] IMPLIED TRUSTS, 169 
 
 should attach is not sufficiently defined (a) ; for the difficulty 
 that would attend the execution of such imperfect trusts is con- 
 verted by the Court into an argument that no trust was really 
 intended (b) : but although vagueness in the object will un- 
 questionably furnish reason for holding that no trust was 
 intended, this may be countervailed by other considerations ; 
 and if it appear clearly that a trust was intended, though the 
 objects are not sufficiently defined, there will be a resulting 
 trust for the benefit of the heir-at-law, or next of kin, accord- 
 ing to the nature of the property (c). The rule as laid down 
 by Lord Alvanley and since recognised as the correct principle 
 was this, " "Wherever a testator points out the objects, the pro- 
 perty, and the way in which it shall go, that creates a trust 
 unless there are plain express words or necessary implication 
 that he does not mean to take away the discretion, but intends 
 to leave it to be defeated " (d). 
 
 The objects have been held to be uncertain where personal Uncertainty of 
 
 the objects. 
 
 estate has been given to A., with a hope " that he would 
 continue it in the family " (e) ; but, as regards personal estate, 
 the word family has been sometimes construed as equivalent 
 to relations, that is next of kia (/) ; and where freeholds were 
 so devised, it was held that by " famUy " was to be understood 
 
 Sale v. Moore, 1 Sim. 534 ; Cary v. Ves. 205 ; JEade v. Uade, 5 Mad. 
 
 Cary, 2 Soh. & Lef. 189, per Lord 118; Curtis v. Mippon, 5 Mad. 
 
 Eedesdale ; Meredith v. Heneage, 1 434 ; Mussell v. Jackson, 10 Hare, 
 
 Sim. 542, see 558, 559, 565; Ex 213. 
 
 parte Payne, 2 T. & C. 636. (6) Morice v. Bishop of Durham, 
 
 (a) Lechmere v. Lavie, 2 M. & 10 Ves. 536, per Lord Eldon. 
 
 E. 197 ; Knight v. Knight, 3 Beav. (c) Briggs v. Penny, 3 Mae. & 
 
 148; Meredith v. Heneage, 1 Sim. Gor. 546. 
 
 556 ; Buggins v. Yates, 9 Mod. 122 ; {d) Malim v. Keighley, 2 Ves. 
 
 Sale V. Moore, 1 Sim. 534 ; Anon. jun. 335. See Knight v. Boughton, 
 
 case, 8 Vin. 72 ; Tibbits v. Tibbits, 11 CI. & Fin. 548, 551. 
 
 19 Ves. 664, ^er Lord Eldon; Wynne (e) Sarland v. Trigg, 1 B. C. C. 
 
 V. Saivkins, 1 B. C. C. 179 ; Pier- 142. See Wright v. Atkyns, Coop. 
 
 son V. Garnet, 2 B. C. C. 45, per 121 ; Woods v. Woods, 1 M. & 
 
 Lord Kenyon; S. C. ib. 230, per C. 401; Be Parkinson's Trust, 
 
 Lord Thurlow ; Bland v. Bland, 2 1 Sim. N. S., 242 ; Williams y. 
 
 Cox, 349 ; Le Maitre v. Bannister, Williams, 1 Sim. N. S., 321 ; but 
 
 cited in note to Bales v. England, see WJate v. Briggs, 2 Phill. 583 ; 
 
 Pr. Cb. 200 ; Sprange r. Barnard, and Liley v. ITey, 1 Hare, 580. 
 
 2'B.C.C. 5^5; PushmanY. Filliter, (/) Cruwys y. Colman, 9 Ves. 
 
 3 Ves. 7 ; Attorney- General v. Sail, 319. 
 Eitzg. 314; Wilson v. Major, 11 
 
170 IMPLIED TRUSTS. [CH. VXI. S. 2. 
 
 the worthiest member of it, viz. the heir at law (a). Even 
 ia freeholds however the designation was held to be too un- 
 certain where the request was to distribute "amongst such 
 members of the person's family" as he should think most 
 deserving (6). In another case both real and personal estate 
 were blended together, and given to A., in full confidence that 
 she would devise the whole of the estate to " such of the heirs 
 of the testator's father as she might think best deserved a 
 preference," and the Court could not determine whether heirs 
 were intended, or next of kin, or both (c). Again, a residuary 
 estate was bequeathed to A., with a recommendation that she 
 would " consider the testator's relations." Sir A. Hart asked, 
 " Who are the objects of the trust ? Did the testator mean 
 relations at his own death, or at A.'s death ? Did he mean that 
 she should have the liberty of executing the trust the day after 
 his death ? " And his Honour was of opinion that no trust 
 could attach [d). But there can be no uncertainty of the objects 
 where such a trust is to be executed by will, for then those who 
 answer the description at the death of the donee of the power 
 must be the parties contemplated (e). 
 Uncertainty of The Court has refused to establish the trust from the 
 
 matter. Uncertainty of the subject, that is, of the property intended to 
 
 be bound by the trust, where the recommendation has been to 
 "consider certain persons" (/), "to be kind to them" (g), to 
 " remember them " (/;.), "to do justice to them"(i), "to make 
 
 {a) Atkyns v. Wright, 17 Ves. (e) Pierson v. Garnet, 2 B. C. C. 
 
 255; S. C. 19 Ves. 299; 8. C. 38; S. C.ii. 226; Athynsy. Wright, 
 
 Coop. Ill ; and see S. C. 1 Turn. & 17 Ves. 255 ; S. C. 19 Ves. 299; 
 
 B,\xss.U3;MaloneY.O'Connor,JAoji S. C. Coop. Ill; and see S. C. 1 
 
 & Goold. temp. Pluukett, 465: Turn. & Euss. 162; Knight v. 
 
 Griffiths V. Hvans, 5 Beav. 241 ; Knight, 3 Beav. 173 ; Meredith v. 
 
 White V. Briggs, 2 Phill. 583 ; Heneage, 1 Sim. 558. 
 
 Green v. Marsden, 1 Drewry, 646. (/) Sale v. Moore, 1 Sim. 534 ; 
 
 (J) Green v. Marsden, 1 Drewry, and see Hoy v. Master, 6 Sim. 568, 
 
 646. {g) Buggins v. Yates, 9 Mod. 
 
 (c) Meredith v. Heneage, 1 Sim. 122. 
 
 542, see 558, 559, 565 ; but see {h) Bardswell v. Bardswell, 9 
 
 Wright v. Atkyns, Coop. 119. Sim. 319. 
 
 {d) Sale V. Moore, 1 Sim. 534, (i) Le Maitre v. Bannister, Pr. 
 
 see 540 ; and see Macnab v. Whit- Ch. 200, note (1) ; Pope v. Pope, 
 
 bread, 17 Beav. 299 ; but see Wright 10 Sim. 1. 
 v. Atkyns, Coop. 119 — 123. 
 
CH. YII. S. 2.] IMPLIED TEUSTS. 171 
 
 ample provision for them " (a), " to use the property for herself 
 and her children, and to remember the Church of God, and 
 the poor " (6), " to give what should remain at his death, or 
 what he should die seised or possessed of" (c), "to finally 
 appropriate as he pleases, " with a recommendation to divide 
 amongst certain persons {d), to divide and dispose of the 
 savings (e), or the bulk of the property (/), or wherever the 
 donee of the property has had power to dispose of any part he 
 pleased, whether expressly given him, or arising from implica- 
 tion, or from the nature of the subject (g). But where the 
 recommendation was, that the legatee, in case she married 
 again, should settle what she possessed under the testator's 
 will to her separate use, and should bequeath what she should 
 die possessed of under the will in favour of certain persons, it 
 was held that the whole personal estate was overreached by the 
 trust. Sir John Leach said, " The testator directs, that upon 
 a marriage, whenever a second marriage may happen, the 
 whole of the property shall be secured, and a power to dispose 
 of any part of the property absolutely, at any time during her 
 life, is not to be reconciled to that provision. I must therefore 
 consider that, when he recommends her to give what she shall 
 die possessed of, be had in view the whole property which she 
 should possess under his will " (h). 
 
 And where both objects and property are certain, yet no whetlier tmst or 
 trust will arise, if the testator expressly declares that the tionTfintentkn' 
 language is not to be deemed imperative, or the construing it "o* ?^ r^™ rt 
 a trust would be a contradiction to the terms in which the pre- 
 ceding bequest is given (i), or if, all circumstances considered, 
 
 (a) WincJiY. BruUon,14:8im.319. (d) White v. Briggs, 15 Sim. 33. 
 
 (6) Curtis V. Rippon, 5 Mad. 434. (e) Cowman v. Harrison, 10 
 
 (c) Sprange v. Barnard, 2 B. C. Hare, 234. 
 
 C. 585; Green v. Marsden, 1 (/) Palmer v. Simmonds, 2 
 
 Drewry, 646; Pushman v. Filliter, Drewry, 221. 
 
 3 Yes. 7 ; Wilson v. Major, 11 Ves. (g) Malim v. Keighley, 2 Ves. 
 
 205; Bade v. Bade, 5 Mad. 118; jun. 531, per Lord Loughborough; 
 
 Wynne v. Hawkins, 1 B. C. C. 179; and see Knight v. Knight, 3 Beav. 
 
 Lechmere v. Lavie, 2 M. & K. 197 ; 174 ; 11 CI. & Fin. 513 ; Huskisson 
 
 Bland v. Bland, 2 Cox, 349 ; At- v. Bridge, 4 De Gex & Sm. 245. 
 
 torney- General v. Hall, Fitzg. 314 : (A) Horwood v. West, 1 S & S. 387. 
 
 and see Meredith v. Heneage, 1 Sim. [i) Webb v. Wools, 2 Sim. N. S. 
 
 556 ; Tibbits v. Tibbits, 19 Ves. 267 ; Huskisson v. Bridge, 4 De Gex 
 
 664 ; Pope v. Pope, 10 Sim. 1. & Sm. 245. 
 
172 IMPLIED TEUSTS. [CH. VII. S. 2. 
 
 it is more probable the testator meant to communicate a mere 
 discretion ia) ; as if he at the same time declare that the estate 
 shall be " unfettered and unlimited " (6), or if he " recommend but 
 do not absolutely enjoin" (c), or if the gift be absolutely to A., 
 with words expressing merely the reason or motive with which 
 the gift is made, as " to enable him to assist such of the 
 children of B. as he shall find deserving of encourage- 
 ment "(li). The construction of the words we are considering 
 never turns on their grammatical import, they may be 
 imperative, but are not necessarily so (e). In Shaw v. 
 Lawless (/), the trustees were recommended to employ a 
 receiver, and Lord Cottenham, alluding to that case, observed, 
 " It was there laid down as a rule which I have since acted 
 upon, that though 'recommendation' may in some cases 
 amount to a direction and create a trust, yet, that being a 
 flexible term, if such a construction of it be inconsistent • with 
 any positive provision in the will, it is to be considered as a 
 recommendation and nothing more. In that case the interest 
 supposed to be given to the party recommended was iacon- 
 sistent with other powers which the trustees were to exercise, 
 and those powers being given in unambiguous terms, it was 
 held that as the two provisions could not stand together, the 
 flexible term was to give way to the inflexible term"(^). 
 Trustees of this And if a trust be created, it does not follow that it shaU be 
 so strictly bound equally restrictive, as where the trust is properly such. Thus 
 trnit.'""""™™ ^^ ^^*^t® was devised to A. and her heirs, "in the fullest 
 confidence " that after her decease she would devise the pro- 
 perty to the family of the testator ; and Lord Eldon asked, 
 
 (a) Bull v. Vardy, 1 Ves. jun. (c) Young v. Martin, 2 Y. & C. 
 
 270 ; Knott v. Cottee, 1 Phill. 292 
 Knight v. Knight, 3 Beav. 148 
 Meggison v. Moore, 2 Ves. jun. 630 
 
 Ch, Ca. 582. 
 
 (<^) Benson v. Whittam, 5 Sim. 
 30 ; Thorp v. Owen, 2 Hare, 611. 
 
 Hill V. Bishop of London, 1 Atk. (e) Meggison v. Moore, 2 Ves. 
 
 618; and see Paul v. Compton, 8 jun. 632, per Lord. Loughborough; 
 
 Ves. 380 ; Knightv. Knight, 3 Beav. and see Johnston v. Rowlands, 2 De 
 
 174, 11 CI. & Fin. 513; Lefroy Gex & 8m. 358, ^er Vice-Chanoellor 
 
 v. Flood, 4 Ir. Ch. Rep. 1. Knight Bruce. 
 
 (J) Meredith v. Heneage, 1 Sim. (/) LI. & Goold, t. Sugden, 154; 
 
 542 ; S. C. 10 Price, 230 ; Hoy v. 5 CI. & Fin. 129 ; Lloyd & Goold, 
 
 3Iaster, 6 Sim. 568. t. Plunkett, 559. 
 
 [g) Knott Y. Cottee, 2 PhiU. 192. 
 
CH. vn. S. 2.] IMPLIED TRUSTS. 173 
 
 " Is there any case in which the doctrine has been carried so 
 far, that the tenant in fee shall not be at liberty, with respect 
 to timber and mines, to treat the estate in the same husbandlike 
 manner as another tenant in fee ?" and his Lordship said he 
 should hesitate a long time before he held that the person 
 bound by the trust was not entitled to cut timber in the 
 ordinary management of the property (a). And so it was after- 
 wards decided by the House of Lords on appeal (6). 
 
 The current of decisions has of late years set against the Doctrine now 
 doctrine of converting the devisee or legatee into a trustee (c). imaged! 
 
 Of course, where the words are construed in equity to raise Wlere the words 
 a partial trust, the devisee or legatee is deemed a trustee to t^uj^ the'^sm-- 
 the extent only of the charge, and the surplus will not result pl"^ does not 
 to the heir or next of kin, but will belong to the devisee or 
 legatee beneficially {d). 
 
 But if a trust be established as to the whole property giveUj Wliere the -B-ords 
 and the objects of the trust for any reason fail, the ivhole bene- to whole pro- 
 ficial interest will be a resulting trust in favour of the testator's P^"^^" 
 real or personal representative (e). • 
 
 Again (to proceed with the instances of implied trusts), if a Charge of debts, 
 person by will direct his realty to be sold, or charge it with 
 debts and legacies (/), or with any particular legacy (g), the 
 legal estate may descend to the heir, or it may pass to a 
 devisee ; but the Court will view the direction as an implied 
 declaration of trust, and will enforce the execution of it against 
 the legal proprietor. 
 
 Again, if a person agrees for valuable consideration to settle Agreement for 
 
 valuable con- 
 
 sideration. 
 
 (o) See Wright v. Atkyns, Turn. (e) Briggs v. Penny, 3 Mac. & 
 
 & Russ. 157, 163. Gord. 546, 3 De G. & Sm. 525. 
 
 (6) See Lawless v. Shaw, Lloyd (/) Pitt v. Pelham, 2 Freem. 
 
 & Goold, *. Sugden, 164. ' 134 ; S. C. 1 Ch. Re. 283 ; Locton 
 
 (c) Sale V. Moore, 1 Sim. 540 ; v. Locton, 2 Preem. 136 ; Ashy v. 
 
 and see Meredith v. Heneage, id. Boyl, 1 Ch. Gas. 180 ; Tenant v. 
 
 566 ; Lawless v. Shaw, 1 Lloyd & Brown, ib. ; Garfoot v. Oarfoot, 1 
 
 Goold, 164; Knight v. Knight, 3 Ch. Ca. 35; S. C. 2 Freem. 176; 
 
 Beav. 148 ; Williams v. Williams, Gwilliams v. Rowel, Hard. 204 ; 
 
 1 Sim. K. S. 358 ; Lefroy v. Flood, Blatch v. Wilder, 1 Atk. 420 ; 
 
 4 Ir. Chan. Rep. 9. Carvill v. Carvill, 2 Ch. Re. 301 ; 
 
 {d) Wood V. Cox, 1 Keen, 317 ; Cooh v. Fountain, 3 Sw. 592 : Ben- 
 
 reviTsed, 2 M. & C. 684. net v. Bails, 2 P. W. 318, &c. 
 
 iff) ^J'm ^- '^W. 1 -^tk. 382. 
 
174 IMPLIED TRUSTS. [CH. Vn. S. 2. 
 
 a specific estate, he thereby becomes a trustee of it for the 
 intended objects, and all the consequences of a trust will 
 follow [a) ; and so if he covenant to charge all lands that he 
 may possess at a particular time (b), or at any time (c), he will 
 be a trustee of such lands to the extent of the charge. And 
 even if a person engages on his marriage to settle all the 
 personal estate that he may acquire during the coverture, the 
 trusts upon which it is so agreed the personalty shall be settled 
 will fasten upon the property as it falls into possession ; and if 
 the money has been laid out in a purchase, may be followed 
 into the land (d). 
 Contract for sale. Again, if a person contract to sell another an estate, the 
 vendor has impliedly declared himself a trustee in fee for the 
 purchaser, and is accountable to him for the rents and profits (e); 
 and if the tenants have been allowed improperly to run in 
 arrear (/), or there has been unhusbandlike farming {g), or any 
 other injury done, either by the wilful waste or neglect of the 
 vendor {h), he is answerable to the purchaser as for a breach of 
 trust. On the other handj if any damage arise to the estate, 
 not by the default of the vendor, as by fire (i), or dilapida- 
 tions (k), the loss will fall on the purchaser ; and if the accident 
 by which the damage arises brings with it legal obligations 
 which must be immediately satisfied, and which the vendor 
 satisfies, the expense thus incurred must be borne by the pur- 
 chaser (Z); and so, should the estate become by any accident 
 more valuable, the purchaser will take the improvement (m). 
 
 (a) Finch v. Winchelsea, 1 P. (/) Acland v. Gaisford, 2 Mad. 28. 
 
 "W. 277 ; Freemoult v. Dedire, ib. {g) Ferguson v. Tadman, 1 Sim. 
 
 429 ; Kennedy v. Daly, 1 Sch. & 630 ; Foster v. Beacon, 3 Mad. 394. 
 
 Lef. 355 ; Legard v. Hodges, 1 Ves. (A) Wilson v. Clapham, 1 J. & 
 
 jun. 477 ; S. C. Z B. C. C. 531, 4 W. 39. 
 
 B. C. C. 421 ; JRavenshaw v. Hollier, [i) Paine v. Meller, 6 Ves. 349 : 
 
 7 Sim. 3. Harford v. Furrier, 1 Mad. 539, 
 
 (6) Wellesley v. Wellesley, 4 M. per Sir T. Plumer ; Acland v. Gais- 
 
 & C. 561. ford, 2 Mad. 32, per eundem ; as to 
 
 (c) Lyster v. Burroughs, 1 Drury Stent v. Bailis, 2 P. W. 220, see 
 
 & Walsh, 149. Paine v. Meller, 6 Ves. 352. 
 
 (J) ZetCTST. ilfarfoc^s, 8 Ves. 150; (A) Minchin v. Nance, 4 Beav. 
 
 S. C. 17 Ves. 48. 332. 
 
 (e) See Acland v. Gaisford, 2 (l) Robertson v. Skelton, 12 Beav. 
 
 Mad. 32 ; Wilson v. Clapham, 1 J. 280. 
 
 & "VV. 38. (to) See Harford v. Furrier, t 
 
CH. Vn. S. 2.] IMPLIED TRUSTS. 175 
 
 It should be observed, however, that the vendor is, after all, ^ 
 a trustee sub modo only, for he cannot be compelled to deliver ^ 
 up the possession until the purchase-money has been paid (a), z 
 And so the purchaser is only a cestui que trust sub modo, and > 
 he cannot enforce any equitable rights attached to the estate - 
 until the contract has been completed (6).^>w^^^'^^i^i>r 
 It would be endless to pursue implied trusts through all > 
 their ramifications, but the general principles may be collected 
 from the examples given. 
 
 Mad. 539 ; Revell v. Hussey, 2 B. Mad. 32 ; Wall v. Bright, 1 J. & 
 
 & B. 287 ; Paine v. Meller, 6 Ves. W. 494. 
 
 352 ; Spurrier v. Hancock, 4 Ves. (5) See Tasker v. Small, 3 M. & 
 
 667 ; White v. Nutts, 1 P. W. 61. Cr. 70. 
 (o) See Acland v. Gaisford, 2 
 
CHAPTER VIII. 
 
 or RESULTING TRUSTS. 
 
 Classification of 
 trusts by opera- 
 tion of law. 
 
 Subdivision of 
 resulting Tnists. 
 
 Hating discussed the various questions involved in the crea- 
 tion of trusts by the act of a partj'', we shall next direct our 
 attention to the creation of trusts by operation of law. Trusts 
 of this kind may be regarded as twofold, viz. 1. Eesulting, 
 2. Constructive. 
 
 Resulting Trusts, the subject of the present chapter, may 
 be subdivided into the two following classes : First, "Where a 
 person being himself both legally and equitably entitled makes 
 a conveyance, devise, or bequest of the legal estate, and there 
 is no ground for the inference that he meant to dispose of the 
 equitable ; and, Secondly, Where a purchaser of property takes 
 a conveyance of the legal estate in the name of a third person, 
 but there is nothing to indicate an intention of not appro- 
 priating to himself the beneficial interest. 
 
 SECTION I. 
 
 General rule. 
 
 Chattel interest 
 in real estate 
 results to heir's 
 
 OF HBSTJLTINa TEUSTS WHEEE THEKE IS A DISPOSITION OF THE LEGAL 
 AND NOT OF THE EQITITABLB INTEEEST, 
 
 The general rule is, that wherever, upon a conveyance, de- 
 vise, or bequest, it appears that the grantee, devisee, or legatee 
 was intended to take the legal estate merely, the equitable 
 interest, or so much of it as is left undisposed of, will result, 
 if arising out of the settlor's realty, to himself, or his heir, or, 
 if out of personal estate, to himself or his executor. 
 
 Should the interest resulting as a remnant of the real estate 
 to the heir be of a chattel nature, as a term of years, or a sum 
 
CH. Vm. S. 1.] RESULTING TRUSTS. 177 
 
 of money, it will, on the death of the heir, devolve on his per- pei-Bonal repre- 
 sonal representative (a). Bentative. 
 
 And if real estate charged with debts be sold by the Court 
 in the lifetime of the heir, the surplus (as the exact amount 
 required could not be raised) will, from the time of sale, be 
 considered personal estate, and devolve on the heir's personal 
 representative (6). 
 
 The intention of excluding the person invested with the legal Of trusts result- 
 estate from the usufructuary enjoyment, may either be presumed tion. ''^ ^'^^""'^ 
 by the Court, or be actually expressed upon the instrument. 
 
 Should an estate be granted either without consideration or whether trust 
 for merely a nominal one (c), and no trust be declared of any ^^ ^^^ declared 
 part, then if the conveyance be simply to a stranger in blood, °^ *"? P'''^' 
 and no intention appear of conferring the beneficial interest, as 
 the law will not suppose a person to part with property without 
 some inducement thereto, it seems a trust of the whole estate 
 (as in the analogous case of uses before the statute of Henry) 
 will result to the settlor (d). 
 
 If the conveyance be to a wife (e) or son (/) it will be pre- 
 sumed an advancement, and the wife or son will be entitled 
 
 (a) Levet v. Needham, 2 Vern. Hardwicke was apparently of opinion 
 
 138; Wych v. Packington, 3 B. P. that, since the Statute of Frauds, 
 
 C. 44 ; Sewell v. Denny, 10 Beav. there are only two cases of resulting 
 
 315 ; Barrett v. Buck, 12 Jui-. 771. trust, viz. : 1st, "Where an estate is 
 
 See Salford v. Stains, 16 Sim. 288. purchased in the name of a stranger ; 
 
 (J) Flanagan v. Flanagan, cited and 2ndly, Where on a voluntary 
 
 Fletcher v. Ashhurner, 1 B. C. C. conveyance a trust is declared of 
 
 500. part, ia which case the residue results. 
 
 (c) See Hayes v. Kingdome, 1 It would seem to follow that, in his 
 Vern. 33 ; ScuWhorpe v. Burgess, 1 opinion, should a voluntary convey- 
 Ves. jun. 92. ance he made and no trust at all he 
 
 (d) Buke of Norfolk v. Browne, expressed, the grantee would take 
 Pr. Ch. 80 ; Warman v. Seaman, the beneficial iaterest to his own 
 2 Freem. 308, per Cur. ; Hayes v. use ; and see Eutchins v. Lee, 1 
 Kingdome, 1 Vern. 33 ; Grey v. Atk. 447. 
 
 Grey, 2 Sw. 598, ^er Lord Wotting- (e) See Christ's JECosp. v. Budgin, 
 
 ham ; EUiot v. Elliot, 2 Ch. Ca. 2 Vern. 683. 
 
 232, per eundem : Attorney- General (/) Jennings v. Selleck, 1 Vern. 
 
 V. Wilson, 1 Or. & PhU. 1 ; and see 467 ; Grey v. Grey, 2 Sw. 598, per 
 
 Sculthorpe v. Burgess, 1 Ves. jun. Lord Nottingham ; Flliot v. B/liot, 
 
 92 ; Lady Tyrrell's case, 2 Freem. 2 Ch. Ca. 232, per eundem ; and 
 
 304 ; Ward v. Lant, Pr. Ch. 182 ; see Hayes v. Kingdome, 1 Vern. 
 
 but in Lloyd r. Spillet, 2 Atk. 150, 33 ; Baylis v. Neicton, 2 Tern, 28: 
 
 and Young v. Peachey, ib. 257, Lord Cook v. Hutchinson, 1 Keen, 42. 
 
178 BESULTING TEUSTS. [CH. Vm. S. 1, 
 
 beneficially. In a case where a son conveyed an estate to his 
 father, as purchaser, for the sum of 400Z., and then filed a bill 
 against the devisees of the father for a re-conveyance, and it 
 appeared from parol evidence which was read de bene esse 
 that no money was ever paid, and that the intention of the 
 parties was, that the son being in bad credit the father should 
 be the ostensible owner of the estate, in order the more readily 
 to raise money on mortgage. Sir J. Leach held, that since the 
 Statute of Frauds parol evidence was inadmissible to prove a 
 trust, and that as there was no fraud or misapprehension, but 
 the meaning was that the father should exercise towards the 
 world at large the beneficial ownership, there was no resulting 
 or constructive trust, but that the devisees must keep the 
 estate. The Court, however, decreed the son as vendor upon 
 the face of the deed to have a lien upon the property for the 
 400Z. as upon unpaid purchase-money (a). 
 
 Cripps V. Jee. In a similar case of absolute sale upon the face of the deed, 
 
 but where the grantee afterwards admitted himself in writing 
 to be a trustee. Lord Kenyon held that, the written evidence 
 estabhshing facts inconsistent with the deed, further evidence 
 by parol was admissible to prove the truth of the trans- 
 action (b). 
 
 Mistake or fraud. Qf course the Court will not permit the grantee to retain 
 the beneficial interest if there was any mistake on the part of 
 the grantor (c), or any mala fides on the part of the grantee (d). 
 But if the grantor himself intended a fraud upon the law, the 
 assurance, if the defendant demurs, will be made absolute 
 against the grantor (e); however, if the defendant admit the 
 trust, it seems the Court will relieve (/). It was said in one 
 case that if a man transfer stock or deliver money to another. 
 
 [a) Leman v. Whitley, 4 Russ. per eundem ; Young v. Peachy, 2 
 
 423. Atk. 254 ; Wilkinson v. BrayfieU, 
 
 (6) Cripps v. Jee, 4 B. C. C. 472. cited ib. 257 ; 8. C. reported 2 
 
 (c) Birch v. Blagrove, Amb. 264; Vern. 307. 
 
 Anon, cited Woodman v. Morrel, 2 (e) Cottington v. Fletcher, 2 Ati. 
 
 Freem. 33; s.-aA. ma Attorney- Oene- 156, ^er Lord Hardwicke; and see 
 
 ral V. Boulden, 8 Sim, 472. Chaplin v. Chaplin, 3 P. V. 233 ; 
 
 {d) Lloyd V. Spillet, 2 Atk. 150, Mucldeston v. Brown, 6 Yes. 68. 
 
 S. C. Barn. 388, per Lord Hard- (/) See Cottington v. Fletcher,, 
 
 wicke ; Hutchins v. Lee, 1 Atk. 448, Mucldeston v. Brown, ubi supra. 
 
CH. Vni. S. 1.] RESULTING TEUSTg. 179 
 
 it must proceed from an intention to benefit that other person, 
 and therefore, although he be a stranger, it shall be primd 
 facie a gift (a), but if such an intention cannot be inferred 
 consistently with the attendant circumstances, a trust will 
 result (&). 
 If upon a conveyance (c), devise [d), or bequest (e), a trust be Where a trust is 
 
 .,., declared of part 
 
 declared ot part ot the estate, and nothing is said as to the of the estate, the 
 residue, then, clearly, the creation of the partial trust is /ue re°sults! "^^^^ 
 regarded as the sole object in view, and the equitable interest 
 undisposed of by the settlor results to him or his repre- 
 sentative. 
 
 But upon this subject a distinction must be observed Partial dedara- 
 between a devise to a person for a particular purpose with tinguished from 
 no intention of conferring the beneficial interest, and a devise ^ ° '"^^®' 
 with the view of conferring the beneficial interest, but subject 
 to a particular injunction. Thus, if lands be devised to A. 
 and his heirs upon trust to pay debts, this is simply the 
 creation of a trust, and the residue will result to the heir; 
 but if the devise be to A. and his heirs charged with debts, the 
 intention of the testator is to devise beneficially subject to the 
 charge, and then whatever remains, after the charge has been 
 satisfied, will belong to the devisee (/). 
 
 No positive rule can be laid down to determine in what No positive rule 
 
 . f> • 1 1 i to ^^ ^"■^'^ down. 
 
 cases the devise will carry with it a benencial character, 
 and in what it will be construed a trust ; but on all occasions 
 the Court, refusing to be governed by the mere technical 
 
 (o) George v. Howard, 7 Price, 644 ; Nash r. Smith, 17 Ves. 29 ; 
 
 651 53, W]/ch V. Pachinton, cited Moper v. 
 
 (5) See Custance v. Cunningham, Radcliffe, 9 Mod. 187 ; Davidson v. 
 
 13 Beav. 363. Foley, 2 B. C. C. 203 ; Kiricke v. 
 
 (c) Cottington v. Fletcher, 2 Atk, Bransbey, 2 Eq. Ca. Ab. 508 ; Levet 
 
 135 ; Culpepper v. Aston, 2 Cli. Ca. v. Needham, 2 Tern. 138 ; SCalliday 
 
 115 ; Cook v. Gwavas, cited JRoper v. Hudson, 3 Ves. 210 ; Eillett v. 
 
 V. Radcliffe, 9 Mod. 187 ; Lloijd v. Killett, 3 Dow. 248 ; &c. 
 Spillet, 2 Atk. 150 ; 8. C. Barn. (e) Robinson v. Taylor, 2 B. C. C. 
 
 388, per Lord Hardwicke. 589 ; Mapp v. Eleock, 2 Phill. 793 ; 
 
 {d) Sherrard-f. Lord Harhorough, affirmed on appeal, 3 H. of L. Ca. 
 
 Amb. 165 ; Marquis of Townshend 492 ; and see Dawson v. Clarke, 18 
 
 r. Bishop of Norwich, cited Saun- Ves. 254. 
 
 ders on Uses, C. 3, s. 7, div. 3 ; Ho- (/) Xing v. Denison, 1 V. & B. 
 
 hart Y. Countess of Suffolk, 2 Vern. 272, per Lord Eldon. 
 
 N 2 
 
180 
 
 EESULTING TEUSTS. 
 
 tcH. vm. s. 1. 
 
 Relationship of 
 the devisee or 
 legatee. 
 
 "Trust" and 
 "trustee" do 
 not necessarily 
 exclude a bene- 
 ficial gift. 
 
 phraseology, extracts the probable intention of the settlor from 
 the general scope of the instrument {a). 
 
 The recognition of the relationship of the parties has often 
 materially influenced the Court against the construction of a 
 mere trust (b). Thus, where a testator gave 51. to his brother, 
 who was his heir-at-law, and "made and constituted his dearly 
 beloved wife his sole heiress and executrix, to sell and dispose 
 thereof at her pleasure, and to pay his debts and legacies ; " 
 Lord King said, the devise that the wife should be sole heiress 
 of the real estate did, in every respect, place her in the stead 
 of the heir, and not as a trustee for him ; that it was plainer 
 by reason of the language of tenderness and affection, "his 
 dearly beloved wife," which must intend to her something 
 beneficial, and not what would be a trouble only; and what 
 maide it still stronger was, that the heir was not forgot, but 
 had a legacy of 51. left him; and so his Lordship decreed the 
 devisee to be beneficially entitled (c). But any allusion of this 
 land is merely one circumstance of evidence, and therefore to 
 be counteracted by the language of other parts of the instru- 
 ment (d). 
 
 Although the introduction of the words "upon trust" may 
 be strong evidence of the intention not to confer on the devisee 
 a beneficial interest (e), yet that construction may be negatived 
 by the context, or the general scope of the instrument (/) ; and, 
 in like manner, the devisee may be designated as " trustee ; " 
 but if the term be used with reference to one only of two 
 funds, he may still establish his title to the beneficial interest 
 in the other (g). 
 
 (a) Jlill V. Bishop of London, 1 
 Atk. 620, per Lord Hardwicke ; 
 Walton V. Walton, 14 Ves. 322, per 
 Sir W. Grant ; Starkey v. Brooks, 
 1 P. W. 391, per Lord Cowper; 
 King v. Denison, 1 V. & B. 219, per 
 Lord Eldon. 
 
 (5) Lloyd V. Spillet, cited Cook 
 V. Duckenjield, 2 Atk. 566 ; Lloyd 
 V. Wentworth, cited Bohinson v. 
 Taylor, 2 B. C. C. 594; Smithy. 
 King, 16 East, 283 ; Coningham v. 
 Hellish, Pr. Ch. 31 ; Cook v. Sut- 
 chinson, 1 Keen, 42. 
 
 (c) Bogers v. Bogers, 3 P."W. 193'. 
 
 (d) BugginsY. Yates, 9 Moi. 122; 
 Wych V. Packington, 2 Eq. Ca. Ab. 
 507 ; and see King v. Denison, 1 V. 
 & B. 274. 
 
 (e) See Hill v. Bishop of London, 
 1 Atk. 620 ; Woolletty. Harris, i 
 Mad. 452. 
 
 (/) Dawson y. Clarke, 13 Tea. 
 409; S. C. 18 Yes. 247, see 257 
 Coningham v. Mellish, Pr. Ch. 31 
 Cook V. Hutchinson, 1 Keen, 42 
 Hughes v. Evans, 13 Sim. 496. 
 
 {g) Batteley v. Windle, 2 B. C. C. 
 
CH. Vin. S. 1.] REStTLTING TRUSTS. 181 ' 
 
 It must also be observed, that, as the heir is a person Heir of settlor 
 
 favoured in law, he wUl not be excluded from the resulting from?wiut!'^ 
 
 trust on bare conjecture (a): and there must be nositive i°g trust on mere 
 
 » , ^ . conjecture. 
 
 evidence ot a benent intended to the devisee, and not merely 
 
 negative evidence that no benefit was intended to the heir ; for 
 the trust results to the real representative, not on the ground 
 of intention, but because the ancestor has declared no inten- 
 tion (i). Thus, a legacy to the heir will not prevent a trust 
 from resulting (c) ; but, joined to other circumstances in favour 
 of the devisee, it will not be without its effect (d). 
 
 It need scarcely be remarked, that, as the species, of trust parol evidence. 
 we are now considering results by presumption of law, it may 
 be rebutted by positive evidence by parol, that the testator's 
 intention was to confer the surplus interest beneficially (e). 
 . Next, a trust results by operation of law, where the intention Of trusts result- 
 not to benefit the grantee, devisee, or legatee, is expressed upon ^^q expressed." 
 the instrument itself, as if the conveyance, devise, or bequest, 
 be to a person "upon trust," and no trust is declared (/), or 
 upon certain trusts that are too vague to be executed {g), or 
 
 31 ; Pratt v. Sladden, 14 Yes. 193 ; 506 ; King v. Denison, 1 V. & B. 
 
 and see Oihhs v. Rumsey, 2 V. & B. 274 ; Amphlett v. Parke, 2 R. & M. 
 
 294. 230 ; Mallabar v. Mallahar, Cas. t. 
 
 [a) Halliday v. Hudson, 3 Ves. Talb, 78. 
 
 211, per Lord Loughborough ; and (c) Crompton v. North, as cited 
 
 see Kellett v. Kellett, 3 Dow. 248 ; Gainsborough v. Gainsborough, 2 
 
 Amphktt V, Parke, 2 E. (& M. 227; Vern. 253; Donksey v. Bocksey, 2 
 
 Phillips V. Phillips, 1 M. & K. 661 ; Eq. Ca. Ab. 506; Mallabar v. Mal- 
 
 Salter v. Cavanagh, 1 Dru. & Walsh, labar, Cas. t. Talb, 78 ; Cook v, 
 
 668. Hutchinson, 1 Keen, 50, per Lord 
 
 (i) See Hopkins v. Hopkins, Cas. Langdale. 
 
 t. Talb. 44; Tregonwell v. Syden- (/) Dawson v. Clarke, 18 Ves. 
 
 Jtam, 3 Dow. 211 ; Lloyd y. Spillet, 254, per Lord Eldon ; see Southouse 
 
 2 Atk. 151 ; HaberghamY. Vincent, y. Bate, 2 V. & B. 396 ; Morice v. 
 
 2 Ves. jun. 225. JBisJinp of Durham, 10 Ves. 537; 
 
 (c) Bandall v. Bookey, 2 Vern. Woollett v. Harris, 5 Mad. 452 ; 
 425 ; S. C. Pr. Gh. 162 ; Hopkins Pratt v. Sladden, 14 Ves. 198 ; 
 V. Hopkins, Cas, t. Talb. 44 ; Star- Dunnage v. White, 1 Jac. & "Walk. 
 ■key V. Brooks, 1 P. W. 390, over- 583 ; Goodere v. Lloyd, 3 Sim. 538 ; 
 juHng iVbriA V. Crompton, 1 Ch. Ca. Anon, case, 1 Com. 345 ; Penfold-v. 
 196 ; Salter v. Cavanagh, 1 Dru. & Bouch, 4 Hare, 271. 
 
 Walsh, 668. {g) Fowler v. Garlike, 1 R. & M. 
 
 [d) Mopers v. Rogers, 3 P. W. 232 ; Morice v. Bishop of Durham, 
 193 ; S. C. Sel. Ch. Ca. 81 ; and see 9 Ves. 399 ; S. C. 10 Ves. 622 ; 
 Docksey v. Docksey, 2 Eq. Ca, Ab. Stubbs v. Sargon, 2 Keen. 255 ; 
 
182 EESULTING TRUSTS. [CH. VIU. B. 1.. 
 
 upon trusts to be thereafter declared, and no declaration ever 
 made (a), or upon trusts that are void for unlawfulness (6), or 
 that fail by lapse (c), &c. ; for in such cases the trustee can 
 have no pretence for claiming the beneficial ownership, when, 
 by the express language of the instrument, the whole property 
 has been impressed with a trust, 
 r.iroi evidence. And where, as in these cases, a trust results to the settlor or 
 his representative, not by presumption of law, but by force of 
 the written instrument, the trustee is not at liberty to defeat 
 the resulting trust by the production of extrinsic evidence by. 
 parol {d). 
 
 Having distinguished between the two kinds of resulting 
 trusts (a classification necessary to be made for the purpose of 
 ascertaining the admissibility of parol evidence), we proceed to 
 introduce a few remarks applicable to resulting trusts generally, 
 whether arising by presumption of law or from the language of 
 the instrument. 
 In trusts for sale, First. If real estate be devised upon trust to sell for a par- 
 proceeds result ticular purpose, and that purpose either wholly fail or do not 
 
 S. C. 3 M. & C. 507 ; Kendall v. and his heirs, in trust to sell and 
 
 Granger, 5 Beav. 300 ; Leslie v. pay part of the proceeds to persons 
 
 Devonshire, 2 B. C. C. 187 ; Vezey capable of taking, and other part to 
 
 V. Jamson, 1 Sim. & Stu. 69 ; and a charity, the statute of mortmain 
 
 see JEJllis v. Selhy, 7 Sim. 352 ; 8. C. did not avoid the whole legal devise, 
 
 1 M. & C. 286; Williams -v. Ker- but affects only the interest given to 
 
 sAaw, 5 CI. & Fin. 111. the charity; Young v. Cfrove, i 
 
 (a) Emhlyn Y. Freeman, Pr. Ch. Com. B. Re. 668 ; Doev. Sams, 16 
 
 541 ; City of London v. Garway, 2 Mees. & W. 517. 
 
 Vern. 571 ; Collins v. Waheman, 2 (c) Achroyd v. Smithson, 1 B. C. 
 
 Ves. jun. 683 ; Fitch v. Weber, 6 C. 503 ; Spinh v. Lewis, 3 B. C. C. 
 
 Hare, 145; a.ni see Browny. Jones, 355; Williams v. Coade, 10 Ves. 
 
 1 Atk. 188 ; Sidney v. Shelley, 19 500 ; IHghy v. Legard, cited Cruse 
 
 Ves. 352; Broohman v. Hales, 2 V. v. Barley, 3 Cox's P. W. 22, note 
 
 & B, 45. (1) ; Sutcheson v. Hammond, 3 B. 
 
 (6) Carrich v. Errington, 2 P. W. C. G. 128 ; Davenport v. CoUrmmy 
 
 361; Arnold Y. Chapman, 1 Ves. 12 Sim. 610 ; MucklestonY. Brown, 
 
 108 ; Tregonwell v. Sydenham, 3 6 Ves. 63. 
 
 Dow. 194 ; Jones v. Mitchell, 1 S. & [d) See Langham v. Sanford, 17 
 
 S. 290 ; Gibhs v. Mumsey, 2 V. & Ves. 442 ; S. C. 19 Ves. 643 ; Mach- 
 
 B. 294 ; Page v. Leapingwell, 18 field v. Careless, 2 P. W. 158 ; 
 
 Ves. 463 ; Pilkingtnn v. Boughey, Gladding v. Yapp, 5 Mad. 69 ; White 
 
 12 Sim. 114 ; and see Coohe r. The v. Evans, 4 Ves. 21 ; Walton v. 
 
 Stationers' Company, 3 M. & K. Walton, 14 Ves. 322. 
 262. If an estate was devised to A. 
 
CH. vm. s. 1.] 
 
 HESULTING TRUSTS. 
 
 183 
 
 exhaust the proceeds, the part that remains unapplied, whether to the heir, not 
 the estate has been actually sold or not, will result to the testator's 
 heir, and not to his next of kin (a). And the whole or surplus 
 will result in this manner, though the proceeds of the realty he 
 blended with personal estate in the formation of one common 
 fund (6). And even an express declaration that the proceeds 
 bi the sale shall be considered as part of the testator's per- 
 sonal estate will not prevent the operation of the rule (c) ; for a 
 direction of this kind is construed to extend to the purposes of 
 the will only, and not to give a right to those who claim, as the 
 next of kin, by operation of law. In the case of Phillips v. 
 Phillips (d) before Sir J. Leach, the proceeds of the sale were 
 directed to be taken as part of the testator's personal estate, 
 and were blended into one fund with the personalty, and a 
 legacy which had lapsed was decreed in favour of the next of 
 kin ; but the opinion of the profession was always against the 
 decision ; and it is observable, that ColUns v. Wakeman (e), the 
 only authority precisely in point, was not once adverted to in 
 
 (a) Starhey v. Brooks, 1 P. W. 
 390; Randall v. Boohey, Pr. Ch. 
 162 ; Sfonehouse v. Evelyn, 3 P. W. 
 252 ; Robinson v. Taylor, 2 B. C. C. 
 589 ; Cruse y. Barley, 3 P. W. 20 ; 
 Buggins v. Yates, 2 Eq. Ca. Ab. 
 508 ; Mill v. Coeh, 1 V. & B. 173 ; 
 City of London v. Garway, 2 Vern. 
 571 ; Nicholls v. Crisp, cited Croft 
 V. She, 4 Ves. 65 ; Diyhy v. Legard, 
 2 Dick. 500 ; Spink v. Lewis, 3 B. 
 C. C. 355 ; Chitty v. Parker, 4 B. 
 C. C. 411 ; Collins v. Wakeman, 2 
 Ves. jun. 683 ; Jlowse v. Chapman, 
 4 Ves. 542 ; Williams v. Coade, 10 
 Ves. 500 ; Berry v. Ushtx, 11 Ves. 
 87 ; Gills v. Rumsey, 2 V. & B. 
 294 ; Maugham v. Mason, 1 V. 
 & B. 410; Wilson v. Major, 11 
 Ves. 205; Wright v. Wright, 16 
 Ves. 188 ; Hooper v. Goodwin, 18 
 Ves. 156 ; Jones v. Mitchell, 1 S. & 
 S. 290 ; Page v. Leapingwell, 18 
 Ves. 463 ; Gihls v. Ougier, 12 Ves. 
 416; M'Cleland v. Shaw, 2 8ch. & 
 Lef. 545 ; Mogg v. Hodges, 2 Ves. 
 62; Byrey. Marsden, 2 Keen. 564; 
 
 Ex parte Pring, 4 Y. & C. 507 ; 
 Watson V. Hayes, 5 M. & Cr. 125 ; 
 Davenport v. Coltman, 12 Sim. 610; 
 Bunnett v. Foster, 7 Beav. 540 ; 
 Marriott v. Turner, 20 Beav. 557, 
 &o. Note, Countess of Bristol v. 
 Hungerford, 2 Vern. 645, is misre- 
 ported — see Rogers v. Rogers, 3 P. 
 W. 194, note (C). 
 
 (J) Ackroyd v. Smithson, 1 B. C. 
 C. 503 ; Jessopp v. Watson, 1 M. & 
 K. 665 ; Salt v, Chattaway, 3 Beav. 
 576. 
 
 (c) Collins v. Wakeman, 2 Ves. 
 jun. 683; and seeAmphletty. Parke, 
 2 R. & M. 226. Ogle v. Cook, cited 
 in Fletcher v. Ashlurner, 1 B. C. C. 
 602, and in Ackroyd v. Smithson, 
 id. 513, was for a long time con- 
 sidered contra ; but in Collins v. 
 Wakeman, 2 Ves. jun. 686, Lord 
 Loughborough had the Eeg. Lib. 
 searched, and it was found the point 
 had been left undecided. 
 
 (d) 1 M. & K. 649. 
 
 (e) 2 Ves. jun. 683. 
 
184 
 
 RESULTING TRUSTS. 
 
 [cH. vin. s. 1; 
 
 Direction for 
 sale, and tliat 
 the proceeds 
 shall be per- 
 sonal estate. 
 
 Fitch V. Weber. 
 
 Whether the in- 
 terest results as 
 real or personal 
 estate. 
 
 Smith V. Claxton. 
 
 this case, either by the bar or the bench. The case has 
 repeatedly received the express disapprobation of the Court (a)j 
 and has at length been overruled (&). 
 
 If a testator direct the proceeds of the sale to be taken as 
 personal estate, and nothing more is said, then, as every part 
 of the will ought, if possible, to have an operation, the meaning 
 of the testator might be thought to be, that the realty should 
 be converted into personalty for the benefit of the next of kin j 
 and in The Countess of Bristol v. Hungerford (c), where the 
 testator directed the proceeds of the sale to be taken as per- 
 sonal estate, and go to his executors, to whom he gave SOL 
 a-piece, it is said the next of kin were declared entitled. It 
 appears, however, that the two next of kin were also the cO' 
 heirs, and therefore as utrdque via data the same persons would 
 claim, it was obviously unnecessary to determine the question. 
 
 It has been decided in a late case that even if the testator 
 say " nothing shall result to the heir-at-law," yet a bequest to 
 the next of kin is not sufficiently implied, but the heir-at-law 
 will take in spite of the intention to the contrary (d). 
 
 If the execution of the trust require the estate to be sold, 
 but the purposes of the trust do not exhaust the proceeds, the 
 part that is undisposed of will result to the heir in the character 
 of personalty, and, though the sale Was not actually effected in 
 his lifetime, will devolve on his executor (e) : but if the trusts 
 declared by the testator do so entirely fail as not to call for a 
 conversion, then the whole estate will result to the heir as 
 realty, and descend upon his heir (/), though the estate may by 
 the mistake of the trustees have been actually sold (g). 
 
 The doctrines upon this subject have been very clearly stated 
 
 («) See Fitch v. Weber, 6 Hare, 
 145 ; Shallcross v. Wright, 12 Beav. 
 505; Flint v. Warren, 16 Sim. 
 124. 
 
 (5) Taylor v. Taylor, 3 De G. 
 Mae. & Gord. 190. 
 
 (c) Pr. Ch. 81 ; & 0. 2 Vern. 645 ; 
 correotfd from Keg. Lib., in Rogers 
 V. Rogers, 3 P. W. 194, note (C) ; 
 and see >Sir W. Bassets case, cited 
 Bayley v. Powell, 2 Vern. 361. 
 
 {d) Fitch V. Weber, 6 Hare, 145, 
 
 and compare Johnson v. Johnson, i 
 Beay. 318. 
 
 (e) Hewitt V. Wright, 1 B. C. C. 
 86 ; Wright v. Wright, 16Ves.,18&; 
 Smith V. Claxton, 4 Mad. 484; 
 Dixon V. Dawson, 2 S. & St. 327 ; 
 Jessopp V. Watson, 1 M. & K. 665 ; 
 Hatfield Y. Pryme, 2 Coll. 204. 
 
 (/) Smith V. Claxton, ubi supra ; 
 Chitty V. Parker, 2 Ves. jun. 271. 
 
 {g) Davenport v. Coltman, 12 
 Sim. 610. 
 
CH. Vm. S. l.J RESULTING TRUSTS. 185 
 
 by Sir John Leach in the case of Smith v. Claxton (a). A 
 testator by one devise had given an estate to trustees and their 
 heirs upon trust to sell, and out of the proceeds to pay his 
 funeral expenses, debts, and legacies, and, subject thereto, upon 
 trust to pay the surplus to his wife. By a second devise he 
 had given an estate to the same trustees and their heirs, upon 
 trust to pay the rents to his wife for life, and after her death 
 to Thomas for life, and after his death upon trust to sell and 
 divide the proceeds amongst the children of Thomas, and, 
 faiUng such children, between Joseph and Eobert in equal 
 shares. By a third devise he had given an estate to the same 
 trustees and their heirSj upon trust, subject to an annuity, for 
 Eobert for hfe, and after his decease upon trust to sell and 
 apply the produce for the benefit of the children of Eobert, 
 and, failing such children, upon trust for Thomas and Joseph 
 in equal shares. The wife died in the lifetime of the testator ; 
 Eobert also died in the lifetime of the testator without issue ; 
 Thomas survived the testator, but died a few months after, 
 having had an only child, who had died in the testator's life- 
 time. Sir John Leach said — " Where a devisor directs his 
 real estate to be sold, and the produce to be applied to par- 
 ticular purposes, and those purposes partially fail, the heir-at- 
 law is entitled to that part of the produce which in the events 
 is thus undisposed of. The heir-at-law is entitled to it because 
 the real estate was land at the devisor's death, and this part of 
 the produce is an interest in that land not effectually devised, 
 and which therefore descends to the heir. A devisor may give 
 to his devisee either land or the price of land at his pleasure, 
 and the devisee must receive it in the quality in which it is 
 given, and cannot intercept the purpose of the devisor. If it 
 he the purpose of the testator to give land to the devisee, the 
 land will descend to his heir ; if it be the piu'pose of the devisor 
 to give the price of land to the devisee, it will, like other money, 
 be part of his personal estate. Under every will, when the 
 question is, whether the devisee, or' the heir failing the devisee, 
 takes an interest in land as land or money, the true inquiry is, 
 ■whether the devisor has expressed a purpose, that, in tlie events 
 
 (a) 4 Mad. 484. 
 
186 RESULTING TRUSTS. [CH. Vm. S. 1. 
 
 which have happened, the land shall be converted into money. 
 Where a devisor directs his land to be sold and the produce 
 divided between A. and B., the obvious purpose of the testator 
 is, that there shall be a sale for the convenience of division, 
 and A. and B. take their several interests as money, and not 
 land ; and if A. die in the lifetime of the testator, and the heir 
 stands in his place, the purpose of the devisor still apphes to 
 the case, and the heir shall take the share of A., as A. himself 
 would have taken it, as money, and not land : but if A. and B. 
 both die in the lifetime of the testator, and the whole interest 
 in the land descends to the heir, the question would then be, 
 whether the devisor can be considered as having expressed 
 any purpose of sale applicable to that event, so as to give the 
 interest of the heir the quality of money. The obvious purpose 
 of the testator being that there should be a sale for the con- 
 venience of division between his devisees, that purpose could 
 have no application to a case in which the devise wholly failed, 
 and the heir would therefore take the whole interest as land. 
 To apply these principles to the present case : under the first 
 devise, the estate is directed to be sold, and the produce appUed 
 in aid of the personal estate in payment of debts and legacies, 
 and the surplus is given to the wife. The debts and legacies 
 are fully paid out of the personal estate, and the wife dies iu 
 the testator's lifetime. The whole interest thus resulted to 
 the heir, and the devisor's purpose of sale, being plainly for a 
 distribution according to the will, has no application to the 
 events which have happened, and the heir took the estate as 
 land, which descends in that character to his heir. Under the 
 second devise, there is an obvious purpose of sale for the con- 
 venience of division between the sons of Thomas, or, failing 
 them, between Joseph and Robert. The only son of Thomas, 
 and the devisor's son Eobert, both die in the devisor's lifetime, 
 and the heir becomes entitled by lapse to the moiety of the 
 produce intended for Robert. The purpose of sale for con- 
 venience of division still applies to the events which have 
 happened, and this moiety is not land, but personal estate of 
 the heir. Under the third devise, there is the same obvious 
 purpose of sale : first, for a division between the children of 
 Eobert, and, failing them, between the heir and Joseph. There 
 
CH. Vni. S. 1.] RESULTING TRUSTS. 187 
 
 were no children of Eobert, but the purpose of sale remains, 
 and this moiety also is not land, but personal estate of the 
 heir." 
 
 Secondly. If a testator bequeath money to be laid out in a Money to he laid 
 purchase of land, to be settled to uses which either wholly or s^ts to the exe- 
 partiaUy fail to take effect, the undisposed of interest in the ''^*™- 
 money, or estate if purchased, will result to the testator's 
 executor, upon trust for his next of kin. 
 
 Should the heir advance a claim, it must be either in his 
 character of heir or as purchaser. It cannot for a moment be 
 contended, that he can establish a claim in the character of 
 heir, for, to assert such a title, he must prove himself to be 
 the heir of the person last seised, and here by the terms of the 
 question the testator had no seisin (a). " The conversion of the 
 estate," said Lord Northington, " is to be after the testator's 
 death, and whoever takes under the settlement directed to be 
 made will take a new-created interest, which never did, and 
 never was intended to vest in the testator, and therefore he 
 cannot take but as purchaser (6)." But if the heir is to claim 
 as purchaser, he must show that the will contains a bequest to 
 him either expressly or by implication. Now, he cannot main- 
 tain that any express gift was made in his favour, for the 
 supposition is, that the testator has declared no intention ; nor 
 is it easy to discover upon what ground any implied gift can 
 be supported, for, if implied at aU, it must be so from some- 
 thing said in the will; but if a testator merely direct lOOOZ. to 
 be laid out in lands, to be settled on A. for life, the injunction 
 plainly involves nothing more than what is actually expressed. 
 To take the converse of this case, should a testator devise real 
 estate to be sold, and direct the interest of the proceeds to be 
 paid to A. for life, it is undoubted law, that the remainder of 
 the stock would result to the heir, and is not by implication a 
 bequest to the executor (c). It may be said, that a testator is 
 supposed so to favour the heir, that, where money is to be 
 
 (a) Under tlie late InHeritanoe Act, (J) Robinson v. Knight, 2 Ed. 
 
 3 & 4 W. IV. 0. 106, the title is to 159. 
 
 be deduced from tlie ^^ purchaser," (c) Wilson v. Major, 11 Ves. 
 
 tut the argument in the text ia 205. 
 e<jually applicable. 
 
188 EESULTING TRUSTS. [CH. VIH. S. 1. 
 
 turned into land, a devise to the heir shall be presumed. But 
 where is the maxim to be found, that a testator shall be taken 
 to favour his heir more than his executor ? That the hm 
 favours the heir is readily conceded, but it is only ia the 
 character of heir ; that is, the law, which invests the heir with 
 the title by which he claims the land, will support him in the 
 maintenance of that title, until it appears he has been dis- 
 inherited, either expressly, or by necessary implication. It 
 was never contended that favour was to be shown to him in 
 the character of a purchaser. , As the trust is executory, and 
 therefore admits a greater latitude of construction, it may be 
 thought, perhaps, that the Court would insert a limitation to 
 the heir, on the ground, that had the question been put to the 
 testator himself, he would have given a direction to that effect ; 
 but as the heir, except as to lands of which the ancestor was 
 seised, is regarded in the light of a stranger, there seems no 
 more reason why the Court should insert a limitation to the 
 heir, than to any indifferent person. Besides, the argument 
 would have ho application to such cases as that of Leslie v. The 
 Duke of Devonshire {a), where the uses of the remainder, 
 though void, were actually expressed. But though the right 
 of the heir may not appear to rest on any reasonable foundation, 
 it may still be thought incongruous that land should go to the 
 executor. However, this difficulty will, on examination, be 
 found totally destitute of weight. The respective rights of the 
 heir and executor are absolutely and immutably fixed at the 
 moment of the intestate's decease : except so far as a person 
 may have disposed of his property by will, what was then real 
 estate will descend upon the heir, and what was then personal 
 estate wiU devolve on the executor. The real estate may, in 
 the execution of some partial purpose expressed upon the will, 
 have been converted into money, or a part of the personal 
 estate may, with the same view, have been converted into realty; 
 but^ in either case, the undisposed of interest wiU, notwith- 
 standing the conversion, result to that representative from 
 whom in fact it was never aliened. If a testator direct the sale 
 of an estate, and give one-third of the proceeds to A., and 
 another to B., the remaining third is, even after the actual 
 
 (a) 2 B. C, C. 187. 
 
jCH. Vin. S. 1.] RESULTING TRUSTS. 189 
 
 sale, a portion of the land of which the ancestor was seised, 
 and will therefore result to the heir ; and, on the same prin- 
 ciple, if lOOOJ. be bequeathed to be laid out in lands to be 
 settled, one-third on A. and his heirs, and another on B. and 
 Jiis heirs, the remaining one-third, even after the investment, 
 must be part of the testator's personal estate, and, as such, 
 result to the executor. " All the cases," said Lord Eldon, 
 " establish this proposition, that where a person, dealing upon 
 Ms own property, has directed a conversion for a particular 
 purpose, or out and out, hut the proceeds to be applied to a par- 
 iticidar .purpose, when the purpose fails, the intention fails, 
 land the Court regards him as not having directed the con- 
 Version " (a). It may appear singular, that money should go 
 to the heir, and land to the executor; but it is needless to 
 mention the numerous cases in which money, at law is; land in 
 equity, and land at law is money in equity. 
 . The old authorities {h) upon the subject are somewhat con- 
 -flicting ; but it will be unnecessary to enter upon a particular 
 examination of them, as the case of Cogan v. Stevens (c), before 
 Lord Cottenham, while at the Rolls, has decided the point in 
 •favour of the executor. 
 
 Thirdly. It often happens, that the settlor makes a primary in a gift of the 
 ■disposition of the whole property to A. subject to a particular ^ah&Tg^ihlf *° 
 charge in favour of B., and the charge in event either wholly may not arise, no 
 
 ° _ . trust results. 
 
 or partially fails so as either not to divest, or only pro tanto 
 divest the estate of A. The reader must distinguish the pre- 
 ceding cases of resulting trust from such a gift as this ; for 
 here, as the entirety is disposed of in the first instance to A., 
 so far as the charge does not exhaust it, there can nothing 
 result to the heir, even should the charge not take effect. The 
 distinction was thus stated by Sir J. Leach: — " If the devise," 
 he said, " to a particular person, or for a particular purpose, be 
 intended by the testator to be an exception from the gift to the 
 
 (a) BipleyY. Waterworth, 'ZVes. ham, 3 Dow. 207; Allot y. Lee, 2 
 
 435. Vem. 284 ; S. C. Append. No. ii. ; 
 
 (6) Tletcher v. Chapman, 3 B. P. Mogg v. Hodges, 2 Ves. 52. 
 
 C 1 ; Hayford v. Benlows, Amb. (c) Append. No. iii. 5 L. J. N. S, 
 
 582; Leslie Y. Duke of Devonshire, Chy. 17; Hereford v. Mavenhill, 1 
 
 2 B. C. C. 187 ; Brown v. De Laet, Beav. 481. 
 4 B. C. C. 534 ; Tregonwell v. Syden- 
 
190 
 
 BESULTING TRUSTS. 
 
 [CH. vru. S. 1. 
 
 Gift charged with 
 a contingent 
 legacy. 
 
 Gift charged with 
 a sum to be ap- 
 pointed, and the 
 power not exer- 
 cised. 
 
 Noel V. Lord 
 Henley. 
 
 residuary devisee, the heir takes the benefit of the failure ; but 
 if it be intended to be a charge only upon the estate devised^ 
 and not an exception from the gift, the devisee will be entitled 
 to the benefit of the failure " (a). 
 
 Thus, if lands be devised to A. charged with a legacy to B. 
 provided B. attain the age of twenty-one, should B. die without 
 attaining that age, the devise has become absolute in A., and 
 the will is to be read as if the legacy to B. had never been 
 mentioned (&). So if lands be given to A. charged with a 
 legacy to B., and B. dies in the testator's lifetime (c). 
 
 The construction is the same, if lands be given to A. subject 
 to and charged with any sum not exceeding 10,000Z. to such 
 persons, and in such manner, as the testator shall appoint, and 
 the power is either never exercised, or the execution of it is 
 void (d) : for here, as the testator confers the whole interest on 
 the devisee, reserving the power, if he either abstain from 
 executiag the power, or appoint for an illegal purpose, he 
 does not diminish that interest, but the heir is wholly dis- 
 inherited (e). 
 
 And where a testator had devised certain estates upon trust 
 to sell, and out of the proceeds to pay 5000Z. unto his wife, her 
 executors and administrators, in part satisfaction of the sum 
 of 1O,0OOZ. secured to her by marriage settlement in case of her 
 surviving him, and to invest the residue upon certain trusts, 
 and the wife died in the lifetime of the husband, so that the 
 10,000Z. never became raisable, it was held that the 5000i., 
 instead of resulting to the heir, was included in the residue (/). 
 The construction put upon the will was, that the whole fund 
 was in the first instance given to the residuary legatees, subject 
 to a charge of 5000Z. to arise on a certain event, and that 
 
 (o) Cooke Y. The Stationers' Com- (c) 
 
 pant/, 3 M. & K. 264. 185. 
 
 (5) Tregonwell v. Sydenham, 3 {d) 
 
 Dow. 210, per Lord Bldon. Sprigg Coohe 
 
 v. Sprigg, 2 Vern. 394, was decided 3 M. <! 
 
 on this principle; Cruse y. Barley, (e) 
 
 3 P, "W". 20, should have been de- Dow. 
 
 oided the same way, but the point (/) 
 
 was not noticed. So Attorney- Ge- Price. 
 
 neraly. Milner, 3 Atk. 112; Croft 022. 
 v. Slee, 4 Ves. 60. 
 
 Sutcliffe v. Cok, 3 Drew. 
 
 JachsonY. Hurlock, 2 Ed. 263; 
 
 V. The Stationers' Company, 
 fe K. 262. 
 
 Tregonwell v. Sydenham, 3 
 213, per Lord Eldon. 
 
 Noel Y. Lord Henley, 7 
 
 241 ; S. C. Dan. 211, and 
 
CH. Vin. S. 1.] RESULTING TEUSTS. 191 
 
 contingency having never occurred, the primary devise of the 
 entirety was never divested (a). 
 
 Again, if an estate be settled to the use of trustees for a Gift with a 
 term of ninety-nine years, upon trusts that do not exhaust "subjert'there- 
 the whole interest, and from and after the expiration, or other *°" *° ^• 
 sooner determination of the said term, and subject thereto, to 
 uses in strict settlement, the surplus of the term will be in 
 trust, not for the heir, but for the devisees in remainder, for 
 here the intention is express, that, subject to trusts which have 
 been exhausted, the remaindermen shall take the whole 
 estate (6). So if an estate be devised to trustees upon trust 
 within one year after the testator's decease to raise 2000Z., and 
 " after raising the same " upon trusts in strict settlement, the 
 Court hold the 20001. to be a charge upon and not an exception 
 out of the estate (c). 
 
 And if the limitation be to trustees for ninety -nine years "Subject there- 
 upon the trusts thereinafter expressed, (and the iustrument ™Pi« • 
 makes no mention of the trusts,) and ;from and after the 
 expiration, or other sooner determination of the said term, to 
 uses in strict settlement, the Court will consider the intention 
 to be clearly implied, that the remaindermen should have the 
 beneficial enjoyment in the first instance, and will read the will 
 as if the words subject thereto and to th^ trusts thereof had been 
 actually expressed (d). 
 
 There has been much discussion as to the applicability to a Charity legacies. 
 charity legacy of the rule establishing a distinction between a 
 charge upon and exception from a devise. The question is one 
 of difficulty, and before stating the apparent result of the cases, 
 it may be useful to premise a few words as to the principle. 
 
 If a testator devise an estate worth 10,000Z. to trustees in Difference be- 
 trust to sell, and out of the proceeds to pay lOOOi. to A., and frornVdevisT" 
 the residue to B., and A. dies in the testator's lifetime, the 
 
 («) That the ease was probably Maundrell v. Maundrell, 10 Ves, 
 
 decided on this ground, see Observa- 259. 
 
 tions of Richards, C. B., Dan. 233, (c) Be Cooper's Trusts, 4 De Gex. 
 
 and of Lord Eldon, ib. 338. M. & G. 757. 
 
 (6) Davidson v. Foley, 2 B. CO. {d) Sidneys. Shelley, X^Yes. 352; 
 
 203 ; Marshall v. JSolloway, 2 Sw. S. C. Coop. 206 ; overruling the die- 
 
 432 ; Lord Southampton v. Marquis turn of Lord Hardwicke, in Brown 
 
 of Hertford, 2 V. & B. 54 ; and see v. Jones, 1 Atk. 191. 
 
193 
 
 RESULTING TEUSTS, 
 
 [CH. vni. S. 1. 
 
 and charge upon 
 a devise. 
 
 Possible distinc- 
 tion in the case 
 of a legacy to a 
 charity. 
 
 lapse enures to the benefit not of the devisee but of the heir, 
 at-law ; the reason is, that in real estate the word "residue " has 
 not the same meaning as in personal estate, but each devise is 
 considered a specific one, and the lOOOZ. and 9000Z. are 
 distinct fractions of the estate, so that if either fail in event, 
 the undisposed of interest results to the heir-at-law. 
 
 If, however, a testator devise an estate to A. and his heirs 
 charged with a legacy of lOOOZ. to B,, and B. dies in. the testator's 
 lifetime, then, as we have seen, A. takes the estate free from 
 the legacy. The explanation is, not that the devisee was 
 intended to take the legacy, qua legacy, but the testator has 
 constituted a hares /actus to the disinherison at all events of 
 the heir-at-law, and as the legacy is given not directly to the 
 legatee, in which case it would be an exception from the devise 
 of the estate, but has been made a charge to be raised, so far 
 as may 1)6 necessary, out of the estate previously devised, 
 the legacy, as in event it is not required to be raised, sinks for 
 the benefit of the deyisee. 
 
 Should an estate be devised to A. and his heirs charged with 
 a legacy to a charity, then these observations occur. On the 
 one hand it may be said that in the case of an ordinary charge 
 the lapse of the legacy was an incident to the bequest, which 
 the testator may be taken to have contehiplated, and he may 
 have meant that on the occurrence of that event the devisee 
 should be entitled; but in the instance of a charity, the object 
 of the legacy exists at the testator's death, and the event on 
 which the money was payable has arisen ; he could not, there- 
 fore, have intended the devisee to take the legacy, which is 
 bequeathed under the circumstances to the charity; the 
 legacy therefore, in this case, though in form a charge, is 
 in fact an exception. On the other hand it may be argued 
 that. where the legacy is admitted to be a charge and not 
 an exception, the devisee does not take the legacy, because 
 U was intended for him, since then in the case of a lapse the 
 pharge would not sink for the benefit of the devisee (for in real 
 estate that only goes to the devisee which is not otherwise 
 expressed to be disposed of, whether the bequest take effect or 
 not, as in the case above noticed of a trust for sale, where the 
 lapse of a legacy out of the proceeds enures to the benefit 
 
CH. vm. s. l.J 
 
 EESULTING TRUSTS. 
 
 193 
 
 of the heir), but, nevertheless, in a charge the devisee does 
 take the legacy in case of lapse, from the form in which the 
 legacy is given; a result which shows the true view to be that 
 the testator first constitutes the devisee the hares f actus of the 
 whole estate, which disinherits the heir, and then as the legacy 
 is made a graft upon that estate, and the legacy fails, the 
 estate is exonerated from the burden. Lord Alvanley was of 
 opinion that this was the true ground, and that it matters not 
 in what way the failure of the legacy arises, whether by 
 lapse, or the unlawfulness of the object : " It is now perfectly 
 settled," said Lord Alvanley, "that if an estate is devised 
 charged with legacies, and the legacies fail, no matter how, the 
 devisee shall have the benefit of it and take the estate " (a). 
 
 The cases upon the subject are very conflicting, but the Results of the 
 best results to be obtained from them appear to be these : 
 
 1. The first inquiry to be made is, whether upon the whole 
 will the testator intended the legacy and the devise to be two 
 distinct independent gifts, flowing directly from himself to the 
 legatee and devisee, or whether he devised the whole estate in 
 the first instance to the devisee to the disinherison of the 
 heir, and then gave the legacy not as an original gift from 
 the testator to the legatee, but by way of graft upon the estate 
 previously given to the devisee ; in the former case the legacy 
 would be an exception (&), and in the latter, a charge. 
 
 2. Assuming the legacy to be, according to the true construc- 
 tion of the will, not an exception but a charge, then if the legacy 
 be given by way of a condition imposed on the devisee, the 
 legacy, as the condition is void, sinks for the devisee's 
 benefit (c). 
 
 3. If the estate be devised charged with a sum, say of ] OOOL, 
 to be paid to the testator's executors and applied in discharge 
 of his debts and legacies, including a legacy to a charity, in 
 this case the charge is raisable as against the devisee, and 
 
 (a) Kennell v. Ahhott, 4 Ves. 811 
 (6) Cooper's Trusts, 4 De Gex, M 
 & G. 757. 
 
 (e) Poor V. Mial, 6 Madd. 32 
 Arnold v. Chapman, 1 Ves. 108 
 Ridgway v. Woodhouse, 7 Beav. 437 
 
 See contrct. Bland v. Wilkins, cited 
 Wright v. Row, 1 B. C. C. 61, note. 
 In Coohe v. Stationers^ Company, 
 the M. B,. said the condition made 
 no difference, as it was no more than 
 a charge, 3 M. & K. 266. 
 
liJl KEStTLTING TRUSTS. [CH. Vni. S. 1. 
 
 the charity legacy will be a resulting trust to the testator's 
 heir-at-law (a). 
 
 4. If the estate be simply devised to one, charged with or 
 subject to a legacy in favour of another, and there is nothing 
 on the face of the will to show that the legacy, though ex- 
 pressed in the form of a charge, was meant to be an exception, 
 then the leaning of the Court at the present day would appear 
 to be in favour of the devisee (6). 
 
 5. It may be doubted whether the circumstance of a direc- 
 tion for an intermediate payment to the testator's executors of 
 the sum to be raised be a tenable ground of distinction, and 
 should the Court decide in favour of the devisee in a case 
 under the fourth head, such decision would undoubtedly 
 shake those in favour of the heir under the third. It would 
 be a reasonable and intelligible rule to lay down that where 
 the failure of the legacy arises from any event which the 
 testator might reasonably have contemplated, as, the death of 
 the legatee in his lifetime, then the legacy should sink for the 
 benefit of the devisee ; but that where the legacy is raisable in 
 the event which has happened, and the legacy is only not paid 
 because the policy of the law, in spite of the intention, forbids 
 it, as in the case of a legacy to a charity, there the legacy was 
 in fact never given to the devisee, and a trust should result 
 for the benefit of the heir. The subject, as the matter now 
 stands, is in a very unsatisfactory state. 
 
 The interest that Fourthly. It has been stated in general terms, that, in the 
 
 suited may he cases we have mentioned, a trust will result to the settlor or 
 
 disposed of hy ^^g representatives, but the doctrine must be received with 
 
 at least this qualification, that the interest which would 
 
 (o) Arnold v. Chapman, 1 Vea. 3 Dow. 208—213. Lord Eldon as- 
 
 108; Henchman Y. Attorney-Gene- sumed the power to be good, tat 
 
 ral, 3 M. & K. 494. that as it was exercised in favour of 
 
 (6) Cooke V. Stationers' Com- a charity, the devisee was not af- 
 
 2}any, 3 M. & K. 262 ; Baker v. fected hy a void execution of the 
 
 Hall, 12 Ves. 497 (but the heir was power, and was rightly allowed to 
 
 not a party) ; Barrington v. Here- retain the estate : in fact, there was 
 
 ford, cited Wright v. Row, 1 B. C. no appointment to a charity, for 
 
 C. 61 ; Jackson v. Hurlock, 2 Ed. the letter, not being of a testamea- 
 
 263 ; Amh. 487 ; and see remarks of tary character, could not be read. 
 
 Lord Eedesdale and Lord Eldon on See contra, Qravenor v. Hallum, 
 
 this case in Tregonwell v. Sydenham, Amb. 643. 
 
CH. Vm. S. 1.] RESULTING TRUSTS. 195 
 
 have resulted be not otherwise disposed of by the settlor 
 himself. 
 
 Any interest that would have resulted may of course be 
 given away from the settlor's representative, by a particular 
 and specific devise or bequest ; it remains only to inquire what 
 is the effect of certain general expressions. 
 
 With respect to a testator's realty, the heir " shuU sit in Construction of 
 the seat of his ancestor," unless the disinherison be expressed due" in real 
 or clearly implied. The word " residue," therefore, has in ^^'**''' 
 devises received a strict and narrow construction, and is held 
 to mean, not all that the testator has not actually disposed of, 
 but only so much of which he has shown no intention of dis- 
 posing. Thus, if, before the late Wills Act, lands had been 
 devised upon trust to raise 5000Z. for a charity, the residue 
 to A., (a) or upon trust to raise 5000?. for a charity, with a 
 general devise " of all the residue of the testator's real estate, 
 whatsoever and wheresoever" (&), in either case the void legacy 
 would have resulted to the heir, and not have been included 
 in the residuary clause. But the law has now been altered in 
 this respect by the late Wills Act, which makes a residuary 
 devise sweep all interest undisposed of in real estate as 
 a residuary bequest already did in respect of personal 
 estate (c). 
 
 And if a testator direct his lands to be sold, and afterwards Construction of 
 add a general bequest of all his personal estate {d), or appoint tate"^as appli- 
 a person residuary executor (e), any part of the proceeds of the "^j"^^ *° ^'Tr^ai 
 sale that is undisposed of will not form part of the residuary estate. 
 fund in the first case, or pass to the residuary executor in the 
 
 (a) JSuteheson v. Hammond, 3 B. 325 ; OkeY. Heath, 1 Ves. HI, per 
 
 C. C. 128 ; Page v. Leapingwell, 18 Lord Hardwicke ; Cambridge v. 
 
 Ves. 463 ; Collins v. Waheman, 2 Rous, 8 Ves. 25, per Sir W. Grant ; 
 
 Ves. jun. 683 ; Cruse v. Barley, 3 Dos v. Underdown, Willes, 293. 
 
 P. W. 20 ; Jones v. Mitchell, 1 S. But see Page v. Leapingwell, 18 
 
 & S. 293 ; Sprigg v. Sprigg, 2 Vern. Ves. 463 ; but it does not appear 
 
 394, per Cur. ; Cooke v. Stationers' that the heir was a party, and the 
 
 Company, 3 M. & K. 264, per question was not discussed. 
 
 Cur. ; Anon, case, 1 Com. 345. (c) 1 Vict. c. 26, s. 25. 
 
 (J) Goodrightv.Opie, 6 Moi. 123; {d) Maugham v. Mason, 1 V. & 
 
 Wright Y. Hall, Port. 182; S. C. 8 B. 410; and see Gibbs y. Rumsey, 
 
 Mod. 222 ; Roe v. Fludd, Fort. 184 ; 2 V. & B. 294. 
 
 Watson Y. Earl of Lincoln, Amb. (e) Berry v. Usher, 11 Ves. 87. 
 
196 
 
 RESULTING TRUSTS. 
 
 [CH. nil. S. li 
 
 ' ' Personal es- 
 tate " in certain 
 cases may pass 
 sach proceeds. 
 
 Whether a gift 
 of residuary per- 
 sonal estate will 
 pass lapsed lega- 
 cies from pro- 
 ceeds of sale of 
 real estate. 
 
 Eesnlt of the 
 authorities. 
 
 second ; for nothing, properly speaking, is a testator's per- 
 sonal estate, but what possesses that character at the moment 
 of his decease (a). 
 
 But the intention of converting the property absolutely by 
 the sale, so as to make the proceeds undisposed of by the 
 wUl pass by the description of the testator's " personal estate," 
 may be collected from a wiU specially worded (b); and the 
 blending of the real and personal estates into one fund will 
 be regarded as a circumstance in some degree indicative of 
 such an intention (c) ; and this of course will be the case, 
 where the testator expressly directs the proceeds to be con- 
 sidered as part of his personalty (d). 
 
 The question has been much discussed, what expressions 
 of a testator will amount to such an absolute conversion of 
 real estate into personal, that a void or lapsed legacy given out 
 of the proceeds of the sale shall, as if the property had been 
 personal, fall into the residuary bequest, instead of resulting 
 to the heir. " I agree," said Lord Brougham, " a testator may 
 provide that lapsed and void legacies shall go in this manner, 
 as if the testator say in express words, ' I give all lapsed and 
 void legacies as parcel of my residue to the residuary legatee,' 
 and if he can do it by express words, he can do it by plain 
 and obvious intention to be gathered from the whole instru- 
 ment" (e). But what will amount to such an implication is a 
 point that can with difficulty be brought under any very defi- 
 nite rule. 
 
 Apparently the only principle to be extracted from the 
 
 (o) See Maugham v. Mason, 1 V. 
 & B. 416. 
 
 (J) Mallabar v. Mallabar, Rep. 
 t. Talb. 78 ; Brown v. Bigg, 7 Ves. 
 279; Durour v. Motteux, 1 Ves. 
 321. (See Motteux's will correctly 
 stated, Jones v. Mitchell, 1 S. & S. 
 292, note (d).) See observations on 
 Ifallabar v. Mallabar, and Durour 
 V. Motteux, in 3Iaugham v. Mason, 
 1 V. & B. 416. 
 
 (c) Compare Durour v. Motteux, 
 1 Ves. 321, with Maughan v. Mason, 
 1 V. & B. 417 ; Hutcheson v. Ham- 
 mond, 3 B. C, C. 148, per Lord 
 
 Thurlow ; but see Berry v. Uslier, 
 11 Ves. 87. 
 
 [d) Kidney v. Koussmaher, 1 Ves. 
 jun. 436 ; see Lowes v. Sackieard, 
 18 Ves. 171. In Collins v. Wake- 
 man, 2 Ves. jun. 683, the sum un- 
 disposed of did not fall into the 
 residue on the principle adopted m 
 Davers v. Dewes, 3 P. W. 40, and 
 Attorney- General v. Johnstone,ATBb. 
 577. 
 
 (e) Amphlett v. Parhe, 2 R. &M. 
 232 ; and see M' Cleland v. Shaw, 
 2 Sch. & Lef. 545. 
 
CH. Vm. S. 1.] RESULTING TRUSTS. 197 
 
 authorities is, that a lapsed or void legacy will pass to the 
 residuary legatee, if the testator expressly declare that the pro- 
 ceeds of the sale shall be considered as "personal estate," or 
 if the intention of an absolute conversion into personal estate 
 for all the purposes of the will can, without the aid of any such 
 express declaration, be gathered from the general structure of the 
 will (a). It was stated in a former page, that if a testator direct 
 the proceeds of the sale to he taken as "personal estate," a 
 part of the proceeds undisposed of hy him wUl nevertheless not 
 result to the next of kin. The distinction between the next of 
 kin and the residuary legatee is this : the former claim dehors 
 the will, while the latter is a claimant under the will, and when 
 the proceeds of the sale are directed to be taken as personalty, 
 the testator must be understood to mean for the purposes of 
 the will only, and not for any object beyond it. 
 
 With respect to resultiag trusts of personal estate, the Eesulting trust 
 general residuary bequest sweeps every interest, whether un- 
 disposed of by the will, or undisposed of in event, and there- 
 fore it is only where the will contains no residuary clause that 
 the next of kin can assert a claim to the benefit of the result- 
 ing interest (fe). But if any part of the personal estate be 
 expressly excepted from the residue, as if a testator reserve 
 a sum to be disposed of by a codicil, and give the residue not 
 disposed of or reserved to be disposed of to A., and no codicil 
 is executed, the sum so specially excepted wiU then result to 
 the next of kin (c). 
 
 It may happen that a cestui que trust has died intestate, Case of cestui 
 
 que trust dyiug 
 
 without heir or next of kin, and in that case the beneficial without heir or 
 interest undisposed of wiU, if the property be real estate (a 
 
 (a) Durour Y. Motteux, lYes. 321 (b) See Dawson v. Clarke, 15 
 
 (see the will stated from Reg. Lib. Ves. 417 ; Brown v. Siggs, 4 Vea. 
 
 in Jones v. Mitchell, 1 S. & S. 292, 708 ; S. C. 8 Ves. 570 ; Shanley v. 
 
 note (d) ) ; Kennell v. Abbott, 4 Baker, 4 Ves. 722 ; Jackson v. Kelly, 
 
 Ves. 802; Amphlett v. Parhe, 1 2 Ves. 285 ; Oke v. Heath, 1 Ves. 
 
 Sim. 275; S. C. 2 R. & M. 221; 141; Cambridge y. Rous, &ye%. 25; 
 
 Green v. Jackson, 5 Enss. 35 ; S. C. Cooke v. Stationers' Company, 3 M. 
 
 2 E. & M. 238 ; Salt v. Chattaway, & K. 264. 
 
 3 Beav. 576. As to Mallabar v. (c) Davers v Bewes, 3 P. W. 40 ; 
 Mallahar, Rep. t. Talb. 78, see Attorney- General Y.Johnstone,kiab. 
 Phillips V. Phillips, 1 M. & K. 660. 577. 
 
198 
 
 RESULTING TEUSTS. 
 
 [CH. vin. S. 1. 
 
 Of resulting 
 trusts in gifts to 
 charities. 
 
 Where no otject 
 expressed, the 
 Court will direct 
 the application of 
 the estate to 
 some charity. 
 
 Where the rents 
 increase, the 
 surplus will he 
 applied to like 
 charitable jmr- 
 
 trust not being liable to escheat), sink into the land for the 
 benefit of the legal tenant {a) ; but in the case of personalty 
 the resulting interest, as honwm vacans, falls to the crown by 
 the prerogative (6). 
 
 Lastly, it may be noticed that settlements to charitable 
 purposes are an exception from the law of resulting trusts: 
 for, upon the construction of instruments of this kind, the 
 Court has adopted the two following rules : — 
 
 1. Where a person makes a gift, whether by deed or will, 
 and expresses a general intention of charity, but either par- 
 ticularises no objects (c), or such as do not exhaust the pro- 
 ceeds {d), the Court will not suffer the property in the first case, 
 or the surplus in the second, to result to the settlor or his 
 representatives, but will take upon itself to execute the general 
 intention, by declaring the particular purposes to which the 
 fund shall be applied. 
 
 3. Where a person settles lands, or the rents and profits 
 of lands to purposes which at the time exhaust the whole 
 proceeds, but, in consequence of an increase in the value of 
 the estate, an excess of income subsequently arises, the Court 
 will order the surplus, instead of resulting to the heir, to be 
 applied in the same or a similar manner with the original 
 amount (e). 
 
 (a) Henchman v. Attorney- Gene- 
 ral, 3 M. & K. 485; Taylor v. Hay- 
 garth, 14 Sim. 8. 
 
 (5) See 8. C. ; and see Middleton 
 v. Spicer, 1 B. C. C. 201 ; Barclay 
 V. Russell, 3 Ves. 424 ; Taylor v. 
 Haygarth, ubi suprd. 
 
 (e) Attorney- General v. Herrich, 
 Amb. 712. 
 
 {d) Attorney-General v. Haber- 
 dashers^ Company, 4 B. C. C. 102 ; 
 8. C. 2 Ves. jun. 1 ; Attorney- 
 General x. Minshull, 4 Ves. 11 ; At- 
 torney- General v. Arnold, Shower's 
 P. C. 22; and see Attorney -General 
 V. 8parl!,s, Amb. 201 ; and see 
 Lord Eldon's observations, Attorney- 
 General V. Mayor of Bristol, 2 J. & 
 W. 319. 
 
 (e) Inhabitants ofEltham v. War- 
 
 reyn, Duke, 67 ; 8utton 
 case, secondresolution, Id. 68; Myn- 
 shaw y. Morpeth Corporation, Id. 69 ; 
 Thetford School case, 8 Be. 130 b; 
 Attorney- General v. Johnson, Amb. 
 190; Kensington Hastings^ case, 
 Duke, 71; Attorney - General v. 
 Mayor of Coventry, 2 Vem. 397, re- 
 versed in D. P. 7 B. P. C. 236 (seethe 
 foregoing cases commented upon by 
 Lord Bldon in Attorney- General v. 
 Mayor of Bristol, 2 J. & "W. 316); 
 Attorney- General v. Coopers' Com- 
 pany, 19 Ves. 189, per Lord Eldon ; 
 Attorney- General v. Wilson, 3 M. 
 & K. 362 ; Lad v. London City, 
 Mos. 99 ; Attorney - General v. 
 Coopers' Company, 3 Beav. 29 ; At- 
 torney-General V. Master of Ca- 
 therine Hall, Cambridge, Jac. 381; 
 
CH. Yin. S. 2.] PURCHASES IN NAMES OP STBANGEES. 199 
 
 But even in the case of charity, if the settlor do not give Exception from 
 the land, or the whole rents of the land, but, noticing the rules. 
 property to be of a certain value, appropriate part only to the 
 charity, the residue will then follow the general rule, and 
 result to the heir-at-law (a). 
 
 The exceptions we have noticed were established at an early The doctrine in 
 
 favour of cnari- 
 
 period, when the doctrine of resulting trusts was imperfectly ties established 
 understood (&). The interest of the heir was shut entirely out -were settled. 
 of sight, and the question was viewed as between the charity 
 and the trustee (c). Were the subject still unprejudiced by 
 authority, there is little doubt but the Court would, at the 
 present day, be governed by the general principle, and hold a 
 trust to result (d). 
 
 SECTION 11. 
 
 EESULIIira TETJSIS trPON PUECHASES IN THE NAMES OP THIED PEESONS. 
 
 I. Where the purchase is in the name of a stranger. General rule. 
 
 " The clear result," said Lord Chief Baron Eyre, " of all 
 the cases, without a single exception, is that the trust of a 
 legal estate, whether freehold, copyhold, or leasehold ; whether 
 taken in the names of the purchaser and others jointly, or in 
 the name of others without that of the purchaser ; whether in 
 one name or several, whether jointly (e) or successive (/), results 
 
 Attorney- General v. Drapers' Amb. 190, ^er Lord Hardwieke; At- 
 
 Company, 2 Beav. 508 ; 4 Beav. 67 ; torney- General v. Mayor of Bristol, 
 
 Attorney- General v. Christ's Sos- 2 J. & W. 307, per Lord Eldon. 
 
 pital, ib. 73; Attorney-General y. (c) S:b6 Thetford School case, %'Rb. 
 
 Merchants Venturers' Society, 5 130. 
 
 Beav. 338; Attorney- General r. (d)SeeAttorney-GeneralY. Mayor 
 
 Corporation of Southmolton, 14 of Bristol, 2 J. & W. 307. 
 
 Beav. 357; Attorney- General v. (e) See Exparte Houghton, 17 
 
 Caius College, 2 Keen, 150 ; and Ves. 251 ; JSider v. Kidder, 10 Ves. 
 
 see Attorney- General v. Smythies, 367. 
 
 2 R. & M. 717; Attorney- General (/) Withers v. Withers, Amb. 
 
 V. Drapers' Company, 6 Beav. 382. 151 ; Howe v. Howe, 1 Vern. 415 ; 
 
 (a) 8e^ Attorney- GeneralY. Mayor Goodright v. Hodges, 1 Watk. Cop. 
 
 0/ 5mH 2 J. & W. 307 and 332; 227; S. C. Lofft, 230; Smith v. 
 
 Attorney-General v. Gascoigne, 2 Baher,l AX\. Z%5; ClarheY. Dan- 
 
 M. & K. 647. vers, 1 Ch. Ca. 310 ; Pranherd v. 
 
 (i) Attorney- GeneralY, Johnson, Pranherd, 1 S. & S. 1. 
 
200 
 
 PURCHASES IN NAMES OF STRANGEES. [CH. VIU. S. 2. 
 
 "Who in particu- 
 lar cases is the 
 real purohaaer. 
 
 Principle appli- 
 cable to per- 
 
 Joint advance 
 and purchase in 
 name of third 
 person. 
 
 to the man wlio advances the purchase -money (a); and it goes 
 on a strict analogy to the rule of the common law, that where 
 a feoffment is made without consideration, the use results to 
 the feoffor (&). 
 
 But no trust will result unless the person advance the 
 money in the character of a purchaser ; for if A. discharge the 
 purchase-money by way of loan to B., in whose name the 
 conveyance is taken, no trust will result in favour of A., who is 
 merely a creditor of B. (c) And, on the other hand, should B. 
 advance the purchase-money, but only on account of A., then 
 A. is the owner in equity, and B. stands in the light of a 
 creditor (d). 
 
 And not only real estate but personalty also is governed by 
 these principles, as if a man take a bond (e), or purchase an 
 annuitj'^ (/), stock (g), or other chattel interest (h), in the name of 
 a stranger, the equitable ownership results to the person from 
 whom the consideration moved. 
 
 In Crop V. Norton (i) Lord Hardwicke doubted whether the 
 rule was not confined to an individual purchaser. " Suppose, " 
 he said, "two persons purchase an estate, and club for the 
 consideration-money; suppose the conveyance is taken in the 
 name of one of them only, and it recites that the whole of the 
 
 (a) Sedingtonv. Sedington, 3E.idg. 
 177, per Lord Loughborough ; Hun- 
 gate V. Hungate, Tothill, 120 ; Ex- 
 parte Vernon, 2 P. W. 549 ; Am- 
 brose V. Ambrose, 1 P. W. 321 ; 
 Willis V. Willis, 2 Atk. 71 ; Wood- 
 man V. Morrel, 2 Freem. 33, per Cur.; 
 ib. 123 ; Finch v. Finch, 15 Ves. 
 50, per Lord Eldon ; Grey v. Grey, 
 2 Sw. 597 ; 8. C. Finch, 340, per 
 Lord ITottingham ; Wray v. Steele, 
 2 V. & B. 390, per Sir T. Plumer ; 
 Smithy. Came^fortf, 2 Ves. jun. 712, 
 per Lord Loughborough; Anon. 2 
 Vent. 361 ; Felly v. Maddin, 21 
 Vin. Ab. 498 ; Lever v. Andrews, 
 7 B. P. C. 288; Lade v. Lade, 1 
 Wils. 21 ; Groves v. Groves, 3 Y. & 
 J. 170, per Ch. Bar. Alexander ; 
 Murless v. Franklin, 1 Sw. 17, 18, 
 per Lord Bldon ; Crop v. Norton, 9 
 Mod. 235; S. C. Barn. 184; S. C. 
 
 2 Atk, 75, per Lord Hardwicke; 
 Trench v. Harrison, 17 Sim. 111. 
 
 (6) Dyer v. Dyer, 2 Cox, 93; 8.C. 
 1 Watk. Cop. 218. 
 
 (c) See Bartlett v. PicTtersgill, 1 
 Ed. 516 ; Crop v. Norton, 9 Mod. 
 235. 
 
 {d) See Aveling v. Knipe, 19 Ves. 
 441. 
 
 (e) Ebrand v. Dancer, 2 Ch. Ca. 
 26. 
 
 (/) Mortimer v. Davies, cited 
 Rider v. Kidder, 10 Ves. 363, 366. 
 
 {g) Rider Y. Kidder, 10 Ves. 360; 
 Loyd V. Read, 1 P. W. 607 ; and 
 see Sidmouth v. Sidmouth, 2 Beav. 
 447. 
 
 (A) See Exparte Houghton, 17 
 Ves. 253. 
 
 (j) Barn. 179; S. C. 9 Mod. 233; 
 8. a 2 Atk. 74. 
 
CH. Vni. S.-2.] PUECHASES IN NAMES OF STBANGEES. SOI 
 
 purchase-money was paid by the other. I do not know a case 
 wherein it has ever been declared there could be a resulting 
 trust in part of the estate for the benefit of the other {a)." But 
 in Wray v. Steele (b) the point was expressly decided in con- 
 formity with the general principle, and Sir Thomes Plumer 
 observed, that Lord Hardwicke could not have used the 
 language ascribed to him ; for what was there applicable to an 
 advance by a single individual which was not equally applicable 
 to a joint advance under similar circumstances ? 
 
 If two persons, joining in a purchase, take the conveyance, Joint advance 
 not in the name of a stranger, or of one of themselves, but in joint-tenants. 
 the names of both of themselves as joint- tenants, then a 
 distraction must be observed between an equal and an unequal Equal contribu- 
 
 ... . tion. 
 
 contribution. In the former case there is nothing on which to 
 ground the presumption of a resulting trust, for persons making 
 equal advances might very consistently take an estate in joint- 
 tenancy, as each has it in his power to compel a partition, or 
 by executing a conveyance to pass a moiety of the estate (c). 
 Ajid so, if two persons contract for a purchase to them and 
 their heirs, and one of them die, the Court, if they paid equal 
 proportions, will specifically perform the agreement, by ordering 
 a conveyance, not to the heir of the deceased person and the 
 survivor as tenants in common, but to the survivor alone {d). 
 But even where equal contributors take a conveyance in 
 joint-tenancy, collateral circumstances may induce a Court of 
 Equity to construe it a tenancy in common, as if two people 
 join in lending money upon mortgage, equity says it could not Mortgage. 
 have been the intention that the interest in that should survive ; 
 but though they took a joint security, each meant to lend his 
 own, and take back his own (e). And so where two tenants in 
 
 (o) Barn. 184, Anon, Carth. 15 ; and see Thick- 
 (i) 2 V. & B. 388. nesse v. Vernon, 2 Freem. 84. 
 (e) Rea v. Williams, Append, to [A) Aveling y. Kni2>e, IdYea.'Ul. 
 Vend, and Puroh. Wo. 24 ; Moyse y. (e) Morley v. Bird, 3 Ves. 631, 
 Gyles, 2 Vern. 385 ; York v. Eaton, per Lord Alvanley ; Rigden v. Val- 
 2 Freem. 23 ; Rigden v. Vallier, 3 lier, 3 Atk, 734, per Lord Hard- 
 Atk. "735, per Lord Hardwicke; wicke; .4«o». case, Carth. 16; Part- 
 Hayes Y. Kingdome, 1 Vern. 33 ; ridge v. Pawlet, 1 Atk. 467 ; Petty 
 Aveling v. Knipe, 19 Ves. 444, per v. Styward, 1 Ch. Re. 57 ; Tickers 
 Sir W. Grant ; Lake v. Gibson, 1 v. Cowell, 1 Beav. 529. 
 Eq. Ca. Ab. 291, per Sir Jos. Jekyll ; 
 
203 
 
 PURCHASES IN NAMES OF STEANGEES. [CH. VIH. S. 2. 
 
 Trading. 
 
 Subsequent im- 
 provement by 
 
 Unequal contri- 
 bution. 
 
 Copyhold grant 
 to A. for life, 
 and fine paid by 
 B., who on B.'s 
 death shall have 
 it? 
 
 common, of a mortgage term, purchased the equity of redemp- 
 tion to them and their heirs, it was held the nature of the 
 inheritance should follow that of the term {a). And in all cases 
 of a joint undertaking or partnership, by way of trade, or upon 
 the hazard of profit and loss, the jus accreseendi is excluded 
 and the survivors are trustees, in due proportions, for the 
 representatives of those who are dead (6). And where the 
 purchasers pay equally, and take a joint estate, and one after- 
 wards improves the property at his own cost, he has a lien upon 
 the land pro tanto for the money he has expended (c). Should 
 the contribution of the parties be unequal, then in all cases a 
 trust results to each of them in proportion to the amount 
 originally subscribed {d). 
 
 If A. discharge the fine on a grant of copyholds to B., C, 
 and D. successively for their lives, the equitable interest will 
 result to A. ; but should A. die intestate, on whom will the 
 remaining equity devolve ? Estates pur autre vie in copyholds 
 were not within the Statute of Frauds (e), nor the 14 Gr. 3. 
 c. 20. s. 9. (/), and before the late Wills Act the questions were 
 asked, Can the heir take an estate which has no descendible 
 property ? or can the executor claim as assets what is not of the 
 nature of personalty ? or shall the tenants of the legal estate 
 become the beneficial proprietors in the absence of any one to 
 advance a better title ? In Glarh v. Danvers (g) the plaintiff 
 was both heir and executor of the equitable owner, and was 
 decreed the benefit of the trust. In Howe v. Howe (h) the 
 administratrix was held entitled, and so it was allowed in Bundle 
 V. Rundle (i), and was determined in Withers v. Withers {k), and 
 was subsequently sanctioned by the high authority of Lord 
 
 (a) Bdwards v. Fashion, Pr. Oh. 
 332 ; and see Aveling v. Knipe, 19 
 Ves. 444. 
 
 (5) Lahe v. Gibson, 1 Eq. Ca. Ab. 
 290 ; S, C. (by name of Lake v. 
 Craddoeh) affirmed 3 P. W. 158; 
 Jeffereys v. Small, 1 Vern. 217 ; 
 Elliot v. Brown, cited Jackson v. 
 Jackson, 9 Ves. 597 ; Jjyster v. 
 Dolland, 1 Ves. jun. 434, 435, per 
 Lord Thurlow ; and see York v. 
 Eaton, 2 Freem. 23. 
 
 (c) Lake v. Oibson, 1 Eq. Ca. Ab. 
 291,per Sir J. Jekyll. 
 
 {d) Lake v. Oibson, 1 Eq. Ca. Ab. 
 291, per Sir J. Jekyll; JRigden v. 
 Vallier, 3 Atk. 735, per Lord Hard- 
 wioke. 
 
 (e) 29 Car. 2. o. 3. s. 12. 
 
 (/) Eundle v. Rundle, Amb. 152. 
 
 {g) 1 Ch. Ca. 310. 
 
 [h) 1 Vern. 415. 
 
 (i) 2 Vern. 252, 264; S. C. Amb.152. 
 
 [k) Amb. 151. 
 
CH. Vni. S. 2.] PURCHASES IN NAMES OF STEANGEES. 203 
 
 Mansfield. "It is always presumed," said his Lordship, "that 
 whoever pays the fine takes for his own use and benefit, and does 
 not mean to serve the others, who are mere nominees to give as 
 large an estate as by the rules of the manor he can have ; and 
 as his personal estate is diminished by the payment of the fine- 
 money his personal representative is entitled to the advantage 
 resulting from it" (a). Now_by the late Wills Act (1 V. c. 26. 
 s. 6.) it is declared, that an estate pur autre vie in copyhold 
 shall, if not disposed of by the will of the grantee, go to his 
 personal representative. 
 
 The Court cannot imply a resulting trust in evasion of an No resulting 
 act of parliament, and therefore if A., on purchasing a ship, cha.se of a ship in 
 take the transfer in the name of B., the complete ownership, ^t-^^nger's name. 
 both legal and equitable, is in B. (h) In order to enforce the 
 navigation laws, and secure to British subjects the exclusive 
 enjoyment of British privileges, the Eegistry Acts require an 
 exact history to be kept of every ship, how far throughout her 
 existence she has been British built and British owned, and if 
 implied trusts were permitted the whole intent of the legisla- 
 ture might be indirectly defeated (c). It was at first contended 
 that the acts were not meant to apply to transfers by operation 
 of law ; nor are they to transfers by mere operation of law that 
 could not be effected in the mode prescribed by the statutes, 
 as in the transfer to executors, to assignees of bankrupts, &c. ; 
 but they do reach the case of transfers not by mere operation 
 of law, but connected with the acts of parties, and arising ex 
 contractu (d). 
 
 Upon the same principle, while the papistry laws were in Resulting tmsts 
 force, if A., a papist, had purchased an estate in the name of acts. 
 B., the Court could not have presumed a resulting trust to A., 
 which, as soon as raised, would have become forfeitable to the 
 state (e). 
 
 And so if a purchaser take a conveyance in the name of In purchases for 
 
 giving Totes. 
 
 (a) Goodright v. Hodges, 1 Watk. (c) See Exparte Yallop, 15 Ves. 
 
 Cop. 228 ; and see Rumholl v. Rum- 66, 69. 
 
 loll, 2 Ed. 15. {d) See Exparte Yallop, 15 Ves. 
 
 (J) Exparte Yallop, 15 Ves. 60 ; 68 ; Exparte Soughton, 17 Ves. 
 
 Exparte Houghton, 17 Ves. 251 ; 254. 
 
 Camden y. Anderson, 5 T. E. (e) See Redington v. Redington, 
 
 709. 3 Ridg. 184. 
 
204 
 
 PURCHASES IN NAMES OF STRANGERS. [CH. Vm. S. 2. 
 
 Parol evidence aa 
 regards Statute 
 of Frauds. 
 
 Purchase by aa 
 agent. 
 
 another, with the view of giving him a vote for a member of 
 parliament, he cannot afterwards claim the beneficial owner- 
 ship, for the operation of such a right would render the original 
 purchase fraudulent {a). 
 
 As the Statute of Frauds (6) extends to creations or de- 
 clarations of trusts by parties only, and does not affect, indeed 
 expressly excepts, trusts arising by operation or construction 
 of law, it is competent for the real purchaser to prove his pay- 
 ment of the purchase-money by parol, even though it be 
 otherwise expressed in the deed. 
 
 In Kirk v. Webb (c) it was argued " there could be no trust 
 unless there were a declaration in the deed to that purpose, 
 for by the statute there could be no trust unless it were 
 ■declared in writing; that if it were a resulting trust, it was 
 made so by parol proof, which was directly contrary to the 
 statute, and would open a door to all the mischiefs it was 
 intended to prevent ; that it would introduce an utter un- 
 certainty into all men's titles, for the best title might be 
 spoiled by proving the purchase-money to be another 
 person's ; " and the Court refused to admit the evidence, and 
 the decision was followed in subsequent cases (d) ; however, the 
 doctrine, though supported by numerous precedents, has since 
 been clearly overthrown by the concurrent authority of the 
 most distinguished judges (e). 
 
 The rule as at present established will not warrant the 
 admission of parol evidence, where an estate is purchased by 
 an agent, and no part of the consideration is paid by the 
 employer ; for though an agent is a trustee in equity, yet the 
 
 (a) Groves v. Groves, 3 Y. & J. 
 163, see 172, 173. 
 (5) 29 Car. 2. c. 3. 
 
 (c) Free. Ch. 84. 
 
 (d) Heron v. Seron, Pr. Ch. 163 ; 
 ,S. C. Freem. 248; Skett v. Whit- 
 more, Freem. 280 ; Kinder v. Miller, 
 Pr. Ch. 172 ; and see Halcott v. 
 Markant, Pr. Oh. 168 ; Hooper v. 
 Eyles, 2 Vern. 480 ; Newton v. 
 Preston, Pr. Ch. 103 ; Cox v. Bate- 
 man, 2 Ves. 19; Ambrose \. Ambrose, 
 1 P. W. 321 ; Deff v. Deg, 2 P. W. 
 
 414. The earlier case of Gascoigne 
 V. Thwing, 1 Vern. 366, accorded 
 with the modern doctrine. 
 
 (e) Ri/all V. Ryall, 1 Atk. 59; 
 S. C. Amb. 413; Willis v. Willis, 
 2 Atk. 71 ; Bartlett v. Pichersgill, 
 1 Ed, 515 ; Lane v. BigUon, Amb. 
 409 ; Knight v. Pechey, 1 Dick. 327; 
 S. a cited from MS. 3 Vend. & 
 Purch. 258 ; Groves v. Groves, 3 Y. 
 & J. 163 ; Lench v. Lench, 10 Ves. 
 517. 
 
CH. Vni. S. 2.] PUECHASES IN NAMES OP STEANGERS. 205 
 
 trust is one arising ex contractu, and not resulting by operation 
 of law (a). The agent may be indicted for perjury in denying 
 his character, and may be convicted, yet the Court has no 
 power to decree the trust (&). The employer, therefore, as he 
 cannot profit by the conviction, is not prevented by interest 
 from being a witness against the agent (c). 
 
 And parol evidence, where admitted, must prove the fact Parol evidence 
 very clearly (d) ; though no objection lies against the reception 
 of mere circumstantial evidence, as that the circumstances 
 of the pretended purchaser were so mean as to make it im- 
 possible he should have paid the purchase-money himself (e). 
 
 Should the nominal purchaser deny the trust by his answer, Trust may be 
 there seems to be no reason why parol evidence should not be defoidant'T de'- 
 admitted to establish the fact against him ; for, before the "*'• 
 Statute of Frauds, parol evidence was undoubtedly admissible, 
 and, as trusts by operation of law are expressly excepted from 
 the statute, by what rule is parol evidence to be excluded (/) ? 
 But the solemnity of the defendant's oath will of course 
 require a considerable weight of evidence to overcome its 
 impression (g). 
 
 It is laid down by Mr. Sanders, that "if a person at his Of parol evidence 
 death leave any papers disclosing the real circumstances of the of the nominal 
 case, the Court will raise the trust even against the express p^'=''*^^''- 
 declaration of the purchase-deed (h)." We have seen that, 
 according to the latest authorities, parol evidence is ia ordinary 
 
 (o) Bartlett r. Pichersgill, 1 Ed. v. Lench, 10 Ves. 518 ; Wilkine v. 
 
 515; Mmtel v. Hutchinson, 1 Dick. Stevens, 1 Y. & C. Ch. Ca. 431. 
 44 ; Lamas v. Bayly, 2 Vem. 627 ; (/) In Bartlett v. Pichersgill, 1 
 
 Atkins v. Howe, Mose. 39; S. C. Ed. 515, where the defendant denied 
 
 Cas. Dom. Proo. 1730. the trust, Lord Henley said, if the 
 
 (6) Bartlett v. Pickersgill, 1 Ed. plaintiff had paid any part of the 
 
 517. purchase-money, he would have ad- 
 
 (c) King v. Boston, 4 East, 572. mitted the evidence ; and see Ed- 
 
 (d) Oascoigne v. Thwing, 1 Vem. wards v. Pike, 1 Ed. 267. Mr. 
 366 ; Halcott v. Markant, Pr. Ch. Sanders (Uses and Trusts, c. 3. s. 7. 
 168 ; Willis v. Willis, 2 Atk. 71 ; div. 2 ) dissents from the doctrine ; 
 Goodright v. Hodges, 1 Watk. Cop. hut the authorities cited hy him to 
 229, per Lord Mansfield ; Groves v. the contrary do not appear to war- 
 Crowes, 3 Y. & J. 163 ; and see rant his conclusion. 
 
 Pider v. Kidder, 10 Ves. 364. {g) See Cooth v. Jackson, 6 Ves. 39. 
 
 (e) Willis V. Willis, 2 Atk. 71, [h) CJses and Trusts, c. 3. s. 7. 
 per Lord Hardwicke ; and see Bench div. 2. 
 
200 PUECHASES IN NAMES OF STRANGERS. [CH. Vni. S. 2. 
 
 cases admissible against the language of the purchase-deed; 
 but, if Mr. Sanders's opinion to the contrary {a) were well 
 founded, it does not appear how mere papers would satisfy the 
 requisitions of the statute; for, to have that effect, the 
 writings ought also to be signed by the party. The cases 
 of Ryall V. Byall (&) and Lane v. Dighton (a), which are 
 cited for the position, do not at all turn upon the distinction 
 suggested. 
 
 It is observed by the same writer, that, " after the death of 
 the supposed nominal purchaser, parol proof alone can in no 
 instance be admitted against the express declaration of the 
 deed " (d) ; but the cases relied upon in support of this doc- 
 trine (e) do not distinguish between proofs in a person's hfe- 
 time and after his decease : they are certainly authorities for 
 the exclusion of parol evidence universally, but in this respect, 
 as before noticed, they have been subsequently overruled. It 
 would seem, upon principle, that the death of the nominal 
 purchaser cannot affect the admissibility of parol testimony, 
 whatever effect it may have in detracting from its weight. 
 Of following In the question, whether a purchase in the name of a third 
 
 trust-money into ,,.,,, . . •■,■■,, 
 
 land. person can be estabushed by parol testimony is also mvolved 
 
 the question, whether trust-money can be followed into land 
 
 by parol. A purchase with trust-money is virtually a purchase 
 
 paid for by the cestuis que trust ; and on the ground that such 
 
 a purchase is a trust resulting by operation of law, and not 
 
 within the purview of the Statute of Frauds, it has been settled 
 
 that parol evidence is clearly admissible (/). 
 
 The resulting On the other hand, as the trust results to the real purchaser 
 
 rebutted by by presumption of law, which is merely an arbitrary impli- 
 
 P^™'" cation in the absence of reasonable proof to the contrary, the 
 
 nominal purchaser is at liberty to rebut the presumption by 
 
 , (a) Uses and Trusts, c. 3. s. 7. id. 168; Kinder y. Miller, id. 172; 
 
 div. 2. S. C. 2 Vera. 440 ; Deg v. Beg, 2 
 
 (J) Amb. 413. P. "W. 414, per Lord King. 
 
 (c) Amb. 409. (/) Lench v. Lench, 10 Ves. 517, 
 
 {d) Uses and Trusts, c. 3. s. 7. per Sir W. Grant ; Byall v. Byall, 
 
 div. 2. 1 Atk. 59 ; S. C. Amb. 413 ; Lane 
 
 (e) Kirh v. Wehh, Pr. Ch. 84 ; v. Dighton, Amb. 409 ; Balgney v. 
 
 8. C. Freem. 229 ; Heron v. Heron, Hamilton, Amb. 414 ; Trench v. 
 
 Pr. Ch. 1G3 ; Hakott v. Markanf, Ilarrinon, 17 Sim. 111. 
 
<!H. Vm. S. 2.] PURCHASES IN NAMES OF STRANGERS. 207 
 
 the production of parol evidence showing the intention of 
 conferring the heneficial interest (a). And as he may repel 
 the presumption in toto, so may he in part ; as hy proving the 
 purchaser's intention to permit the legal tenant to enjoy bene- 
 ficially for life (&). 
 
 And when it has been once ascertained what was the under- Declarations snt- 
 standing of the parties at the time of the purchase, it is not purchase. 
 competent to the real purchaser to put a different construction 
 upon the instrument at any subsequent period (c) ; and even 
 if under such circumstances the legal tenant agreed afterwards 
 to execute a conveyance to the person who paid the money, 
 the Court would not enforce the contract, if merely volun- 
 tary (tZ). The real purchaser may also be barred of his interest Effect of time. 
 by laches, for the presumption of a resulting trust will not be 
 raised, after a great length of time, in opposition to the evi- 
 dence arising from actual enjoyment (e). 
 
 II. Where the purchase is made by a father in the name of 
 his child. 
 
 In this case, instead of a resulting trust, the presumption of Advancement. 
 law is, that a provision was intended (/). The grounds of this 
 doctrine are thus stated by Lord Nottingham (g) : — 
 
 1. "The natural consideration of blood and affection is so Grounds of the 
 apparently predominant, that those acts which would imply a 
 
 rule. 
 
 (a) Goodright v. Hodges, 1 "Watk. Sidmouth v. Sidmouth, 2 Beav. 454 ; 
 
 Cop. 227 ; S. C. Lofft, 230 ; Rider v. per Lord Langdale ; Redington v. 
 
 Kidder, 10 Ves. 364; Rundle v. Redington, 3 Ridg. \1Q, per Lord 
 
 Rundle, 2 Vern. 252, 264 ; Taylor v. Loughborougli ; Christy v. Courte- 
 
 Taylor,lAtk.386; Redingtomr.Red- nay, 13 Beav. 96; ElliotY. JSlliot, 
 
 8n^fore,3Eidg. 106; seel65,177,178. 2 Ch. Ca. 231, agreed; BedwellY. 
 
 (6) Rider v. Rider, 10 Ves. 360 ; Froome, cited 2 Cox, 97, and 1 
 
 see 368 ; Benhow v. Townsend, 1 M. Watk. Cop. 224, per Sir T. Sewell ; 
 
 & K. 506. Goodright v. Hodges, 1 "Watk. 
 
 (c) Groves v. Groves, 3 T. & J. Cop. 228, per Lord Mansfield ; Pole 
 
 172, per Alexander, C. B. v. Pole, 1 Ves. 76, per Lord Hard- 
 
 {d) Groves Y.Groves,SY.& J. 1Q3. wioke ; Lamplugh v. Lamplugh, 1 
 
 (e) Delane v. Belane, 7 B. P. C. P. W. Ill, 2d point ; Woodman v. 
 
 279 ; and see Groves v. Groves, 3 T. Morrel, 2 Freem. 33, per Cur. ; 
 
 & J. 172. Murless v. Franklin, 1 Sw. 17, 18, 
 
 (/) Dyerv.Dyer, 2Cox, 93; iS. C. per Lord Eldon ; Finch v. Finch, 
 
 1 Watk. Cop. 219, ^er Eyre, C. B. ; 15 Ves. 50, per eundem; Feaxne's 
 
 Grey v. Grey, 2 Sw. 597 ; S. C. P. W. 327, &o. 
 
 Finch, 340, per Lord Nottingham ; (g) Grey v. Grey, 2 Sw. 598. 
 
208 PUECHASE IN NAME OF A CHILD. [CH. VDI. S. 2. 
 
 trust in a stranger -will not do so in a son ; and, ergo, the 
 father who would check and control the appearance of nature, 
 ought to provide for himself hy some instrument or some clear 
 proof of a declaration of trust, and not depend upon an impli- 
 cation of law. 
 
 2. " All the books are agreed on this point, that a feoffment 
 to a stranger without a consideration raised a use to the feoffor, 
 but a feoffment to the son without other consideration raised no 
 use by implication to the father, for the consideration of blood 
 settled the use in the son, and made it an advancement. How 
 can this Court justify itself to the world if it should be so 
 arbitrary as to make the law of trusts differ from the law of 
 uses in the same case ? 
 
 3. "Again, as land can never lineally ascend, so neither 
 shall the trust of land lineally ascend where it is left to the pre- 
 sumption of law (a) ; for the reason why land doth not lineally 
 ascend is, not, as my Lord Coke says, from natural philosophy, 
 quia gravia deorsum, but from moral philosophy, qida amor 
 descendit, non ascendit, and from divinity, because fathers are 
 bound to provide for their children, but children do not' pro- 
 vide for their fathers : therefore, when a father, according to 
 his duty, has provided for his son, it were hard to take away 
 that provision by a constructive trust." 
 
 The relationship " The circumstance," said Lord Chief Baron Eyre, " of one 
 ^i^A^^'^ ^""^ or more of the nominees being a child or children of the pur- 
 
 caiid a mere t> -t 
 
 circumstance of chaser, is held to operate by rebutting the resulting trust ; and 
 
 evidence. 
 
 it has been determined in so many cases that the nommee 
 being a child shall have such operation as a circumstance of 
 evidence, that it would be disturbing land-marks if we suffered 
 either of these propositions to be called in question ; — namely, 
 That such circumstance shall rebut the resulting trust ; and, 
 That it shall do so as a circumstance of evidence. I thinlc it 
 would have been a more simple doctrine, if the children had 
 been considered as purchasers for valuable consideration. This 
 way of considering it would have shut out all the circumstances 
 of evidence which have found their way into many of the 
 
 (a) This ground for the doctrine under the late Inheritance Act, takes 
 no longer exists — since the father, next after brothers and sisters. 
 
CH. Vm. S. 2.] PURCHASE IN NAME OP A CHILD. 209 
 
 cases, and -would have prevented some very nice distinctions, 
 and not very easy to be understood. Considering it as a 
 circumstance of evidence, there must, of course, be evidence 
 admitted on the other side. Thus it was resolved into a 
 question of intent, which was getting into a very wide sea with- 
 out very certain guides "(a). 
 
 The difficulties arising from the light in which the question 
 has been thus viewed will amply appear from the numerous 
 refined distinctions upon which the Court from time to time 
 has been called upon to adjudicate. 
 
 ■ 1. A distinction was formerly taken where the child was an Case of the cMd 
 infant (h) ; for a parent, it was said, could scarcely have 
 intended to bestow a separate and independent provision upon 
 one utterly incapable of undertaking the management of it. But 
 still more improbable was the supposition that an infant should 
 have been selected as a trustee (c), and accordingly the notion 
 has long since beien overruled {d) ; nay, the infancy of the 
 child is now looked upon as a circumstance particularly 
 favourable (e). 
 
 2. It was objected, that a reversionary estate, from the Purchase of 
 uncertainty of the time when it would fall into possession, was estate,'^^'™*'^ 
 not such a kind of interest as a parent would prudently pur- 
 chase by way of provision for a child; but mere proximity or 
 remoteness of the enjoyment, whether the reversion be ex- 
 pectant on the decease of the parent or a stranger, has since 
 
 been held clearly insufficient to countervail the general rule (/). 
 
 3. A purchase in the joint names of the father and son has Purchase in joint 
 met with objections ; " for this," observes Lord Hardwicke, and son. 
 
 " does not answer the purpose of an advancement, as it entitles 
 the father to the possession of the whole tiU a division, and to 
 a moiety absolutely even after a division, besides the father's 
 
 [a) Dyer v. Dyer, 2 Cox, 94 ; C. Ch. Ca. 9 ; Christy v. Courtenay, 
 
 S. C. 1 Watk. Cop. 218. 13 Beav. 96 ; Collinson v. Collinson, 
 
 (J) 2FreerQ. 128, o. 151 ; and see 3 De G. M. & G. 403; Mumma v. 
 
 JBinion v. Stone, id. 169; S. C. Mumma, 2Yein. 19; Finchv. Mnch, 
 
 Nels. 68. 15 Ves. 43, &c. 
 
 (e) See supra, p. 39. (e) Feame's P. W. 327. 
 
 {d) Lamplughy. Lamplugh, 1 P. (/) Ti,umholly.Iiumholl,'2,'&\.\1, 
 
 W. Ill; Lady Gorge's case, cited per liordH-enlej; Finchv. Finch, 15 
 
 2SW.600; SkeatsY.Skeats,2Y.& YesAS; MurlessY.FranJclin,18w.l3. 
 
SlO yUECHASE IN NAME OF A CHILD. [CH. VHI. S. 2. 
 
 taking a chance to himself of heing a survivor of the other 
 moiety : nay, if the son die during his minority, the father 
 would he entitled to the whole hy survivorship, and the son 
 could not prevent it hy severance, he being an infant " (a). 
 But surely no improvidence can he justly charged on a parent 
 who so settles his estate, that if the son die a minor it shall 
 revert to himself; that until the marriage of the son or other 
 pressing occasion, the father and son shall possess an equal 
 interest during their joint lives, with the right of survivorship 
 as to the whole; that the son shall have the power, when 
 necessary, of settling one moiety of the estate, hut shall leave 
 the other moiety to his parent. Whatever opinion may be 
 entertained as to the principle, the doubts above expressed by 
 Lord Hardwicke can scarcely be maintained in opposition to 
 repeated decisions (&). A purchase in the joint names of the 
 son and a stranger is less favourable to the supposition of an 
 intended advancement (c) ; but even here the right of the child 
 is now indisputably established (d). However, the advancement 
 cannot be more extensive than the legal estate in the child (e) ; 
 and therefore the stranger, quatenus the legal estate vested ia 
 him, must hold upon trust for the father (/). 
 Purcbaseofcopy- 4_ It is the custom, in many manors, to make grants for 
 
 holds granted for . _ ' J ' o 
 
 lives successive, lives Successive. Should a father pay the fine upon a grant to 
 himself and his two sons, shall this be held an advancement or 
 a trust ? Upon the difficulty of this case. Lord Chief Baron 
 Eyre has remarked, " When the lessees are to take successive, 
 it is said, that as the father cannot take the whole in his name, 
 but must insert other names in the lease, then the children 
 shall be trustees for the father. And to be sure, if the circum- 
 stance of the child being the nominee is not decisive the other 
 way, there is a great deal of weight in this observation. 
 There may be many prudential reasons for putting in the hfe 
 
 (o) Stileman v. Ashdown, 2 Atk. (d) Lamplugh v. Lamplwgh, 1 P. 
 
 480; and see Pofe V. Pofe, 1 Ves. 76. "W. Ill; Kingdome v. Bridges, 2 
 
 .{b) Scroope v. Scroops, 1 Ch. Ca. Vein. 67. 
 
 27 ; Sack v. Andrews, 2 Vern. 120 ; (e) See JRumboUy. SumhoU, 1 Ed. 
 
 Grey v. Grey, 2 Sw. 599, and oases 17. 
 
 there cited. (/) See Kingdome v. Bridges, 2 
 
 (c) See Hayes v. Kingdome, 1 Vern. 67 ; Lamplttgh v. Lampl^h, 
 
 Vern. 34. 1 P. W. 112. 
 
CH. Vm. S. 2.] PURCHASE IN NAME OP A CHILD. 211 
 
 of a child in preference to any other person; and if in that 
 case it is to be collected from circumstances whether an 
 advancement was meant, it will be diflacult to find such as will 
 support that idea. To be sure, taking the estate in the name 
 of a child, which the father might have taken in his own, 
 affords a strong argument of such an intent ; but where the 
 estate must necessarily be taken to him in succession, the 
 inference is very different " (a). And in accordance with this 
 reasoning was decided the case of Dickinson v. Shaw {b) ; but 
 ia Dyer v. Dyer (a) the notion was overruled, as savouring too 
 much of refinement ; and so at the present day it must be 
 considered as settled (d). 
 
 5. It may happen, that the child in whose name the purchase ChUd already 
 is taken may have been already provided for, a circumstance ^™" ^ 
 of very considerable weight in rebutting the presumption of 
 further advancement. " The rule of equity," said Lord Chief 
 Baron Eyre, " as recognised in other cases, is, that the father 
 is the only judge on the question of a son's provision, and 
 therefore the distinction of the son being provided for or not 
 is not very solidly taken " (e). However, the distinction has 
 been relied upon in several cases (/), and has been repeatedly 
 recognised by the highest authorities (g). At the same time, 
 jt must be noticed that the prior advancement of the child has 
 always been accompanied with some additional circumstance 
 that tended to strengthen the presumption that no further pro- 
 vision was designed (h) ; and Lord Loughborough laid down 
 the general rule to be, that a purchase made by a father in the 
 name of a son, already fully advanced and established by him, 
 not was, but might be a trust for the father (i). 
 
 (o) Dyer v. Dyer, 2 Cox, 95 ; S. {g) See Grey v. Qrey, 2 Sw. 600 ; 
 
 C. 1 Watk. Cop. 221. S. C. Fincli, 341 ; Loyd v. Mead, 
 
 (6) Cited 2 Cox, 95 ; 1 Watk. 1 P. W. 608 ; Redington v. Beding- 
 
 Cop. 221. ton, 3 Eidg. 190 ; GUb. Lex Prat. 
 
 (c) 2 Cox, 92 ; 1 Watk. Cop. 216. 271. 
 
 [d) Swift V. Davis, 8 East, 354, (A) Pole v. Pole, Elliot v. Elliot, 
 note (a) ; Fearne's P. W. 327 ; ubi supra ; and see Grey v. Grey, 
 
 ! V. Skeats, 2 T. & C. Ch. Ca. 9. 2 Sw. 600 ; Gilb. Lex Prset. 271. 
 
 (e) Dyer v. Dyer, 2 Cox, 94 ; S. {i) Redington v. Redington, 3 
 
 C. 1 Watk. Cop. 220. Ridg. 190 ; and see Sidmouth v. 
 
 (/) Elliot V. Elliot, 2 Ch. Ca. Sidmouth, 2 Beav. 456. 
 231; Pole y. Pole, 1 Ves. 76. 
 
312 
 
 PURCHASE IN NAME OF A CHILD. [CH. Vm. S. 2. 
 
 Whether child 
 considered as 
 provided for 
 ■when adult. 
 
 Previous pro- 
 vision in part. 
 
 EevBrsionary 
 estate not a pro- 
 vision. 
 
 Case of father 
 holding the 
 possession, and 
 child an infant. 
 
 Son signing re- 
 ceipts for rents 
 in father's name. 
 
 Chief Baron 
 Eyre's opinion. 
 
 Lord Notting- 
 ham's opinion. 
 
 It is said by Lord Chief Baron Gilbert, that " if a father 
 purchase in the name of a son who is of full age, which by 
 our law is an emancipation out of the power of the father, 
 there if the father take the profits, &c. the son is a trustee for 
 the father " {a). But for this opinion there appears to be not 
 the slightest ground (&). The provision must exist not by a 
 fiction of law but bond fide and substantially ; as, said Lord 
 Nottingham, "if the son be married in his father's lifetime, 
 and with his father's consent, and a settlement be thereupon 
 made, whereby the son appears to be fully advanced, and ia a 
 manner emancipated " (c). A provision in part will not have 
 the effect of rebutting the presumption of advancement id) ; and 
 the settlement of a reversionary estate upon the son will not 
 be deemed a provision, for he might starve before it fell into 
 possession (e). 
 
 6. Suppose the father continues, after the purchase, in the per- 
 ception of the rents and profits, and exerts other acts of owner- 
 ship, then, if the son be an infant, it is said, as the parent is 
 the natural guardian of the child, the perception of the profits 
 or other exercise of dominion shall be referred to that ground, 
 and the right of the son shall not be prejudiced, and so in 
 numerous cases the point has been adjudged (/) ; and it will not 
 vary the case if the son sign receipts in the name of the father> 
 for during his minority he could give no other receipts that 
 would discharge the tenants who hold by lease from the 
 father if). Lord Chief Baron Eyre has expressed himself dis- 
 satisfied with this reasoning in reference to the guardianship, 
 and puts the question, " If the father take the rents as guardian 
 of his son, would the Court sustain a bUl by the son against the 
 father for these rents ? He should think it pretty difficult 
 to succeed in such a bill" iji). Lord Nottingham has referred 
 
 (a) Lex Pra3t. 271. 
 
 [h) In OreyY. Grey (uhi supra), 
 for instance, the son was of age. 
 
 (c) Grey v. Grey, 2 Sw. 600. 
 
 {d) lb. ; Redington v. Redington, 
 3 Ridg. 190. 
 
 [e) Lamplugh v. Lamplugh, 1 P. 
 W. HI. 
 
 (/) Gorge's case, cited Cro. Car. 
 550, and 2 Sw. 600; Mumma v. 
 
 Mumma,2YeTn.l9;Tayhr-v.Taylor, 
 2 A.tk. 386 ; Lamplugh v. Lamplugh, 
 1 P. W. Ill ; and see Stileman v. 
 Ashdown, 2 Atk. 480; Loyd v. 
 Read, 1 P. "W. 608 ; Christy t. 
 Courtcnay, 13 Beav. 96. 
 
 [g) Taylor v. Taylor, 1 Atk. 386. 
 
 (h) Dyer v. Dyer, 2 Cox, 94; 
 8. C. 1 Watk. 220. 
 
CH. Vni. S. 2.] PURCHASE IN NAME OF A CHILD. 213 
 
 the decisions to a higher ground. " Some," he said, " have 
 taken the difference, that where the father has colour to 
 receive the rents as guardian, there perception of profits is 
 no evidence of a trust : otherwise it would be if the perception 
 of profits were without any such colour. Plainly the reason 
 of the resolutions stands not upon the guardianship, but upon 
 the presumptive advancement, for a purchase in the name of 
 an infant stranger with perception of profits, &c. will be 
 evidence of a trust " (a). 
 
 7. Suppose the father purchases in the name of a son who Case of the father 
 is adult, and then, without contradiction from the son, takes session, and son 
 the rents and profits, and exerts other acts of ownership ; ^^^^' 
 even here it has been determined the right of the son will 
 prevail. A stronger instance can hardly be conceived than 
 occurred in the very leading case of Grey v. Grey (b), before Grey v. Grey. 
 Lord Nottingham. We have his Lordship's own manuscript 
 of this case, and the circumstances are thus stated : — " The 
 evidence to prove this purchase in the name of the son to be 
 a trust for the father consists of, 1st, father possessed the 
 money; 2dly, received the profits twenty years; 3dly, made 
 leases ; 4thly, took fines ; 5thly, enclosed part in a park ; 
 6thly, built much ; 7thly, provided materials for more ; 8thly, 
 directed Lord Chief Justice North to draw a settlement; 
 9thly, treated about the sale of it " (c) : yet, for all this, it was 
 decided, after long and mature deliberation, that the considera- 
 tion of blood and affection was so predominant, that the 
 father's perception of rents and profits, or making leases, or 
 the like acts, which the son, in good manners, did not con- 
 tradict, could not countervail it {d). The propriety of this 
 decision, upon principle independently of authority, has been 
 called into question. " Admitting," it is said, " that they are 
 subsequent acts, whereas the intention of the father in taking 
 the purchase in the son's name must be proved by concomitant 
 acts, yet they are pretty strong acts of ownership, and assert 
 the right, and coincide with the possession and enjoyment "(e). 
 
 (a) Grey v. Grey, 2 Sw. 600. {d) See 2 Sw. 599. 
 
 [b] 2 8w. 594 ; Finch, 338. (e) Dijer v. Dyer, 2 Cox, 95 ; S. C. 
 (e) 2 Sw. 596. 1 Watk. Cop. 220. . 
 
214 
 
 PUECHASE IN NAME OF A CHILD. [CH. VHI. S. 2. 
 
 Evidence from 
 facts to rebut the 
 presumption. 
 
 Evidence from 
 parol declara- 
 tions. 
 
 It might perhaps be successfully contended, that Lord Not- 
 tingham's determination was founded upon the more enlarged 
 view of the subject in respect even of principle ; however, the 
 point must at the present day be considered as settled at least 
 upon authority, if any point can be considered as settled after 
 repeated decisions [a). 
 
 The advancement of the son is a mere question of intention, 
 and therefore facts antecedent to or contemporaneous with the 
 purchase (b), or so immediately after it as to constitute part of 
 the same transaction (c), may properly be put in evidence for 
 the purpose of rebutting the presumption. Thus it will not 
 be held an advancement, if, on a grant of copyholds to a father 
 and his son for their lives successive, the father at the same 
 court surrender the copyholds to the use of his will {d), or 
 obtain a licence from the lord to lease for years (e), or take pos- 
 session by some overt act immediately consequential upon the 
 purchase (/). 
 
 So the father may prove a parol declaration of trust by him- 
 self, either before or at the time of the purchase, not that it 
 operates by way of declaration of trust (for the Statute of 
 Frauds would interfere to prevent it) ; but as the trust would 
 result to the father, were it not rebutted by the sonship as 
 a circumstance of evidence, the father may counteract that 
 circumstance by the evidence arising from his parol declaration. 
 
 (o) Woodman v. Morrel, 2 Freem. 
 32, reversed on the re-hearing (see 
 n ote by Hovenden) ; Shales v. Shales, 
 ib. 252 ; Sidmouth v. Sidmouth, 2 
 Beav. 447 ; and see Elliot v. El- 
 liot, 231 ; but see Loyd v. Read, 1 
 P. W. 607 ; Medington v. Hedington, 
 3 Ridg. 190 ; Murless v. Franklin, 
 1 Sw. 17 ; Scawin v. Scawin, 1 T. & 
 C. Ch. Ca. 65. 
 
 (J) See ColUnson v. Collinson, 3 
 De Gex, M. & G. 409 ; Murless v. 
 Franklin, 1 Sw. 17, 19 ; Sidmouth 
 V. Sidmouth, 2 Beav. 447 ; Loyd v. 
 JJeai^.lP.W. 607; Taylor y. Alston, 
 cited 2 Cox, 96, 1 Watk. Cop. 223 ; 
 JRedington v. Hedington, 3 Ridg. 
 177; Grey v. Grey, 2 Sw. 594; 
 
 Rawleigh's case, cited Hard. 497; 
 Baylis v. Newton, 2 Vern. 28 ; 
 Shales v. Shales, 2 Freem. 252; 
 Scawin v. Scawin, 1 T. & C. Ch. Ca. 
 65 ; Christy v. Courtenay, 13 Beav. 
 96. 
 
 (c) JRedington v. Hedington, 3 
 Ridg. 196, per Lord Loughborough. 
 
 {d) Franker dY. Prankerd, 1 S. & 
 S. 1. 
 
 (e) Swift V. Davis, 8 East, 354, 
 note (a). 
 
 (/) LordEldon could scarcely have 
 
 meant more than this, when he ob- 
 served, "Possession taken by the 
 father at the time would amount to 
 such evidence." Murless v. Frank- 
 lin, 1 Sw. 17. 
 
CH. Vm. S. 2.] PURCHASE IN NAME OF A CHILD. 215 
 
 Of course the father cannot defeat the advancement by any 
 subsequent declaration of his intention (a). 
 
 On the other hand, the son may produce parol evidence to Evidence on the 
 
 . . ,. ^ ,,„.. ,. part of the child. 
 
 prove the intention oi advancement (o), and a fortiori such evi- 
 dence is admissible on his side, as it tends to support both the 
 legal operation and equitable presumption of the instru- 
 ment (c). And it seems the subsequent acts and declarations 
 of the father may be used against him by the son, though they 
 cannot be used in his favour {d), but the subsequent acts or 
 declarations of the son cannot be used against him by the 
 father ; for the question is, what did the father mean by the 
 purchase ? Nothing, therefore, that the son could do or say 
 (short of a disclaimer) can affect his interest, except, indeed, 
 he was a party to the purchase, and his construction of the 
 transaction may be taken as an index to the iatention of the 
 father (e). 
 
 From the manner in which the Court has disposed of the Rule not to be 
 several distinctions we have been considering, one general refinement^.'"^ 
 principle is to be extracted applicable to every case. " We 
 think," said Chief Baron Eyre, " that reasons which partake of 
 too great a degree of refinement should not prevail against a 
 rule of property, which is so well established as to become a 
 land-mark, and which, whether right or wrong, should be 
 carried throughout" (/); and Lord Eldontothe same effect 
 observed, " that the Court in Dyer v. Dyer meant to establish 
 this principle, that the purchase is an advancement ^nma/acie, 
 and in this sense, that this principle of law and presumption is 
 not to be frittered away by mere refinements " [g). 
 
 (a) See Elliot v. Mliot, 2 Ch. W. 113; Redingfony. Redington, 3 
 
 Ca. 231 ; Finch v. Finch, 15 Tes. Eidg. 182, 195. 
 
 51 ; Woodman v. Morrel, 2 Freem. [d) See Redington v. Redington, 3 
 
 33 ; Birch v. Blagrave, Amb. 266 ; Kidg. 195, 197 ; Sidmouth v. Sid- 
 
 Gilb. Lex Prset. 271 ; Sidmouth v. mouth, 2 Beav. 455. 
 
 Sidmouth, 2 Beav. 456; Skeats v. (e) See Murless v. Franklin, 1 
 
 Skeats, 2 T. & C. Ch. Ca. 9 ; Christy Sw. 20 ; Pole v. Role, 1 Ves. 76 ; 
 
 v. Courtenay, 13 Beav. 96. but see Sidmouth v. Sidmouth, 2 
 
 (6) Taylor v. Alston, cited 2 Cox, Beav. 455 ; Scawin v. Scawin. 1 Y. 
 
 96, 1 "Watk. Cop. 223 ; Beckford v. & C. Ch. Ca. 65. 
 
 Beckford, Lofft, 490. (/) 2 Cox, 98 ; 1 Watk. Cop. 226. 
 
 (c) See Taxjlor v. Taylor, 1 Atk. [g] Finch v. Finch, 15 Ves. 50. 
 386; Lamplugh v. Lamplugh, 1 P. 
 
216 
 
 PURCHASE IN NAME OF A CHILD. [CH. VIII. S. 2. 
 
 Eule applies to 
 an illegitimate 
 child. 
 
 Eule applies to 
 daughters as well 
 as sons, and to a 
 wife, and grand- 
 child, nephew, or 
 person towards 
 whom the pur- 
 chaser stands in 
 loco parentis. 
 
 Purchase-money 
 not paid, a debt 
 from parent. 
 
 Advancement 
 applies to per- 
 sonalty. 
 
 The doctrine of advancement has been applied to the case 
 of even an illegitimate son (a) ; for it is said the principle is, 
 that a father is under a moral duty to provide for his child, 
 and as the obligation extends to the case of an illegitimate 
 child, he is equally entitled to the benefit of the presump- 
 tion (6). 
 
 It has been said that the presumption is not so strong ia 
 favour of a daughter as of a son, because daughters are not 
 generally provided for by a settlement of real estate (c) ; but 
 the distinction has been contradicted by more than one deci- 
 sion, and does not now exist {d). Advancement wiU. be pre- 
 sumed in the case of a wife (e), and the presumption will be the 
 same where the purchase is made in the name of a grand- 
 child if), of a nephew (g), and, it is conceived, even of a stranger 
 in blood Qi), towards whom the person purchasing has placed 
 himself "in loco parentis." 
 
 Where the purchase is held to be an advancement, and the 
 purchase-money has not been paid, it wUl be a charge on the 
 father's assets as an ordinary debt (i). 
 
 Of course the doctrine of advancement applies to personal 
 as well as real estate ; as where a father purchases stock in the 
 name of his son (k). 
 
 In a recent case, where monies were lent out in the name of 
 a person who was both son and solicitor of the owner of the 
 sums lent, it was held that the particular relation of sohcitor 
 prevented the application of the general rule [l). 
 
 [a] Seekford v. Beckford, Lofft, 
 490 ; Fearae's P. W. 327. 
 
 (6) See Fonb. Eq. Tr. 123, note 
 (i), 4tli ed. 
 
 (c) Gilb. Lex Pr»t. 272. 
 
 {d) Lady Gorgets case, cited Cro. 
 Car. 550, 2 Sw. 600 ; Jennings v. Sel- 
 lecJc, 1 Vein. 467 ; and see Woodman 
 V. Morrel, 2 Freem. 33 ; Clarke v. 
 Danvers, 1 Ch. Ca. 310. 
 
 (e) Kingdome v. Bridges, 2 Vern. 
 67 ; Christ s Hospital v. Budgin, id. 
 683 ; Back v. Andrews, id. 120 ; Glais- 
 ter V. Hewer, 8 Ves. 199, per Sir W. 
 Grant; Rider Y.Kidder, 10 Ves. 367, 
 ^er Lord Eldon; Gilb. Lex Pr^t. 272. 
 
 (/) JEbrand v. Dancer, 2 Ch. Ca. 
 26 ; and see Loyd v. Read, 1 P. W. 
 607 ; Currant v. Jago, 1 Coll. 265, 
 note (c). 
 
 [g) Currant Y. Jago, 1 Coll. 261. 
 
 Qi) See tbe analogous class of 
 oases in reference to double portions, 
 Powys V. Mansjield, 3 M. & Or. 
 359, &c. 
 
 (i) Redington v. Redington, 3 
 Eidg. 106, see 200. 
 
 {k) Sidmouth v. Sidmouth, 2 Beav. 
 447. 
 
 (Z) Garrett v. Wilkinson, 2 De 
 Gex & Sm. 244. 
 
CHAPTER IX. 
 
 OF CONSTRUCTIVE TRUSTS. 
 
 A constructive trust is raised by a court of equity, wherever General doctrine. 
 a person, clothed with a fiduciary character, gains some personal 
 advantage by availing himself of his situation as trustee (a) ; for 
 as it is impossible a trustee should be allowed to make a profit by 
 his office, it follows, that so soon as the advantage in question 
 is shown to have been acquired through the medium of the 
 trust, the trustee, however good a legal title he may have, will be 
 decreed in equity to hold for the benefit of his cestui que trust. 
 
 The most common instance of a constructive trust occurs in Renewal of 
 the renewal of leases ; the rule being, that if a trustee (&), or ^*°^^' 
 executor (c), or even an executor de son tort (d), renew a lease 
 in his own name, he wUl be deemed in equity to be a trustee 
 for those interested in the original term. 
 
 The leading authority upon this subject is Sandford v. Knmford market 
 Keech, commonly called the Eumford Market Case (e). A 
 lessee of the profits of a market had devised to a trustee for 
 an infant, and the trustee applied for a renewal on behalf of 
 the infant, which was refused, on the ground that there could 
 
 (o) As to the meaning of the term Ahney v. Miller, "2 Atk. 597, per 
 
 "constructive trust," and the branch. Lord Hardwicke; Killich v. Flex- 
 
 of such trusts, reserved for descrip- ney, 4 B. C. C. 161 ; Pickering v. 
 
 tion in a later chapter, see page 140, Vowles, 1 B. C. C. 198, per Lord 
 
 suprdi, and page 228, infrd,. Thurlow ; Luchin v. Rushworth, 
 
 (6) Griffin v. Griffin, 1 Sch. & Finch. 392 ; Anon. 2 Ch. Ca. 207 ; 
 
 Lef . 354, per Lord Redesdale ; Pick- and see Mulvany v. Billon, 1 B. & 
 
 ering v. Vowles, 1 B. C. C. 198, per B. 409 ; Foshrooke v. Balguy, 1 M. 
 
 Lord Thurlow ; Pierson v. Shore, & K. 226 ; Owen v. Williams, Amb. 
 
 I Atk. 480, per Lord Hardwicke ; 734 ; Neshitt v. Tredennick, 1 B. & 
 NesUtt V. Tredennick, 1 B. & B. 46, B. 46, per Lord Manners. 
 
 per Lord Manners ; Turner v. Hill, (d) Mulvany v. Billon, 1 B. & B. 
 
 II Sim. 13, per Sir L. Shadwell. 409. 
 
 (e) Walley v. Whalley, 1 Vern. (e) Sel. Ch. Ca. 61. 
 
 484; Rolty. Holt, 1 Ch. Ca. 190; 
 
218 CONSTRUCTIVE TRUSTS. [CH. DC. 
 
 be no distress of the profits of a market, but the remedy must 
 rest singly ia covenant, of which an infant was incapable. 
 Upon this the trustee took a lease for the benefit of himself; 
 but Lord King said, " I must consider this a trust for the 
 infant ; for I very weU see, if a trustee, on the refusal to renew, 
 might have a lease to himself, few trust estates would be renewed 
 to cestid que use. Though I do not say there is fraud in this 
 case, yet he should rather have let it run out than have had 
 the lease to himself. This may seem hard, that the trustee is 
 the only person of all mankind who might not have the lease, 
 but it is very proper that rule should be strictly pursued, and' 
 not in the least relaxed ; for it is very obvious what would be 
 the consequence of letting trustees have the lease on refusal to 
 renew to cestui que use." And so decreed that the lease should 
 be assigned to the iufant. 
 Rule applicable Upon the same principle, if a person possessing only a 
 
 to tenant for life, • t • • ■, ,.^•/./^/^ i-i 
 
 &c. partial interest m a lease, as a tenant for life (a) (though with 
 
 an absolute power of appointment, but which he does not 
 exercise (&),) a mortgagee (c), devisee subject to debts and 
 legacies (d) or to an annuity (e), a joint-tenant (/), or partner (j^),' 
 renew the term upon his own account, he shall hold for the 
 benefit of all parties interested in the old lease ; for in con- 
 sideration of equity the subject of the settlement is not only 
 the lease, but also the right of renewal ; and no person taking 
 only a limited interest can avail himself of the situation in 
 
 (a) Ilyre v. Dolphin, 2 B. & B. (5) Broohman v. Hales, 2 V. & 
 
 290; JRawe v. Chichester, Amb. 715 ; B. 45. 
 
 Coppiny. FernyKough, 2 B. C. C. (e) RushwortWs case,^Teem. 13; 
 
 291 ; Pickerings. Vowles, 1 B. C. C. JVeshitt v. Tredennich, 1 B. &B. 46, 
 
 197 ; Taster v. Marriott, Amb. 668 ; per Lord Manners. 
 
 Owen V. Williams, id. 734 ; James {d) Jackson v. Welsh, LI. & G. 
 
 V. Dean, 11 Ves. 383 ; S. C. 15 Ves. Rep. t. Plunket, 346. 
 
 236 ; Kempton v. Packman, cited 7 (e) Winslow v. Tighe, 2 B. & B. 
 
 7e3. 176 ; Oiddings v. Oiddings, 3 195 ; Stuhhs v. Moth, id. 548 ; and 
 
 Russ. 241 ; Neshitt v. Tredermich, see Welh v. Lugar, 2 T. & C. 247 ; 
 
 IB. & B. 46, per Lord Manners ; Jones v. Kearney, 1 Conn. & Laws. 
 
 Crop V. Norton, 9 Mod. 233 ; Buck- 34. 
 
 ley V. Lananze, LI. & Gr. Rep. t. (/) Palmer v. Young, 1 Vem. 
 
 Plunket, 327 ; Tanner v. Elworthy, 276. 
 
 4 Beav. 487 ; Waters v. Bailey, 2 [g) Feather stonhaugh v. Femiiick, 
 
 Y. & C. Ch. Ca. 219. 17 Ves. 298 ; Ex parte Qrace, 1 
 
 Bos. & Pul. 376. 
 
CH. IX.] CONSTRUCTIVE TEXJSTS. 219 
 
 whicli the settlement has placed him to obtain a dispropor- 
 tionate advantage in derogation of the rights of other equal 
 claimants. 
 
 Even where a testator was possessed of leaseholds, and Even to a yearly 
 devised all his interest therein to A. for life, remainder to B., *^''^°*' 
 and the lease having expired in the testator's lifetime, he was 
 at his death a mere yearly tenant, it was held that A., having 
 renewed the lease, must hold it upon the limitations of the wiU, 
 for the yearly tenancy was an interest capable of transmission 
 by devise ; and the tenant for life could not, by acting upon 
 the good-wiU that accompanied the possession, get the ex- 
 clusive benefit of a more durable term (a). 
 
 But if a person devise a lease in strict settlement, and the Case of tenant at 
 lease expire in his lifetime, and at the time of his death he is anoe. 
 merely tenant at will, or at sufferance, then, if the executor 
 renew, he is not a trustee for the devisees, for as there was no 
 interest upon which the will could operate, there was, in fact, 
 no devise (6). And so, where a testator possessed leaseholds 
 for years, and was in possession of other lands without title 
 under the mistaken impression that they were contained in the 
 lease, and devised the lands he held upon lease to A., his exe- 
 cutrix, for life, with remainder over, and A. obtained a lease 
 of the lands not passed by the will, it was ruled that no trust 
 attached upon the term in favour of the remaiaderman (c). But 
 although the devisees cannot claim in these cases, the executor 
 himself wUl not be allowed to keep the beneficial interest. 
 " The question," said Lord Eldon, " is new, whether an exe- 
 cutrix, dealing with the opportunities which she derives by 
 her succession, without title to the estate (which) a tenant by 
 sufferance or at will had held, is a trustee for the devisee, who 
 cannot say he took an interest under the will, or whether it is 
 to be said only that the advantage she made of those oppor- 
 tunities should be for the general estate. The result is this : 
 I think it is impossible she could hold it for herself. Supposing 
 another person, not the executrix, was residuary legatee, the 
 
 (a) James v. Dean, 11 Ves. 383; (6) See James v. Bean, 11 Yes. 
 
 S. C. 15 Ves. 236. 391, 392. 
 
 (c) Rawe v. Chichester, Amb. 715. 
 
220 
 
 CONSTEUCTIVE TRUSTS. 
 
 [CH. IX. 
 
 Agent of trustee 
 cannot renew for 
 his own benefit. 
 
 Trustee may not 
 sell the right of 
 renewal. 
 
 What particular 
 circumstances 
 will not vary the 
 general rule. 
 
 question, I should think, would be in favour of that residuary 
 legatee, (the renewal) being a casual advantage from the dealing 
 of the executrix " (a). 
 
 Neither can an agent (6), or other person acting under the 
 authority of a trustee, executor, or tenant for life, renew for his 
 own benefit; for "there is nothing," said Lord Hardwicke,^ 
 " the Court has more adhered to than that, if the tenant, or 
 any person claiming from the tenant, apply to renew, whether 
 the new lease be granted to the same person or any other, if 
 the lessee in the new take in the right of him who was the owner 
 of the old lease, he must take subject to all the equity to which 
 the original lessee was liable '' (c). 
 
 And if, instead of taking a renewal himself, the trustee, 
 executor, or tenant for life, dispose of the right of renewal for 
 a valuable consideration, the purchase -money wUl be subjected 
 in equity to the trusts of the settlement ; for if a person cannot 
 appropriate the renewal to himself, the Court wiU not suffer 
 him to sell {d). 
 
 And in the preceding cases the rule of equity wUl not be 
 varied, because the lease had not customarily been renewed (e), 
 or the period of the old lease had actually expired (/), or the 
 renewal was for a different term, or at a different rent (g), or 
 instead of a chattel lease, was for lives (h), or other lands were 
 demised, not comprised in the original lease (i), or the landlord 
 refused to renew with the cestui que trust (k), or the co-trustees 
 refused to concur in a renewal for the cestui que trust's benefit (l). 
 
 (a) James v. Dean, 11 Ves. 392, 
 per Lord Eldon. In JRawe v. 
 Chichester, uhi supra, the executrix 
 was also residuary legatee. 
 
 (J) Griffin v. Griffin, 1 Soh. & 
 Lef. 353 ; and see Edwards v. 
 Lewis, 3 Atk. 538 ; Mulvany v. 
 Dillon, 1 B. & B. 417. 
 
 (c) Edwards v. Lewis, 3 Atk, 
 538. 
 
 {d) Owen v. Williams, Amb. 734. 
 
 (e) See Featherstonhaugh v. Fen- 
 wick, 17 Ves. 298 ; ■ Mulvany y. 
 Dillon, 1 B. & B. 409; Eyre v. 
 Dolphin, 2 B. & B. 290 ; Killich v. 
 Flexney, 4 B. C. C. 161. 
 
 (/) Edwards v. Lewis, 3 Atk, 
 638, per Lord Hardwicke. 
 
 {g) Mulvany v. Dillon, 1 B. & B. 
 409 ; James v. Dean, 7 Ves. 383 ; 
 S. C. 15 Ves. 236, &o. 
 
 [h) Eyre v. Dolphin, 2 B. & B. 
 299. 
 
 (si) Giddings v. Giddings, 3 Euss. 
 241. But the lease of the addi- 
 tional lands win not be a graft, 
 ^cAesore v.-PflM-, 2 Conn. & Laws.208. 
 
 {k) Keech v. Sandford, Sel. Ch. 
 Ca. 61 ; Griffin v. Griffin, 1 Soh. & 
 Lef. 353. 
 
 '{I) Slewett v. MilleU, 7 B. P. 
 C. 367. 
 
■CH. IX.] CONSTRUCTIVE TRUSTS. 
 
 221 
 
 or the lessee, having purchased the immediate reversion, took 
 the renewal from the superior landlord (a). 
 
 But where a lessee of lands in Ireland charged a lease with Nesbitt v. Tre- 
 a jointure, and then mortgaged it to Newcomen, and again to ^^'"^^"^^ 
 Nesbitt, and afterwards the rent falling in arrear, the landlord 
 recovered possession upon ejectment, and the lessee allowed 
 six months (the period of redemption by the lessee fixed by the 
 statute) to pass without tendering the rent, fines, and costs, and 
 Nesbitt (who, as mortgagee, had three months longer to redeem 
 under the statute,) sent notice to the lessee that he would not 
 redeem; but that if the lessee himself did not proceed, he 
 should make the best bargain he could with the landlord, and 
 then offered to take a new lease, to commence from the expira- 
 tion of the three months, with a proviso, that if any other of 
 the parties interested should make a lodgment before that time, 
 the agreement should be void ; it was decided by Lord Manners 
 that the lease which was afterwards granted to the mortgagee 
 was not bound by any trust for the mortgagor. " The principle," 
 -said his Lordship, " to be extracted from all the authorities 
 ■amounts to this, — that whenever a mortgagee, executor, trustee, 
 or tenant for life, gets an advantage, either by being in posses- 
 sion, or behind the back of the party mortgagor, cestui que 
 trust, or remainderman, he shall not retain the same for his 
 own benefit, but hold it in trust, — the new lease, in any of 
 those cases, will be considered as a graft upon the old one. 
 Here there is full notice given by the mortgagee that he will 
 not redeem, and he gives his reasons for it ; he does not go 
 behind the back of the mortgagor, nor is he in possession, nor 
 does he use any means of getting to himself an advantage 
 which belongs to another ; and he cannot, as I apprehend, be 
 brought within the principles of those cases by which in taking 
 a new lease he becomes clothed with a trust. In all the cases 
 upon this subject, the party by being in possession obtained 
 the renewal, or it was done behind the back, or by some con- 
 trivance, or in fraud, of those who were interested in the old 
 lease, and there was either a remnant of the old lease, or a 
 tenant-right of renewal, on which the new lease could be 
 
 (a) QiddingsY, Giddmffs,3 Russ. 241. 
 
222 
 
 CONSTEUCTIVE TRUSTS. 
 
 [cn. nc. 
 
 Trustee's lien for 
 expenses of 
 renewal. 
 
 es in- 
 curred by tenant 
 for life. 
 
 ingrafted. Here no part of Nesbitt's conduct shows a con- 
 trivance ; nor was lie in possession. All that Nesbitt treated 
 for was a new lease, giving, however, full opportunity to the 
 lessee to dispose of his interest, or to renew, if he was enabled 
 to do so. It was urged, that a court of equity will relieve 
 against penalties and forfeitures ; but those are cases of con- 
 tract, and introduced by the acts of the parties themselves, 
 not where a forfeiture arises under the provision of an act of 
 parliament, and where the lessee has so totally forfeited his 
 interest as not to be relievable either in law or in equity." 
 And his Lordship appears to have determined the case upon 
 the general principle ; for he observed, in conclusion, " But I 
 have no occasion to touch upon the act of parliament " (a). 
 
 A trustee or executor who has renewed a lease has a lien 
 upon the estate for the costs and expenses of the renewal, with 
 interest (6) ; and where lands are taken under the new lease 
 that were not comprised in the original lease, the Court will 
 apportion the expenses according to the value of the respective 
 lands (c). The trustee will also be allowed for money subse- 
 quently laid out in lasting improvements (d), though made 
 duriag the suit for recovering the lease (e). 
 
 In the case of a renewal by tenant for Hfe, if he put iu his 
 own life, he of course can have no claim to reimbursement (/), 
 but if he put in the life of another, the expenses wiU be appor- 
 tioned at the death of the tenant for life according to the time 
 of his actual enjoyment of the renewed interest (g) ; and he will 
 be a creditor on the estate for the apportionment, though the 
 remaindermen be his own children, who resist the claim on the 
 ground of advancement Qi). 
 
 In the case of a testator devising aU his interest in lease- 
 
 (o) Nesbitt v. Tredennich, 1 B. & 
 
 B. 29. 
 
 (6) Holt V. Holt, 1 Ch. Ca. 190 ; 
 JRawe V. Chichester, Amb. 715, see 
 720 ; Coppin v. Fernyhough, 2 B. 
 
 C. C. 291 ; Lawrence v. Maggs, 1 
 Ed. 453 ; Pickering v. Vowles, 1 
 B. C. C. 197 ; James v. Dean, 11 
 Ves. 383 ; Kempton v. Packman, 
 cited 7 Vea. 176. 
 
 (c) Giddings v. Giddings, 3 Euss. 
 241. 
 
 {d) Holt V. Holt, Lawrence v. 
 Maggs, ubi supra. 
 
 (e) Walley v. WlialUy, 1 Tern. 
 484. 
 
 (/) Lawrence v. Maggs, 1 Ed. 
 453. 
 
 {g) See infra. 
 
 (/») Lawrence v. Maggs, 1 Ed. 
 453. 
 
CH. IX.] CONSTEUCTIVE TRUSTS. 223 
 
 Jiolds subject to an annuity, the question of the annuitant's Contribution to 
 contribution has been differently regarded by different judges, a^iiitants. 
 In Maxwell v. Ashe {a) Sir John Strange decided that the 
 annuitant was not bound to contribute. In Moody v. Mat- 
 thews (&), where a feme sold an annuity to A. for his life, out of 
 tithes held by her upon lease, and covenanted to pay the 
 annuity, and that the tithes should continue subject to it during 
 the life of A., and the feme married and died, and the husband, 
 who took the term by survivorship, renewed at his own expense. 
 Sir W. Grant determined that the annuitant was not to be 
 called upon to contribute, for that would be to make him pay 
 the consideration twice, and he said the case of Maxwell v. 
 Ashe was decisive. On the other hand, it was ruled by Lord 
 Manners, in the case of a will, that the annuitant must con- 
 tribute in proportion to his interest in the property ; for though 
 the testator had given no direction upon this point, it was 
 incident to this sort of tenure (c). At the time of this decision 
 his Lordship was not aware of the cases before Sir J. Strange 
 and Sir W. Grant ; but on a subsequent occasion, when the 
 same point again arose before him, he adhered to the same 
 opinion, notwithstanding the authority, for " all the legatees," 
 he said, " appear to have been equally the objects of the 
 testator's favour. Could it have been his intention that one 
 of them should alone bear the expense of the renewal, and that 
 the others should receive the fuU amount of their annuities 
 without any deduction ? " (d). 
 
 In making the assignment- to the cestui que trust the trustee Terms of aesign- 
 
 a o T_ • 1 ment by the 
 
 will also be indemnified against the personal covenants which trustee. 
 he entered into with the lessor (e) ; and on his own part must 
 clear the lease of all incumbrances created by him, except 
 under-leases at rack-rent (/). 
 
 The trustee must also account to the cestui que trust for the 
 
 {a) Maxwell Y.Ashe, cited 7 Ves. {d) Stubbs v. Moth, 2 B. & B. 548. 
 
 184. (e) Giddings v. Giddings, 3 Buss. 
 
 (6) 7 Ves. 174 ; and see Jones v. 241 ; Keech v. Sandford, Sel. Ch. 
 
 Kearney, 1 Comi. & Laws. 47 ; Ca. 61. 
 
 Thomas Y. Burne, 1 Dru. & Walsh, (/) Bowles y. Stewart, 1 Sch. & 
 
 657. Lef. 209, see 230. 
 
 (c) Winslow Y. Tighe, 2 B. & B. 
 195. 
 
234 
 
 CONSTEUCTIVE TEUSTS. 
 
 [CH. IX. 
 
 Accounting for 
 mesne rents and 
 profits. 
 
 Remedy against 
 purchasers and 
 others claiming 
 under the lessee. 
 
 Limitation of 
 time. 
 
 mesne rents and profits which he has received from the estate (a), 
 and also for any sub-fines that may have been paid to him by 
 under-lessees (5). And the cestui que trust, though the lease 
 ■which was the ground of his equity has since actually expired, 
 may still file a bill for an account of the rents and profits (c). 
 In the case of a renewal by tenant for life, the account will of 
 course be restricted to the period since the tenant for hfe's 
 decease (d). 
 
 The cestui que trust may pursue his remedy not only against 
 the original trustee, executor, or tenant for life, and volunteers 
 claiming through them (e) ; but also against a purchaser, with 
 notice express or implied of the plaintiff's title (/) ; and a pur- 
 chaser will be deemed to have had notice if the lease assigned 
 to him recited the surrender of a former lease which recited 
 the surrender of a previous lease, in which mention was made 
 of the settlement under which the cestui que trust claims (g) ; 
 and the volunteer or purchaser with notice will not be helped 
 by a fine levied [h), or even by a release from the cestui que 
 trust, if executed by him while in ignorance of the facts of the 
 case {i). However, a purchaser will stand in the place of his 
 assignor in respect of any allowances for expenses incurred in 
 the renewal (fc). 
 
 A cestui que trust will be barred of his remedy if he be guilty 
 of long acquiescence, as, it seems in one case, for a period of 
 fifteen years (Z). 
 
 (a) Oiddings v. Giddings, Keech 
 V. Sandford, ubi supra ; Mulvany 
 v. Dillon, 1 B. & B. 409 ; Walley 
 Y. Whalhy, 1 Vern. 484 ; Lucken 
 V. Hushworth, Fincli. 392 ; Blewett 
 V. Millett, 1 B. P. C. 367. 
 
 (b) Sawe v. Chichester, Arab. 
 715, see 720. 
 
 (c) Hyre v. Dolphin, 2 B. & B. 
 290. 
 
 {d) James v. Dean, 11 Ves. 383, 
 see 396 ; Oiddings v. Oiddings, 3 
 Kuss. 241. 
 
 (e) Bowles v. Stewart, 1 Soh. & 
 Lef. 209 ; Eyre v. Dolphin, 2 B. & 
 
 B. 290 ; Blewett v. Millett, 7 B. P. 
 
 C. 367. 
 
 • (/) Coppin V. Fernyhough, 2 B. 
 C. C. 291 ; Walley v. Whalley, 1 
 Vern. 484 ; Eyre v. Dolphin, 2 B. 
 & B. 290. 
 
 {g) Coppin v. Fernyhough, uhi 
 supra; Sodghinson v. Cooper, 9 
 Beav. 304. 
 
 {h) Bowles V. Stewart, 1 Soh. & 
 Lef. 209. 
 
 (i) s. a 
 
 {k) Coppin V. Fernyhough, 2 B. 
 C. C. 291. 
 
 (l) Isald Y. Fitzgerald, cited 
 Oiven Y. Williams, Amb. 735, 737 ; 
 and see Norris v. Le Neve, 3 Atk. 
 38 ; Jackson v. Wekh, LI. & G. 
 Rep. t. Plunket, 346. 
 
CH. IX.] CONSTEUCTIVE TEUSTS, 225 
 
 If the trustee of a lease become the pv/rchaser of the reversion, Case of trustee 
 Sir W. Grant said, that, as he thereby intercepts and cuts oif chasing the 
 the chance of future renewals, and consequently makes use of i'«^«™i"°- 
 his situation to prejudice the interests of those who stand behind 
 him, there might be some sort of equity in a claim to have the 
 reversion considered as a substitution for those interests, but his 
 Honor was not aware of any determination to that effect (a). 
 
 But where a lease had been held of a college, and, the No tenant-right 
 
 corporation having disposed of the reversion to a stranger, the y^^'^hat soidtr 
 
 trustee purchased of the alienee, his Honor expressly decided ^^ mdiTidual. 
 
 that the parties interested in the original lease had no equity 
 
 against the trustee, for the tenant-right of renewal with a 
 
 pubhc body was gone, and a lease at a rack-rent was all that 
 
 could be expected from a private proprietor (&). 
 
 The principle upon which a Court of equity establishes con- Factor, agent, 
 
 . &c., constructive 
 
 structive trusts might be pursued mto numerous other truatee. 
 
 iustances : as if a factor (c), agent (d), or other confidential 
 
 person, acquire a pecuniary advantage to himself through the 
 
 medium of his fiduciary character, he is accountable for those 
 
 profits to his employer or other person whose interests he 
 
 was bound to advance. 
 
 So if a tenant for hfe commit equitable waste, he is a trustee Equitable waste. 
 
 of the proceeds for the benefit of the remainderman (e). " The 
 
 restraint upon the legal owner as to equitable waste," said Sir 
 
 J. Leach, "is to be considered as founded on a breach of that 
 
 trust and confidence which the devisor reposed in the tenant 
 
 for life, that he would use his legal estate only for the purpose 
 
 of fair enjoyment. It is a trust implied in equity from the 
 
 subsequent limitations, and from the presumed intention of the 
 
 testator that he meant an equal benefit to all in succession "(/)• 
 
 (a) Mundall v. Russell, 3 Mer. {d) Fawcett v. Whitehouse, 1 B. 
 
 197 ; and see Hardman v. Johnson, & M. 132 ; Hichens v. Congreve, 
 
 ib. 347 ; Norris v. Le Neve, 3 Atk. ib. 150 ; Carter v. Home, 1 Eq. Ca. 
 
 37 and 38 ; Lesley's case, 2 Freem. Ab. 7 ; Broohman v. Rothschild, 3 
 
 52; Foshroohe w. Balguy, 1 M. & Simons, 153; Oilletty.Peppercorne, 
 
 K. 226 ; Oiddings v. Giddings, 3 3 Beav. 78 ; Bentley v. Craven, 18 
 
 Euss. 241. Beav. 75. 
 
 (6) iJaree?«ZZv.-BM«se//, 3 Mer. 190. {e) Marquis of Ormonde v. 
 
 (c) East India Company v. Kynersley, 5 Mad. 369. 
 
 Henchman, 1 Ves. jun. 287 ; -S". C. (/) Ib. 
 8 B. P. C. 85. 
 
 1 
 
22fi 
 
 CONSTEUCTIVE TRUSTS. 
 
 [CH. IX. 
 
 Fraud in attor- 
 ney. 
 
 Agent not 
 
 constructive 
 
 trustee. 
 
 Again, where A. contracted for the sale of part of his estate, 
 and the purchaser requiring a fine to be levied, B., who was 
 A.'s attorney, and also his heir-apparent, advised a fine to be 
 levied of the whole estate, whereby the will of the vendor was 
 revoked, and the part not included in the sale descended to B. 
 as heir-at-law, it was held that the devisee under the will 
 could call upon B. as a trustee (a). "Whether you meant 
 fraud," said Lord Eldon, "whether you knew you were the 
 heir-at-law of the testator or not, you who have been wanting 
 in what I conceive to be the duty of an attorney, if it happens 
 that you get an advantage by that neglect, you shall not hold 
 that advantage, but you shall be a trustee of the property for 
 the benefit of that person who would have been entitled to it if 
 you had known what as an attorney you ought to have known, 
 and, not knowing it, you shall not take advantage of your own 
 ignorance. It is too dangerous to the interests of mankind 
 that those who are bound to advise, and who, being bound to 
 advise, ought to be able to give sound and sufficient advice, to 
 allow that they shall ever take advantage of their own ignorance, 
 of their own professional ignorance, to the prejudice of 
 others" (&). 
 
 An agent employed by a trustee is accountable to his 
 principal only, and cannot as a constructive trustee be made 
 responsible to the cestuis que trust (c). But of course the rule 
 does not apply where the agent has taken an nctiYelj fraudulent 
 part, and so made himself a principal (d). " It cannot be 
 disputed," said Lord Langdale, " that if the agent of a trustee, 
 whether a corporate body or not, knowing that a breach of trust 
 
 [a) Bulhly v. Wilford, 2 CI. & 
 Fin. 177 ; 8. C. 8 Bl. N. S. Ill ; 
 and see Segrave v. Kirwan, Beat. 
 157. 
 
 (J) 2 CI. & Fin. 177. 
 
 (c) Keane v. Moharts, 4 Mad. 
 332, see 356, 359 ; Davis v. Spur- 
 ling, 1 E. & M. 64; 8. C. Taml. 
 199 ; Crisp v. 8pranger, Nels. 109 ; 
 Saville v. Tancred, 3 Sw. 141, note ; 
 Nicholson v. Knowles, 5 Mad. 47 ; 
 Myler v. Fitzpatrich, 6 Mad. 360 ; 
 Fyler v. Fyler, 3 Beav. 550 ; Loch- 
 
 wood V. Ahdy, 14 Sim. 437 ; and see 
 Ex parte Burton, 3 Mont. D. & De 
 Gex, 364; Be Bunting, 2 Ad. & 
 EU. 467. 
 
 {d) See Fyler v. Fyler, 3 Beav. 
 550 ; Portloch v. Gardner, 1 Hare, 
 606 ; Ex parteWoodin, 3 Mont. D.& 
 De G.399; Attorney-QeneraU.Car- 
 poration of Leicester, 7 Beav. 176 ; 
 Pannell v. Hurley, 2 Coll. 241; 
 Alleyne v. Darcy, 4 Ir. Ch. Eep- 
 199. 
 
CH. IX.] CONSTRUCTIVE TRUSTS. 227 
 
 is being committed, iaterferes and assists in that breach of 
 trust, he is personally answerable, although he may be 
 employed as the agent of the person who directs him to commit 
 that breach of trust" (a). Thus, where a trust fund was lodged 
 at a banker's and was headed as a trust account, and the 
 surviving trustee became indebted to the bank, and with the 
 concurrence of the bankers (who were cognisant of the trust, 
 not only from the heading of the account, but also expressly, 
 from certain private transactions), the trust fund was applied 
 in discharge of the trustee's private debt ; the bankers could 
 not protect themselves on the ground of mere agency, but 
 were held responsible to the cestms que trust for a breach of 
 faith (6). 
 
 Under the head of constructive trusts may be mentioned Title-deeds. 
 the case of a settlement left in the hands of a person taking 
 only a partial benefit under it as a tenant for life ; where the 
 other persons interested and claiming under the same title 
 have a right to the fair use of the document, and the holder is 
 deemed a trustee for them, and is bound to produce it at their 
 request (c) ; and in one case it was ruled that if a person sell 
 part of his estate and retain the title-deeds, though he may 
 not have given a covenant for production, he is compellable to 
 produce them as common property to the purchaser (d). But 
 iu Barclay v. Raine (e), Sir J. Leach seems to have doubted 
 whether, if part be sold and the title-deeds be delivered to the 
 purchaser, a future purchaser from him could be ordered, 
 where there was no covenant for that purpose, to produce 
 them to the owners of the other parts. The real property 
 commissioners observe, that previously to this case it had 
 been supposed, either that an original independent equity 
 existed entitling any party interested in a deed to call for its 
 production by any other person having the custody of it, or 
 at least that such an equity existed wherever the parties 
 
 (a) Attorney -General v. Corpo- 42; Harrison v. Coppard, 2 Cox, 
 
 ration of Leicester, TBesiY. no. 318; Shore v. CoUeti, Coop. 234; 
 
 (6) Pannell v. Hurley, 2 Coll. Davis v. Dysart, 20 Beav. 405. 
 
 241 ; Bodenham v. Hoshyns, 2 De id) Fain v. Ayers, 2 S. & S. 533. 
 
 Gex, M. & G. 908. (e) 1 S. & S. 449 ; see 7 Byth. 
 
 (e) Banbury v. Briscoe, 2 Ch. Ca. by Jarm. 375. 
 
 Q 2 
 
228 CONSTEUCTIVE TRUSTS. [CH. IX. 
 
 requiring the production claimed under a person who had 
 taken the precaution to procure a covenant for that purpose, 
 and the person having the actual custody of it derived that 
 custody from or through a person who had entered into such 
 covenant (a); upon which Sir E. Sugden observes, that the 
 rule in equity was never so universal as it is quoted in the 
 first part of the above statement, but that the second branch, 
 stating what at least the doctrine was, appears to be 
 correct (&). 
 Constructive Constructive trusts are said also to arise where the trust 
 
 trustees from . -i ■, ■, <■ • <■ 
 
 notice of the estate IS converted by the trustee irom one species of property 
 ™^ ■ into another ; and again, where the trust estate passes from 
 
 the trustee into the hands of a volunteer, whether with or 
 without notice, or of a purchaser for valuable consideration 
 with notice ; but as these are cases rather of an existing trust 
 continued and kept on foot than of a new trust created, the 
 consideration of these topics will be reserved to a subsequent 
 part of the treatise. 
 
 In concluding the subject of trusts by operation of law, it 
 may be proper to offer a few remarks on the wording of 
 the Statute of Frauds (c). 
 Statute of Frauds By the eighth section it is enacted, that "where any 
 
 as affecting trusts in, i<- it ti-i 
 
 by operation of conveyance shall be made ot any lands or tenements by which 
 ''^^ a trust or confidence shall or may arise or result hy the impU- 
 
 cation 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 ; any thing therein-before contained to the contrary not- 
 withstanding." 
 Lord Hard- Lord Hardwicke upon this clause observed, " I am now 
 
 wicke's opinion, ^^^y^^ ^^^^ l,y tj^e Statute of Frauds to construe nothing a 
 resulting trust but what are there called trusts by operation 
 of law ; and what are those ? Why, First, when an estate is 
 purchased in the name of one person but the money or 
 consideration is given by another; or. Secondly, where a 
 
 (a) 3rd Eep. (c) 29 Car. 2. c. 3. 
 
 (i) 2 Vend. & Purch. 11 Ed. 479, 
 480. 
 
CH. IX.] CONSTEUCTIVE TEUSTS. 229 
 
 trust is declared only as to part, and nothing said as to the 
 rest, in which case what remains undisposed of will result to 
 the heir-at-law. I do not know any other instance besides 
 these two, where the Court has declared resulting trusts by 
 operation of law, unless in cases of fraud, and where trans- 
 actions have been carried on maid fide " (a). 
 
 But upon this opinion of Lord Hardwicke, Mr. Fonblanque Mr. FonbUnquo's 
 has made the following just remarks : — " This construction of "P""™- 
 the clause of the Statute of Frauds restrains it to such trusts 
 as arise by operation of law, whereas it clearly extends to such 
 as are raised by construction of Courts of equity ; as, in the 
 case of an executor or guardian renewing a lease though with 
 his own money, such renewal shall be deemed to be in trust for 
 the person beneficially interested in the old lease. It is also 
 observable, that the first instance stated by his Lordship of a 
 resulting trust is not so qualified as to let in the exceptions to 
 which the general rule is sul^ject, and the second instance is 
 only applicable to a will, whereas the doctrine of resulting 
 trusts is also applicable to conveyances " (b). As to the latter 
 part of this criticism it may be observed that while Atkyns 
 makes Lord Hardwicke speak of a will only, Barnardiston, the 
 other reporter, applies his Lordship's observation to a convey- 
 ance (c). It would thus appear that Lord Hardwicke in fact 
 extended his remark to both a will and a conveyance. 
 
 Both Lord Hardwicke and Mr. Fonblanque assume that the 
 seventh or enacting clause embraces all trusts indiscriminately, 
 and that such as arise by operation of law are only saved from 
 the act by virtue of the subsequent exception contained in the 
 eighth section ; but the language of the latter clause, that 
 " where any conveyance shall be made of any lands or tene- 
 ments by which a trust or confidence shall or may arise or 
 result," &c. seems to have escaped observation; for, unless 
 conveyance be taken with great violence to the meaning of 
 words to include a devise, it is clear that trusts resulting under 
 a wUl are not reached by the terms of the saving. Nor is it 
 easy to suppose that the legislature could mean to include a 
 
 (a) Lloyd v. Spillet, 2 Atk. 150. (c) See Lhyd v. Spillet, Barn, 
 
 (i) 2 Tr. Eq. 116, note (a). 388. 
 
230 CONSTRUCTIVE TRUSTS. [CH. IX. 
 
 devise ; for the fifth and sixth sections relate exclusively to 
 devises, and, had it fallen within the scope of the act to extend 
 the eighth section to willsj it can scarcely be conceived that 
 the proper and technical word should not necessarily have 
 suggested itself. The question then arises, If resulting trusts 
 upon a will are not saved by the exception, how are they not 
 affected by force of the previous enactment ? As the statute 
 was directed against frauds and perjuries, it is obvious that 
 resulting trusts were not within the mischief intended to be 
 remedied. The aim of the legislature was, not to disturb such 
 trusts as were raised by maxims of equity, and so could not 
 open a door to fraud or perjury, but, by requiring the creation 
 of trusts by parties to be manifested in writiug, to prevent 
 that fraud and perjury to which the admission of parol testi- 
 mony had hitherto given occasion. And the enactment itself 
 is applicable only to this view of the subject; for the legislature 
 could scarcely direct, that " all declarations or creations of 
 trusts should be manifested and proved," &c. unless the trusts 
 were in their nature capable of manifestation and proof ; but, 
 as resulting trusts are the effect of a rule of law, to prove them 
 would be to instruct the Court in its own principles, to certify 
 to the judge how equity itself operates. The exception could 
 only have been inserted ex majori cauteld, that the extent of 
 the enactment might not be left to implication. But why, it 
 will be asked, are resulting trusts upon conveyances excepted, 
 and not resulting trusts upon wills ? The only explanation 
 that suggests itself is this : — The statute had spoken only of 
 declarations or creations of trust, and by a wUl no resulting 
 trust is or can be declared or created. If lands be devised to 
 A. and his heirs upon trust to pay the testator's debts, the 
 resulting trust of the surplus is no new declaration or creation; 
 the right construction is, that the testator has disposed of the 
 legal estate to the devisee, and of part of the equitable in 
 favour of creditors ; but the residue of the equitable, though 
 said to result, has in fact never been parted with, but descends 
 upon the heir-at-law as part of the original inheritance. In 
 conveyances, however, this is not equally the case ; for if a 
 purchase be taken in the name of a third person, a trust which 
 had no previous existence arises upon the property in favour 
 
CH. IX.] CONSTEUCTIVE TRUSTS. 231 
 
 of the real purchaser; and so if a lease be renewed by a 
 trustee, the equity which was annexed to the old term imme- 
 diately fastens upon the new. Here, then, it is evident there 
 is an actual creation of trust ; and, to obviate all doubts as to 
 the operation of the enactment, resulting trusts arising out of 
 conveyances are expressly excepted. 
 
CHAPTEE X. 
 
 OF DISCLAIMER AND ACCEPTANCE OF THE TEUST. 
 
 No person 
 compellable to 
 be a trustee. 
 
 Heir of a trustee. 
 
 Haying treated of the creation of trusts, whether by the 
 act of a party or by operation of law, we shall next direct our 
 attention to the estate and office of the trustee, and, as a pre- 
 liminary inquiry, we propose in the present chapter to offer a 
 few remarks upon the subject of the trustee's disclaimer or 
 acceptance of the trust. 
 I. Of Disclaimer. 
 
 It may be laid down as a clear and undisputed rule, that 
 no one is compellahle to undertake a trust (a). " Though a 
 person," said Lord Eedesdale, " may have agreed iu the life- 
 time of a testator to accept the executorship, he is stiU at 
 liberty to recede, except so far as his feelings may forbid it ; 
 and it will be proper for him to do so, if he finds that his 
 charge as executor is different from what he conceived it to be 
 when he entered into the engagement" (6). 
 
 But there does not appear to be any instance in which, after 
 acceptance by the trustee, his heir has been allowed to dis- 
 claim ; and if the law permitted it, many instances would no 
 doubt have occurred. The inconveniences of such a right of 
 disclaimer would be great, as the legal estate would become 
 vested in the crown. However, where the heir takes not 
 strictly in that character, but as special occupant, he may 
 exercise his discretion in accepting the estate or not (c). 
 If the party named as trustee intend to decline the adminis- 
 
 (a) Sobinson v. Pett, 3 P. W. 251, 
 per Lord Talbot ; Moyle v. Moyle, 
 2 R. & M, 715, per Lord Brougham ; 
 Lowry V. Fulton, 9 Sim, 1 23, per Sir 
 L. Shadwell. 
 
 (6) Bmjle v. Blahe, 2 Sch. & Lef. 
 239. 
 
 (c) Creagh v. Blood, 3 Jones & 
 Lat. 170. 
 
CH. X.J DISCLAIMER. 233 
 
 tration of the trust, lie ought to execute a disclaimer without Disclaimer 
 delay. There is no rule, however, that a trustee must execute deed. ^ ^ 
 a disclaimer within any particular time : thus it will operate 
 after an interval of sixteen years, if the interval can be so 
 explained as to rebut the presumption of his having accepted 
 the trust (a). But if he lie by for so long a time, it is for the 
 jury to say whether it was not because he had assented to the 
 devise (6) ; and where a trustee, knowing his appointment as 
 trustee, has done nothing, but has not disclaimed, it will be 
 presumed after a long lapse of time, as twenty years (c), and a. 
 fortiori, after thirty-four years (d), that he had accepted the 
 trust ; and even where the d6ed was only four years old. Lord 
 St. Leonards observed, "that where an estate was vested in 
 trustees who knew of their appointment and did not object at 
 the time, they would not be allowed afterwards to say they did 
 not assent to the conveyance, and it would require some strong 
 act to induce the Court to hold that in such a case the estate 
 was divested. Pie spoke," he said, " with respect to the effect 
 upon third parties; every Court and every jury would pre- 
 sume an assent " (e). 
 
 The disclaimer should be by deed, for a deed is clear Form of the dis- 
 evidence and admits of no ambiguity (/) ; and the instrument 
 should be a disclaimer and not a conveyance, for the latter, as 
 it transmits the estate, has been held to imply a previous 
 acceptance of the office {g) ; but Lord Eldon expressed his 
 opinion, that, where the intention was disclaimer, the instru- 
 ment ought to receive that construction, though it was a con- 
 veyance in form Qi). 
 
 If an executor of an executor take upon him the adminis- 
 
 (a) Doe -v. Harris, 16 M. & W. {g) Crewe v. Dicken, 4 Ves. 97; 
 
 517 ; and see Nolle v. Meymott, 14 and see Tlrch v. Walker, 3 M. & C. 
 
 Beav. 471. 702. 
 
 (5) See Doe v. Harris, 16 M. & (A) Nicloson v. Wordsworth, 2 
 
 W. 522, Sw. 372. In Attorney- General y. 
 
 (c) Jrare J7m"acAe, IJones&Lat. 1. Doyley, 2 Eq. Ca. Ab. 194, the 
 
 {d) In re Needham, 1 Jones & trustee who declined to act was di- 
 
 Lat. 34. reoted to convey, and the same de- 
 
 (e) Wise v. Wise, 2 Jones & Lat. cree was made in Hussey v. Mark- 
 
 403 ; see 412. ham, Rep. *. Finch, 258. In Sharp 
 
 (/) Stacey v. Elph, 1 M. & K. v; Sharp, 2 B. & A. 405, it was 
 
 199, per Sir J. Leach. held the trustees had not acted, 
 
334 
 
 DISCLAIMER. 
 
 [CH. X. 
 
 Executor of an 
 executor. 
 
 Devise of several 
 trust estates. 
 
 Can a person 
 accept a tounty 
 and repudiate 
 a trust under 
 the same will. 
 
 Opinion of 
 counsel as to 
 disclaimer. 
 
 Disclaimer of 
 trust by answer 
 in Chancery. 
 
 tration of the goods of the first testator, he cannot refuse the 
 administration of the goods of the latter ; for it is only through 
 the medium of the latter testator that he can reach the execu- 
 torship of the former. And although it was formerly thought 
 that an executor might renounce probate of the original tes- 
 tator, and at the same time or subsequently prove the will of 
 the immediate testator (a), yet the practice has now been 
 settled to the contrary (6). 
 
 Suppose a trustee of two distinct settlements created at 
 different times and wholly independent of each other were to 
 devise all his trust estates to the same person, could such 
 person accept one estate, and disclaim the other ? It would 
 probably be held, that he might ; but he should lose no time 
 in manifesting his intention, for should he act as owner of one 
 estate and not expressly disclaim the other, the law would 
 presume him to have accepted both. 
 
 If a person be nominated a trustee in a will and also take a 
 benefit under it, can he claim the testator's bounty, and at the 
 same time disclaim the onus of the trust ? (c) It would seem 
 that he might, for an executor, who is also a legatee, may 
 renounce probate and yet claim the legacy, and it is difficult 
 to point out the distinction between the two cases. 
 
 If one be named as trustee without any authority from him- 
 self, he is justified in taking the opinion of counsel upon the 
 propriety of executing a deed of disclaimer, and if a person 
 agree to pay the costs of the disclaimer, and the bill of costs 
 be taxed, the item of counsel's opinion will be allowed (d). 
 
 A trust may be disclaimed at the bar of the Court (e), or by 
 answer in Chancery, and the person named as trustee will be 
 entitled to his costs (/), but only as between party and party (g), 
 
 though they had conveyed the estate 
 instead of disclaiming. See Urch v. 
 Walker, 3 M. & C. 702 ; Richardson 
 V. Hulbert, 1 Anst. 65. 
 
 (a) Shepp. Touch, by Preston, 464 
 Wankford\, Wankford, Freem. 520 
 Hayton v. Wolfe, Cro. Jac. 614 
 >S. C. Palmer, 156 ; Hutton, 30. 
 
 (J) In the goods of Perry, 2 Curt, 
 655 ; and see In the goods of Beer, 
 15 Jar. 160. 
 
 (c) See Talbot v. Radnor, 3 M. & 
 
 K. 254 ; Pollexfen v. Moore, 3 Atk. 
 272 ; Andrew v. Trinity Hall, Camb., 
 9 Ves. 525. 
 
 (d) In re Tryon, 7 Beav. 496. 
 
 (e) Ladbrooh v. Bleaden, M. II. 
 16 Jut. 630. 
 
 (/) Hickson v. Fitzgerald, 1 Moll. 
 14. 
 
 {g) Norway v. Norway, 2 M. & 
 K. 278, overruling MerraW V. -Bewt- 
 ley, 1 R. & M. 655. 
 
CH. X.] DISCLAIMER. 235 
 
 though the hill he not dismissed against him hefore the hear- 
 ing (a) ; and if his answer be unnecessarily long, he will only- 
 he allowed what would have heen the reasonable costs of a 
 simple disclaimer (&). 
 
 A trust may also be repudiated on the evidence of conduct May he shown 
 without any express declaration of disclaimer (c) ; but a person 
 would act very imprudently, who allowed so important a ques- 
 tion as whether he is a trustee or not to remain matter of 
 construction. 
 
 After renunciation of the trust, whether by express dis- After disclaimer, 
 
 the trustee may 
 
 claimer, or by conduct which is tantamount to it, a trustee act as agent to 
 may assist as agent, or act under a letter of attorney, in the 
 management of the estate, without incurring responsibility (d) ; 
 hut the caution need scarcely be suggested, that all such inter- 
 ference cannot be too scrupulously avoided before the fact of 
 the renunciation of the trust has been most unquestionably 
 established. The circumstance that the person named as 
 trustee is to receive a profit from his agency, excites a suspicion 
 in the mind of the Court (e). 
 
 What will amount to a disclaimer at law, so as to devest the How estate de- 
 estate, is a very distinct question from the disclaimer of the trustee. 
 of&ce in equity. 
 
 It was formerly held (at least such was the clear opinion of Freeholds may be 
 
 disclaimed by 
 
 Lord Coke), that a freehold, whether vested in a person by deed, 
 feoffment, grant (/), or devise (g), could not he disclaimed but 
 by matter of record;- and the reason, upon which this maxim 
 was founded, was, that the suitor might be more certainly 
 apprised who was the tenant to the prcrcipe (h). But the 
 
 (a) Bray v. West, 9- Sim. 429. (/) Butler and Baker's case, 3 Ee. 
 
 (6) MartinY. Pers.se, 1 Moll. 146 ; 26, a, 27, a; Anon, case, 4 Leon. 
 
 Parsons v. Potter, 2 Hog. 281. 207 ; Shepp. Touch. 285. 
 
 (e) Staceyr. JElph, 1 M. & K. 195. (y) Bonifanty, Greenfield, Godb. 
 
 (d) Dove V. Everard, 1 R. & M. 79, per Lord Coke ; but at tbe re- 
 231 ; Harrison v. Oraham, 3 Hill's hearing (Cr. El. 80) it was adjudged 
 MSS. 239, cited 1 P. W. 241, 6tli that three could pass the loAoZe estate, 
 ed., note {y) ; Stacey v. Elph, 1 M. the fourth having disclaimed by act 
 & K. 195 ; Lowry v. Fulton, 9 Sim. in pais ; and see Shepp. Touch. 
 104; Montgomery Y.Johnson, 11 Ir. 452. 
 
 Eq. Kep. 480. Qi) Butler and Baker's case, 3 Ke. 
 
 (e) Montgomery y. Johnson, Wlc. 26, b. 
 Eq. Kep. 481. 
 
236 
 
 DISCLAIMEE. 
 
 [CH. X. 
 
 Disclaimer of 
 
 uses. 
 
 Disclaimer of 
 chattels. 
 
 Disclaimer hj 
 feme covert. 
 
 doctrine of modern times is, that disclaimer by matter of record 
 is unnecessary (a) ; for, as Lord Tenterden observed, there can 
 be no disclaimer by a person in a court of record, unless some 
 other person think fit to cite him there to receive his disclaimerj 
 and if the estate be damnosa hcereditas, that is not very likely 
 to happen (&). Mr. Justice Holroyd laid it down, that even a 
 deed might be dispensed with, and a party might disclaim a 
 freehold by parol {c); and the doctrine has been sanctioned 
 by an actual decision of Sir A. Hart {d), and by the apparent 
 approbation of other Judges {e).*^^/^-^^^^^^ ^r^ '^^^"^^^ "/^ 
 
 It was laid down in Butler and Baker's case, that estates < 
 limited wnder the statute of uses were to be disclaimed with the 
 same formalities as estates at common law (/) ; but Lord Eldon 
 doubted whether a party could disclaim in the case of a con- 
 veyance to uses, except by release with intent of disclaimer : 
 however, his Lordship added, he was aware that such a doctrine 
 would shake titles innumerable ig). 
 
 It seems to be clearly established, that a disclaimer, even by 
 parol declaration, wUl suffice to devest the legal estate, when 
 the trust property is a mere chattel interest Qi). 
 
 Whether a feme covert could, under the Fines and Eeco- 
 veries Act, disclaim an interest in real estate, was, by the 
 terms of the statute, left doubtful ; the act enabling her only 
 to "dispose of, release, surrender, or extinguish" any estate 
 or power as if she were a feme sole (i). In the Irish Act, 
 4 & 5 W. 4. c. 92, s. 68, the word "disclaim" was expressly intro- 
 duced; and now, by 8 & 9 Vict. c. 106, s. 7, a married woman 
 is enabled, in like manner, to " disclaim" any estate or interest 
 in lands in England. 
 
 (a) Townson v. Tickell, 3 B. & A. 
 31 ; Beghie v. Crooh, 2 Bing. N. S. 
 70; S. C. 2 Scott, 128. 
 
 (4) Townson v. Tichell, 3 B. & A. 
 36. 
 
 (c) lb. 38, citing Bonifant v. 
 Greenfield, Cr. El. 80 ; and see Doe 
 V. Smyth, 9 D. & R. 136. 
 
 (d) Bingham v. Clanmor.ris, 2 
 Moll. 253. And see Creed y. Creed, 
 2 Hog. 215; Be Ellison's trust, 1 
 Jur. N. S. 62. 
 
 (e) See Boe v. Sarris, 16 M. i% 
 W. 517. 
 
 (/) 3 Re. 27, a. 
 
 (cj) Nicloson v. Wordsworth, 2 Swi 
 372. 
 
 {h) Shepp. Toucli. 285; Butler 
 and Baker'' s case, 3 Re. 26, b, 27, a; 
 Smith v. Wlieeler, 1 Vent. 130; 
 S. C. 2 Keb. 774 ; Doe v. £ams, 
 16 M. & W. 520, 521, per Paike, B. 
 
 (t) 3 & 4 W. 4. c. 74, s. 77. 
 
CH. X.] ACCEPTANCE OF THE TRUST. 237 
 
 The effect of disclaimer by a trustee is to vest the whole i 
 legal estate in the co-trustee (a) ; and, as regards the exercise of " 
 the office, even if the trust be accompanied with a power, as, ' ' 
 of signing receipts, the continuing trustee may administer the 
 trust without the concurrence of the trustee who has chosen 
 to renounce, and without the appointment of a new trustee (6). 
 The settlor, it is said, must be presumed to know what the 
 legal consequences of the death or disclaimer of some of 
 the trustees would be (c) ; and when the disclaimer has been 
 executed, it operates retrospectively, and makes the other trus- 
 tee the sole trustee ab initio (d). 
 
 But in personal contracts the rule is different, for where A. Disclaimer of 
 
 personal con- 
 
 covenants with B., C, and D. as trustees, and B. disclaims, tracts. 
 C. and D. do not take the joint covenant, and cannot sue with- 
 out B. (e) 
 
 If trustees are also appointed protectors of the settlement, Disclaimer of 
 and they intend to disclaim the protectorship, the deed of 
 disclaimer must, by the Fines and Eecoveries Act, be enrolled, 
 in Chancery (/). 
 
 II. Of Acceptance. 
 
 A trustee may accept the office either by signing the trust How trust ac- 
 deed(5r), or by an express declaration of his assent (/i), or by 
 proceeding to act in the execution of the duties of the trust. 
 
 If a person named as a trustee has, during a long period. Presumption of 
 done nothing at variance with the acceptance of the office, the 
 Court, until the contrary be shown, presumes that he has 
 accepted it (i). 
 
 (a) Bonifant v. Oreenfield, Cr. (c) Browell v. Reed, 1 Hare, 
 
 El. 80 ; Crewe v. Dicken, 4 Ves. 435, per Sir J. Wigram. 
 
 100, per Lord Loughborough ; Small (d) Peppercorn v. Wayman, 5 
 
 y\Marwood, 9 B. & C. 299 ; Freem. De Gex & Smale, 230. 
 
 13, ease 111 ; Hawhins v. Kemp, (e) Wetherell v. Langston, 1 
 
 3 East, 410 ; Townson v. Tickell, 3 Eich. 634. 
 
 B. & A. 31 ; Browell v. Beed, 1 (/) 3 & 4 "W. 4. c. 74, s. 32. 
 
 Hare, 435, ^er Sir J. Wigram ; and {g) See Buckeridge v. Glasse, 1 
 
 see Nicloson v. Wordsworth, 2 Sw. Cr. & Ph. 131, 134. 
 
 369. (A) See Doe v. Harris, 16 Mees. 
 
 (6) Adams v. Taunton, 5 Mad. & "W. 517. 
 
 435 ; Cooke v. Crawford, 13 Sim. (i) In re Uniacke, 1 Jon. & Lat. 
 
 96 ; Bayly v. Cumming, 10 Ir. Eq. 1 ; In re Needham, ib. 34 ; and see 
 
 Eep. 410; Hawkins v. Kemp, 3 JamesY. Frearson,lY.&C.Ch..Ca,. 
 
 ' East, 410. 370 ; Doe v. Harris, 16 M. & W. 522. 
 
 acceptance. 
 
238 
 
 ACCEPTANCE OF THE TEUST. 
 
 [CH. X. 
 
 Recitals. 
 
 Of acceptance 
 under hand and 
 
 If the trustee execute the deed, he should see that the re- 
 citals are correct. If it be stated, for instance, that stock has 
 been transferred into the name of the trustee, he should ascer- 
 tain that such is the truth, or the Court may hold him liable 
 for the consequences. However, in a late case (a) where, not- 
 withstanding the recital to the contrary, it was suggested that 
 no stock had ever been in existence, the Master of the Eolls 
 observed, " I cannot say that the trustees are bound by the 
 recital of that fact contained in the deed. We have had so 
 many instances of parties representing that they were entitled 
 to particular property, and which representation has afterwards 
 turned out to be wholly untrue, that it would be unjust and 
 dangerous to bind third parties by such representations ; and 
 I am not aware that it has ever been held that trustees are 
 bound by the representations of parties about to be married, 
 of the state of their property. I do not, therefore, accede to 
 the argument, that the recital alone binds the trustees." 
 
 With respect to the liabilities of the trustee, it is perfectly 
 immaterial to him whether he declare his acceptance of the 
 of&ce or his consent be implied, for in each case the obligations 
 imposed upon him are precisely the same (6). In the event of 
 a breach of trust the consequences to the parties beneficially 
 interested may admit of a slight variation. A breach of trust 
 creates per se a simple contract debt only (c) ; but, if the trustee 
 has agreed, under his hand and seal, to execute the trust, this 
 amounts to a covenant even though the heirs be not named, and 
 the breach of trust, thus becoming a specialty debt, wiU, in legal 
 assets, take precedence of simple contract debts {d). However 
 the mere fact of a trustee being made a party to and executing 
 a deed appointing him to that office, will not of itself amount 
 
 (a) Bateman v. Hotchhin, 10 
 Beav. 418. I have been informed 
 by one of the counsel in the cause 
 that in Bliss v. Bridgwater, at the 
 Rolls, many years ago, Sir J. Leach 
 held differently; and see Oore v. 
 Bowser, 3 Sm. & Gif. 6. 
 
 (J) See Lord Montfort v. Lord 
 Cadogan, 19 Ves. 638. 
 
 (c) Vernon v. Tawdry, 2 Atk. 
 119; S. G. Barn. 280; Cox v. 
 
 Bateman, 2 Yes. 19; Kearnan v. 
 Fitzsimon, 3 Ridg. P. C. 18. 
 
 (d) Wood V. Hardisty, 2 Coll. 
 542 ; Gifford v. Manley, For. 109 ; 
 Mavor v. Davenport, 2 Sim. 227; 
 Benson v. Benson, 1 P. W. 131 ; 
 Deg v. Deg, 2 P. W. 414; Turner 
 V. Wardle, 7 Sim. 80 ; Primrose v. 
 Bromley, 1 Atk. 89 ; Cummins v. 
 Cummins, 3 Jones & Lat. 64 ; see 
 Baily v. Bhins, 2 Dick. 632. 
 
CH. X.] ACCEPTANCE OF THE TRUST. 239 
 
 to a covenant on his part to execute tjie trusts, if the deed do 
 not contain any words which can be construed a covenant at 
 law (a) ; and if the deed do contain such words, yet the trustee 
 cannot be sued upon covenant if he has not executed the 
 deed ; though, of course, after accepting the trust he will be 
 liable for a breach of contract, as for a simple contract debt (h). 
 If he has executed the deed, it is not necessary, in order to 
 make it a covenant, that there should be the words covenant or 
 agree, but the word declare will suffice (c). If the trustee has 
 covenanted for himself and his heirs, a remedy then lies at 
 common law against the heir in respect of estates descended ; 
 and by 3 W. & M. c. 14, the like remedy was enacted against 
 the devisees of the debtor ; but this was only where the spe- 
 cialty would have supported an action of debt, as in the case of 
 a bond, and did not apply to a covenant, by which, not a debt 
 was created, but damages were recoverable (d) ; but the 11 G. 4. 
 & 1 Gul. 4. c. 47, has now perfected the remedy by extending 
 it to the case of a covenant. A still more recent statute (e) has 
 declared that the lands of a debtor shall be liable to all his 
 debts, whether on simple contract or on specialty ; but spe- 
 cialties, where the heir is bound, are still made to take pre- 
 cedence of simple contract debts, and specialties where the heir 
 is not bound. 
 
 What acts of a person nominated as trustee will amount to Of acceptance ty 
 a constructive acceptance of the office, is a question constantly trust. 
 arising, and not easily to be determined by any general rule. 
 
 If a person named as executor take out probate of the wiQ, Effect of probate, 
 he thereby constitutes himself executor, and incurs all the 
 liabilities annexed to the office (/). But it was held in one 
 
 (a) Adey v. Arnold, 2 De Gex, 1 Bing. N. C. 433 ; Cummins v. 
 
 Mac. & Gord. 433 ; Wynch v. Grant, Cummins, 3 Jones & Lat. 64 ; 8 Ir. 
 
 2 Drewry, 312. It appears from the Eq. Rep. 723. 
 
 latter case, that in Adey v. Arnold {d) Wilson v. Knuhley, 7 East, 
 
 the trustee had executed the deed, 127. 
 
 a circumstance not jnentioned in the (e) 3 & 4 W. 4. o. 104. 
 
 report of Adey v. Arnold. (/) Booth v. Booth, 1 Beav. 125 ; 
 
 (5) Richardson v. Jenkins, 1 Ward v. Butler, 2 Moll. 533, per 
 
 Drewry, 477 ; Vincent v. Godson, Lord Manners ; Stiles v. Guy, 1 
 
 1 Sm. & Gif. 384. Mao. & Gord. 431, per Lord Cotten- 
 
 (c) Bichardson v. Jenkins, uhi ham; Scully v. Delany, 2 Ir. Eq. 
 
 supra ; and see Saltoun v. Houston, Re. 165. 
 
240 
 
 ACCEPTANCE OF THE TEUST. 
 
 [CH. X. 
 
 Where the exe- 
 cutor is also 
 named as devisee 
 upon trust. 
 
 Two trusts in 
 same instrument. 
 
 Acting in the 
 executorship. 
 
 Effect of adminis- 
 tration where 
 executorand trus- 
 tee renounces. 
 
 case, that A. having after probate received part of the assets 
 transmitted to him by the post, and handed over the money to 
 B., the acting executor, was not liable ; the receipt by A., in the 
 first instance, not being his own act, and the transmission to B. 
 being merely consequent upon the receipt (a). 
 
 If the office of executor is, by the will, clothed with certain 
 trusts, it is not competent to a person named as executor to 
 -prove the will and thereby make himself an executor, and then 
 to reject the obligations that are knit to the office. Thus, if 
 a testator direct that his " executors " shall get in certain out: 
 standing effects to be applied to a particular purpose, a person 
 cannot make himself executor by proving the will, and refuse 
 the trusts (6). 4f^*s-e^.^-v-^-*~- <«»i»v^ f^^t.^--^'^^'" #*i?-, • - 
 
 And if an executor be also designated as trustee of the real 
 estate, he cannot desert the situation of trustee, and accept only 
 that of executor, for the acting as executor is an acceptance of 
 the entire trusteeship (c). 
 
 And if a person, by the same instrument, be nominated 
 trustee of two distinct trusts, he cannot divide them, but if he 
 accept the one, he wiU be deemed to have accepted the other (d). 
 
 And if an executor act in any part of the executorship, as 
 by signing a power of attorney to get in part of the testator's 
 estate (e), he brings down the whole burden upon him, though 
 at the time of acting he disclaim the intention of assuming the 
 office generally (/). 
 
 If A. be named as executor and trustee, and he renounces 
 probate and disclaims the trust, and B. takes out letters of 
 administration with the wiU annexedj..B., though he thus 
 becomes the personal representative, is not also trustee in 
 any other sense than as holding the surplus assets after the 
 ordinary administration, with notice of a trust. A proper 
 trustee can only be appointed by the institution of a suit for 
 
 (a) Bakhen v. Scott, 2 Ves. jun. 
 678. 
 
 (6) MueMow v. Fuller, Jao. 198 ; 
 and see Booth v. Booth, 1 Beav. 
 125 ; Williams v. Nixon, 2 Beav. 
 472. 
 
 (c) Ward V. Butler, 2 Moll. 533. N. S. 80. 
 
 ((?) Urch V. Walker, 3 M. & C. 
 702. 
 
 (e) Cummins v. Cummins, 8 Ir. 
 Eq. Rep. 723. 
 
 (/) Doijle V. Blahe,1%ab.. & Lef. 
 231 ; but see Maky v. Bdge, 2 Jur. 
 
CH. X.] ACCEPTANCE OF THE TEXJST. 241 
 
 the purpose, unless such a case was specially provided for by 
 the power of appointment contained in the will. 
 
 If a person be named as trustee in a settlement, but he does Taking custody 
 
 not execute it and declines to act ; he, of course, will not be an acceptance of 
 
 deemed to have accepted the trust by merely taking the settle- *™^*- 
 ment into his custody untU a trustee can be found (a). 
 
 Any voluntary interference with the assets, whether with or Voluntary inter- 
 without probate, will stamp a person as acting executor. Thus, ^tsets is"accep- 
 where of four executors one onlv proved, and the other three ^^"^ °^ *?■? 
 
 •'_ ^ executorship. 
 
 gave a letter of attorney describing themselves as executors to 
 the fourth, described as acting executor, to receive a quantity 
 of stock, Lord Hardwicke ruled that the whole number, by 
 this conduct, had drawn upon themselves the burden of the 
 executorship (&). 
 
 So the joioing in an assignment of the testator's lease (c), or Acts of accept- 
 the bringing an action ia the course of executing the trust (d), 
 is an acceptance of the office, and an executor and trustee for 
 sale will be deemed to have acted in the trust, if the property 
 be sold by direction of the trustees, and he is present, and 
 takes part, and exercises authority or ownership by giving 
 orders respecting the sale, and afterwards calls on a co-executor 
 to inquire into the state of the testator's accounts (e). 
 
 In Orr v. Newton (/), A., one of six executors, admitted in Orr v. Newton. 
 his answer that during the life of B., another of the executors, 
 and who had alone taken out probate, he had assisted in writing 
 letters to the co-executors towards collecting the testator's 
 estate, and it was proved that A. had written on behalf of him- 
 self and his co-executors to a debtor of the testator requiring 
 payment. Lord Camden, notwithstanding these circumstances, 
 observed in his argument, that " B. undertook to act solely, and 
 did act solely until he died," implying that A. had, by his con- 
 duct, not assumed the character of executor. But the case 
 
 (a) JEvansY. John, 4 Beav. 35, (d) Montforty. Cadogan, 17 Ves. 
 
 ( 6) Harrison v. Graham, 3 Hill's 489. 
 
 MSS. 239 ; 8. C. cited Churchill v. (c) James v. Frearson, 1 Y. & C. 
 
 LadyHolson, 1 P. W. 241, note [y), Ch. Ca. 370 ; see 375, 377. 
 
 6th ed. ; White v. Barton, 18 Beav. (/) 2 Cox, 274; see Lowry v. Ful- 
 
 192. ton, 9 Sim. 122. 
 
 (c) Urch V. Walker, 3 M. & Cr. 
 702. 
 
248 ACCEPTANCE OP THE TRUST. [CH. X. 
 
 was one of " cruel persecution " against A. ; and his Lordship 
 
 put the fairest possible construction upon all that A. had 
 
 done : and besides, Lord Camden might only have meant that 
 
 B. was substantially the sole acting executor, without adverting 
 
 to the question, whether the interference of A. ought not, 
 
 in strict legal construction, to be held an acceptance of the 
 
 executorship. 
 
 Interference not The rule, that every voluntary interference with the subject- 
 acceptance where , , .,, , • , , , ,-,,■, 
 clearly referribie matter Will convert a person mto a trustee, must be taken with 
 
 thantXtance!^ *^^^ qualification, that the interference is not such as to be 
 plainly referribie to some other ground than the part execution 
 of the trust. Thus A., B., and C. were named as executors 
 and trustees, and A. alone proved the will and administered, 
 and sold certain chattels to B., and afterwards applied to B. as 
 the friend of the family for advice ; B. in consequence nego- 
 tiated the sale of the testator's property, and became a pur- 
 chaser of part himself, taking the conveyance from A. the 
 tenant for life and the heir-at-law, under the impression that 
 the devise to A., B., and C. (as B. and C. did not act in the 
 trust) had become inoperative. On A.'s death B. expressly 
 renounced the executorship. A bill was filed under these cir- 
 cumstances against B., as having acted in the trust, and mis- 
 conducted himself in that character ; but Sir J. Leach was 
 clearly of opinion, that " B. had never interfered with the 
 property, except as the friend or agent of the widow. It was 
 true he had never executed a deed disclaiming the trust, but 
 his conduct had disclaimed the trust. In the purchase of the 
 small real estate made by him he had taken by feoffment from 
 the widow and eldest son of the testator, in whom the estates 
 could only have vested by the disclaimer of the trustee ; " and 
 his Honor dismissed the biU with costs (a). 
 Trustee may not But if a trustee act ambiguously he cannot afterwards take 
 and the^nTs"''^' advantage of the doubt, and say he acted not as trustee, but 
 '''*™- in some other character. Thus, a testator devised that the 
 
 produce of a plantation should be consigned to A. and be 
 employed by him upon certain trusts, and A. with full notice 
 
 (a) Stacey v. Mph, 1 M. & K. Euss. & Myln. 231 ; S. C. Taml. 
 195 ; and see Dove v. Eoerard, 1 376 ; Lowry v. Fulton, 9 Sim. 115. 
 
CH. X.] ACCEPTANCE OF THE TRUST. 343 
 
 of the will received the produce of the estate, and then pleaded 
 that he been acting merely as factor or agent ; but Lord 
 Hardwicke said it was incumbent on the trustee if he would 
 not have acted to have refused, and not, going on in that 
 ambiguous way, to leave himself at liberty to say he acted as 
 trustee or not (a). 
 
 Upon the question of acceptance or non-acceptance of the Parol evidence. 
 office, of course parol evidence is admissible as on any other 
 issue (6). 
 
 "Where a fund is given to a person upon certain trusts, and Executor con- 
 
 . . Ill verting himself 
 
 he IS appointed executor, as soon as he has severed the legacy into a trustee. 
 from the general assets, and appropriated it to the specific 
 purpose, he dismisses the character of executor, and assumes 
 that of trustee (c). Indeed the assent of the executor to the 
 legacy, however proved, converts him into a trustee (d ). 
 
 If a person be asked and consent to become a trustee of a One nominated a 
 
 . . , , . trustee may sue 
 
 marriage-settlement, and thereupon his name is introduced into as such without 
 articles as the basis of the settlement, he may sue the parties ^l^^^'^ ^"^^ ' 
 bound by the articles for specific performance, though he may 
 not have executed any written instrument declaratory of his 
 acceptance of the trust (e). 
 
 As soon as a trustee has accepted the office, he must bear Duties oonse 
 in mind that he is not to sleep upon it, but is required to 
 take an active part in the execution of the trust. The law 
 knows not such a person as a passive trustee. If, therefore, 
 an unprofessional person be associated in the trust with a 
 professional one, he must not argue, as is often done, that 
 because the solicitor is better acquainted with business and 
 with legal technicalities, the administration of the trust 
 may be safely confided to him, and that the other need not 
 interfere except by joining in what are called formal acts. 
 
 [a) Conyngham v. Conyngham, 1 C. 309; Byrehall v. Bradford, 6 
 Ves. 522; Montgomery v. Johnson, Mad. 13; /S. C. ib. 235 ; Ex parte 
 11 Ir. Eq. Kep. 476; see Zowry y. Dover, bBiva. 500; Ex parte Wilkin- 
 Fulton, 9 Sim. 115; Boe v. Harris, son, 3 Mont. & Ayr, 145 ; see WilU 
 16 M. & W. 517. inott v. Jenkins, 1 Beav. 401. 
 
 (6) See James v. Frearson, 1 Y. (d) Dix v. Burford, 19 Beav. 
 
 & C. Ch. Ca. 370. 409. 
 
 (c) PUllipo V. Munnings, 2 M. & (e) Cook v. Fryer, 1 Hare, 498. 
 
 R 2 
 
 quent on accept- 
 ance. 
 
244 ACCEPTANCE OF THE TRUST. [CH. X. 
 
 If he sign a power of attorney for sale of stock, or execute a 
 deed of reconveyance on repayment of a mortgage sum, he is 
 as answerable for the money as if he were himself the solicitor 
 and had the sole management of the transaction. 
 A trustee on Again, when a trustee has entered upon the trust, he is 
 
 inform himself bound at once to acquaint himself with the nature and parti- 
 the trust. ^ ° cular circumstances of the property, and to take such steps as 
 may be necessary for the due protection of it. Thus he is 
 not liable for the defaults of any predecessor in the trust, but 
 if the fund is in danger, and not in the state in which it ought 
 to be, the Court will presume him to have made proper in- 
 quiries, and will hold him responsible if he does not take such 
 measures as may be called for (a), 
 inventoiy. So E trustee of chattels personal for the separate use of a 
 
 wife must take care, on accepting the trust, to have the effects 
 ascertained by a proper inventory, or in a suit for an account 
 of the trust estate he may be deprived of his costs (&). 
 Part of the trust If part of the Original trust estate is supposed to be lost, 
 or is not forthcoming, the Court will not appoint new trustees 
 of the residue, so as to make them partial trustees only, but 
 will appoint them trustees generally, and if required will at the 
 same time, for the protection of the trustees, direct an inquiry 
 whether any part of the trust fund has been lost, and what 
 steps should be taken for its recovery (c). 
 A trustee by 'W'e may add in conclusion, that if a person by mistake or 
 
 mistake. . •' i- J 
 
 otherwise assume the character of trustee, when it really does 
 not belong to him, he may be called to account by the cestuis 
 que trust, for the monies he received under the colour of 
 the trust. Thus, when a testator devised an estate to W. 
 Thompson upon certain trusts, with a power of sale to him, 
 his heirs and assigns, and the trustee devised all his real 
 estates to his sister, Grace Thompson, charged with 50l. 
 to his friend Watson, and died leaving his brother Jonas 
 Thompson his heir-at-law, and, on the death of the trustee. 
 
 (o) See Townley v. Bond, 2 Conn. ( h) England v. Downs, 6 Beav. 
 
 & Laws. 405 ; James v. Frearson, 1 269 ; see 279. 
 
 Y. & C. Ch. Ca. 370 ; and see Maky (c) Bennett v. Burgis, 5 Hare, 
 
 V. Edge, 2 Jur. N. S. 80; bxit qucere. 295. 
 
CH. X.] ACCEPTANCE OF THE TRDST. 345 
 
 Grace Thompson assuming to be devisee, sold the estate and 
 received the money and paid it wrongfully to the tenant for 
 life ; in a suit against the representative of Grace Thompson, 
 the Court held, although she was neither heir nor devisee, 
 yet as she had acted as trustee and received the money in 
 that character, she was accountable for it to the cestuis que 
 trust (a). 
 
 (a) Rackham v. Siddall, 16 Sim. on appeal as to the point under eon- 
 297; affiimed by the Lord Chancellor sideration, 1 Mac. &Gord, 607. 
 
CHAPTER XL 
 
 OF THE LEGAL ESTATE IN THE TRUSTEE. 
 
 Upon this subject we propose to treat, First. Of vesting the 
 legal estate in the trustee ; Secondly. Of the properties and 
 devolution of the legal estate ; and Thirdly. Of the question 
 what persons taking the legal estate will be bound by the trust. 
 
 SECTION I. 
 
 OF VESTIKS THE LEeAL ESTATE IN THE IBTJSTEE. 
 
 I. Of the legal estate in the trustee with reference to the 
 statute of Uses. 
 Statute of Bses. In the case of a simple trust, as the statute of Henry the 
 Eighth operates upon the first use, whether designated in 
 the instrument as a use or trust, if a conveyance or devise be 
 to A. and his heirs " ia trust" for B. and his heirs, the posses- 
 sion will be executed in B. (a) ; and the statute must operate, 
 notwithstanding the intention of the settlor to the contrary, 
 for the will of the subject cannot control the express enact- 
 ment of the legislature (6). In order, therefore, to prevent the 
 legal estate from being executed in the cestui que trust, it is 
 necessary to vest in the trustee not only the ancient common 
 law fee, but also the primary use, as, by conveying or devising 
 
 (a) As in Austen v. Taylor, 1 Ed. Chambre & Gibbs laid a stress on 
 
 361 ; Mohinson v. Orey, 9 East, 1, the testator's intent, but Judge 
 
 &o. See Broughton v. Langley, 2 Heath referred the case to the true 
 
 Salk. 679 ; Chapman v. Blissett, principle, viz. that the trustees hav- 
 
 Cas. t. Talb. 150, ing a duty to perform, it was a 
 
 (6) See Carwardine v. Carwar- trust special, and so out of the sta- 
 
 dine, 1 Ed. 36. In Gregory v. tute. 
 Henderson, 4 Taunt. 772, Judges 
 
CH. XI. S. 1.] 
 
 STATUTE OF USES. 
 
 247 
 
 " to the trustee and his heirs to the use of the trustee and his 
 heirs (a)," or " unto and to the use of the trustee and his 
 heirs (6) ;" for although by this form of limitation the trustee 
 will be in by the common law, yet, as the use and the posses- 
 sion are both vested in the trustee, the trust over, as not being 
 the primary use, will not be affected by the statute. 
 
 But special trusts are not within the purview of the act (c) ; Special trusts 
 
 J ,■■ J. .» , . T ji i , 1 not within the 
 
 and thereiore, it any agency be imposed on the trustee, as by act. 
 a limitation to A. and his heirs, upon trust to pay the rents (cf), 
 or to convey the estate (e), or if any control is to be exercised, or 
 duty to be performed, as in the case of a trust to apply the rents 
 to a person's maintenance (/), or in making repairs (g), to hold for 
 the separate use of a feme covert (h), or to preserve contingent 
 remainders (i), and a fortiori if to raise a sum of money {k), or 
 to dispose of by sale (l), in all these cases as the trust is of a 
 special character, the operation of the statute of uses is effec- 
 tually excluded. But if an estate be released by deed to A. 
 and his heirs " upon trust," after the marriage of relessor 
 "■ for her and her assigns for life, for her own sole and separate 
 use," but no active duty in respect of the separate use is 
 expressed to be reposed in the trustee personally, a common 
 
 (a) Mobinson v. Comyns, Eep. t. 
 Talb. 154; Attorney-General v. 
 Scott, id. 138 ; Hopkins v. Hopkins, 
 1 Atk. 589, per Lord Hardwioke. 
 
 (5) Doe v. Passingham, 6 B. & 
 C. 305 ; Doe v. Field, 2 B. & Ad. 
 564; Harris v. Pugh, 12 Moore, 
 577 ; 8. C. ^ Bing. 335 ; Rackham 
 V. Siddall, 1 Mao. & Gord. 607. 
 
 (c) See Introduction ; and see 
 Wright v. Pearson, 1 Ed. 125 
 Mott V. Buxton, 7 Ves. 201. 
 
 ((^ Pobinson v. Grey, 9 East, 1 : 
 Symson v. Turner, 1 Eq. Ca. Ab, 
 383, note, 3d resolution; Garth v, 
 Baldwin, 2 Ves. 646 ; Chapman v. 
 Blissett, Cas. t. Talb. 145 ; Barker 
 V. Greenwood, 4 M. & Wels. 429 
 Anthony v. Bees, 2 Cr. & Jer. 75 
 White y. Parker, 1 Bing. N. C. 573; 
 and see Boe v. Homfray, 6 Ad. & 
 Ell. 206; Kenrick v. Lord Beau- 
 
 clerk, 3 Bos. & Pull. 178 ; Nevil v. 
 Saunders, 1 Vern. 415 ; Jones v. 
 Say 8f Seal, 1 Eq. Ca. Ab. 383. 
 
 (e) Garth v. Baldwin, 2 Ves. 646 ; 
 Boe V. Field, 2 B. & Ad. 504 ; Boe 
 v. Fdlin, 4 Ad. & Ell. 582. 
 
 (/) Sylvester v. Wilson, 2 T. 11. 
 444; Boe v. Edlin, 4 Ad. & Ell. 
 582. 
 
 [g) Shapland v. Smith, 1 B. C. C. 
 75. 
 
 {h) Harton v. Harton, 7 T. E. 
 652 ; and see Nevil v. Saunders, 1 
 Vern. 415 ; Jones v. Lord Say Sf 
 Seal, 1 Eq. Ca. Ab. 383 ; Boe v. 
 Claridge, 6 Com. B. Re. 641. 
 
 («') Biscoe v. Perkins, 1 V. & B. 
 485 ; and see Barker v. Greenwood, 
 4 M. & W. 431. 
 
 {k) Wright Y. Pearson, I Ed.. U9; 
 Stanley v. Lennard, 1 Ed. 87. 
 
 {I) Bagshaw v. Spencer, 1 Ves. 142. 
 
Si"? Z5TATE TAKEX [CH. XL 8. 1. 
 
 law court rejects the sole and separate use as an estate known 
 only in equity, and holds the legal estate for life to be executed 
 in the relessor (a). 
 Trust to "pa- And if the trust be simply to "permit and suffer A. to 
 A. to reeecK," receive the rents (h)," the legal estate is executed in A- Hott- 
 tS ^u"^^ ^ ever, if the lands be devised to three persons and their heirs 
 in trust, to permit A. to receive the net rents for her life for 
 her own use, and after her death to permit B. to receive tiie 
 net rents for her life for her sole and separate use, with 
 remainder over and a power of sale to the trustees, it has been 
 held that the legal estate is in the trustees, for that Ihey are 
 to receive ihe rents, and thereout pay the land-tax and other 
 charges on the estate, Mid hand over the net rents only to the 
 tenant for life (c). 
 Qiar.-5 rf ^*a. If the legal estate be limited to the trustees charged with 
 dehtg, and subject thereto in trust for A., but no direction to Hie 
 trustees personally to pay the debts (<7), here as the trustees have 
 no agency assigned to them, but merely stand seized in trnst, 
 the statute will operate, and execute the possession in A. 
 Doe r. ?r::ji;'ji. And where copyholds were devised to trustees during the 
 ^^ mincritv of ihe testator's son, "the same to be transferred 
 ,^*ife> 0f^^^2^/io him" when he attained twentj-'One, and if he died under 
 ^^3. twenty-one the testator gave the estate over, it was held 
 
 that the trustees took a chattel interest only, until the son 
 attained tvrentr-one, and that the copyholds then vested in 
 the son- It was said, that if the derise were to the son on 
 attaimiig twenty-one vdthout the intervention of trustees, the 
 admission of the son as tenant on the rolls would operate as 
 a tT'inifer of the estate, and that the words " the s^ne to be 
 transferred" did not imply that the trustees were to transfer 
 
 [a) Wmiam* v. Waier$, 14 M. & v. Greentcood, 4 M. & W. 429, jwr 
 
 TV. 166. Parke, B. 
 
 {hj Boughtan v. Langley, 1 Eq. (e) Barker t. Greenwood, 4 IL & 
 
 Ca. Al. 383; S. C. 2 Salk. ■5:^:' : W. 421 ; JFXtfev. Parlsir, 1 Bing. 
 
 oTimlm? Burehett t. iJurd^nt, 2 y. C. 573. 
 
 Vii:t311; Bightv. Smith,\-2'Ea^ [d] Kenrick x. Lord Beamlerl, 
 
 4oo ; Waggtaff v. Smith, 9 Tes. 3 B. & P. 175 ; X:-net-f. lord Sag 
 
 o24. per Sir TV. Grant ; Gregory t. St Seal, S Tin. 2€2. In tai= case Ihe 
 
 Benderton, 4 Tatirt. IIZ, per'SsaiiL, remai^ 'jht was given to the trustees 
 
 J. ; Warter v. ffutehinum, 5 Moor. -^yjzi tmrt subject to the annnitifs, 
 
 143 ; *. C. 1 B. 4: C. 721 : Barker ziA was held tfj he eieented. 
 
CH. XI. 8. 1.] liY THE TKUSTEE. 249 
 
 the legal estate (a). This construction appears somewhat 
 forced, as tho estate is not transferred by the admission, but 
 by the surrender. However, the estate remains in the sur- 
 renderor wntil the admission of the surrenderee, though it then 
 operates retrospectively from the date of the surrender. 
 
 Where the trust was " to pay unto or permit and suffer a Tru»t to pay 
 person to receive" the rents, as the former words would have "^i*™"*' *'*■ 
 created a special trust, and the latter would have been con- 
 strued a use executed by the statute, the Court determined, 
 for want of a better reason, that the former or latter words 
 should prevail, as the instrument, in which they were found, 
 happened to be a deed or a will (b). 
 
 II. Of the legal estate in the trustee as governed by the 
 object and scope of the trust. 
 
 As legal limitations are properly cognisable by a common- General mieg. 
 law court, it might naturally be supposed that the construction 
 put upon the instrument would stand wholly unaffected by the 
 circumstance of the creation of the trust. But as the effect 
 of a deed or will is to be ruled by the intention, and every 
 person in limiting an estate to a trustee must be guided by the 
 equity he proposes to raise upon it, the Courts, as well of 
 common law as of equity, were necessarily led to enter upon 
 the consideration of the trust, in order to measure the extent 
 of the legal interest by the scope and object of the equitable (c). 
 
 The following rules of construction have been adopted by 
 the Courts in reference to this branch of our subject, and, 
 except so far as they are controlled by the positive enactments 
 of the late Wills Act{d), must still be resorted to for guidance. 
 
 First, Wherever a trust is created, a legal estate sufficient for 
 
 the execution of the trust shall, if possible, be implied: Secondly, 
 
 the legal estate limited to the trustee shall not be carried farther 
 
 than the complete execution of the trust necessarily requires. 
 
 1. To illustrate the first of these rules, the Court has in Legal estate sup- 
 plied in toto on 
 
 / 
 
 («) JDoe V. Nicholh, \ B. & Or. by a court of law, see Sims v. Mar- 
 
 336. ryat, 17 U. B. Kep. 292 ; May y. 
 
 (b) Doe V. Bir/gH, 2 Taunt. 109. Taylor, 6 Mann. & Gr. 261. 
 
 (c) As to the cognisance of trusts (d) 1 Vict. c. 26, ss. 30, 31. 
 
250 
 
 ESTATE TAKEN 
 
 [CH. XI. S. 1. 
 
 account of the 
 trust. 
 
 Implied devise 
 in the word 
 "trustee." 
 
 Legal estates 
 enlarged. 
 
 Trust to sell con- 
 fers a fee. 
 
 some instances swpplied the estate in toto ; as where a testator 
 had devised to a feme covert the issues and profits of certain 
 lands to be paid by his executors, it was held the land itself 
 was devised to the executors in trust to receive the rents and 
 profits to the use of the wife (a). 
 
 If a testator simply appoint a person his executor and 
 trustee, it seems the latter word is not so exclusively appUed 
 to real estate, as to carry by implication to the executor a 
 devise of the testator's freeholds, but if the testator direct 
 certain acts to be done by the trustee which belong to the 
 owner of the freeholds, such a devise will be implied (6). And 
 so if the testator appoint a person his " trustee of inheritance," 
 which is equivalent to making him the trustee of his inherit- 
 able property (c). And if a testator constitute a trustee by wUI, 
 and devise the legal estate to him, and then by a codicil 
 "nominates and appoints another person to be trustee" in 
 his place, the codicil not only confers the office of the trustee- 
 ship, but also carries the legal estate with it (d). 
 
 In other cases the Court has extended the estate, as where 
 the devise was to three trustees, and the survivor of them, 
 and the executors and administrators of such survivor, upon 
 trust to pay certain annuities for lives, it was ruled that the 
 trustees took an estate for the several lives of ilie annuitants (e). 
 
 If land, said Lord Hardwicke, be given to a man without 
 the word heirs, and a trust be declared which can be satisfied 
 in no other way but by the trustees taking an inheritance, it 
 has been construed that a fee passes (/). Thus a trust to sell {g), 
 
 (o) Sush V. Allen, 5 Mod. 63 
 Doe v. Homfray, 6 Ad. & Ell. 206 
 and see OatesY. Cooke, SBiir. 1684 
 Sir "W". Black. 543 ; Boe v. Wood- 
 home, 4 T. K. 89. 
 
 (J) Oates V. Coohe, 3 Burr. 1684 ; 
 Bush V. Allen, 5 Mod. 63 ; Anthony 
 V. -Bees, 2 Cr. & Jer. 75 ; Doe v. 
 Shotter, 8 Ad. & Ell. 905. 
 
 (e) Trent v. Sanning, 1 B. & P. 
 New Eep. 116 ; 10 Ves. 495 ; 7 East, 
 95 ; 1 Dow. 102 ; Doe v. Pratt, 6 
 Ad. & Ell. 180. 
 
 {d) Re Hough's Will, 4 De Gex 
 & Sm. 371. 
 
 (e) Doe V. Simpson, 5 East, 162; 
 and see Atcherley v. Vernon, lO 
 Mod. 523 ; Oates v. Coohe, 3 Bur. 
 1684; ShawM. Weigh, 2 Str. 798; 
 Jenkins v. Jenkins, Willes, 650. In 
 Doe V. Simpson a life estate only 
 was implied, as the trustee was 
 merely such. ; but in Jenkins v. Jen- 
 kins, the trustee being also interested 
 beneficially, the construction was 
 more liberal, and it was thought the 
 fee simple passed. 
 
 (/) Villiers v. VilUers, 2 Atk. 
 72. 
 
 [g) Shawv. Weigh, 2 Str. 798; 
 
CH. XI. S. 1.] BY THE TRUSTEE. 251 
 
 even on a contingency (a), confers a fee simple as indispen- 
 sable to the execution of the trust; and the construction is 
 the same in a sale implied, as where the devise is upon trust 
 out of the rents and profits of an estate to discharge certain 
 legacies made payable at a day inconsistent with the applica- 
 tion of the annual profits only (6). 
 
 But a power of selling will not be implied by a limitation Charges not im- 
 
 . . plying a power 
 
 to a trustee, or to a trustee, his executors and aommistrators, of sale. 
 upon trusts to pay debts and legacies generally (c), or {semble) 
 to raise a sum of money (cZ). In such cases, where nothing in 
 the context implies the limitation of the fee, a chattel interest 
 only will pass. But, if a greater estate be limited expressly, 
 as by a devise to A. and his heirs upon trust to pay debts, 
 the Court has no jurisdiction' to cut down the expression and 
 reduce the estate to a chattel (e) ; though if a chattel interest 
 be carved out of the fee and be so limited, the word " heirs" 
 may be rejected as inconsistent with the estate, as where lands 
 are devised to trustees and their heirs, until an infant attains 
 twenty-one, and then to the infant in fee(/). 
 
 If an estate be granted to two, and the survivor of them, Grant to two and 
 and the heirs of such survivor, they are not joint tenants in fee, survivor. 
 but take a freehold for their joint lives, with a contingent 
 remainder to the one that may happen to survive. The same 
 construction will be put upon a devise expressed simply in the 
 same terms without any trust annexed, or even if there be 
 
 Bagshaw v. Spencer, 1 Ves. 144, per C. J. ; Hoberts v. Bixwell, 1 Atk. 
 
 Lord Hardwioke ; and see Glover v. 609, per Lord Hardwioke. 
 
 Monckton, 3 Bing. 13; 10 Moore, {d) Doe y. Simpson, 5 ~S.aat,\Q1; 
 
 453. As to Hawher v. Hawker, 3 and see Bosworth v. Forard, 0. 
 
 B. & Aid. 537, and Warier v. Bridg.E.ep.167; Thomason\.Mach- 
 
 Hutehinson, 5 Moore, 143, S. C. 1 worth, id. 507 ; Co. Lit. 42 a, note 
 
 B. & C. 721, see remarks infra, (7), Butler's ed. 
 
 pp. 256, 257. (e) Wrights. Pearson, 1 Ed. 119, 
 
 (a) Gibson v. Lord Montfort, 1 see p. 123. 
 
 Tes. 485, see p. 491. (/) Goodtith v. Whithy, 1 Burr. 
 
 (5) Gibson v. Lord Montfort, uhi 228 ; Doe v. Lea, 3 T. R. 41 ; War- 
 supra, ter v. Hutchinson, 1 B. & C. 721 ; 
 
 (c) Co. Lit. 42 a ; CordaVs ease, and see Achland v. Lutley, 9 Ad. & 
 
 Cr. El. 315; Carter y. Barnadiston, Ell. 879; but see Lethieullier v. 
 
 1 P. "W. 505 ; Hilchins v. Hilchins, Tracy, 3 Atk. 780, Fearne's C. K. 
 
 2 Vern. 403 ; Doe v. Simpson, 5 226, Butler's note. 
 East, 171, iier Lord EUenborough, 
 
25a 
 
 ESTATE TAKEN 
 
 [CH. XI. S. 1. 
 
 Legal estate cur- 
 tailed from the 
 nature of the 
 trust. 
 
 a trust, provided the nature of it do not require the fee simple 
 to he vested in the trustees {a). But if such a devise, even to 
 beneficiaries, he coupled with words pointing to a joint tenancy, 
 that construction will be adopted, as if the gift be to two and 
 the survivor of them and their heirs (6), or to them as joint 
 tenants, and the survivors and survivor of them, and the heirs 
 and assigns of such survivor (c). And if the devise he to two 
 and the survivor of them, and the heirs of such survivor, upon 
 trusts that require the fee simple to be vested in the trustees, 
 or upon trust for sale, the prevailing opinion is, that notwith- 
 standing the old case of Vick v. Edwards (d) to the contrary, 
 the Courts would compel a purchaser to accept a title on the 
 assumption that the trustees took the fee simple (e). Whatever 
 doubts, observes Butler, were formerly entertained, it now 
 appears to be the settled opinion of the profession that a devise 
 to two and the survivor of them, and the heirs and assigns 
 of such survivor, enables the trustees to vest the fee in the 
 purchaser, and that titles under such a devise are accepted with 
 a conveyance from the trustees and without the concurrence of 
 the heir "(/). 
 
 2. To illustrate the second rule, if an estate be devised to 
 A. and his heirs upon trust to permit B. to receive the rents 
 during his life, and on his death to convey to C. in fee, here 
 the legal estate for the life of A. is vested in B., and the 
 remainder only in the trustee (g). On the other hand, if an 
 estate be devised to A. and his heirs in trust, to pay the rents 
 to B. for his life, and on his death the testator devises the 
 estate to C. in fee, here the legal estate for the life of B. is in 
 the trustee, and the legal estate in the remainder is vested 
 in C. (h) So where a copyhold was devised to A. and his heirs 
 upon trust for the separate use of a feme covert during her 
 
 [a) Re Harrison, 3 Anst. 836. 
 
 (5) Doe V. Sotheron, 2 Bar. & Ad. 
 628 ; Oahley v. Young, 2 Eq. Ca. Ab. 
 537. 
 
 (c) Ooodtitk V. Layman, Fearne's 
 C. R. 358. 
 
 (d) 3 P. W. 372. 
 
 («) See Doe v. Ewart, 7 Ad. & 
 
 Ell. 636 ; Doe v. Sotheron, 2 Bar. 
 & Ad. 628. 
 
 (/) Co. Lit. 191 a. note 1 ; and 
 see Fearne's C. R. 358. 
 
 [g] X»oev.£oZfe»,U Ad.&EI1.188; 
 Adams v. Adams, 6 Q,. B. Eep. 860. 
 
 [h) Adams v. Adams, 6 G. B. Eep. 
 860 ; Cooke y.Blake, 1 Bxoh. Rep. 220. 
 
CH. XI. S. l.J BY THE TRUSTEE. 253 
 
 life, and after her decease in trust as the feme should appoint, 
 and in default of appointment to the testator's right heirs, it 
 was thought hy Judge Heath that the trustee took a base fee 
 determinable on the life of the feme, and by Judge Chambre, 
 ihat the devise amounted only to an estate pur autre vie (a). 
 But it seems that such a limitation in a deed, where the con- 
 struction is narrower, would have conferred the fee simple (b). 
 
 So in a devise to A. for life, remainder to trustees and their Limitation to 
 heirs to preserve contingent remainders (the words "during heirs to preseiTe 
 the life of A." being omitted), with remainders over, the ^°*^dfrtte' 
 trustees were construed to take not a fee simple, but an estate ''ords " during 
 
 ^ . the life of," &c. 
 
 for the life of A. (c) And Sir W. Grant expressed himself heing omitted. 
 
 in favour of a similar construction where the instrument was 
 
 a deed {d) : but it has since been decided that in the latter case 
 
 a fee simple passes (e), unless it be quite clear upon the face of 
 
 the deed itself that thft words " during the life of A." were meant 
 
 to be in the deed, and are wanting through inadvertence (/). 
 
 Of course there can be no such restriction of the estate 
 
 by implication wherar the natural sense of the words admits 
 
 of a fair and reasonable construction, as if before the late Act 
 
 the fee in the trustees would have supported any contingent 
 
 limitations that would otherwise have been left at the mercy 
 
 of the tenant for life (g). 
 
 Upon the principle we are now considering, if the legal Where legal es- 
 
 ,. .,,.,. iii tate is in trustees 
 
 estate be given to trustees, and their heirs, upon a trust not upon a partial 
 executed by the statute during the life of A., and after A.'s ^^^i^^^^q^Tta- 
 decease to uses in strict settlement, the vesting of the estate We interest may 
 
 (a) JDoeY.£arthrop,5Ta.nnt.382, {d) Curtis y. Price, 12 Yes. 89 ; 
 
 and see Wardy. Burbury, 18 'Rea.Y. but see Wykham v. Wykham, 18 
 
 190 ; Doe d. Players v. Nicholls, 1 Ves. 419, and following pages. 
 
 B. & Cr. 342 ; Doe v. Cafe, 1 Exch. (e) Colmore v. Tyndall, 2 T. & J. 
 Rep. 675. 605, 
 
 (6) Wykham v. Wykham, 11 East, (/) Beaumontx. Marquis of Salis- 
 
 458 ; see 8. C. 18 Ves. 419, and fol- hury, 19 Beav. 198. 
 
 lowing pages. {g) Venahles v. Morris, 7 T. R. 
 
 (c) Doe V. Hicks, 7 T. K. 433 ; 342, 438 ; and see Curtis v. Price, 
 
 as to Boteler v. Allington, 1 B. C. 12 Ves. 100 ; Doe v. Hicks, 7 T. E. 
 
 C. 72, see Doe v. Hichs, 7 T. R. 437 ; Bochford v. Fitzmaurice, 1 
 435, and Wykham v. Wykham, 18 Conn. & Laws. 169 ; 2Dnir.&Warr. 
 Ves. 418 ; and see Nash v. Coates, 16. 
 
 3 B. (& Ad. 839. 
 
254 
 
 ESTATE TAKEN 
 
 [CH. XI. S. 1. 
 
 be executed ty 
 the statute of 
 uses. 
 
 Jones V. Lord 
 Say & Seal. 
 
 "Warter v. 
 HutcMnson. 
 
 in the trustee during the life of A. will not prevent the opera- 
 tion of the statute in executing the uses in remainder (a). 
 
 Thus, in the much disputed, but, as it appears, rightly- 
 decided case of Jones v. Lord Say <& Seal (b), where a testatrix 
 devised to trustees and their heirs upon trust to pay the 
 legacies, devises, and bequests thereinafter mentioned (some 
 life annuities only were given), and to pay the residue of the 
 rents and profits as her daughter should appoint for her Hfe, 
 and after her decease the trustees to "stand seised" of the 
 premises to certain uses, "subject to the payment of the 
 several annuities :" — it was held by the Court that the legal 
 estate during the life of the daughter was vested in the trustees, 
 but that the remainder expectant upon her decease was exe- 
 cuted to the cestuis que use : the trustees were not required to 
 be agents after the death of the daughter, but were simply, sub- 
 ject to the payment of the annuities, which meant only, subject 
 to the annuities, to stand seised to uses. 
 
 So, where a testator devised to three trustees and their 
 heirs subject to the following uses and estates, viz. in trust 
 to permit two persons to receive annuities, and, subject there- 
 to, he devised the premises to the trustees and their heirs until 
 A. attained twenty-one, upon certain trusts, and, when A. 
 should attain twenty-one, he devised the premises to the 
 trustees and their heirs to uses in strict settlement, it was 
 held that the trustees took a chattel interest only, and that 
 the uses in remainder were executed by the statute (c). The 
 testator prefacing each limitation with a devise to "the 
 trustees and their heirs," the repetition of these words was 
 probably regarded as surplusage, and the wUl was construed 
 as foUows : — " I devise the estate to the trustees and their 
 heirs to the following uses, to the use that A. and B. may 
 receive annuities, and subject thereto to the use of the trustees 
 until A. attain twenty-one, and on A.'s attaining twenty-one 
 
 (a) Doe v. Simpson, 5 East, 171, 
 per Lord Ellenborough ; Robinson 
 V. Grey, 9 East, 1 ; Adams v. Adams, 
 6 Q.. B. Eep. 860 ; Doe v. Ironmon- 
 ger, 3 East, 633 ; and see Nash v. 
 Coates, 3 B. & Ad. 839. 
 
 (6) 8 Vin. 262. 
 
 (c) Warter v. Hutchinson, 5 Moor, 
 143 ; «. a 1 B. & C. 721 ; and see 
 Ward v. Burlury, 18 Beav. 190 ; 
 Doe V. Cafe, 7 Exoh. Rep. 675. 
 
CH. XI. S. l.J BY THE TBtFSTEE. 255 
 
 to uses in strict settlement." Independently of this construc- 
 tion, it seems the devise to the trustees and their heirs until 
 A. attained twenty-one would only have the effect of com- 
 municating a chattel interest (a); for as every estate of a 
 certaia and definite duration, though determinable on a life, 
 is a chattel in its nature, the limitation to the heirs would be 
 rejected as repugnant. 
 
 In Harton v. Hartoti (b) a testator devised to A. and B. and Harton v. 
 
 T . , . ^ . Harton. 
 
 their heirs upon trust to permit C, a feme covert, to receive 
 the rents during her life for her separate use, and after her 
 decease to the use of her first and other sons in tail ; and in 
 default of such issue to the use of the daughters in tail as 
 tenants in common ; and in default of such issue upon trust 
 to permit D., a feme covert, to take the rents during her life 
 for her separate use, with remainder to the use of her first 
 and other sons in tail, with remainder to her daughters in tail 
 as tenants in common ; and in default of such issue, upon trust 
 to permit E., a spinster, to receive the rents during her life 
 for her separate use, with like remainder to the use of her first 
 and other sons in tail, with remainder to her daughters in tail, 
 as tenants in common : and it was determined that the fee 
 simple was in the trustees ; but this decision can scarcely be 
 reconciled with principle, and seems to have presented some 
 difficulty to the mind of Lord Eldon. " The Court," said his 
 Lordship, " held that the legal estate was in the trustees through- 
 out, as it appears to me, for this reason, that, there being vari- 
 ous trusts for the separate use of married women after various 
 trusts not for married women, those trusts could not subsist 
 unless the legal estate was in the trustees from the beginning 
 to the end, and they relied on the non-repetition of a legal 
 estate" (c). In a recent case, however, before Vice-Chancellor 
 Wigram, his Honor appears to have considered himself bound 
 by Harton v. Harton (d), and in a still later case the Court of 
 
 (a) Goodtitle v. Whithy, 1 Bur, (6) 7 T. E. 652. 
 
 228; Boe v. Lea, 3 T. R. 41 ; and see (c) Hawkins v. Luscomhe, 2 Sw. 
 
 Ackland v. Lutley, 9 Ad. & Ell. 391. 
 
 879 ; but see LetUeullier v. Tracy, [d) Brown v. Whiteway, 8 Hare, 
 
 3 Atk. 780 ; Fearne's Conting. Rem. 145. 
 226, Butler's note. 
 
256 
 
 ESTATE TAIiEN 
 
 [CH. XI. S. 1. 
 
 Trust to lease 
 &c. confers fee 
 Semlle. 
 
 Hawker v. 
 Hawker. 
 
 Queen's Bench recognised its authority, at least to a limited' 
 extent [a). 
 
 But if a devise be to trustees and their heirs upon a trust 
 that cannot be executed without an absolute control oyer the 
 property, as upon trust to lease for an indefinite number of 
 years (&), or to raise a sum of money by sale (c), and subject 
 thereto to uses in strict settlement, the trustees will not be 
 held to take a mere power so as to let in the statute to execute 
 the uses, but will be construed to take the legal estate in fee, 
 and the uses that are limited wiU stand as equitable 'interests. 
 
 It has been observed in the " Treatise of Powers {d}," that 
 this rule was not attended to in the case of Hcmker v. 
 Hawker (e). The devise in that case was to three trustees 
 and their heirs upon trust to sell the testator's lands at H. 
 for payment of his debts, and, in case the proceeds should be 
 insufSicient, then as to his lands at F. upon trust to sell for the 
 like purpose, and to dispose of the surplus monies in manner 
 thereinafter directed, and, in case it should not be necessary to 
 dispose of the said lands at F., then as to such his lands {inter 
 alia) upon trust for the maintenance of his daughter tiU twenty- 
 one, and, on her attaining twenty-one, to the use of the trustees 
 during her life, and after her decease to the use of her children; 
 and the Court certified as to the lands at F., that the trustees 
 did not take a larger estate than for the life of the daughter. 
 The devise was probably considered to be of a double aspect, 
 viz. to the trustees and their heirs upon trust to seU, &c. if one 
 event happened, and upon trust for the daughter, &c. if another 
 event happened. The latter series of limitations took effect, 
 and therefore, as no power of sale was to be exercised by the 
 trustees, it was not necessary under the circumstances to arm 
 them with the inheritance. 
 
 (a) Toller v. Attwood, 15 Q. B. 
 Rep. 951. 
 
 (6) Doe V. Willan, 2 B. & AH. 
 84 ; but see Heardson v. William- 
 son, 1 Keen, 33 ; Ackland v. Lutley, 
 9 Ad. & Ell. 879. 
 
 (c) Wright v. Pearson, 1 Ed. 
 123 ; Bagshaw v. Spencer, 1 Ves. 
 142 ; Glover v. Monckton, 3 Bing. 
 
 13 ; Bale v. Coleman, 2 Eq. Ca. Ab. 
 309, note (e) ; Sanford v. Irhj, 3 
 B. & Aid. 654 ; Jones v. Morgan, 
 1 B. C. C. 206 : for a correct report 
 of the will, see Fearne's C. E. Ap- 
 pendix, No. 3. 
 
 {d) 1 Sug. Pow. 127, 6th, edit. 
 
 (fi) 3 B. & Aid. 537. 
 
CH. Xr. S. 1.] WHAT ESTATE VESTED IN THE TRUSTEE. 257 
 
 The case of Warter v. Hutchinson {a) is more difficult to be Warter v. 
 reconciled with the rule we are discussing. The limitations, ^^**"i^'"'- 
 so far as they concern the present subject, were to trustees and 
 their heirs to the following uses, viz. to the trustees, their heirs 
 and assigns, until A. attained twentj'-one, upon trust as soon 
 as convenient after the testator's decease to raise out of the 
 rents and profits, or by sale or mortgage thereof, a sum 
 sufficient for the payment of debts, funeral expenses, and the 
 costs of the trustees, and also the sum of 2000Z. to be applied 
 in manner therein directed, the residue of the rents and 
 profits, after payment of debts, funeral expenses, and the sum 
 of 2000L, to be paid to A. on his attaining twenty-one, and 
 when A. should attain twenty-one the testator devised the 
 premises to the trustees and their heirs to uses in strict 
 settlement ; and the Court certified that the trustees took a 
 chattel interest, and not the fee simple. The construction 
 appears to have been, that, as the limitation to the trustees 
 and their heirs was expressly limited to the period until A. 
 attained twenty-one, the estate was intended to be a chattel 
 interest only, and the charges were to be raised either by sale 
 or mortgage of that chattel interest, or out of the inheritance 
 by virtue of an implied power. 
 
 Recent cases have established the following important Present rule 
 qualification of the rule now under consideration, viz., that t^"s to' trustees 
 where an estate is in the first instance given to trustees and 
 their heirs upon trusts which do not exhaust the equitable 
 fee simple, and for which a particular estate short of the legal 
 fee in the trustees would be sufficient, but discretionary 
 powers are superadded, which cannot be exercised by the 
 trustees without arming them with the means of passing the 
 fee simple, there the Courts have held that the trustees do 
 not take a particular estate by way of vested interest with 
 a power under the statute of uses or by a common law 
 authority of passing the fee, but that they retain the legal fee 
 simple given to them in the first instance, on the footing that 
 they were meant to exercise the discretion given to them by 
 virtue of their ownership and not by the mere operation of a 
 
 {a) 5 Moore, 143 ; S. C. 1 B. & C. 721. 
 
258 
 
 WHAT ESTATE VESTED IN THE TRUSTEE. [CH. XI. S. 1. 
 
 Devise to uses. 
 
 Where the 
 powers do not 
 affect the fee. 
 
 power (a). Baron Parke observed, in the leading case (6), " It 
 is certainly true that where the purposes of the trusts on 
 which an estate is devised to trustees are such as not to 
 require a fee in them, as, for instance, where the trust is to 
 pay annuities or to pay over rents and profits to a party for 
 life, there, if, subject to the specified trust, the estate is given 
 over, the parties entitled under such devise over have been 
 held to take legal estates, the gift to the trustees (even when 
 given with words of inheritance) having been taken in such 
 cases to have been meant to be co-extensive only with the 
 trusts to be performed. This rule of construction has probably 
 created much more difficulty than it has obviated. It is, 
 however, now too well settled to be called in question. — 
 But when an estate is given to trustees, all the trusts which 
 they are to perform must primd facie at least be performed by 
 them by virtue and ia respect of the estate vested ia them. 
 — The fee is in terms devised to them, and it would be 
 a very strained and artificial construction to hold first that the 
 natural meaning of the words is to be cut down, because they 
 would give an estate more extensive than the trust requires, 
 and then, when the trust does in fact require the whole fee 
 simple, to hold that that must be supplied by way of power 
 defeating the estate to the subsequent devisees, and not out of 
 the interest of the trustees." 
 
 The rule of construction laid down in this case has since 
 been followed, even where the language of the subsequent 
 limitations has been peculiarly applicable to a devise of the 
 legal estate, as where after the primary devise to the trustees 
 and their heirs upon limited trusts with discretionary powers 
 the estate was expressed to be limited in strict settlement, by 
 a declaration of uses to that effect (c). 
 
 But the principle does not apply where the devise is to 
 trustees and their heirs upon trust for a person for life, and 
 after her death upon certain trusts during the minority of her 
 
 {a) Watson v. Pearson, 2 Exoh. 
 Eep. 581 ; Blagrave v. Blagrave, 4 
 Exoh. Rep. 550 ; Davies v. Dames, 
 1 Q,. B. Kep. 430 ; Doe v. Cadogan, 
 7 Ad. & EU. 636; Rackham v. 
 Siddall, 1 Mac. & Gord. 607. 
 
 (5) Watson v. Pearson, 2 Exeh. 
 Kep. 593. /^iff^J.^lpi^SJ'^^ 
 
 (c) Blagrave v. Blagrave, 4 Eioh. 
 Rep. bbOTBackham v. Siddall, \ 
 Mao. & Gord. 607 ..X.^ -<^ ^/^' 
 
CH. XI. S. 1.] WHAT ESTATE VESTED IN THE TRUSTEE. 259 
 
 children, with a mere power of leasing, to be exercised during 
 the continuance of the trust without any authority affecting 
 the fee simple (a). 
 
 The law upon the subject has now undergone some alter- Late wm Act. 
 ation from the provisions of the late act (1 V. c. 26) for the - 
 amendment of the law of wills. 
 
 By the 30th section it is declared, "that where any real 
 estate (other than or not being a presentation to a church) 
 shall be devised to any trustee or executor, such devise shall 
 be construed to pass the fee simple, or other the whole estate 
 or interest which the testator had power to dispose of by will 
 in such real estate, unless a definite term of years, absolute or 
 determinable, or an estate of freehold shall thereby be given to 
 him, expressly or by implication." 
 
 And by the follo^ving section it is enacted, " that where any 
 real estate shall be devised to a trustee without any express 
 limitation of the estate to be taken by such trustee, and the 
 beneficial interest in such real estate or in the surplus rents 
 and profits thereof shall not be given to any person for life, 
 or shall be given for life, but the purposes of the trust may 
 continue beyond the life of such person, such devise shall be 
 construed to vest in such trustee the fee simple or other the 
 whole legal estate which the testator had power to dispose of 
 by will, and not an estate determinable when the purposes 
 of the trust shall be satisfied." 
 
 The effect of these provisions is by no means clear, but it Effect of the act. 
 is conceived that a definite chattel interest, as a term of 99 
 years, or a simple freehold as an estate for the life of A., may • 
 
 still either be limited expressly to trustees or be raised by 
 implication ; and that in cases where before the act an indefinite 
 chattel interest would have passed as in a devise to trustees 
 (without the word " heirs ") to pay debts, or a freehold with an 
 indefinite interest superadded as in Doe v. Simpson (b), there 
 the words of the wiU are in future made to pass the fee 
 simple (c). 
 
 (a) Doe v. Cafe, 7 Bxeh. Eep. (c) See tke observations on the 
 
 675 j-'^nd see Adams v. Adams, 6 above clauses, H. Sugden on Wills, 
 
 a. B. Kep. 860. p. 119 ; 2 Jarm. on WiUs, 263, 
 
 - (b) 5 East, 162. 
 
 ' s 2 
 
260 
 
 PROPERTIES OF THE LEGAI. ESTATE. [CH, XI. S. 2. 
 
 SECTION II. 
 
 THE PKOPEETIES AND DEVOLTTTION OF THE LEGAL ESTATE. 
 
 This branch of our subject we propose to consider, First, 
 with reference to the common law ; and. Secondly, with refer- 
 ence to the construction of particular statutes. 
 
 Legal estate 
 subject at com- 
 mon law to dower, 
 cartesy, forfei- 
 ture, and escheat. 
 
 Secxis now. 
 
 Trust elattels 
 subject to for- 
 feiture, &c. 
 
 Whether term in 
 a trustee requires 
 
 I. As regards the common law, it may be stated as a general 
 rule, that the legal estate in the hands of the trustee has pre- 
 cisely the same properties and incidents as if the trustee were 
 the usufructuary owner. Thus, if real estate be put in trust 
 it is still subject at law in the hands of the trustee to curtesy (a), 
 dower (6), and freebench (c), and until a late act was liable to 
 forfeiture (d), and on the decease of the trustee descended to his 
 heir, and, failing the heir, fell by escheat to the lord (e) ; 
 but now by 13 & 14 V. c. 60, ss. 15, 46, substituted for 4 & 5 
 W. 4. c. 23, trust property is protected from forfeiture and 
 escheat (/). 
 
 So chattels real and personal held upon trust were forfeit- 
 able until the late act, which extends to personal as well as 
 real estate, for the offence of the trustee (g), but in the case 
 of two joint trustees, a moiety only was forfeited, and the King 
 and the other trustee were tenants in common Qi). So on the 
 decease of the trustee the chattel, as part of his personal 
 estate at law, will devolve on the executor or administrator. 
 And if the executor die, having appointed an executor, the 
 chattel will devolve on that executor. 
 
 If the lands comprised in a trust term be situate in a 
 
 (a) Sennet v. Davis, 2 P. W. 
 319. 
 
 (J) Ifoel v. Jevon, Freem. 43; 
 Nash V. Preston, Cr. Car. 190. 
 
 (c) Hinton v. Hirdon, 2 Ves. 631, 
 638 ; Bevant v. Pope, Freem. 71 ; 
 and see Brown v. Raindle, 3 Ves. 
 256. 
 
 {d) Pawlett V. Attorney- General, 
 Hard. 466, per Lord Hale ; Oeary 
 
 V. Bearcroft, Cart. 67, per Cur.; 
 King v. Mildmay, 5 B. & Ad. 254. 
 
 (e) Jenk. 190, c. 92. 
 
 (/) See infra, pp. 285, 286, 287. 
 
 {g) Pawlett Y. Attorney- General, 
 Hard. 466, per Lord Hale ; Wikes's 
 case, Lane, 54 ; Scounden v. Hawley, 
 Comb. lTi,per Dolben, J.; Jenk. 
 219, 0. 66 ; ib. 245, o. 30. 
 
 (A) Wikes's case. Lane, 54. 
 
CH. XI. S. 2.] PROPEETIES OF THE LEGAL ESTATE. 261 
 
 different diocese from that in which the trustee was domiciled, a prerogative 
 
 probate. 
 
 it seems a prerogative probate will be necessary before the 
 term can be legally transferred (a). The chattel is of no value 
 beneficially to the testator's estate ; but ecclesiastical courts do 
 not take cognisance of trusts. 
 
 And perhaps the better opinion is, that a chattel interest Whether a chat- 
 held upon trust may at law be taken in execution for the debt jn e™ecution for" 
 of the trustee ; for, so soon as the writ of execution reaches *^^ f ^*' "^ *^® 
 the sheriff's ofiice, it binds the goods and chattels of which 
 the debtor is then possessed, and a trust estate, as well as 
 a beneficial ownership, must be subject to the lien, for the 
 common law can scarcely operate differently where it recog- 
 nises no distinction. The sheriff is a mere instrument for 
 the execution of the legal process, and property, which the 
 common law holds liable, the sheriff can have no discretion 
 to exempt upon grounds of equity. The mere of&cer of the 
 court cannot have ligandi et non ligandi potestatem (b). It was 
 said, however, by Mr. Justice Ashhurst, " Suppose a person 
 has goods as a trustee for certain purposes, which was made 
 known to the sheriff before the sale, if the sheriff persist in 
 selling, it would in my opinion be a tortious act in him "(c). 
 On the other hand, Lord Thuiiow seems to acknowledge the 
 legal right against the trustee, by observing, that, if a creditor 
 of the trustee take the goods in execution, he will himself 
 become a trustee by construction of equity (d). 
 
 Assets in the hands of an executor are regarded even by the The common law 
 
 1 • s M J. ij- j-j recognises assets 
 
 common law as a species of trust property, and in respect oi ^ ^f^ j^j^^^g ^^ 
 
 them has ingrafted upon itself a quasi equitable jurisdiction: au executor to he 
 
 thus, if an executrix marry, she may by will, without the 
 
 consent of her husband, appoint an executor in whom the 
 
 assets will vest, and who will thus become the executor of the 
 
 original testator (e) ; and though the husband during the 
 
 coverture has power to dispose of the assets in the course 
 
 (a) See Crosley v. Archdeacon of {d) Foley v. Burnell, 1 B. C. C. 
 
 Sudhury, 3 Hagg. 201 ; 3 Vend. & 278. 
 
 Purch. 14. (e) Scammell v. Wilkinson, 2 
 
 (6) Burdett v. Rochey, 1 Vern. 58, East, 552 ; Hodsden v. Lloyd, 2 B. 
 
 per Cur. C. C. 543, per Lord Thurlow. 
 
 (c) Farr v. Newman, 4 T. R. 647. 
 
362 
 
 DEVISE OF TRtrST ESTATES. 
 
 [CH. XI. S. 2. 
 
 Trustee may deal 
 ■with the trust 
 estate hy act 
 inter tItos, 
 
 May devise or 
 tequeath it. 
 
 In what cases the 
 trust estate will 
 pass by a general 
 devise. 
 
 of administration (a), he will not be entitled to them in his 
 marital right bj'' survivorship (6). Nor can the assets be taken 
 in execution for the debt of the executor (c) ; and, if he commit 
 felony or treason, they are exempted from forfeiture to the 
 King(fZ); and if the executor die intestate, instead of vesting 
 in his administrator, they vest in the administrator de bonis 
 non oi the testator ( e). y^^^^^:^:zr y^^ .!^^:2tZ:'.^:^.^i^y^tr^ 
 
 'a. trust estate, whether real or personal, may, at laiu, be con- 
 veyed, assigned, or incumbered by the trustee like a beneficial 
 estate ; and, if there be co-trustees, each may exercise the 
 like powers of ownership over his own proportion. 
 
 And, as the trustee may dispose of the property in his life- 
 time, so he may devise or bequeath it at his death. 
 
 But a trust estate will not in all cases pass by the same 
 words in a will as a beneficial ownership would, for wherever 
 the estate does not pass by operation of law solely, but 
 through the medium of the intention, it becomes necessary, in 
 order to ascertain the effect of the instrument, to take into 
 consideration the particular circumstances of the trust. 
 
 Whether a trust estate shall pass inclusively in a general 
 devise, is a question that has been frequently under discussion. 
 The rule as originally established was, that a general expres- 
 sion would carry a dry trust estate (/), but afterwards there 
 were some misgivings upon the subject {g) (1) ; and the Court 
 at last acceded to the proposition, that general words would 
 not pass trust estates, unless there appeared a positive 
 
 (a) Thrustout v. Coppin, 2 W. 
 Black. Kep. 801. 
 
 (5) Co. Lit. 351 a, 351 b ; Stow, 
 V. Drinhwater, Lofft, 83. 
 
 (c) Farr v. Newman, 4 T. E, 621. 
 
 ((7) Farr v. Newman, 4 T. R. 
 628, per Grose, J. 
 
 (e) lb. per eundem ; Rachfield v. 
 Careless, 2 P. W. 161, per Powis, J. 
 
 (/) Harlow v. Smith, 2 P. W. 
 198. 
 
 {g) See Brayhrohe v. Inship, 8 
 Ves. 437. 
 
 How the opinion {^) '^^^ doubt appears to have originated in part from an expression of 
 
 arose that a gen- Lord Hardwicke in Casborne v. Scarfe, 1 Atk. 605, that by a devise of all 
 
 eral devise would lands, tenements, and hereditaments, a mortgage in fee would not pass, 
 
 no pass a rus mjess the equity of redemption were foreclosed. But Lord Hardwicke was 
 
 not speaking here of the legal estate, but of the beneficial interest in the 
 
 mortgage. The same thing was said in the same sense in Strode v. Mussel, 
 
 2 Vern. 625, Lord Hardwioke's authority has been cited on both sides of 
 
CH. XI. S. 3.] DEVISE OF TRUST ESTATES. 263 
 
 intention that they should so pass (a). The question was 
 reconsidered before Lord Eldon, when the result of the cases, 
 after a careful examination of them, was declared to be, that, ■ 
 where the will contained words large enough, and there was no ' 
 expression authorising a narrower construction, nor any such 
 disposition of the estate as it was unlikely a testator would 
 make of property not his oivn (as complicated limitations, or 
 any purpose inconsistent with as probable intention to devise as 
 to let it descend), in such a case, the trust estate would pass (&). 
 
 A charge of debts, legacies, annuities, &c., and a fortiori, a Charge of debts, 
 direction to sell, is considered a sufficient indication of an t^e trust estate. 
 intention not to include a mere trust estate (c) ; and so where 
 a testator gave, devised, and bequeathed to trustees all such real , 
 estates as were then vested in him by way of mortgage, the 
 better to enable his said trustees to recover, get in, and receive 
 the principal monies and interest which might be due thereon, 
 it was ruled that the devise extended only to mortgages vested 
 in the testator beneficially, and did not pass the legal estate 
 of a mortgage in fee vested in him upon trust for another {d). 
 Even where a testator, having a trust estate and also estates of 
 his own, gave and devised " all his real estate, whatsoever and 
 wheresoever, to Grace Thompson, her heirs and assigns, for 
 ever, charged with 50J. to his friend Watson," it was held that 
 the trust estate did not pass (e). 
 
 (a) Attorney- General v. Bulhr, Sylvester v. Jarman, 10 Price, 78 ; 
 
 5 Ves. 340. -Re Morley's Trust, 10 Hare, 293 ; 
 
 (6) Brayhroke v. InsUp, 8 Ves. see Wall v. Bright, 1 J. & "W. 494. 
 436 ; see Roe v. Beade, 8 T. E. 118; [d) Ex parte Morgan, 10 Ves. 101 ; 
 
 Ex parte Morgan, 10 Ves. 101 ; and see Sylvester v. Jarman, 10 
 
 Zangfordr. Auger, 4 Hare, 313. Price, 78 ; Ex parte Brettell, 6 Ves. 
 
 (c) Boe V. Beade, 8 T. E. 118 ; 577. 
 Duke of Leeds v. Munday, 3 Ves. (e) Backham v. Siddall, 16 Sim. 
 
 348; Attorney- Generals. Buller, 5 297, 1 Mac. & Gor. 607; Hope v. 
 
 Ves. 339 ; Ex parte Marshall, 9 Sim. Liddell, 21 Beav. 183. 
 555 ; Ex parte Morgan, 10 Ves. 101 ; 
 
 the question (compare -DMX;e of Leeds v. Munday, 3 Ves. 348, with Ex parte 
 Sergison, 4 Ves. 147) ; but that he approved of the old rule is evident from 
 Ex parte Bowes, cited in Mr. Sanders's note to Cashorne v. Scarf e, 1 Atk. 
 605. Lord Northington and Lord Thurlow are said to have entertained 
 the same opinion. (See Ex parte Sergison, 4 Ves. 147 ; but, as to Lord 
 Thurlow, see an obiter dictum, Pickering v. Vowles, 1 B. C. C. 198.) 
 
2CU 
 
 BEVISE OF TEUST ESTATES. 
 
 [oh. XI. S. 2. 
 
 What expres- 
 sioiis will not or 
 will exclude 
 the trust estate. 
 
 Distinction as to 
 legal estate in 
 mortgages 
 
 The expression " my real estates " will not restrict the 
 meaning to those vested in the testator beneficially (a), nor will 
 a devise to A., his heirs and assigns, " to and for his and their 
 own use and benefit " (b), nor a devise to A. and her heirs, to be 
 disposed of by her by will or otherwise, as she may think 
 fit (c) ; though under a devise to a woman for her separate 
 use, as the words import a beneficial enjoyment, a dry legal 
 estate will not pass (d). Again, a devise to A. and B., "to be 
 equally divided between them as tenants in common and to 
 their respective heirs," will pass the trust estate (e). But 
 where lands are limited in strict settlement, with a vast number 
 of limitations, contingent remainders, executory devises, powers 
 of jointuring, leasing, and raising sums of money, it cannot for 
 an instant be supposed the testator meant to include any lands 
 of which he had not the absolute disposition (/) ; and the same 
 construction will prevail even when the estate is devised to A. 
 for life or in tail with remainder over (g). 
 
 The question whether the legal estate in a mortgage in fee 
 passes, requires a separate consideration. The mortgagee has a 
 beneficial interest in the property, as a security, a distinction not 
 always sufficiently adverted to, but which is strongly in favour 
 of the legal estate passing to the person who is to receive the 
 mortgage money Qi). Hence the decisions establishing that 
 the legal estate passes by a general devise of securities for 
 money {i), and that in the case of such a bequest neither a 
 
 (a) Srayhroke v. 'Inskip, 8 Ves. 
 425. 
 
 (b) Ux parte Shaw, 8 Sim. 159; 
 Bainbridge -v. Lord Ashburton, 2 T. 
 & C. 347 ; Sharpey. Sharpe, 12 Jur. 
 598 ; and compare Ex parte Brettell, 
 6 Ves. 577, with. Braybrohe v. In- 
 ship, 8 Ves. 434. 
 
 (e) Ex parte Shaw, 8 Sim. 1 59. 
 
 {d) Lindsell v. Thacker, 12 Sim. 
 178. The marginal note of the Re- 
 port is quite contrary to the de- 
 cision. 
 
 (e) Ex parte Whitacre, at the Rolls, 
 July 22, 1807, cited 1 Sand. Uses 
 & Trusts, 359, 4th ed. See Re Mor- 
 hy's Trust, 10 Hare, 293. 
 
 (/) Braybroke v. Inskip, 8 Ves. 
 434, per Lord Eldon. 
 
 {g) Thompson v. Grant, 4 Madd. 
 438 ; overruling Ex parte Bowes, 
 cited in Mr. Sanders's note to 
 Casborne v. Scarf e, 1 Atk. 605 ; 
 Re Horsfall, 1 Maolel. & Tounge, 
 292 ; GalUers v. Moss, 9 B. & Cr. 
 267. 
 
 (A) Doe V. Bennett, 6 Eich. 892; 
 and comments of Vice-ChanoeUor 
 Kindersley on this case, Re Cantley, 
 17 Jur. 124. 
 
 (f) King's Mortgage, 5 De Grex & 
 Sm. 644, and cases there reviewed. 
 
CH. XI. S. 2.] DEVISE OF TEUST ESTATES. 265 
 
 general trust to sell and convert (a), nor a charge of debts (b), 
 will prevent it from passing; and it is conceived^ notwith- 
 standing a former decision of the Court of Exchequer (c), that 
 the case of a general devise and bequest of real and personal 
 estate charged with debts admits of no substantial distinction. 
 
 The rule that trust estates will pass under a general devise Power of a trus- 
 assumes that a testator by making such a devise does not commit devke the't™st 
 a breach of trust, otherwise general words would not have estate. 
 been construed to carry the trust estate. However, it was 
 observed in one case by the late Vice-Chancellor of England 
 that in his opinion it was not lawful for a trustee to dispose of 
 the estate, but that he ought to permit it to descend ; and that 
 there was no substantial distinction between a conveyance inter 
 vivos, and a devise, for the latter was nothing but a post 
 mortem conveyance {d). But Lord Langdale considered that 
 there was a wide distinction between a conveyance in the 
 trustee's life-time and a devise by his will ; for during his 
 life he had a personal discretion confided to him, which he 
 could not delegate, but the settlor could not have reposed any 
 personal confidence in the trustee's heir, for it could not be 
 known beforehand who such heir would be ; and that if the 
 estate were allowed to descend, it might become vested in 
 married women, infants, or bankrupts, or persons out of 
 the jurisdiction ; and he could not therefore hold it to be a 
 breach of trust to transmit the estate by will to trustworthy 
 devisees (e). The propriety or impropriety of a devise of trust 
 estates must evidently depend on all the circumstances of the 
 case. If an estate be conveyed to A. and his heirs upon trust, 
 that A. and his heirs shall execute the trust, it is considered 
 that, in the absence of special circumstances, the trustee ought 
 not to break the natural devolution of the trust by passing 
 the legal estate to a devisee, while the trust was confided to 
 
 (a) Hx parte JBarher, 5 Sim. 451 ; (d) Cook v. Crawford, 13 Sim. 
 
 Mather v. Thomas, 6 Sim. 115. 98. 
 
 (5) Field's Mortgage, 9 Hare, 414, (e) Titley v. Wolstenholme, 7 Beav. 
 
 overruling Senvoize v. Cooper, 10 435; ani see Macdonald v. Walker, 
 
 Price, 78. 14 Beav. 556 ; Wilson v. Bennett, 5 
 
 (c) Doe v. Lightfoot, 8 M. & W. De Gex & Sm. 479. 
 553. 
 
266 
 
 DEVISE OF TBUST ESTATES. 
 
 [CH. XL S. 3. 
 
 Whether a de- 
 visee can execute 
 the trust. 
 
 Where the trust 
 is confided to the 
 trustee and Ms 
 
 Titley v. Wol- 
 
 stenholme, 
 
 doubted. 
 
 the heir ; and in such a case, the assets of the trustee might 
 perhaps be held liable for the costs of restoring the trust to 
 its proper channel (a). But it is conceived that if the heir 
 apparent or presumptive were an infant, bankrupt, insolvent, 
 lunatic, feme covert, or out of the jurisdiction, it would be a 
 proper act to transmit the estate to a devisee. 
 
 How far a devisee of the trust estate can execute the trust, 
 will, of course, depend on the intention of the settlor. Thus, 
 real or personal estate may be vested in A. upon trust, that A., 
 personally, shall execute the trust ; and in this case, the heir 
 or executor of A., though he take the legal estate, cannot act 
 as trustee (b). A fortiori in that case the devisee would be a 
 mere depository of the legal estate, without any authority to 
 execute the trust (c). So, if a settlor vest an estate in A. upon 
 trust, that A. and his heir shall sell, &c. ; a devisee being the 
 hceres factus only, and not the hares natus, cannot exercise the 
 power (d). 
 
 But it most frequently happens that an estate is vested in 
 A. upon trust, that A., his heirs and assigns, shal^ hold upon 
 the trusts : and the question then is, whether a devisee of A. 
 may, as falling under the description of assigns, not only take 
 the estate, but also execute the trust ? In a late case, where 
 the settlement contained no poiver of appointment of new trus- 
 tees, it was held, that as a conveyance in the life-time of the 
 trustee to a stranger would have been a breach of trust, the 
 word assign could mean only a devisee taking under a post 
 mortem conveyance, when the personal confidence in the trustee 
 necessarily ceased ; and the Court, on a bill filed by the cesttds 
 que trust for the appointment of new trustees, refused the 
 relief prayed on the ground that the devisees had not only the 
 legal estate, but were properly trustees within the scope of the 
 settlor's intention (e). 
 
 This case went to the utmost verge, and, indeed, cannot be 
 
 (a) See Cook Y.Crawford, 13 Sim. {d) Cook v. Crawford, 13 Sim. 
 
 98. 
 
 (6) See Mortimer v. Ireland, 11 
 Jur. 721. 
 
 (c) Mortimer v. Ireland, 11 Jur. 
 721 ; S. C. before Vice -Chancellor 
 Wigram, 6 Hare, 196. 
 
 91. 
 
 (e) Titley\. Wolstenholme, 7 Beav. 
 425, referred to without disapproba- 
 tion by Lord Cottenham in Mortimer 
 V. Ireland, 11 Jur. 721. 
 
CH. Xr. S. 3.] DEVISE OF TRUST ESTATES. 267 
 
 implicitly relied upon ; for even vfhere there is no power of 
 appointment, the word " assigns " may be satisfied by holding 
 it to mean a dowress, tenant by the curtesy, or in a case 
 .prior to the act excepting trust estates from forfeiture, the 
 lord taking by forfeiture, who are assigns in law. It is, 
 however, at all events clear, that should the settlement contain 
 a power of appointment of new trustees, the word assigns could 
 then receive the construction of persons lawfully appointed 
 under the power, and a devisee would be construed not to be 
 a trustee. Thus, in Fordyce v. Willis {a), a discretionary trust 
 was limited to trustees, their heirs and assigns ; but the Court 
 held, that trustees appointed by the Court were not assigns 
 within the contemplation of the power. 
 
 In the recent case of Wilson v. Bennett (b), the two devisees WUson v. 
 of the surviving trustee contracted to sell, and the title was 
 held by Vice-Chancellor Knight Bruce to be too doubtful to 
 be enforced. It was afterwards discovered that one of the 
 devisees was also the heir of the surviving trustee ; but Sir 
 James Parker stiU held the title to be too doubtful, on the 
 ground that the testator had never contemplated such an event 
 as that the estate should vest in the successor and the power 
 go to another. He added, that it would often be the duty of a 
 trustee to take care that the legal estate did not vest in a 
 lunatic, or a person out of the jurisdiction, or otherwise unfit, 
 and for that purpose to devise it ; but in every case the question 
 was, whether the devise was in accordance with the title under 
 which the trustee held. It will be borne in miad^ in explana- 
 tion of this case, that if an estate be limited to A. and his 
 heirs upon trust, and A. devises the estate, there is in fact 
 no heir ; for the settlor must have meant the heir in respect of 
 the trust estate, and by the devise the descent has been broken 
 and there is no heir. 
 
 In another case (c), where leaseholds were assigned to two Ue Burtt's 
 trustees, their executors and administrators, upon trust ; and the 
 surviving trustee devised the leaseholds to A. and B. upon 
 the same trusts, and appointed A., B., and C. executors : on 
 
 (o) 2 Phil. 497. (c) Re BurWs Estate, 1 Drew. 
 
 (6) 5 De G. & Sm. 475. 319. 
 
268 
 
 DEVISE OF TRUST ESTATES. 
 
 [CH. XI. S. 2. 
 
 An estate con- 
 tracted to be 
 sold ■will be in- 
 cluded in a 
 general devise. 
 
 Trustee has the 
 piivilegea and 
 burdens of the 
 legal estate. 
 
 a petition by A. and B. to the Court to have a trust fund, the 
 proceeds of the leaseholds, paid out to them, Vice-Chancellor' 
 Kindersley refused, observing, that the surviving trustee had 
 no authority to bequeath the execution of the trust, but could 
 only pass the legal estate. The petition was then amended 
 by joining C. as a co-petitioner, so that the petition was now 
 that of the legatees, and also of the executors ; but the Vice- 
 Chancellor still refused, on the ground that the testator had 
 himself declared, that his executors as such should not be 
 trustees, and, therefore, since, by the bequest, he had taken 
 the legal estate from those who ought to have been trustees, 
 there must be an appointment of new trustees. 
 
 A vendor, after the contract for sale, but before the com- 
 pletion of it, is a trustee for the purchaser sub modo only, 
 and the estate will pass by a general devise in his will, where 
 it would not have been included had the testator been a mere 
 and express trustee. " A constructive and a naked trustee,'' 
 said Sir T. Plumer, "for many purposes stand in different 
 situations. A mere trustee is a person who not only has no 
 beneficial ownership in the property, but never had any, and 
 could therefore never have contemplated a disposition of it 
 for his own purposes. A vendor was at one time both the legal 
 and beneficial owner, and may again become so if any thing 
 should happen to prevent the execution of the contract. It 
 may turn out the title is not good, or the purchaser may be 
 unable to pay, or he may become bankrupt. The purchaser is 
 not entitled to the possession unless stipulated for, and if he 
 should take possession it would be a waiver of any objections to 
 the title. If the purchase-money has not been paid, a Court of 
 equity would restrain him at the instance of the vendor." And 
 upon these grounds his Honor held in the case that elicited 
 the above remarks, that an estate which was the subject of a 
 contract was included in a general devise to trustees though 
 upon trust to sell (a). 
 
 As the dry legal estate in the hands of the trustee is affected 
 by the operation of law, and may be disposed of by the act of 
 the trustee, precisely in the same manner as if it were vested 
 
 (a) Wall V. Bright, 1 J. & W. 494. 
 
CH. XI. s. 2.] trustee's right to vote. 269 
 
 in him beneficially, so it confers upon liim all the legal 
 privileges, and subjects him to all the legal burdens, that are 
 incident to the usufructuary possession (a). 
 
 Thus the trustee can bring any action respecting the trust Trustee must 
 estate in a court of law, the cestui que trust, though the *'"°sa'=t'0'>^. «''=• 
 absolute owner in equity, being at law regarded, as a general 
 rule, in the light of a stranger (b). So the trustee of a manor 
 is the person to appoint the steward of it (c), and the trustee of 
 an advowson to present to the church {d), but in either case he 
 has the mere legal right, and is bound in equity to observe the 
 directions of his cestui que trust (e). 
 
 So where a debtor to the trust estate becomes bankrupt, the Trustee must 
 trustee is the person to prove for the debt, and that without ruptcy ° ^'^^ 
 the concurrence of the cestui que trust (/), unless it be such a 
 simple trust as where A. is trustee for B. absolutely, and then 
 it rests in the discretion of the commissioners to require the 
 concurrence of the cestui que trust ; for who knows but that 
 B. may have already received the money {g) ? 
 
 And originally the trustee as the legal proprietor had the Trustee if in 
 right of voting for coroners (/j) (1); but by the 58 G. 3. c. 95, for coroners" ^' 
 sect. 2, it was enacted, that " no person should be allowed to 
 have any vote for or by reason of any trust estate or mortgage, 
 unless such trustee or mortgagee should be in actual possession 
 
 (o) Burgess v. Wheats, 1 Ed. 251, 338, per Lord Eldon ; Attorney- 
 
 per Lord WortMngton. OeneralY. Newcombe, 14 Ves. T,per 
 
 (b) See Allen v. Imlett, Holt, 641 ; eundem ; Kensey v. Langham, Cas. 
 
 Gibson v. Winter, 5 B. & Ad. 96; t. Talb. 14:4:, per Lord Talbot; Am- 
 
 May V. Taylor, 6 M. & Gr. 261. hursty. Bawling, 2 Vem. 401; £ar- 
 
 [e) Mott V. Buxton, 7 Ves. 201 ; ret v. Gluhb, "W. Black. Eep. 1053, 
 
 and see Gary, 14. per De Grey, J. 
 
 {d) See in Re Shrewsbury School, (/) Ex parte Green, 2 Deao. & 
 
 1 M. & Or. 647 ; Hill v. Bishop of Chit. 116, per Cur. 
 
 London, 1 Atk. 618. {g) Ex parte Dubois, 1 Cox, 310 ; 
 
 (e) Attorney- General Y.BarJcer, tmi see Ex parte Battier, Bnck, 426; 
 
 3 Atk. 677, per Lord Hardwieke ; Ex parte Gray, 4 D. & Cb. 778. 
 
 Attorney- General Y.Forster, lOVes. {h) Burgessi. Wheate, 1 Ed, 251. 
 
 (1) And Lord Nortbington added for " sheriffs " [Burgess v. Wheate, 
 1 Ed. 251) ; but the election of sheriffs had been transferred from the 
 people to the Chancellor, Treasurer, and Judges, by 9 E._2. st. 2, before the 
 establishment of trusts. 
 
270 
 
 trustee's right to vote. [CH. XI. s. 8, 
 
 Trustee's right 
 to Tote for a 
 member of par- 
 liament. 
 
 or receipt of the rents and profits of the same estate, but that 
 the mortgagor or cestui que trust in possession should vote for 
 the same." 
 
 So the trustee was the person entitled at common law to vote 
 for members of parliament (a) ; but by the 8 H. 6. c. 7, it was 
 enacted that every elector should have " a freehold of the value 
 of forty shillings a-year at the least, above all charges," and the 
 sheriff was authorised to " examine every elector upon oath 
 how much he might expend by the year," and " if he could not 
 expend forty shillings by the year," he was disabled ffom 
 voting. It can scarcely be doubted that from the time of this 
 enactment a trustee, had the sheriff questioned his qualifica- 
 tion, could not have satisfied the requisitions of the act ; but 
 the sheriff probably did not exercise this right of interroga- 
 tion, and therefore the trustee, as he was the freeholder, though 
 he could not expend the rents, was allowed to continue in the 
 enjoyment of the franchise, particularly as the cestui que trust, 
 who had not the freehold, was at all events excluded. The 
 7 & 8 Gul. 3. c. 25, s. 7, enacted, that "no person should vote 
 for or by reason of any trust estate or mortgage, unless such 
 trustee or mortgagee was in actual possession or receipt of the 
 rents and profits of the same, but that the mortgagor or cestui 
 que trust in possession should vote for the same. By the effect 
 of this clause, the cestui que trust, if in possession, was now 
 for the first time entitled to a vote, and the trustee in that case 
 was expressly excluded from the privilege ; if the trustee was 
 in possession or in receipt of the rents and profits, the legis- 
 lature, without any positive enactment, seems to have regarded 
 the trustee as qualified by the trust estate to be an elector. 
 The 10 Anne, c. 23, s. 2, declared, that " no person should vote 
 who should not have received the rents or profits, or be 
 entitled to have received the same to the full value of forty 
 shillings or more to his own use for one year before such elec- 
 tion." The statute of H. 6. had apparently excluded the trustee, 
 the statute of William had expressly disabled him if not in 
 actual possession or in receipt of the rents and profits ; and 
 now by this last enactment of Anne he was incapacitated from 
 
 (a) Burffessv. Wheate, 1 Ed. 251, ^jpj' Lord Northington. 
 
CH. XI. S. 2.] TEUSTEE LIABLE TO RATES. 271 
 
 giving a vote in any case. By the same statute, any candidate 
 or voter was authorised to administer an oath to the elector at 
 the time of polling, but, among the qualifications particularly 
 enumerated in the oath, that of " receipt of the rents and profits 
 to his oivn use for one year before the election " was by some 
 oversight omitted. This defect was afterwards remedied by the 
 18 G. 2. c. 18, s. 1, which incorporated into the oath the decla- 
 ration that the elector had been " in the actual possession or 
 receipt of the rents and profits to his oion use for two calendar 
 months " before the election. It must be observed that the 
 words " actual possession, or receipt of the rents and profits," 
 correspond to the expression in the statute of Anne, " who 
 shall not have received the rents and profits to his own use," 
 and therefore the words " to his own use " in the statute of 
 George must be taken to have applied to " actual possession " 
 as well as to " the receipt of the rents and profits." The 
 Eeform Act {a), by the 23rd section, re-enacted the provision 
 of the statute of William 3., before referred to ; and by the 
 26th section declared that, " notwithstanding anything therein- 
 before contained, no person should be registered in any year in 
 respect of his estate or interest in any lands or tenements as a 
 freeholder, copyholder, &c., unless he should have been in the 
 actual possession thereof, or in receipt of the rents and profits 
 thereof for his own use for six calendar months previous to 
 the last day of July in such year ; " thus, it would seem, 
 leaving the law in respect of trustees precisely on the same 
 footing as it stood before the act was passed. All doubt, 
 however, was removed by the 6th Vict. e. 18, the 74th section 
 of which enacts, that " no trustee of any lands or tenements 
 shall in any case have a right to vote in any such election for 
 or by reason of any trust estate therein, but that the cestui 
 que trust in actual possession or in the receipt of the rents 
 and profits thereof, though he may receive the same through the 
 hands of the trustee, shall and may vote for the same notwith- 
 standing such trust." 
 
 Again, the trustees are liable to be rated for the property Trustees liaWa 
 vested in them (&), unless they are trustees exclusively for 
 
 (a) 2 Gul. 4. c. 45. (J) Queen v. Sterri/, 12 Ad. & Ell. 84. 
 
27S 
 
 BANKETJPTCY OF TRUSTEE. 
 
 [CH. XI. S. 2. 
 
 Trustee pays the 
 fine on admission 
 to copyholds. 
 
 If trustee trade 
 in that character, 
 he is amenable 
 to the bankrupt 
 laws. 
 
 public purposes without any profit to themselves or a particular 
 class (a). 
 
 The trustee of a copyhold must pay a fine on his admis- 
 sion (b), and on his decease a heriot becomes due to the lord (c). 
 But, where two or more trustees have been admitted jointly, 
 on the decease of owe neither fine nor heriot is due ; not a fine 
 for admission, because, joint tenants being seised per my etper 
 tout, the estate has vested in the survivors by the original 
 grant, and not a heriot, because, however many in number the 
 trustees may be, they all form but one tenant to the lord, and 
 therefore no heriot is demandable until the death of the longest 
 liver (d). "Where a number of trustees are adipitted as the 
 joint owners of the trust estate, the fine is to be assessed upon 
 the following principle : for the first life is to be allowed the 
 fine usually paid on the admission of a single tenant, on the 
 second life one-half the sum taken for the first, and on. the 
 , third one-half the sum taken for the second, &c. ; the result of 
 which will be, that, however great the number of the trustees 
 admitted, the amount of the whole fine will never be double 
 of that paid upon the first life (e) . And on every change of 
 trustees the same fine is demandable : even where some of the 
 surrenderees are the survivors of the old trustees, for they 
 take a new estate (/). Though the manorial burdens fall upon 
 the trustee personally at law, he is of course entitled in equity 
 to reimburse himself the expenditure out of the profits of the 
 estate (ff). , 
 
 If a trustee carry on a trade in the due execution of his 
 trust, he makes himself amenable to the operation of the bank- 
 rupt law in the same manner as if he had traded for his own 
 benefit {h), and on his decease his lands were liable under 
 
 (a) Regina v. 8hee, 4 Q,. B. Bep. 
 2 ; Mayor of Manchester v. Over- 
 seers of Manchester, 17 Q,. B. Rep. 
 859 ; Queen v. Harrogate Commis- 
 sioners, 15 Q,. B. Rep. 1012. 
 
 (6) Earl of Bath v. Ahney, 1 
 Dick. 260 ; S. C.l Bur. 206. 
 
 (c) Trinity College v. Browne, 1 
 Vera. 441 ; see Car v. Ellison, 3 
 Atk. 77. 
 
 {d) See 2 Watk. Cop. 147. 
 
 (e) Wilson v. Moare, 2 B. & Ad. 
 350, see 360 ; 10 Ad. & EU. 236, 
 and 1 Scriven, Copyh. 393, 394, 3rd 
 edit. 
 
 (/) Sheppard v. Woodford, 5 
 Meea. & Welsh. 608 ; but see Wil- 
 son V. Hoare, 10 Ad. & Ell. 236. 
 
 [g) Hivet's case, Moore, 890. 
 
 {h) Jrightman v. Townroe, 1 M, 
 
CII. XI. S. 2.] BANKRUPTCY OF TRUSTEE. 273 
 
 Sir Samuel Eomilly's Act (a) to the discharge of simple 
 contract debts (&). 
 
 II. Of the legal estate in the trustee with reference to the 
 construction of particular statutes. 
 
 1. By the 12 & 13 Vict. c. 106, ss. 141, 142, it is enacted, How the legal 
 that " all the personal estate, present and future, of the bank- by the bank- 
 rupt, wheresoever the same may be found or known, and traste°^*^^ 
 all property which he may purchase, or which may revert, 
 descend, be devised or bequeathed, or come to him before 
 he shall have obtained his certificate, and aU lands, tenements, 
 and hereditaments, except copyhold or customaryhold, to 
 which the bankrupt is entitled, and all interest to which such 
 bankrupt is entitled in any of such lands, tenements, or here- 
 ditaments, and of which he might have disposed, and all such 
 lands, tenements, and hereditaments as he shall purchase, or 
 shall descend, be devised, revert to, or come to such bankrupt 
 before he shall have obtained his certificate," shall vest in the 
 assignees of such bankrupt. 
 
 The operation of the Bankruptcy Acts was thus commented Assignees take 
 upon by Lord Chief Justice Willes: — "The assignees," he he^TanKcu- 
 said, " under a commission of bankruptcy, are not to be con- *™s- 
 sidered as general assignees of all the real and personal estate 
 of which the bankrupt was seised and possessed, as heirs and 
 executors are of the estate of their ancestors and testators, for 
 nothing vests in the assignees even at law but such real and 
 
 & S. 412 ; Sx parte Oarland, 10 estate to Hockley, upon trust to 
 
 Ves. 119, per Lord Eldon ; Hanhey convert the same into money, and to 
 
 v. Hammond, cited in marginal note stand possessed of tlie proceeds upon 
 
 to 1 Cooke's Bant. Law, 84, 3d ed. certain trusts in the will mentioned. 
 
 (a) 47 G. 3, 0. 74. Repealed, and Hockley, in breach of his duty, con- 
 re-enacted hy 11 G. 4 and 1 "Will. 4, • tinned the business with the two 
 c. 47. Now by 3 & 4 W. 4, c. 104, co-partners in the name of the tes- 
 the lands of aU persons, traders or tator, and died indebted to the trust 
 otherwise, are liable to their simple estate in the sum of llOOZ., and 
 contract debts. without leaving sufficient personal 
 
 (5) Longuet v. Hockley, Feb. 16, assets. Baron Alderson held clearly, 
 
 1836, Exch. MS. Moss Levy, a that Hockley was a trader within 
 
 trader in partnership with his bro- the meaning of the statute, and that 
 
 ther Lewis Levy, and his cousin his lands were liable for the money 
 
 Walter Levy, devised and be- due to the trust, 
 queathed all his real and personal 
 
274 
 
 BANKRUPTCY OF TRUSTEE. 
 
 [CH. XI. S. 2. 
 
 The trust estate 
 does not pass to 
 the assignees of 
 the trustee. 
 
 Nor the property 
 into which the 
 trust estate has 
 been convei*ted. 
 
 Factor selling 
 and taking notes. 
 
 personal estate of tlie bankrupt in which he had the equitable 
 as well as legal interest, and which is to be applied to the pay- 
 ment of the bankrupt's debts " (a). 
 
 It is clear, therefore, that, in the case of a ba/re trust, the 
 property, whether real (b) or personal (c), will not vest by the 
 bankruptcy in the assignees, even at law. And the proposition 
 applies not only to the case of express trustees, but also of 
 trustees virtute officii, as executors, administrators (d), fac- 
 tors (e), &c. 
 
 And, where the trust estate or fund has been converted into 
 property of a different character, the new acquisition wiU 
 equally be protected against the effects of the bankruptcy ; for 
 the product or substitute of the original thing must foUow the 
 nature of the thing from which it proceeded (/). Thus, if 
 goods consigned to a factor be sold by him and reduced into 
 money, so long as the money can be identified, as, where it has 
 been kept in bags, the employer, and not the creditors, will 
 have the benefit of that specific sum (g). When money is said 
 to have no ear-mark, the meaning is no more than this, that, 
 being the currency of the country, it cannot be followed when 
 once it has passed in circulation {h). 
 
 So, if the factor sell the goods and take notes in payment, 
 the value of the notes, notwithstanding the bankruptcy, may 
 be recovered by action from the assignees (i); for, though 
 
 [a] Scott v. Surman, Willes, 402. 
 
 (5) Ex parte Gennys, 1 Mont. & 
 iTac. 258 ; Houghton v. Kcenig, 18 
 Com. B. Re. 235. 
 
 (c) See Winch v. Keeley, 1 T. E. 
 619 ; Carpenter v. Marnell, 3 B. & 
 P. 40 ; Gladstone v. Hadwen, 1 M. 
 & S. 617. 
 
 {d) Howard v. Jemmet, 3 Bur. 
 1369, per Lord Mansfield ; Ex parte 
 Butler, 1 Atk. 213, per Lord Hard- 
 wioke ; Viner v. Cadell, 3 Espin. 
 88 ; Farr v. Newman, 4 T. R. 629, 
 per Grose, J. ; see Ex parte Ellis, 
 1 Atk. 101. 
 
 (e) Godfrey v. Furzo, 3 P. W. 
 1 86, per Lord King ; Tooke v. Hol- 
 Ungworth, 5 T. E. 226, per Lord 
 Kenyon ; L'Apostre v. Le Plais- 
 
 trier, cited Copeman v. Oallant, 1 
 P. W. 318 ; Delauney v. Barker, 
 2 Stark. 539 ; Soddy v. Esdaile, 1 
 Car. & P. 62 ; see Ex parte Dumas, 
 2 Ves. 582 -,8.0.1 Atk. 232 ; Paul 
 V. Birch, 2 Atk. 623; Pyall T. 
 Rolle, 1 Atk. 172 ; Ex parte Chion, 
 note (A) to Godfrey v. Furzo, 3 P. 
 W. 187. 
 
 (/) See Taylor v. Plumer, 3 M. & 
 S. 575 ; Scott v. -SurmanjWilles, 404. 
 
 ( g) Toohe v. Hollingworth, 6 T. 
 R. 227, per Lord Kenyon; see 
 Taylor v. Plumer, 3 M. & S. 571. 
 
 (A) Miller v. Race, 1 Bur. 457, 
 per Lord Mansfield; see Taylor v. 
 Plumer, 3 M. & S. 571. 
 
 (i) Anon, case, cited Ex parte 
 Dumas, 2 Ves. 586. 
 
CH. XI. S. 2.] BANKRUPTCY OF TRUSTEE. 275 
 
 negotiable securities are said, like money, to have no ear-mark, 
 the expression does not intend that such securities in the 
 hands of a bankrupt have run into the general mass of his 
 property, and pass to his assignees, but only that negotiable 
 securities, as a circulating medium in lieu of money, cannot 
 be recovered from a person to whom they have been legally 
 negotiated; and it is clear that notes, should they fall into 
 possession otherwise than in a due course of circulation, do 
 not become the property of the person into whose hands they 
 come, but may be followed by the original possessor (a). 
 
 So, if a factor sell the goods of his employer for money pay- Factor selling 
 able at a future day, and become bankrupt, and the assignees aWe™at°a^fatOTe 
 receive the money, they will be answerable for it to the mer- '^'^y- 
 chant by whom the factor was employed (&). 
 
 In another case the conversion had been in breach of the Tortious conver- 
 f actor's duty (c) ; and it was argued, that, as the principal would pr^ertt ^ *™^' 
 not have been bound to accept the property which the agent 
 had wrongfully purchased, the Court ought not to give a lien 
 to the principal upon the tortious acquisition ; but the Court 
 said, it was impossible that an abuse of trust could confer any 
 right on the person abusing it, or those claiming in privity 
 with him {d). 
 
 Where the legal property does not pass, any action against In whose name 
 the assignees must be broiight by the bankrupt himself, for he brought to re- 
 is the person possessed of the legal right (e) ; but, in the case °°?'®'' *^^ *™^' 
 of & factor, an action may also be brought by the principal, for assignees. 
 the absolute property remains with the employer, and a special 
 property only vests in the agent (/). But, if hills be remitted 
 to a factor, and made payable to him or his order, it has 
 been doubted whether the property does not so vest in the 
 
 [a) Hartop v. Hoare, 3 Atk. 50, {d) Taylor v. Plumer, 3 M. & S. 
 
 per Lee, C. J. ; Miller v. Bace, 1 574, per Lord EUenborough. 
 Bur. 457. (e) Winch v. Keeley, 1 T. R. 
 
 (6) Ryall v. Rolle, 1 Atk. 172, 619 ; Carpenter v. Marnell, 3 B. & 
 
 per Burnet, J. ; Taylor v. Plumer, P. 40. 
 
 3 IL & S. 577 ; Zinch v. Walker, (/) L'Apostre v. Le Plaistrier, 
 
 2 W. Bl. 1154; Garrat v. Cullum, cited Copeman v. Gallant, 1 P. W. 
 
 Bull. N. P. 42. 318 ; Delauney v. Barker, 2 Stark. 
 
 (c) Taylor v. Phmer, 3 M. & S. 539 ; Boddy v. Esdaile, 1 Car. 62. 
 562 ; see Myall v. Bolle, 1 Atk. 172. 
 
 T 2 
 
276 
 
 BANICRUPTCY OF TRUSTEE. 
 
 [CH. XI. S. 2. 
 
 Where the trust 
 estate has be- 
 come amalgama- 
 ted with the 
 trustee's other 
 property, the 
 cestui que trust 
 must prove for 
 the amount. 
 
 Case of a bank- 
 rupt trustee 
 having a bene- 
 ficial interest. 
 
 factor that no action of trover can be maintained by the 
 principal {a). 
 
 If the property possessed by the bankrupt in his character 
 of trustee has become so amalgamated with his general property 
 that it can no longer be identified, the representative of the 
 trust has then no other remedy but to come in as a general 
 creditor, and prove for the amount of the loss (6). But, in one 
 case, though the trust money had got into the general fund, it 
 was held, but under very particular circumstances, that it had 
 subsequently got out again (c). 
 
 As a general rule, where the bankrupt has a substantial 
 beneficial interest, however small, in property legally vested 
 in him, such property passes to the assignees, who take as 
 trustees for the creditors and other parties interested [i). It 
 is conceived, however, that the rule would not apply to a case 
 where a bankrupt is clearly and expressly a trustee, though 
 he may himself have some partial beneficial interest, for his 
 act ought not to work a prejudice to others. And there can be 
 httle doubt that the Court would, in a case of express trust, 
 appoint new trustees, either under the 130th section of the 
 Bankrupt Consolidation Act(e) or its general jurisdiction. 
 Where the trust is constructive and the equity doubtful the 
 Court has sometimes directed the assignees to concm* in 
 conveying (/). And where the legal property passes, the 
 cestuis que trust may have the same relief in equity against the 
 assignees, as they would have been entitled to against the 
 bankrupt himself (g). 
 
 (a) Ex parte Dumas, 2 Ves. 583. 
 
 (5) Ex parte Dumas, 1 Atk. 234, 
 per Lord Hardwicke; Ryall v. 
 Rolle, 1 Atk. 172, per Buruet, J. ; 
 Scott V. Surman, Willes, 403, 404, 
 per "Willes, C. J. 
 
 (c) Ex parte Sayers, 5 Ves. 169. 
 
 {d) Carpenter v. Marnell, 3 Bos. 
 & Pall. 40 ; Parnliam v. Hurst, 8 
 M. & W. 743; Leslie v. Guthrie, 
 1 Bing. N. C. 697; D'Arnay v. 
 Chesneau, 13 M. & W. 809. 
 
 (e) Ex parte Cousen, 1 De Gex, 
 451 ; in wliich particular case, how- 
 
 ever, the wording of the section 
 created a difflcnlty. 
 
 (/) Benriet v. Davis, 2 P. V. 
 316; Taylor v. Wheeler, 2 Vern. 
 564; Ex parte Gennys, Mont. & 
 Mao. 258. 
 
 {g) Sennet v. Davis, 2 P. "W. 
 316 ; Taylor v. Wheeler, 2 Vern. 
 564; Mit/ord v. Mitford, 9 Ves. 
 100, per Sir W. Grant ; Ex parte 
 Dumas, 2 Ves. 685, per Lord Hard- 
 wicke ; Hinton v. Hinton, 2 Ves. 
 633, per eundem ; Grant v. Mills, 
 2 V. & B. 309, per Sir W. Grant ; 
 
CH. XI. S. 2.] BANKRUPTCY OF TRUSTEE. 377 
 
 By the 12 & 13 V. c. 106, s. 125, it is enacted, that "if Of trust chattels 
 any bankrupt, at the time he becomes bankrupt, shall by the aestioVof thT' 
 consent and permission of the true oivner thereof have in his J'^'^'pipt 
 
 ■' '' trustee. 
 
 possession, order, or disposition, any goods or chattels whereof 
 he was reputed owner, or whereof he had taken upon him the 
 sale, alteration, or disposition as owner, the Court shall have 
 power to order the same to be sold and disposed of for the 
 benefit of the creditors under the bankruptcy." 
 
 It has been decided that this enactment does not apply No forfeiture 
 where the possession of the goods by the bankrupt can be i^^'hs poss^esTiL 
 satisfactorily accounted for by the circumstances of the title, aooording to the 
 as, if a trustee be in possession of effects upon trust for pay- 
 ment of debts, and become bankrupt («), or if goods be vested 
 in A. upon trust to permit B. to have the enjoyment during his 
 life, and B. becomes bankrupt while in possession under his 
 equitable title (&) ; but if a residue be given to trustees upon 
 trust to sell with aU convenient speed, and to invest the pro- 
 ceeds in the purchase of an annuity for the lives of A. (one of 
 the trustees) and her children, the amount to be paid to A. for 
 the benefit of the children : if, instead of selling, the trustees 
 permit A. to retain possession for a length of time, the goods 
 are forfeited, such possession being contrary to the title (c). 
 
 The enactment does not extend to a lawful and necessary Executors and 
 
 ,7.. .1.1 . II'- administrators. 
 
 possession en auter droit, as that by executors and adminis- 
 trators id) ; but tliere will be no exemption from the forfeiture 
 if the executor can be proved to have dismissed the character 
 of personal representative, and to have assumed that of absolute 
 owner (e). 
 
 Tyrrell v. Hope, 2 Atk. 558; Bowles 169 ; Mont. 24 ; Jarman v. Woolo- 
 
 Y. Sogers, 6 Ves. 95, note (a) ; JEx ton, 3 T. R. 618 ; Ex parte Massey, 
 
 parte Hanson, 12 Ves. 349, per 2'KoB.t. &Ajr. 113; Hx parte MUs- 
 
 Lord Bldon ; Hx parte Coysegame, ton, 2 Mont. & Ayr. 365 ; JEx parte 
 
 I Atk. 192 ; see Mestaer v. Gillespie, Geaves, 2 Jur. N. S. 651. 
 
 II Ves. 624 ; Ex parte Herhert, 13 (c) Ex parte Moore, 2 Mont. D. 
 Ves. 188 ; Waring v. Coventry, 2 & De G. 616 ; and see Fox v. 
 M. & K. 406. Fisher, 3 B. & A. 135 ; Ex parte 
 
 (a) Copeman v. Gallant, 1 P. W. Thomas, 3 Mont. D. & De G. 40. 
 
 314. {d) Ex parte Marsh, 1 Atk. 158 ; 
 
 (6) Ex parte Martin, 19 Ves. Joy v. Camphell, I Sch. & Lef. 328. 
 
 491; 8. a 2 Rose, 331; see Ex (e) Fox v. Fisher, 3 B. & A. 135; 
 
 parte Horwood, 1 Mont. & Mao. Ex parte Moore, 2 Mont. Deac. & 
 
278 
 
 JUDGMENTS AGAINST TEUSTEE. [CH. XI. S. 2. 
 
 Whetlier bare 
 trustee a "true 
 owner." 
 
 Factors. 
 
 Of the insolvency 
 of the trustee. 
 
 Of judgments 
 against the 
 trustee. 
 
 Whether the permission of a bare trustee can be said to be 
 that of the " true owner," to the prejudice of innocent cestuis 
 que trust, is a question of some difficulty, but which upon 
 principle should, it is conceived, be answered in the nega- 
 tive (a). It has been decided that a cestui que trust absolutely 
 entitled is a true owner within the meaning of the clause (6). 
 
 Upon the same principle must be excepted from the ope- 
 ration of the clause the possession of goods by factors in the 
 ordinary course of trade (c). 
 
 2. By the Insolvent Act the real and personal estates of 
 insolvents are made to vest in the assignees, and where goods 
 or chattels are in the possession of an insolvent at the time of 
 his arrest or other commencement of his imprisonment by the 
 consent of the true owner, they are made to pass to the 
 assignee as if they were the insolvent's own property (d). 
 
 Upon this enactment of the Insolvent Act we have only to 
 remark, that, as it substantially follows the provisions of the 
 Bankruptcy Act, it must in the analogous cases be governed 
 by the same construction. 
 
 3. Judgments, at least so far as they affect lands (for execu- 
 tion against goods and chattels is by common law), derive then- 
 effect from certain statutory enactments (e). 
 
 Had trusts been established at the time these statutes were 
 passed, the construction would probably have been the same 
 as in the case of the bankruptcy and insolvency acts, that is, 
 judgments would have been held to bind those lands only of 
 which the conusee was seised beneficially; but trusts at the 
 period of which we are speaking had not made their appear- 
 ance, and therefore judgments have been held to bind all lands 
 
 De &. 616 ; :Ex parte Thomas, 3 
 Mont. Deac. & De Gr. 40 ; see Quick 
 V. Staines, 1 B. & P. 293 ; Whale 
 V. Booth, cited Farr v. Newman, 
 4 T. R. 625, note (a). 
 
 [a) Compare Ex parte Dale, Buck, 
 365 ; Ex parte Richardson, Buck, 
 480 ; Ex parte Horwood, 1 Mont. & 
 Mac. 169, Mont., 24; Viner v. 
 Cadell, 3 Bsp. 88. 
 
 (6) Ex parte Burhridge, 1 Deac, 
 131, 4 Deac. & Ch. 87. 
 
 (c) Mace v. Cadell, Cowp. 232; 
 Ex parte Pease, 19 Yes. 46, per 
 Lord Eldon ; L'Apostre v. Le Plais- 
 trier, cited Copeman v. Gallant, 1 
 P. W. 318 ; Whitfield v. Brand, 16 
 M. & W. 282. 
 
 {d) 1 & 2 Vict. 0. 110, ss. 37, 57 ; 
 and see 5 & 6 Vict. c. 116, s. 1 ; 7 & 
 8 Vict. 0. 96, ss. 4, 17. 
 
 [e) 11 E. 1; 13 E. 1. st. 1, c.l8; 
 13 E. 1. St. 3; 27 E. 3. st. 2, c. 9; 
 see Co. Lit. 289, b. 
 
CH. XI. S. 3.] WHO BOUND BY THE TEUST. 379 
 
 of the eonusee, whether vested in him beneficially, or in the 
 character of trustee. But of course the cestui que trust will be 
 protected from the legal process by application to a Court of 
 equity (a). 
 
 SECTION III. 
 
 WHAT PEESONS TAKIN& THE LEOAL ESTATE WHL BE BOUND BY THE lETJST. 
 
 The universal rule, as trusts are now regulated, is, that all 
 persons who take through or under the trustee shall be liable 
 to the execution of the trust. 
 
 On the death of the trustee, the heir, executor, or adminis- Heir and exe- 
 
 . ,177 c,i ,ij 1 outor bound by 
 
 trator, becomes the legal owner ol the property; but as he the trust. 
 merely represents the ancestor, testator, or intestate, he takes 
 it in the same character, and is therefore bound by the same 
 equity. 
 
 So, if a trustee devise the estate, the devisee takes the estate So the devisee. 
 subject to the trust (&). 
 
 So all assigns of the trustee by acts inter vivos (except pur- And assigns by 
 
 .act inter vivos. 
 
 chasers for valuable consideration without notice) will be bound 
 by the trust (c). 
 
 During the system of uses, and even for a short time sub- So assigns in the 
 sequently to the statute of H. 8., assigns of the trustee in the 
 per only, that is, by the immediate act of the trustee, as by 
 assignment, were made liable to the trust ; but now assigns in 
 the post, or by operation of law, are also invested with the 
 character of trustees ; as if a trustee marry, the wife is at law 
 entitled to her dower, and if a female trustee marry, the 
 husband is at law entitled to his curtesy, but in equity both 
 the dowress (d) and tenant by the curtesy (e) are compellable to 
 recognise the right of the cestui que trust. So a creditor of the 
 
 (a) Finch v. Farl of Winchelsea, ville v. Blyth, 16 Ves. 231, per 
 
 1 P. W. 277 ; Burgh v. Francis, 1 Sir W. Grant. 
 
 Eq. Ca. Ab. 320 ; Medley v. Martin, (e) See infra. 
 
 Finch, 63; Prior v. Penpraze, 4 \d) Pawlett^. Attorney- General, 
 
 Price, 99 ; Langton v. Horton, 1 Hard. 469, per Lord Hale ; Noel v. 
 
 Hare, 560, per Sir J. "Wigram. Jevon, Freem. 43; Hinton -v.Hinton, 
 
 (5) Marlow v. Smith, 2 P. W. 2 Ves. 634, per Lord Hardwioke. 
 
 201, per Sir J. Jekyll ; Lord Gren- (c) Bennet v. Davis, 2 P. W. 319. 
 
280 
 
 ESCHEAT OP THE TRUST ESTATE. [CH. XI. S. 3. 
 
 trustee extending the trust estate under an elegit (a), or taking 
 a trust chattel by writ of execution (&), and, by the same rule, 
 the assignees of a bankrupt or insolvent (c) are made subject to 
 the equity. 
 
 Forfeiture. And if the trustee commit a forfeiture, the lord, as he 
 
 succeeds to the identical estate of the forfeitor, must take the 
 property with all the engagements and incumbrances attached 
 to it, and is therefore liable to the trust {d). In the case of a 
 forfeiture to the King, it was formerly held there was no 
 equity against the Crown (e) ; but in modern times the equity 
 has been fully admitted, though the precise nature of the 
 remedy has never been distinctly ascertained (/). 
 
 Escheat. A lord taking by escheat stands on a somewhat different 
 
 footing, for he is not an assign of the trustee either in the per 
 
 (a) Pawlett y. Attorney- General, 
 Hard. 46Y, per Lord Hale ; Kennedy 
 V. Daly, 1 Sch. & Lef. 373, per Lord 
 lledesdale ; Fineh v. JEarl of Win- 
 chelsea, 1 P. W. 277; Burgh v. 
 Burgh, Eep. t. rincli, 28. In the 
 late case of Whitworth v. Qaugain, 
 1 Cr. & PhiL 325, wliere a person 
 made a deposit of title deeds, and 
 then a judgment was entered up 
 against him, Lord Cottenham ex- 
 pressed a doubt whether the judg- 
 ment creditor, if he had no notice, 
 would be bound by the prior eq[uity. 
 However, such a, doctrine was not 
 tenable, for a judgment creditor is 
 not a purchaser for valuable con- 
 sideration. Brace v. Duchess of 
 Marlborough, 2 P. W. 491. He ad- 
 vances money, but not on the security 
 of this estate. He may take the 
 person of his debtor, or his goods and 
 chattels, and if he is put in possession 
 of the lands, it is not as purchaser 
 of them, hut by course of law. The 
 cause was afterwards heard, and Lord 
 Cottenham' s doubts were displaced 
 by a decision the other way, 3 Hare, 
 416; 1 Phil. 728. In Watts v. 
 Porter, Q,. B. 1 Jur. N. S. 134, 
 three of the four judges, while ap- 
 proving of Whitworth v. Qaugain, 
 
 refused to apply the principle of it 
 to a case of stock. The remaining 
 judge differed, and held that in per- 
 sonal as in real estate, the specific 
 incumbrancer, though he gives no 
 notice to the trustee,, prevails over 
 the judgment creditor, though he 
 has obtained a charging order. It 
 is conceived that the single judge 
 took the clearer view. Those who 
 determined the other way, seem to 
 have assumed that notice was ne- 
 cessary for the transfer of an equi- 
 table interest, which is not true, as be- 
 tween assignor and assignee, but only 
 as between two contending assignees. 
 The ease has since been disapproved 
 by the highest authorities, Beman 
 V. Lord Oxford, 2 Jur. N. S. 121. 
 
 (6) Foley ^. Burnell, 1 B. C. C. 
 278, per Lord Thurlow. 
 
 (c) See supra, p. 276. 
 
 {d) Burgess v. Wheate, 1 Ed. 203, 
 per Sir T. Clarke ; ib. 25% per Lord 
 Henley. 
 
 (e) Wihes's case. Lane, 54, agreed. 
 
 (/) Burgess v. Wheate, 1 Ed. 
 252 ; and see Pawlett v. Attorney- 
 General, Hard. 467, which was a 
 case of forfeiture, though treated by 
 Lord Hale as a case of escheat. And 
 see supra, p. 30. 
 
CH. XI. S. 3.] ESCHEAT OF THE TRUST ESTATE. 381 
 
 or post ; nor does he, as in forfeiture, succeed to the place of 
 the trustee, but claims by a title paramount of his own, by 
 virtue of a condition originally annexed to the land, and 
 wholly independent of the creation of the trust. 
 
 Lord Mansfield was of opinion, ia Burgess v. Wheate, that a Burgesa v. 
 trust ought to be binding on the lord ; whether the escheat was 
 to be looked upon as a reversion, which it once was, or as a 
 caducary possession ab intestate, which his Lordship conceived 
 it to be in his day (a). Considering the escheat as a reversion, 
 his Lordship contended that every aUenation for creating a 
 trust supposed a concomitant investiture to which the assent 
 of the lord was implied, and therefore it followed that, on 
 failure of heirs of the alienee in trust, the lord could not 
 claim to his own use against the terms of the grant. But to 
 this it may be answered — first, that, since the Statute of Quia 
 Emptores, it is doubtful, whether any such assent of the lord 
 can be supposed; for, should it be optional with the lord to 
 accept the alienee as his tenant or not, it would abridge the 
 subject of that free power of alienation which the statute was 
 intended to confer upon him. On the execution of the convey- 
 ance the alienee holds of the lord above, not by the lord's 
 consent, but by the operation of law. But even admitting 
 the lord to have assented by implication to the transfer of the 
 land, it scarcely seems to follow that he is bound by the terms 
 of the trust; for if A. convey to B. and his heirs in trust for 
 C. and his heirs, the assent of the lord to the ahenation 
 appears to amount only to this — that B. and his heirs shall be 
 tenants of the estate, and shall, as such tenants, hold in trust 
 for C. and his heirs, not that the lord himself will execute the 
 trust, should his own title commence by the determination of 
 B.'s estate. But even supposing the lord to have expressly 
 agreed to execute the trust in the event of an escheat, still, as 
 on failure of heirs of the trustee the legal estate of the pro- 
 perty becomes vested in the lord, could equity, consistently 
 with estabhshed principles, enforce a conveyance against him 
 on a mere voluntary contract ? The verbal agreement of the 
 lord could in no wise be construed a declaration of trust, for, 
 
 (o) Burgess v. Wheate, 1 Ed. 229. 
 
382 ESCHEAT OF THE TRUST ESTATE. [CH. XI. S. 3. 
 
 by the Statute of Frauds, every such declaration must be in 
 writing and signed. Considering the escheat in the light of a 
 caducary possession ab intestato, his Lordship's argument was, 
 that, as the lord can only take the estate ab intestato absolutely, 
 he cannot assert a claim so far as the tenant has aliened, and 
 inasmuch as the trustee by a declaration of trust makes a vahd 
 disposition of the estate in equity, it follows that a Court of 
 equity cannot suffer the land to vest in the lord, as if no dis- 
 position had been made. But to this it may be answered, that 
 a disposition by way of trust is of a totally different character 
 from a disposition of the legal estate. The latter is binding 
 upon all, whether in the per or post, whether with notice or 
 without, whether the grantee be a purchaser or volunteer ; but 
 the existence of a trust depends on the equity against the 
 legal tenant personally ; as, if the estate be purchased for a 
 valuable consideration without notice, the trust is determined, 
 and the cestui que trust is without remedy. It follows that, as 
 the lord claims by a title of his own paramount to the creation 
 of the trust, the Court cannot take from him a lawful posses- 
 sion upon the ground of a trust declared by a stranger, and 
 that subsequent to the commencement of the lord's right. A 
 trust is binding only as between the cestui que trust and the 
 trustee, and all claiming by and under them, and does not affect 
 the interest of a third person (a). If an estate were settled on 
 A. and his heirs, with a springing use on a certain event to B. 
 and his heirs, a declaration of trust in fee by A. could not 
 possibly, on the determination of A.'s estate, bind the interest 
 of B. ; yet such a limitation over is hardly to be distinguished 
 from the case of the lord's title by escheat. The only 
 authorities adduced by his Lordship in support of his position 
 were the opinions said to have been expressed by Lord Chief 
 Justice Bridgman and Sir John Trevor (&) ; but the words 
 attributed to the former appear, from his own note-book, never 
 to have been spoken (c) ; and the observation of Sir John 
 Trevor was at the utmost a mere obiter dictum. Sir Thomas 
 
 (a) Burgess Y. Wlieate, 1 Ed. 251, (6) BurgessY. Wheate, 1 Ed. 230. 
 
 per Lord Northington. See Intro- (c) See ib. 230, note (o) ; and see 
 
 (luction, pp. 12, 13. ISir T. Cliirku's observations, ib. 202. 
 
CH. XI. S. 3.] ESCHEAT OF THE TRUST ESTATE. 283 
 
 Clarke, who assisted with Lord Mansfield in the ease of Bur- 
 gess V. Wheate, declared that cestui que trust was no more 
 relievable against the lord by escheat, than against a sale 
 by the trustee to a purchaser without notice {a) ; and Lord 
 Northington's inclination was apparently the same way, though, 
 as the point was not necessarily involved in the question before 
 him, he refused to conclude himself by any express and direct 
 opinion (&). Trusts also are shaped after the pattern of uses, 
 and it is clear that the lord was not bound by a use. 
 
 On the other hand it may be said that, whatever may be 
 right on dry technical reasoning, there is an old authority for 
 holding that the lord taking by escheat is liable to the trust (c), 
 and that in modern times the Courts have acted on more 
 liberal principles, and have decided that, where the fee out of 
 which a mortgage term had been carved escheated to the lord, 
 he was allowed to redeem (d), and if the lord take a benefit 
 through the tenant why shall he not sustain an onus ? Indeed 
 an opinion to that effect has recently fallen from the bench in 
 Ireland (e). and should the point, notwithstanding the 13 & 14 
 Vict. c. 60, to be noticed presently, ever call for a decision, 
 it is not unlikely that the Court may adopt that view. 
 
 In copyholds there is, properly speaking, no such thing as Copyholds. 
 
 escheat. The freehold and inheritance are vested in the lord 
 
 of the manor, and the tenant has no claim but as the lord 
 
 signifies his pleasure by the entry on the court roll. If the 
 
 tenant be a trustee, and no trust appears on the roll, there can 
 
 be no pretence for charging the lord with an equity to which 
 
 he never assented (/) ; but if a surrender be made upon a trust 
 
 either expressed or referred to on the roll, the lord is estopped 
 
 by this evidence of his will, and cannot afterwards claim in 
 
 contradiction to his grant (g). 
 
 Customary freeholds have often been treated on the same Customary free- 
 holds. 
 
 (o) Burgess v. Wheate, 1 Ed. 203. (/) Attorney- General v. Duke of 
 
 (6) BurgessY. Wheate, 1 'Ei. 24:6. Leeds, 2 M. & K. 343; and see 
 
 (c) Sales V. England, 1 Eq. Ca. Peachey v. Duke of Somerset, 1 Str. 
 
 Ab. 384. 454 ; Burgess v. Wheate, X Ed. 231. 
 
 {d) Viscount Downe v. Morris, 3 {g) Burgess y. Wheate, 1 Ed. 231, 
 
 Hare, 394. per Lord Mansfield ; Weaver v. 
 
 (e) White v. Baylor, 10 Ir. Eq. Maule, 2 R. & M. 97. 
 
 Rep. 54. 
 
284 EQUITY OF REDEMPTION. [CH. XI. S. 3. 
 
 footing with copyholds (a), but perhaps upon principle a clear 
 distinction may be taken. In customary freeholds the tenure 
 is copyhold, but in respect of interest the freehold and inherit- 
 ance are in the tenant, and, on failure of his heirs, the lord 
 takes in the strict sense of the word by escheat. The lands 
 are passed by the bargain and sale, and the subsequent sur- 
 render and admittance operate merely as notice to the lord of 
 the transfer, and acceptance by him of the grantee as tenant {h). 
 If a surrender therefore be made to A. and his heirs upon 
 trust for B. and his heirs, and the trust be entered on the roll, 
 the effect would be the same as on the alienation of a freehold ; 
 the lord merely assents that A. shall be his tenant, and shall, 
 as tenant, hold the land upon certain trusts, not that the lord 
 himself will be a trustee, should his own title commence by 
 escheat. And even should the construction be carried to that 
 extent, the cestui que trust would still not be relievable in 
 equity, the agreement being merely a voluntary one, and not 
 in writing and signed as required by the Statute of Frauds. 
 Equity of re- A distinction was taken by Lord Hale between a trust and 
 
 an equity of redemption. "A trust," said his Lordship, "is 
 created by the contract of the party, and he may direct it as 
 he pleaseth, and he may provide for the execution of it, and 
 therefore one that comes in in the post shall not be liable to it 
 without express mention made by the party ; and the rules for 
 executing a trust have often varied, and therefore they only 
 are bound by it, who come in in privity of estate ; but a power 
 of redemption is an equitable right inherent in the land, and 
 binds all persons in the post or otherwise (c), because it is an 
 ancient right which the party is entitled to in equity " (d). But 
 upon this distinction it must be observed, that even a trust wiU. 
 at the present day bind persons who take derivatively from the 
 trustee, though in the post ; and notwithstanding an equity of 
 redemption amounts to what Lord Hale calls a title (e), there 
 
 (a) Weaver Y. Maule, 2 R. & M. {d) Pawlett Y. Attorney- Oenerd, 
 
 100, ^ej- Sir John Leaoh. Hard. 469; and see i?oco« v. ^«eo», 
 
 (6) Bingham v. Woodgate, 1 R. & Tothill, 133 ; Burgess v. Wheats, 1 
 
 M. 32. Ed. 206 ; Tucker v. Thurstan, 17 
 
 (c) /Semife not a purchaser without Ves. 133. 
 notice; see Harding y. Hardrett, (e) SeePawletty. Attorney- Gene- 
 lie^, t. Finch, 9 ; Spurgeon v. Col- ral, Hard. 467. 
 Her, 1 Ed. 55. 
 
 demption. 
 
CH. XI. S. 8.] FORFEITURE AND ESCHEAT ACT. 885 
 
 seems to be no reason why in the ease of escheat the lord, 
 who takes by title paramount, should be bound by an equity 
 of redemption any more than by a simple trust (a). 
 
 In a late ease (b), however, the distinction between an equity viseount Downe 
 of redemption and a trust was observed upon, and the Court "' °™^' 
 manifested an opinion that a lord who was in by escheat would 
 be bound by an equity of redemption, if not by a trust. And 
 in the same case was decided the point before referred to, 
 that a lord who is in by escheat is entitled to redeem a mort- 
 gage term created by the party whose estate has escheated (c). 
 
 According to the actual state of the decisions, the 3 & 4 Real estate 
 W. 4. c. 104 (which subjects a person's real estate to the assete*i^the 
 payment of his simple contract debts), annexes the quality of tandsofthelord. 
 assets to the estate itself, and, subject to the right of aliena- 
 tion in the heir or devisee (d), creates a charge on the estate 
 for the benefit of the creditors (e). It has been held, therefore, 
 that a debtor's estate is assets even in the hands of the lord 
 taking by escheat (/). 
 
 The law relating to the forfeiture and escheat of trust estates, 4 &.5 (Jul. 4. 
 except so far as it illustrates general principles, became, upon 
 the passing of the 4 & 5 Will. 4. c. 23, of little importance. 
 By sect. 2 of that act, it was enacted, that where any person 
 seised of any lands upon any trust, or by way of mortgage, 
 died without an heir, it should be lawful for the Court of 
 Chancery (on application as directed by the Act) to appoint 
 a person to convey. And by the following section it was 
 declared, that " no land, chattels, or stock, vested in any 
 person upon any trust or by way of mortgage, or any profits 
 
 {a) See Burgess v. Wheate, 1 Ed. {d) Spuckman v. Timhrell, 8 Sim. 
 
 255; Attorney-General Y. Buke of 253; JRiehardsonr. Horton,mea.Y. 
 
 Leeds, 2 M. & K. 344. Pawlett v. 112 ; Pimm v. Insall, 7 Hare, 193, 
 
 Attorney-General, Hard. 465, in 1 Mae. & Gor. 449. 
 
 wHoli Lord Hale and Baron Atkins (e) Evans v. Brown, 5 Beav, 116. 
 
 thougtt the king was bound by an N.B. Thia case was appealed and 
 
 equity of redemption, was not a case compromised. Samerh Devisees, 2 
 
 of escheat, as called by Lord Hale, De Gez, M. & G. 306 ; Beale v. 
 
 hut oi forfeiture. Symonds, 16 Beav. 406; Kinderley 
 
 (5) Viscount Downe v. Morris, 3 v. Jervis, 2 Jnr. N. S. 602. 
 
 Hare, 394. (/) JEvansY. Brown, 5 Beav. 116; 
 
 (c) Viscount Downe v. Morris, 3 and see Viscount Downe v. 3forris, 
 
 Hare, 394. 3 Hare, 394. 
 
386 FOEFEITUEE AND ESCHEAT ACT. [CH. XI. S. -5. 
 
 thereof, should escheat or be forfeited to his Majesty, his 
 heirs or successors, or to any corporation, lord of a manor, 
 or other person, by reason of the attainder or conviction 
 for any offence of such trustee or mortgagee, but should 
 remain in such trustee or mortgagee, or survive to his 
 co-trustee, or descend to or vest in his representative, as if no 
 such attainder or conviction had taken place." And by the 
 last section it was provided, that " where before the passing 
 of the Act any person possessed of land, chattels, or stock, 
 as trustee thereof, should have died without an heir, or 
 should have been convicted of any offence, whereby the said 
 land, chattels, or stock, had escheated or been forfeited, the 
 said land, chattels, or stock should be subject to the order of 
 the Court of Chancery for the use of the party beneficially 
 interested therein, the proviso not to affect any grant made 
 subsequently to the escheat or forfeiture, and not to ope- 
 rate where more than twenty years have occurred since 
 the escheat or forfeiture." 
 13 & 14 Vict. This Act was repealed by 13 and 14 Vict. c. 60, whereby it 
 
 was enacted by the 15th sect, that " when any person seised of 
 any lands upon any trust, should have died intestate as to such 
 lands without an heir, or it should not be known who was his 
 heir or devisee, it should be lawful for the Court of Chancery 
 to make an order vesting such lands in such person or persons, 
 in such manner and for such estate as the Court should direct ;" 
 and by the 19th sect, it was enacted that, "when a mortgagee 
 should have died without having entered into possession, and 
 the mortgage money should have been paid to a person 
 entitled to receive the same, or such person should consent 
 to the order, it should be lawful for the Court of Chancery 
 to make an order vesting such lands in such person or persons, 
 in such manner and for such estate as the Court should 
 direct, in any case where the mortgagee had died intestate 
 as to such lands, and without an heir, or should have died and 
 it should not be known who was his heir or devisee ;" and by 
 the 46th sect, it was enacted that, " no lands, or stock, chose in 
 action, vested in any person upon any trust, or by way of 
 mortgage, or any profits thereof, should escheat or be forfeited 
 to the Crown, or to any corporation, lord of the manor, or 
 
 u. 60. 
 
CH. XI. S. 3.] DISSEISIN OF THE TRUST ESTATE. 287 
 
 any other person by reason of the attainder or conviction for 
 any offence of such trustee or mortgagee." Thus of trust 
 property in future there will be no forfeiture by the attainder 
 or conviction of the trustee, and no escheat by his attainder; 
 and in case of escheat for failure of heirs the Court will have 
 authority, upon summary application, to transfer the legal 
 estate. 
 
 If a trustee be outlawed, and the outlawry be for treason or OutlaTvryofthe 
 felony, it amounts to conviction (a), and escheat and forfeiture ™^ ^^' 
 of lands, and chattels, though held upon trust, would, until 
 the above acts, have ensued, but is now expressly saved by it. 
 If the outlawry be on an indictment for a misdemeanor or in 
 a personal action, it is not a conviction, but merely a contempt 
 of Court (6), and punishable with forfeiture of the profits of 
 the outlaw's lands, and of his chattels, real and personal, abso- 
 lutely. In this case, therefore, the statute not applying, the 
 forfeiture remains the same as at common law. 
 
 If the trustee become bankrupt, and do not surrender him- Bankruptcy, 
 self, &c., he is guilty of felony (c), and the consequence is, 
 that his lands and goods escheat and are forfeited as in felony 
 generally. But he must first be convicted of the offence by 
 a proper Court, either in fact by verdict or in law by outlawry, 
 and then the above statute saves the forfeiture as regards 
 trust estates. 
 
 A disseisor is not an assign of the trustee either in the per or A disseisor not 
 the post, but holds by a wrongful title of his own, and adversely ^ ™sl ^ 
 to the trust. The first resolution in Sir Moyle Finch's case, 
 was, that "a disseisor was subject to no trust, nor any subpoena 
 was maintainable against him, not only because he was in the 
 post, but because the right of inheritance or freehold was 
 determinable at the common law, and not in Chancery, neither 
 had the cestui que use (while he had his being) any remedy in 
 that case" {d). And we may add the authority of Lord St. 
 Leonards, who, ia his edition of Gilbert on Uses, observes, 
 " At this day every one is bound by a trust who obtains the 
 
 (a) Co. Lit. 390 b. ; Holloway's (c) 12 & 13 V. o. 106, ^. 251. 
 
 case, 3 Mod. 42 ; King v. Ayloff, ib. [d) Sir Moyle FincK's case, 4 Inst. 
 
 72. 85. 
 
 (5) Rex V. Tippin, Salk. 494. 
 
288 DISSEISIN OF THE TEUST ESTATE. ^ [CH. XI. S. 3. 
 
 estate without a valuable consideration, or even for a valuable 
 consideration if with notice, unless perhaps the lord by escheat. 
 But persons claiming the legal estate by an actual disseisin, 
 without coUusion with the trustee, will not be bound by the 
 trust. Therefore, if I oust A., who is a trustee for B., and a 
 claim is not made in due time, A. will be barred, and his 
 cestm que trust with him, although I had notice of the 
 trust" (a) (1) ; and the same may be inferred from the terms of 
 the section of the late Limitation Act relatiag to express 
 trusts (fe). 
 
 (o) GUb. on Uses, Sugd. ed. 429. (6) 3 & 4 W. 4. e. 27, s. 25. 
 
 (1) And an outstanding term in a trustee will attend the inheritance 
 gained by the disseisin. Reynolds v. Jones, 2 Sim. & Stu. 206 ; and see 
 Turner v. Buoh, 22 Vin. Ah. 21 ; Doe v. Price, 16 M. & W. 603. 
 
CHAPTER XII. 
 
 GENERAL PROPERTIES OP THE OFFICE OF TRUSTEE. 
 
 Feom the estate of the trustee we pass to the consideration 
 of his office, and upon this subject we may, in the first place, 
 investigate the general properties annexed to the office, as. 
 First. A trustee having once accepted cannot afterwards 
 renounce it. Secondly. He cannot delegate it. Thirdly. In 
 the case of co-trustees the ofiice must be exercised by all the 
 trustees jointly. Fourthly. On the death of one trustee the 
 trust will pass to the survivors or survivor. Fifthly. One 
 trustee shall not be liable for the acts of his co-trustee. Sixthly. 
 A trustee shall derive no personal benefit from the trusteeship- 
 
 I. It is a rule, without any exception, that a person who Trustee cannot 
 has once undertaken the office, either by actual or constructive acceptance ^'^ 
 acceptance, cannot discharge himself from liability by a sub- 
 sequent renunciation. The only mode by which he can obtain 
 a release is either under the sanction of a Court of Equity, or 
 by virtue of a special power in the instrument creating the 
 trust, or with the consent of all the parties interested in the 
 estate (a). 
 
 Thus, where A. was named executor, and acted in behalf of Executor cannot 
 some particular legatees, but disclaimed the intention of inter- he\as aotedr 
 fering generally, and then renounced, and B. obtained letters 
 of administration cum testamento annexo, and possessed him- 
 self of assets, and died insolvent, it was held that A. having 
 acted, could not afterwards discharge himself, and was respon- 
 sible for the devastavit committed by B. (ft). , 
 
 (a) See Doi/le v. MaJce, 2 Sch. & (b) Doyle v. JSlake, 2 Soh. & Lef. 
 
 Lef. 245 ; Chalmer v. Bradley, 1 J. 231 ; see Lowry v. Fulton, 9 Sim. 
 & W. 68. 123. 
 
290 
 
 RENUNCIATION. 
 
 [CH. XII. 
 
 Immaterial 
 whether the 
 executor has 
 proved the will 
 or not. 
 
 Moorcrofl ». 
 Dowding. 
 
 So, in another case, where A., having possessed himself of 
 assets, renounced the administration, and the same day B. 
 proved the will, and A handed over part of the assets to him, 
 and afterwards A., having received other assets by authority 
 from B., handed them over in like manner. Sir Thomas Clarke 
 delivered his opinion, that, as A. had administered, though 
 without having proved the will, the attempt at renunciation 
 was void, and he ought to be charged with all the subsequent 
 receipts (a). 
 
 Though a trustee may have given a bond for the due execu- 
 tion of the trust, and the cestui que trust may have recovered 
 upon the bond, and been paid the money, yet, if the cestui que 
 trust afterwards bring his bill to compel a conveyance, the 
 trustee cannot divest himself of his fiduciary character by 
 pleading that the penalty of the bond was a stated damage 
 for the breach of trust, and that on payment of the penalty the 
 trustee was to be released. A conveyance, however, will not be 
 decreed without an allowance to the trustee of the penalty 
 recovered upon the bond, with interest at the usual rate (6). 
 
 Trustee cannot 
 delegate the 
 office. 
 
 II. The office of trustee, beiag one of personal confidence, 
 cannot be delegated. " Trustees," said Lord Langdale, " who 
 take on themselves the management of property for the benefit 
 of others, have no right to shift their duty on other persons ; 
 and if they do so they remaia subject to responsibility towards 
 their cestuis que trust for whom they have undertaken the 
 duty"(c). If a trustee, therefore, confide the application of 
 the trust fund to the care of another, whether a stranger (<i), 
 or his own attorney (e), or even co-trustee or co-executor (/), 
 
 [a) Heady, Truelove, Amb. 417. 
 
 (6) MoorcroftY. Dowding, 2'£.'W. 
 314. 
 
 (c) Twrreerv. Corwey, 5 Beav. 517. 
 
 {d) Adams Y. Clifton, 1 Russ. 297; 
 Hardwick v. Mynd, 1 Anst. 109; 
 case cited by Sir J. Jekyll, Walker 
 V. Symonds, 3 Sw. 79, note (a) ; 
 Char. Corp. v. Sutton, 2 Atk. 405 ; 
 Kilbee v. Sneyd, 2 Moll. 199, per 
 Sir. A. Hart ; Douglas v. Browne, 
 
 Mont. 93 ; Ex parte Booth, id. 248 ; 
 Turner v. Corney, 5 Beav. 515. 
 
 (e) Chambers v. Minchin, 7 Ves. 
 196, per Lord Eldon ; Ex parte 
 Townsend, 1 Moll. 139. 
 
 (/) Dang ford v. Gascoyne, 11 Ves. 
 333 ; Harrison v. Graham, 3 Hill's 
 MSS. 239, cited 1 P.W. 241, note [y), 
 6th ed. ; Davis v. Spurling, 1 E. & 
 M. 66, per Sir J. Leach ; Kilbee v. 
 Sneyd, 2 Moll. 200, 212, per Sir A. 
 
CH. Xn.] DELEGATION OF THE TRUST. 991 
 
 he will be personally responsible for any loss that may 
 result. 
 
 The case of Balchen v. Scott (a), though the ultimate result Balohen v. Scott. 
 arrived at is opposed to later decisions, the executor having 
 in fact proved, is no exception to this rule; for there an 
 executor had received a bill of exchange by the post from 
 a debtor to the estate, and transmitted it to his co-executor, 
 and it was held, that by this proceeding the executor had 
 not acted in the trust (&), and therefore was no more answer- 
 able for the application of the money by the co-executor, 
 than any stranger would have been under similar circum- 
 stances. 
 
 In Churchill v. Hobson (c), an executor had paid 5001. into ClmroliiUD. 
 
 . . Hobson. 
 
 the hands of his co-executor, who misapplied it, and it was 
 ruled by the Court that he was not bound to make it good ; 
 but the decision is universally considered as having turned 
 upon the circumstance that the co-executor was a hanker, and 
 had been trusted by the testator in his lifetime, besides being 
 made his executor at his death (d). Lord Harcourt, in his 
 judgment, observed, " The co-executor having been the cashier 
 with whom the testator in his lifetime chose to intrust his 
 money, the executor ought not to suffer for having trusted him 
 whom the testator himself in his life trusted." 
 
 But trustees cannot be answerable, if they merely follow the Trustee may 
 testator's directions. Thus a testator recommended his exe- tator's directTo'n. 
 cutors to employ A. (who had been in the employment of the 
 testator himself,) as their clerk or agent, which they did, and A. 
 misapplied part of the assets. The cestuis que trust contended 
 that executors were answerable for the default of their servant. 
 Sir A. Hart said, " That is the rule. It is hard occasionally, 
 where the executor has acted with good faith; but it is 
 
 Hart ; Lane v. Wroth, and Stanley (a) 2 Ves. jun. 678. 
 
 v. Darington, cited in Anonymous (S) See supra, p. 240. 
 
 case, Mos. 36 ; Marriott y. Kinners- (e) 1 P. W. 241. 
 
 ley, Taml. 470 ; JEx parte Winnall, {d) See Harrison v. Graham, 3 
 
 3 D. & C. 22; Anon. Mos. 35; Hill's M8S., cited 1 P. W. 241, note 
 
 CloughY. Bond, 3 M. & Cr. 497, (y), 6th ed. ; Chambers y. Minchin, 
 
 per Lord Cottenham; Dinesy. Scott, 7 Ves. 198. 
 
 T. & E. 361, per Lord Eldon ; Trutch 
 
 V. Lamprell, 20 Beav. 116. 
 
 TT 2 
 
S92 DELEGATION OF THE TRUST. [CH. XH. 
 
 established, and it is beneficial in general. The rule, however, 
 is governed by circumstances ; and if a testator points out an 
 agent to be employed by the executor, I think if such employee 
 received a sum of money, and immediately made default, the 
 executor would clear himself by showing that the testator 
 designated the person, and that he could not by the exercise of 
 reasonable diligence recover the money. But the excuse of 
 reasonable diligence is still required. The effect of a recom- 
 mendation is to discharge executors to the extent of selecting, 
 but still the person recommended is the agent of the executors, 
 and they are bound to use diligence in looking after him : the 
 question then becomes one of wilful default, not concluding 
 the executor by the mere fact of loss arising from such 
 employee : nor does the diligence which is required demand 
 that he should institute a suit against the agent ; but only that 
 he should have been vigilant, and have called upon him to 
 account : he may be able to show some discreet and reasonable 
 ground for not having sued him " {a). 
 Trustee acting as And an executor cannot be answerable for having handed 
 over money which he had no legal right to retain. Thus, a 
 testator appointed A., B., and C. his executors, and empowered 
 A. to sell certain freehold premises, and directed the proceeds 
 of the sale to be applied and disposed of in the same manner 
 as his personal estate. A. employed B. to make the sale, who, 
 having disposed of the property, paid the proceeds to A., by 
 whom the money was misapplied. It was held that B. was 
 not answerable for this, the money having come to his hands, 
 not in the character of executor, but of agent (&). 
 Delegation per- And trustees and executors may justify their administration 
 there is a moral of the trust fund by the instrumentality of others, where 
 necessity for it. tj^gre exists a moral necessity for it. " There are, " said Lord 
 Hardwicke in Ex parte Belchier, " two sorts of necessity : first, 
 legal necessity; and, secondly, moral necessity. As to the 
 first a distinction prevails. Where two executors join in 
 
 (o) Kilhee v. Sneyd, 2 Moll. 199, 64 ; S. C. Taml. 199 ; and see Crisp 
 
 200 ; and see Boyle v. Blahe, 2 Soh. v. Spranger, Nels. 109 ; Keane v. 
 
 & Lef. 239, 246. Sobarts, 4 Mad. 332, see 356, 359. 
 
 (6) Davis T. Spurling, 1 R. & M. 
 
CH. XII.j DELEGATION OP THE TBUST. 293 
 
 giving a discharge for money, and one of them only receives it, 
 they are both answerable for it ; because there is no necessity 
 for both to join in the discharge, the receipt of either being 
 sufficient : but if trustees join in giving a discharge, and one 
 only receives, the other is not answerable, because his joining 
 in the discharge was necessary. Moral necessity is from the 
 usage of mankind, if the trustee acts as prudently for the trust 
 as he would have done for himself, and according to the usage 
 of business; as if a trustee appoint rents to be paid to a 
 banker at that time in credit, but who afterwards breaks, the 
 trustee is not answerable : so in the employment of stewards 
 and agents ; for none of these cases are on account of necessity, 
 but because the persons acted in the usual method of 
 business " (a). And Lord Loughborough in very similar terms 
 observed, "If the business was transacted in the ordinary 
 manner, unless there were some circumstance to create 
 suspicion, surely the allowance is fair " (&). " Necessity," said 
 Lord Cottenham, "which includes the regular course of business, 
 will exonerate " (c). And Lord Redesdale, in the same spirit 
 observed, "An executor living in London is to pay debts in 
 Suffolk, and remits money to his co-executor to pay those 
 debts : he is considered to do this of necessity : he could not 
 transact business without trusting some person, and it would 
 be impossible for him to discharge his duty, if he is made 
 responsible where he remitted money to a person to whom he 
 would himself have given credit, and would in his own business 
 have remitted money in the same way. It would be the same 
 were one executor in India and another in England, the assets 
 being in India but to be applied in England : there the co- 
 executor is appointed for the purpose of carrying on such 
 transaction, and the executor is not responsible : for he must 
 remit to somebody, and he cannot be wrong if he remits to the 
 person in whom the testator himself reposed confidence" (d). 
 
 (a) Sx parte Belchier, Amb. 219. 331, and compare Chambsrs v. Min- 
 
 (6) Bacon v. Bacon, 5 Ves. 335. chin, 1 Ves. 193, and Zangford v. 
 
 (c) Clough v. Bond, 3 M. & C. Gascoync, 11 Ves. 335 ; and see 
 
 497. Davis v. Spurling, 1 R. & M. 66 ; 
 
 {d) Joy V. Campbell, 1 Sch. & Lef. Munch v. Cockerell, 5 M. & Cr. 214. 
 341 ; and see Bacon v. Bacon, 5 Ves. 
 
304 DELEGATION OF THE TEUST. [CH. XII. 
 
 Ex parte Griffin. Again, where A. and B. were assignees of a bankrupt, and 
 A. signed the dividend cheques upon the bankers in favour of 
 the creditors, and delivered them to B., who undertook to affix 
 his signature, and deliver them to the creditors, and B. 
 accordingly signed the cheques, and placed them in his desk, 
 whence they were stolen, and presented at the bank, and paid ; 
 on an application to the Court to make A. answerable. Sir J. 
 Leach said, " It is true that assignees are trustees who have 
 only a joint and not a separate authority, and if by the act of 
 one assignee, out of the course of his duty, the trust property 
 is placed within the single power of the other, both are liable. 
 But here it was not to be expected that the assignees were to 
 meet upon the application of every creditor, for the purpose of 
 signing and delivering his dividend cheque. Such a course of 
 proceeding would have been highly inconvenient to the cre- 
 ditors themselves. It is not the practice of bankers to receive 
 the dividend cheques from the assignees, and pay to each 
 creditor upon his application ; the trouble is greater than they 
 are willing to undertake. Of necessity, therefore, some single 
 person is to be selected for the distribution of these cheques, 
 and it is obvious that there is greater security if one of the 
 assignees will undertake the office than if it be intrusted to an 
 agent, because there may be cases in which circumstances of 
 convenience would not require that the joint cheques should 
 be signed by that assignee until the application of the creditor, 
 and the time of delivering the cheques. Upon the whole, I am 
 of opinion that the delivery of these cheques by A. to B. as his 
 co-assignee, was an act done in the proper execution of his 
 duty of a trustee, and that he is not responsible for the 
 subsequent loss of these cheques " (a). 
 
 Ex parte But where the assignees of a bankrupt employed an attorney 
 
 to recover debts due to the estate, and the attorney received 
 the money, and absconded. Sir A. Hart distinguished the case 
 from Ex parte Belchier, on the ground that there was no 
 necessity for permitting the attorney to receive one shUling of 
 the money recovered further than his costs. " The assignee,'' 
 
 (a) Ex parte Griffin, 2 Gl. & J. Buck. 495 ; S. C. 2 Gl. & J. 151 ; 
 114; and see Wackerbathy. Powell, Kilheev. Sneyd, 2 Moll. 186. 
 
 Townsend. 
 
CH. Xn.] DELEGATION OF THE TRUST. 295 
 
 he observed, "has two modes of relieviBg himself from the 
 responsibility. He may call a meeting of the creditors to 
 approve of an agent, or he may petition the Chancellor, and 
 have an agent approved of by the Master ; otherwise he acts 
 suo periculo, and to this extent, that if the attorney whom he 
 employs to recover debts receives the money one day and 
 becomes insolvent the next, the assignee is liable, although 
 there is hardly a shadow of negligence, much less of fraud." 
 And his Lordship said the same point had been decided in an 
 unreported case before Lord Eldon (a). Trustees, undoubtedly, 
 must not let the money lie in the hands of the attorney, but 
 that they must not suffer it to pass through his hands in the 
 ordinary course of business, in the recovery of a debt by 
 action, was beyond any previous decision ; it is probable that 
 the case before Lord Eldon contained some particular and 
 distinguishing circumstance. 
 
 A trustee or executor is not called upon to take any security Trustee not to 
 from the agent ; for to do that upon every occasion would tend fromTis^agmt.'^ 
 greatly to the hindrance of business (6). 
 
 Where trust money is to be transmitted to a distance, the How trust money 
 trustee may do it most conveniently and securely through the mitted!^^"^' 
 medium of a responsible bank, or he may take bills drawn by 
 a person of undoubted credit, and payable at the place whither 
 the money is to be sent. Thus in Knight v. The Earl of 
 Plymouth (c), a receiver, in order to bring money to London, 
 took bills which at the time they were obtained there was no 
 ground to suspect, but which, as it afterwards happened, were 
 protested in London, and the money lost. Lord Hardwicke 
 said, " The method the receiver took was highly prudent ; it 
 was well intended, and the only way he could take, unless he 
 had himself carried the money in specie, the hazard of which 
 would have been great; and if a loss had then incurred, in 
 my opinion he would have been, if not answerable, highly 
 blameable." 
 
 (a) Sx parte Townsend, 1 Moll. 480 ; recognised Ex parte Belchier, 
 
 139; see Anon, case, 12 Mod. 560. Amb. 219, and Routh v. Howell, 3 
 
 (J) Ex parte Belchier, Amb. 220, Ves. 566; and see Wren v. Kirton, 
 
 per Lord Hardwicke. 11 Ves. 380, 385. 
 
 (c) 1 Dick. 120; 8. C. 3 Atk. 
 
296 
 
 DELEGATION OF THE TRUST. 
 
 [CH. XU. 
 
 Payments iuto 
 bank must be t 
 the account of 
 the trust. 
 
 Rule at law as 
 liability of ex- 
 ecutors. 
 
 Delegation of a 
 
 discretionary 
 
 trust. 
 
 But the money must be paid in to the account of the 
 trust estate, and the bills must be taken in favour of the 
 trustee in that character, and if he neglect these precautions, 
 then, if the bank break, or the bills be dishonoured, the 
 trustee will be held responsible for the loss to the cestuis que 
 trust (a). 
 to The rule applied to executors in a Court of law is 
 somewhat different from that established in Courts of equity. 
 An executor once become responsible by actual receipt of 
 any part of the assets cannot at law found his discharge 
 in respect thereof as against a creditor, either by a plea of 
 reasonable confidence disappointed, or a loss not occasioned 
 by any negligence or default; as if an executor transmit 
 a sum to his co-executor under circumstances that in 
 equity would justify the confidence, a Court of law would 
 still hold him responsible for any misapplication by the 
 co-executor, and could not allow him to plead plene adminis- 
 travit (b). 
 
 If the trust be of a discretionary character, not only is the 
 trustee answerable for all the mischievous consequences of the 
 delegation, but the exercise of the discretion by the substitute 
 will be actually void (c). 
 
 Thus an advowson was vested in twenty-five of the 
 principal inhabitants of a parish upon trust to elect and 
 present a proper preacher, and, some of the trustees having 
 deputed proxies to vote at the election, Lord Hardwicke 
 said, " It is true a trustee who has a legal estate in him 
 may make an attorney to do legal acts; but here is a 
 personal trust, and there is no instance where a trustee 
 is allowed to make a proxy to vote in a personal trust 
 of this kind. The trustees were themselves to judge of 
 the qualifications of the candidates, and could not dele- 
 gate that judgment to others, but ought to exercise it 
 themselves." And his Lordship held, that, as the election 
 
 (o) See Wren v. Kirton, 11 Ves. 
 380, 381 ; Massey v. Banner, 1 J. 
 & W. 247. 
 
 (6) Crosse v. Smith, 1 East, 246 ; 
 and see Jones v. Lewis, 2 Ves. 241. 
 
 (e) See Alexander v. Alexander, 
 2 Ves. 643 ; Bradford v. Belfield, 2 
 Sim. 264 ; Sitch v. Leworthy, 2 
 Hare, 200. 
 
CH. XU.] DELEGATION OE THE TRUST. 297 
 
 had been conducted in this manner, it could not be sup- 
 ported (a). 
 
 And a discretionary trust can no more be delegated to a Not permitted, 
 co-executor or co-trustee than to a stranger (6). Thus, where co-°trustee.* 
 a sum of money was given to three executors upon trust to 
 distribute in charity at their discretion, and the executors 
 assumed each the independent control of one third, Lord 
 Hardwicke said, " I am of opinion the executors could not 
 divide the charity into three parts, and each executor nominate 
 a third absolutely, because the determination of the V properts , ^yi'^^-^-^-'^y 
 of every object was left by the testator to the direction of all 
 the executors " (c). 
 
 Of course if a trustee convey the estate, the mere transfer Transfer of the 
 of the estate will not have the effect of investing the grantee not transfer the 
 with the power (d). And so if a trustee devise the estate, the vo'w^^- 
 devisee cannot administer a discretionary trust unless the 
 original settlement contemplate such an event and annex the 
 powers to the estate in the hands of the devisee (e). 
 
 It must be noticed that the appointment of an attorney or Delegation dis- 
 proxy is not in all cases a delegation of the trust. When the appSntment oTa 
 trustee has resolved in his own mind in what manner to P™^y- 
 exercise his discretion,, he cannot be said to delegate any part 
 of the confidence if he merely execute the deed by attorney, 
 or signify his will by proxy. Thus, in the case before cited (/), 
 where the trust was to elect and present a proper clerk to a 
 benefice. Lord Hardwicke bad no doubt that, so far as related 
 to the mere act of presentation, the trustees, having them- 
 selves fixed upon the object, might have signed the presen- 
 tation by proxy ; a trustee who had a legal estate might make 
 an attorney to do legal acts. 
 
 III. Where the administration of the trust is vested in Trust a joint 
 
 office. 
 
 (a) Attorney- General v. Scott, 1 ral, 2 Eq. Ca. Ab. 194; Bradford 
 
 Ves. 413, see 417 ; Wilson v. Ben- v. Belfield, 2 Sim. 264; Coley. Wade, 
 
 nison, Amb. 82 ; S.C.I B. P. C. 296. 16 Ves. 47, per Sir W. Grant. 
 
 (6) Crewe v. Dicken, 4 Ves. 97. (e) Re Burtfs Trust, 1 Drewry, 
 
 (c) Attorney- General v. Gleg, 1 319 ; and see ante, pp.266, 267. 
 Atk. 356. (/) Attorney- General v. Scott, 1 
 
 (d) Crewe v. Dicken, 4 Ves. 97, Ves. 413 ; and see Ex parte Bighy, 
 see 100; Doyley v. Attorney -Gtne- 19 Ves. 463. 
 
298 
 
 DELEGATION OF THE TBUST. 
 
 [CH. xn. 
 
 Receipts. 
 
 All the trustees 
 must prove. 
 
 In public trusts 
 the majority of 
 the trustees may 
 bind the rest. 
 
 co-trustees, they all form as it were but one collective trustee, 
 and therefore must execute the duties of the office in their 
 joint capacity (a). It is not uncommon to hear one of several 
 trustees called the acting trustee, but the Court knows no such 
 distinction ; aU who accept the office are acting trustees. If 
 any one refuse to join, it is not competent for the others to 
 proceed without him, but the administration of the trust must 
 in that case devolve upon the Court (&). 
 
 Thus, a receipt for money must receive the joint authen- 
 tication of the whole body, and not of the majority merely, or 
 it will not be valid (c). But where the trustees are numerous 
 it is common in orders of the Court to direct the payment of 
 monies to any two or more of them.{d). 
 
 Again, if a debtor to the trust become bankrupt, all the 
 trustees must join in the proof (e), unless under particular 
 circumstances the Court make an order for some of the trustees 
 to prove, and even then the Court has inserted the direction 
 that the dividends should be made payable to all the 
 trustees (/). 
 
 But when there are several trustees, and the trust is of a 
 public character, the act of the majority is held to be the act 
 of the whole number {g). In Wilkinson, v. MaUn, Lord Lynd- 
 hurst observed, " In this case there were seven trustees ; those 
 seven met for the purpose of electing a schoolmaster ; at that 
 meeting five of the trustees concurred in the appointment, two 
 dissented, but did nothing upon that dissent. We are of 
 opinion that, in a case of this description, where all the 
 trustees were assembled for the purpose of making the 
 election, and the majority of them so assembled concurred 
 in the appointment, the act of the majority in that respect is 
 to be considered the act of the whole body. This is a trust of 
 
 (a) See Ux parte Griffin, 2 Gl. & 
 J. 116. 
 
 (6) Boyly v. Sherratt, 2 Eq. Ca. 
 Ab. 742, marginal note to (D). 
 
 (c) See infra. 
 
 (d) SeeAttorney-Generaly.Srick- 
 dale, 8 Beav. 223. 
 
 (e) Ex parte Smith, 1 Deao. 391, 
 per Sir T. Brskine. 
 
 (/) Bx parte Smith, 1 Deao. 385. 
 
 \g) Wilkinson v. Malin, 2 Tyr. 
 544; and see Attorney- General v. 
 Shearman, 2 Beav. 104 ; Attorney- 
 General Y. Cuming, 2 Y. & C. Ch. 
 Ca. 139 ; Younger v. Welham, 3 
 Sw. 180. 
 
CH. Xn.] SURVIVORSHIP OP THE TRUST. 299 
 
 a public nature, viz. to apply funds for the repair of the church 
 and other objects in which the whole parish are interested; 
 and we are of opinion that where trustees are appointed for 
 the purpose of performing a trust of such a public and general 
 nature, the act of the majority is the act of the whole. It was 
 said at the bar that the principle only applies to cases where 
 the trustees are appointed under some public authority as 
 under an Act of Parliament, or some public body ; but we are 
 of opinion that it is not subject to that limitation. The objects 
 of the trust would be defeated if one dissenting trustee could 
 prevent the application of the funds in the manner directed. 
 Considering the nature of the trusts, we are of opinion it was 
 the intention of the founder, and fairly to be collected from the 
 objects he had in view, that the act of the majority should 
 bind the rest " {a). 
 
 Where a numerous body are appointed trustees by the TmsteeBof 
 Court, as in cases of charity, the Court sometimes annexes to the 
 order that a part of them shaU form a quorvm. 
 
 Where stock is standing in the name of several co- 
 trustees, any one of them may receive the dividends, though 
 all must join in the sale of the corpus ; and where there are 
 co-trustees of lands, any one of them may receive the rents, 
 though all must concur in a conveyance (h). 
 
 IV. On the death of one trustee the joint office survives. 
 
 It is a well-known maxim that a bare authority committed to SurviTorsHp of 
 
 ., .,,,.-„ , .. the trust. 
 
 several persons is determined by the death oi any one ; but, li 
 coupled with an interest, it passes to the survivors (c). Thus, 
 the committees of a lunatic's estate are regarded in the light 
 of mere bailiffs without a spark of interest, and if one of them 
 die, the office is immediately extinguished (d). An executorship 
 
 (a) Wilkinson v. Malin, 2 Tyr. General v. Gleg, 1 Atk. 356 ; 8. C. 
 
 572. Amb. 584 ; Goulds. 2, pi. 4 ; Pey- 
 
 (5) See Townley v. Sherhorne, ton v. Bury, 2 P. W. 628 ; Mansell 
 
 Bridg. 35 ; Williams v. Nixon, 2 v. Vaughan, "Wilm. 49 ; Eyre v. 
 
 Beav. 472 ; Gouldsworth v. Knight, Countess of Shaftesbury, 2 P. W. 
 
 11 M. & W. 337. 108, 121, 124. 
 
 (c) Co. Lit. 113 a, 181 b ; Butler {d) Bx parte Lyne, Rep. t. Talb. 
 
 V. Bray, Dyer, 189 b , Attorney- 143. 
 
/j^>"p 
 
 300 SUEVIVOESHIP OF THE TEUST. [CH. Xn. 
 
 or administratorship survives (a) ; for " if," says Lord Talbot, 
 " a joint estate at law will survive, why shall not a joint 
 administration, when they both have a joint estate in it ? " (b). 
 So a testamentary guardianship vests in the survivors, for, 
 as guardians may bring actions and avow in their own names, 
 may grant leases during the minority of the ward, and demise 
 copyholds even in reversion as lords pro tempore, it is evident 
 they have an interest (c). It follows that as co-trustees have 
 an authority coupled with an interest, their office also must be 
 impressed with the quality of survivorship (d) : as if an estate 
 be vested in two trustees upon trust to sell and one of them 
 die, the other may sell (e); and if an advowson be conveyed to 
 trustees upon trust to present a proper clerk, the survivors or 
 survivor may present (/). Otherwise,, indeed, the more precau- 
 tion a person took by increasing the number of the trustees, the 
 greater would be the chance of the abrupt determination of 
 the trust by the death of any one. Even where the trust was 
 to raise the sum of 3000Z. out of the testator's estate "by 
 sale or otherwise, at the discretion of his trustees, who should 
 invest the same in the names of the said trustees upon 
 trust," &c., and one of the two trustees died, and the survivor 
 sold; Vice-Chancellor Wood decided that the survivor could 
 make a good title. " I find," he said," a clear estate in the vendor, 
 and a clear duty to perform. He has executed his duty, and I am 
 asked to say that he has committed a breach of trust. Can I 
 do that ? He has a duty imposed upon him to raise the 
 
 (o) Adams v. Buckland, 2 Vern. Owilliams v. Sowell, Hard. 204 ; 
 
 514 ; Hudson v. Sudson, Kep. t. Billingsley v. Mathew, Toth. 168. 
 
 Talb. 127. (e) See Co, Lit. 113 a; Warbur- 
 
 (b) Hudson v. Sudson, Rep. t. ton v. Sandys, 14 Sim. 622 ; Watson 
 
 Talb. 129. V. Pearson, 2 Exoh. Rep. 594. 
 
 (e) JEyre v. Countess of Shaftes- (/) &e& Attorney-Generals. BUhop 
 
 Jwry, 2 P.W. 102. But if joint guar- of Zitchfield, 5 Yes. 825; Aftorney- 
 
 dians be appointed by the Court, tbe General v. Cuming, 2 Y. & C. Ch. 
 
 oflB.ce, on tbe death of one, ia at an Ca. 139. If two trustees employ a 
 
 end; BradshawY. BradshaWjlRu&s. solicitor, the surviving trustee may 
 
 528; Sallv. Jones, 2 Sim. 41. file a bill against the soUoitor for an 
 
 {d) Hudson v. Hudson, Rep. t. account, without making the repre- 
 
 Talb. 129, ^er Lord Talbot; Co. Lit. sentative of the deceased trustee a 
 
 113 a; Attorney- General y.Glegg, party; Slater v. Wheeler, 9 Sim. 
 
 Amb. 685, per Lord Hardwicke ; 156. 
 
CH. Xri.] SURVIVORSHIP OF THE TRUST. 301 
 
 money : he has the necessarj' estate given to him for that 
 purpose. Is it to be said that this is a breach of trust because 
 the co-trustee is dead ? If I were to lay down such a rule it 
 would come to this, that wherever an estate was vested in two 
 or more trustees to raise a sum by sale or mortgage, you must 
 come to the Court on the death of one of the trustees " {a). 
 
 The survivorship of the trust will not be defeated because the Trust surTives, 
 
 . . .,..., though there be 
 
 settlement contains a power for restoring the original number a power of ap- 
 
 of trustees by new appointments (6); unless there be some- 4°™*^^° " "^^ 
 
 thing in the instrument that specially manifests such an 
 
 intention (c). Even in an Act of Parliament, which declared 
 
 in very strong terms that the survivors should (d), and they 
 
 were thereby required to appoint new trustees, the Court said 
 
 the proviso was analogous to the common one in settlements, 
 
 and expressed an opinion (for the decision was upon another 
 
 point), that the clause was not imperative, but merely of a 
 
 directory character (e). 
 
 The case oi Attorney-General v. The Bishop of Litchfield (/), Attorney-Gene- 
 ral V. Litchfield, 
 may be cited as touching upon this subject. A testator had 
 
 devised to eight persons and their heirs the donation and 
 
 parsonage of a rectory, and " desired their care to present 
 
 from time to time a learned, painful preacher, honest in life 
 
 and conversation, whereby souls might be gained to Christ;" 
 
 and directed that "the three last survivors should make 
 
 choice of new trustees to be added to them successively to 
 
 present." The representative of the last surviving trustee 
 
 conveyed to one Hodgets and his heirs; Eliza, the wife of 
 
 Foley, was the heiress-at-law of Hodgets, and, the advbwson 
 
 («) Lane v. Debenham, 17 Jur. Walk. 245 ; and see Jacob v. Lucas, 
 
 1005. 1 Beav. 436. 
 
 (6) See Doe v. Godwin, 1 D. & K. (<?) As to the force of the words 
 
 259 ; Warburton v. Sandys, 14 Sim. " shall and may " in an Act of Par- 
 
 622; compare TownsendY. Wilson, liament, see Attorney - General v. 
 1 B. & Aid. 6087VLth Sail v. Dewes, ' Lock, 3 Atk. 166 ; Stamper v. Mil- 
 
 Jac. 193; and see Attorney- Gene- lar, id. 212; Rexy. Flockwood, 2 
 
 ral V. Floyer, 2 Vern. 748 ; Jacob v. Chit. Rep. 252. 
 
 Lucas, niez.v.'ii&; Attorney-Gene- (e) Doe y. Godwin, 1 D. & R. 
 
 ralY. Cuming, 2 T. & C. Ch. Ca. 259. 
 
 139. (/) 5 Ves. 825. 
 
 (c) Foley v. Wontner, 2 Jao. & 
 
303 LIABILITY OP CO-TEUSTEES. [CH. XH. 
 
 having descended upon her, Foley presented a clerk. An 
 injunction was applied for to stay the institution, and Lord 
 Eldon said, "Upon what ground am I to interfere to prevent 
 the Bishop from instituting upon a presentation under the 
 legal title ? It is said with great foundation this trust ought 
 to be fiUed up; but, if an avoidance happens before the trust 
 is filled up, the trustee executes the duty by presenting a 
 proper person. If there is any objection to the clerk pre- 
 sented by him, as, if he presented for emolument to himself, 
 the Court should interfere ; but it would be very inconvenient 
 if I were to hold that there can be no presentation till the 
 number is filled up, when by negligence it has happened that 
 the number is not filled up. If three trustees remained, I 
 could not prevent their choice of new trustees to be added 
 to them to present. The filling up the trustees might take a 
 considerable time, and a lapse might incur ; but I agree this 
 is not a proper act of Mr. Foley, when the trust is reduced 
 to his wife." 
 
 Trustee not liable V. One trustee shall not be liable for the acts or defaults of 
 his co-trustee, whether a proviso to that effect be inserted in 
 the original settlement or not (a). This point appears to have 
 been first clearly established by the decision of Townley v. 
 Sherborne (6) in the reign of Charles the First, and is ushered 
 in by the reporter with no little solemnity. 
 
 Townley v. A., B., C, and D. were trustees of some leasehold premises. 
 
 A. and B. collected the rents during the first year and a half, 
 and signed acquittances ; but from that period the rents were 
 uniformly received by an assign of C. The liability of A. and 
 
 B. during the first year and a half was undisputed, but the 
 question was raised whether they were not also chargeable 
 with the rents which had accrued subsequently, but had never 
 come to their hands ? " The Lord Keeper Coventry (says the 
 reporter) considered the case to be of great consequence, and 
 thought not to determine the same suddenly, but to advise 
 
 (a) Leigh v. Barry, 3 Atk. 684, (6) Bridg. 35. 
 
 per Lord Hardwicke ; Anon, case, 
 12 Mod. 560. 
 
CH. XII.] LIABILITY OF CO-TKUSTEES. 303 
 
 thereof, and desired the Lords the Judges Assistant to take the 
 same into their serious consideration, whereby some course 
 might be settled that parties trustees might not be too much 
 punished, lest it should dishearten men to take any trust, 
 which would be inconvenient on the one side, nor that too 
 much liberty should be given to parties trustees, lest they 
 should be emboldened to break the trust imposed on them, 
 and so be as much prejudicial on the other side. And the 
 Lord Keeper and the Lords the Judges Assistant afterwards 
 conferring together, and upon mature deliberation conceiving 
 the case to be of great importance, his Lordship was pleased 
 to call unto him also Mr. Justice Crook, Mr, Justice Barcley, 
 and Mr. Justice Crawley, for their assistance also in the same, 
 and appointed precedents to he looked over as well in the Court 
 of Chancery as in other courts, if any could be found touching 
 the point in question ; whereupon several precedents were 
 produced before them, some in the Court of Chancery and 
 some in the Court of Wards, where parties trustees were 
 chargeable only according to their several and respective 
 receipts, and not one to answer for the other, but no precedent 
 to the contrary was produced to them. Whereupon his Lord- 
 ship, after long and mature deliberation on the case, and serious 
 advice tvith all the said Judges, did this day in open Court 
 declare the resolution of his Lordship and the said Judges — 
 That where lands or leases were conveyed to two or more 
 upon trust, and one of them receives all or the most part of 
 the profits, and after dyeth or decayeth in his estate, his co- 
 trustee shall not be charged or be compelled in the Court of 
 Chancery to answer for the receipts of him so dying or decayed, 
 unless some practice, fraud, or evil dealing appear to have 
 been in them to prejudice the trust ; for, they being by law joint 
 tenants or tenants in common, every one by law may receive 
 either all or as much of the profits as he can come by. And 
 it being the case of most men in these days that their personal 
 estates do not suffice to pay their debts, prefer their children, 
 and perform their wills, they are enforced to trust their friends 
 with some part of their real estate to make up the same, either 
 by the sale or the perception of the profits thereof; and if such 
 of their friends who carry themselves without fraud should be 
 
^^^ LIABILITY OF CO-TRUSTEES. [CH. XII. 
 
 chargeable out of their own estate for the faults and defi- 
 ciencies of their co-trustees who were not nominated by them, 
 few men would undertake any such trust. And if two execu- 
 tors be, and one of them wastes all or any part of the estate, 
 the devastavit shall by law charge him only, and not the co- 
 executor. And in that case ceqmtas sequitior legem, there being 
 many precedents resolved in Chancery, that one executor shall 
 not answer nor be chargeable for the act or default of his 
 companion. And it is no breach of trust to permit one of the 
 trustees to receive all or the most part of the profits, it falUng 
 out many times that some of the trustees live far from the 
 lands and are put in trust out of other respects than to be 
 troubled with the receipt of the profits. And albeit, in all 
 presumption, this case had often happened, yet no precedent 
 had been produced to his Lordship or the Judges, that in any 
 such case the co-trustee had been charged for the act or 
 default of his companion ; and therefore it was to be presumed 
 that the current and clear opinion had gone that he was not 
 to be charged, it having not till of late been brought into 
 question in a case that by all likelihood had often happened. 
 But his Lordship and the said Judges did resolve, that if upon 
 the proofs or circumstances the Court should be satisfied that 
 there had been any dolus inalus, or any evil practice, fraud, 
 or ill intent in him that permitted his companion to receive 
 the whole profits, he should be charged though he received 
 nothing." 
 
 Trustee not liable Co-trustees (a), however, as was determined in Townley t. 
 
 forma in receipts. Shcrhome, were formerly considered responsible for money 
 if they joined in signing the receipt for it; but in later times 
 the rule has been established, that a trustee who joins in a 
 receipt for mere conformity's sake, shall not be answerable 
 for a misapplication by the trustee who receives (b). "Where 
 
 (a) Townley v. Sherborne, Bridg. Vern. 516, to be contrary to natural 
 
 35 ; Spalding v. Shalmer, 1 Vem. justice. 
 
 303 ; Sadler v. Hohhs, 2 B. C. C. (6) JBrice v. Stokes, 11 Ves. 324, 
 
 114; and see Bradwell y. Catch- ^er Lord Eldon ; HardertY. Parsons, 
 
 pole, cited Walker v. Symonds, 3 1 Ed. 147, per Lord Northington; 
 
 Sw. 78, note (o) ; but said by Lord Westley v. Clarke, 1 Ed. 359, per 
 
 Cowper, Fellowes v. Mitchell, 2 eundem ; Heaton v. Harriot, cited 
 
CH. XII.] LIABILITY OF CO-TRUSTEES. 305 
 
 the administration of the trust is vested in co-trustees, a 
 receipt for money paid to the account of the trust must be 
 authenticated hy the signature of all the trustees in this their 
 joint capacity; it would be tyranny, therefore, to punish a 
 trustee for an act which the very nature of his office will not 
 permit him to decline. 
 
 But it lies upon the trustee who joins in the receipt for But he must 
 mere conformity, to prove that his co-trustee was the person not actually 
 by whom the money was actually received. In the absence '^^''^^^^■ 
 of all evidence, the effect of a joint receipt is to charge each 
 of the trustees in solido{a); as if a mortgage be devised to 
 three trustees, and the mortgagor with his witness meets them 
 to pay it off, and the money is laid on the table, and the 
 mortgagor having obtained a reconveyance and receipt for his 
 money, withdraws, each of the trustees in this case will be 
 answerable for the whole (&). A joint receipt at law is conclu- 
 sive evidence that the money came to the hands of both, but 
 in equity, which rejects estoppels and pursues truth, the 
 Court will decree according to the justice and verity of the 
 fact (c). " Where," said Lord Cowper, " it cannot be distin- 
 guished how much was received by one trustee and how much 
 by the other, it is like throwing corn or money into another 
 man's heap, where there is no reason that he who made this 
 difficulty should have the whole ; on the contrary, because it 
 cannot be distinguished he shall have no part {d)." 
 
 Of course a trustee will not be exempt from liability if he And the receipt. 
 
 Aplyn v. Brewer, Pr. Ch. 173 ; Ex Joy v. Campbell, 1 Soh. & Lef. 344, 
 
 parte Belchier, Amb. 219, per Lord per eundem ; Anon, case, Mose. 35 ; 
 
 Hardwieke ; Leigh v. Barry, 3 Atk. Ex parte Wackerhath, 2 Gr. & J. 
 
 584, per eundem; Fellows v. Mil- 151; Webh v. Ledsam, 1 Kay & 
 
 chell, 1 P. W. 81 ; Gregory v. 6re- Jolms. 388, per Y. C. Wood. 
 
 gory, 2 Y. & C. 316, per Baron (a) Brice v. Stohes, 11 Ves. 234, 
 
 Alderson; Sadler y. Sohhs, 2 B. C. ^ey Lord Eldon ; Seurjieldw. Howes, 
 
 C. 117, per Lord Thurlow; Cham- 3 B. C. C. 95, per Lord Thurlow. 
 
 hers V. Minchin, 7 Ves. 198, per {V) Westley v. Clarke, 1 Ed. 359, 
 
 Lord Eldon ; Bord Shiphrook v. per Lord Henley. 
 
 Lord IKnchinbrookjlGYea. 119, per (c) Llardenr. Parsons,! Ed. 147, 
 
 eundem ; Harrison v. Oraham, 3 per eundem. 
 
 Hill's MSS. 239, per Lord Hard- {d) Fellows v. Mitchell, 1 P. W. 
 
 wicke, cited 1 P. W. 241, 6th ed. 83. 
 
 note (y) ; Carsey v. Barsham, cited 
 
^06 
 
 LIABILITY OF CO-TBUSTEES. 
 
 [CH. xn. 
 
 Trustee joining 
 in a receipt must 
 not permit tlie 
 money to lie in 
 the hands of the 
 co-trustee. ' 
 
 Brioe v. Stokes. 
 
 sign a receipt where the purposes of the trust do not require 
 the money to be raised ; for there can be no legal necessity 
 for his joining when the money itself ought never to have 
 been called for. Thus in Hanbury v. Kirkland (a) Kaye, one 
 of three trustees of a marriage settlement with a power of 
 varying the securities, applied to his co-trustees to sign a 
 warrant of attorney for sale of the stock, on the ground that 
 he had an opportunity of investing the trust fund upon good 
 landed security at five per cent, interest. The co-trustees 
 signed the warrant of attorney, and Kaye sold out the stock 
 and misapplied the proceeds. The following year one of the 
 co-trustees wrote to Kaye to inquire if he had procured an 
 eligible mortgage, when Kaye replied, he had failed in obtain- 
 ing the mortgage he had originally contemplated, but he was 
 in hopes of investing the fund on another security equally 
 desirable. Two years after, Kaye absconded, and the money 
 was lost. It was held the co-trustees were responsible, and 
 principally on the ground that, " it being their duty to inquire 
 what was the security and who was the mortgagor, they had 
 executed the power of attorney without exercising a single act 
 of discretivDn, relying entirely upon the representation made to 
 them by Kaye." 
 
 And though a trustee joining in a receipt may be safe in 
 merely permitting his co-trustee to be the receiver in the first 
 instance, yet he will not be justified in allowing the money to 
 remain in his hands for a longer period than the circumstances 
 of the case may reasonably require (&). 
 
 Thus, in Brice v. Stokes (c), the leading case upon this sub- 
 ject. Mooring and Fielder, two trustees with a power of sale, 
 conveyed the estate in 1784 to a purchaser, and both signed 
 the receipt, but Fielder alone actually received. In 1794 
 Fielder died insolvent without having accounted for the money 
 
 (a) 3 Sim. 265, and see Marriott Lincoln v. Wright, 4 Beav. 427. 
 
 V. Kinnersley, Taml. 470 ; Broad- 
 hurst V. Salguy, 1 Y. & C. Ch. Ca. 
 1 6 ; Rowland v. Witherden, 3 Mae. 
 & Gord. 568. 
 
 (b) Bone v. Cook, M'Clel. 168; 
 Gregory v. Gregory, 2 Y. & C. 313 ; 
 
 This doctrine appears to have been 
 very little regarded in the time of 
 Lord Talbot. Bee Attorney- General 
 V. Randall, 21 Vin. Ah. 534. 
 (c) 11 Ves. 319. 
 
CH. Xn.] , LIABILITY OF CO-TRUSTEES. 307 
 
 paid to him, and it was proved in evidence that Mooring' was 
 cognisant of the misemployment of the fund, though he took 
 no active measures for recovering it out of Fielder's hands. 
 Lord Eldon said, " Though a trustee is safe if he does no more 
 than authorise the receipt and retainer of the money so far 
 as the act is within the due execution of the trust, yet if it 
 is proved that a trustee, under a duty to say his co-trustee 
 shall not retain the money beyond the time during which the 
 transaction requires retainer, admits that, with his knowledge, 
 and therefore with his consent, the co-trustee has not laid it out 
 according to the trust, but has kept it or lent it in opposition 
 to the trust, and the other trustee permits that for ten years 
 together, the question then turns upon this, not whether the 
 receipt of the money was right, but whether the use of it sub- 
 sequent to that receipt was right, after the knowledge of the 
 trustee that it had got into a course of abuse. As soon as a 
 trustee is fixed with knowledge that his co-trustee is misapply- 
 ing the money, a duty is imposed upon him to bring it back 
 into the joint custody of those who ought to take better care 
 of it." The conclusion was that Mooring was to be made 
 answerable. 
 
 Walker v. Symonds {a) involved great particularity of circum- Walker v. 
 stances; but, Lord Eldon having described it as a case of '™°° ^' 
 great importance to trustees in general (b), it may be useful to 
 present it to the reader so fa^, as it bears upon the present 
 subject. 
 
 A sum of money secured by mortgage had been assigned to 
 Donnythorne, Griffith, and Symonds, upon certain trusts. On 
 the 12th of January, 1791, the mortgage was paid off and the 
 estate re- conveyed, and a joint receipt signed, and the money, 
 with the approbation of the co-trustees, was put into the hands 
 of Donnythorne. The money was shortly afterwards invested 
 by Donnythorne, with the sanction of his co-trustees, in bills 
 or notes of the East Lidia Company jjayable at the end of 
 two years. In 1795 the bills were paid off by the Company, 
 and the money received by Donnythorne. Intelligence to that 
 effect having been transmitted to the co-trustees, Symonds 
 
 (a) 3Sw. 1. (b) Id. 74. 
 
 X 2 
 
808 LIABILITY OF CO-TEUSTEES. [CH. XII. 
 
 the same year wrote to Donnythome, requesting him to invest 
 it in the public funds in the joint names of the trustees. 
 Donnythorne begged that the money might remain in his 
 hands, and proposed to secure the repayment of it by a 
 mortgage from himself and his son of their settled estates in 
 Cornwall, and, until the mortgage could be prepared, to secure 
 it by their joint bond. The co-trustees, conceiving the security 
 would be ample, expressed their consent, and the joint bond 
 was accordingly executed. Donnythorne not having sent the 
 mortgage as he promised, Symonds made several applications 
 to him upon the subject, earnestly desiring him either to invest 
 the money in the funds, or to give them landed security. In . 
 September, 1796, Donnythorne died insolvent, and without 
 having executed the mortgage. Sir W. Grant observed, " The 
 money in 1791 was paid in without any act of the trustees: 
 they were obliged to receive it: so far they were blameless. It 
 came to Donnythorne's hands, and the trustees were not to 
 blame in letting it come to his hands ; but they might have 
 afterwards made themselves responsible by merely not doing 
 what was incumbent on them ; by permitting the money to 
 remain a considerable time in the hands of their co-trustee 
 they might, without any positive act on their part, have made 
 themselves liable. That will depend on the degree and extent 
 of their laches in suffering the money to remain in the hands 
 of Donnythorne. The trustees being authorised to put the 
 money out on mortgage, it would be rather hard to say that 
 they were guilty of laches by giving Donnythorne a little time 
 to find a mortgage, taking his bond in the mean time. What 
 passed in the interval between to the death of Donnythorne 
 does not appear. If it were necessary to decide the point, an 
 inquiry before the Master must be directed " (a). Sir W. 
 Grant dismissed the bill, which was one to set aside (as 
 having been fraudulently obtained) a compromise of the alleged 
 breach of trust, but did so on grounds foreign to the subject 
 under discussion; Lord Eldon, however, before whom the 
 cause was brought upon appeal, reversed Sir W. Grant's 
 decree, and directed an inquiry by the Master as to the conduct 
 
 (») 3 Sw, 41. 
 
CH. XII.] LIABILITY OP CO-TRUSTEES. i.WJ 
 
 of the trustees from January, 1791, when the mortgage was 
 paid off, to 1796, the time of Donnythorne's death. It then 
 appeared by the Master's report made in pursuance of the 
 order, that the money had been invested by Donnythorne, soon 
 after he had received it, in East India bills payable to himself; 
 that the money due on the bills had been discharged in 1793, 
 and the money paid to Donnythorne; that the co-trustees had 
 made no inquiry about the trust fund from January, 1791, till 
 May, 1795, ■which was the time when Symonds wrote the letter 
 and made the applications already stated. On the hearing of 
 the cause upon further directions. Lord Eldon said, " The 
 cause comes back with a report stating a clear breach of trust 
 in leaving the trust-fund in the situation represented from 
 1791 to 1793, and from 1793 to 1795. The money was laid 
 out in 1791 with the consent of the trustees on India bills 
 payable to Donnythorne, a palpable breach of trust by placing 
 the fund under his control, secured by little more than a pro- 
 missory note payable to himself. It was probable that in 1793 
 Donnythorne would be paid the money due on the bills, and it 
 would be lodged in his hands ; and although the Court will 
 proceed as favourably as it can to trustees who have laid out 
 the money on a security from which they cannot with activity 
 recover it, yet no Judge can say they are not guilty of a breach 
 of trust, if they suifer it to lie out on such a security during so 
 long a time {a) . The trustees were guilty of a breach of trust 
 in permitting the money to remain on bills payable to Donny- 
 thorne alone, and in leaving the state of the funds unascertained 
 for five years {b). I agree with the Master of the Rolls that 
 inquiry might, on the principles of this Court, have discharged 
 the trustees in given circumstances from a breach of trust. If, 
 without previous participation, they in June, 1795, had found 
 that, being themselves implicated in no breach of trust, they 
 had a co-trustee who had been guilty of a shameful violation of 
 his duty, and immediately exerted themselves to obtain from 
 him a mortgage, which was their object at that time, and used 
 their utmost efforts instead of filing a bill in this Court, which 
 perhaps might have destroyed his means of giving security, 
 
 (a) 3 Sw. 65. (i) lb. 67. 
 
310 
 
 LIABILITY OF CO -TRUSTEES. 
 
 [CH. XII. 
 
 Executor answer- 
 able for joining 
 in receipts pro 
 forma,. 
 
 Westley v. 
 Clarke. 
 
 I should have hesitated long before I charged then, if inquiry 
 had satisfied me that for a simple contract debt due to them 
 they had taken a bond and a mortgage instead of instituting a 
 suit, with the rational hope that by means of the bond and the 
 mortgage they should obtain payment from their co-trustee " (a). 
 The result of his Lordship's judgment was, that, under the cir- 
 cumstances disclosed by the Master's report, the trustees were 
 clearly to be held responsible for the loss of the money. 
 
 Co-executors also, like co-trustees, are generally answerable 
 each for his own acts only and not for the acts of any co- 
 executor (&). But in respect of receipts, the case of co-executors 
 'is materially different from that of co-trustees. An executor 
 4ias, independently of his co-executor, a full and absolute 
 control over the personal assets of the testator. If an executor 
 join with a co-executor in a receipt, he does a wanton and 
 unnecessary act ; he interferes when the nature of the oflBee 
 lays upon him no such obligation, and therefore it was a rule 
 very early established, that, if executors joined in receipts, 
 they should be answerable, each in solido, for the amount of 
 the money received (c). 
 
 In Westley v. Clarke (d) Lord Northington expressed an 
 opinion that aimed at breaking down the rule; and by his 
 decision of that case he succeeded in establishing a quahfica- 
 tion of it. 
 
 Thompson, one of three co-executors, had called in a sum of 
 money secured by a mortgage for a term of years, and received 
 
 {a) 3 Sw. 71. 
 
 (5) Hargthorpe v. Milforth, Cro. 
 El. 318; ^noK.Dyer, 210a; Wentw. 
 Off. Ex. 306, 14 Edn. ; Williams v. 
 Nixon, 2 Beav. 472. 
 
 (c) AplynY. Brewer, Pr. Ch. 173; 
 Murrell v. Cox, 2 Vern. 560 ; Ex 
 parte Belchier, Amb. 219, per Lord 
 Hardwicke ; Leigh-v. Barry, 3 Atk. 
 584, per eundem ; Harrison v. Gra- 
 ham, 3 Hill's MS8 239, per eundem, 
 cited 1 P. "W. 241, 6th ed. note (y) ; 
 Darwell v. Harwell, 2 Eg. Ca. Ab. 
 456 ; Gregory v. Gregory, 2 Y. & 
 C. 316, per Baron Alderson. 
 
 [d) 1 Ed. 357 ; 8.C.\ Dick. 329; 
 
 and see Harden T. Parsons, 1 Ed. 
 147, 148. Yet in Churchill y. Hob- 
 son, 1 P. W. 241, note (1) by Mr. 
 Cox, his Lordship is reported to have 
 said, according to a note of the ease 
 by Sir L. Kenyon, that in Westley 
 v. Clarke he should have thought 
 the co-executors liable if they had 
 been present at the time the money 
 was paid ; and Lord Redesdale, ia 
 Doyle V. Blake, 2 Soh. & Lef. 242, 
 243, seemed to think that LordNorth- 
 ington had no intention of Ireahing 
 down, but only of qualifying the 
 rule. 
 
CH. XII.] LIABILITY OF CO-TRUSTEES. 311 
 
 the amount, and afterwards, but the same day, sent round 
 his clerk to his co-executors with a particular request that 
 they would execute the assignment and sign the receipt, which 
 they accordingly did. Thompson afterwards became bankrupt, 
 and the money was lost, and thereupon a bill was filed to 
 charge the co-executors. Lord Northington said, " The rule 
 that executors joining ih a receipt are all liable amounts to no 
 more than this, that a joint receipt given by executors is a 
 stronger proof that they actually joined in a receipt, because 
 generally they have no occasion to join for conformity. But, 
 if it appears plainly that one executor only received and dis- 
 charged the estate indebted and assigned the security, and the 
 others joined afterwards without any reason, and without being 
 in a capacity to control the act of their co-executor either 
 before or after that act was done, what grounds has any Court 
 in conscience to charge him ? Bqtiity arises out of a modifi- 
 cation of acts, where a very minute circumstance may make a 
 case equitable or iniquitous ; and though former authorities 
 may and ought to bind the determination of subsequent cases 
 with respect to rights, as in the right of curtesy or dower, yet 
 there can be no rule for the future determination of this Court 
 concerning the acts of men. The only act that afi'ected the 
 assets was the first that discharged the debt, and, according to 
 the sense of the Bar, transferred the legal estate of the lands. 
 Then that the co-executors are not to answer for, and the 
 second is nugatory." His Lordship was therefore of opinion 
 that the co-executors were not liable for the misapplication by 
 the co-executor. 
 
 The doctrine propounded in this case, that the joint receipt Executor joining 
 
 /■ c J 1 1 ■ i P™ form4 not 
 
 of co-executors is merely a stronger proof oi the actual receipt answerable where 
 than in the instance of co-trustees, and that an executor as ^ugator^ac™^ * 
 well as a trustee may rebut the presumption by positive 
 evidence, has since been repeatedly contradicted both by dicta 
 and decisions (a). The simple point determined, viz. that an 
 
 (a) Scurfield v. Howes, 3 B. C. C. Lef. 341 ; Chamhers v. Minchln, 7 
 
 90 ; Sadler Y. HoUs, 2 B. C. C. 114 ; Ves. 198 ; Brice v. Stokes, 11 Ves. 
 
 Langfordy. Oascoyne, 11 Ves. 333; 325; Shiphrookv. HincMnbrooh, 16 
 
 and see Boyle v, Blake, 2 Sch. & Ves. 4*79 ; Walker v. Symonds, 3 
 
 Lef. 243 ; Joyr. Campbell, 1 Sch. & Sw. 64. 
 
319 LIABILITY OF CO-TBUSTEES. [CH. XH. 
 
 executor who signs shall not be answerable when the act 
 of signature is nugatory, may be considered as now settled. 
 
 Lord Thurlow, indeed, is reported to have questioned the 
 decision in Westley v. Clarke (a) : but Lord Alvanley said, " he 
 must enter his dissent against the rule, that executors joining 
 in a receipt were both liable, for he did not hold that an 
 executor could not in any case be discharged from a receipt 
 given for conformity : he did not find fault, for instance, with 
 the case of Westley v. Clarke " (6). And, again, he said, " he 
 perfectly concurred in the decision of that case ; and the 
 joining in a receipt, though not perhaps absolutely necessary, 
 he would not consider conclusive " (c). Lord Eldon, in evident 
 allusion to the case of Westley v. Clarke, admitted the old 
 rule had been pared doivn, at the same time expressing his 
 opinion that the notion upon which the later cases had pro- 
 ceeded, viz. that the old rule had a tendency to discourage 
 executors from acting, was very ill-founded. A plain general 
 rule, he thought, which once laid down was easily understood 
 and might be generally known, was much more inviting to 
 executors than a rule referring every thing to the particular 
 circumstances (d). 
 Present doctrine The present doctrine of the Court was thus enunciated by 
 on the subject. j^^^.^ -gj^^^^ . _ » Though One executor has joined in a receipt, 
 
 yet whether he is liable shall depend upon his acting. The 
 former was a simple rule that joining should be considered 
 as acting, but now joining alone does not impose responsi- 
 bility " (e). The same rule was laid down by Lord Eedesdale, 
 and iu his usual clear and forcible language. " The distinc- 
 tion," he said, "with respect to mere signing appears to be 
 this; that if a receipt be given for the purpose of form, then 
 the signing will not charge the person not receiving ; but if it 
 be given under circumstances purporting that the money, 
 though not actually received by both executors, was under the 
 
 (a) Sadler v. Sobbs, 2 B. C. C. {d) See Chambers v. Minchin, 7 
 
 117. Ves. 198; Bricey. Stokes, 11 Ves. 
 
 (6) Scurfield v. Howes, 3 B. C. C. 325 ; Shipbrooh v. Hinchinbrook, 16 
 
 94. Ves. 479 ; Walker v. Symondi, 3 
 
 (e) Hovey v. Blakeman, 4 Ves. Sw. 64. 
 
 608. (e) Walker v. Symonds, 3 Sw. 64. 
 
CH. XII.] LIABILITY OF CO-TRUSTEES. 813 
 
 control of both, such receipt shall charge ; and the true ques- 
 tion in all these cases seems to have been, whether the money 
 was under the control of both executors : if it was so con- 
 sidered by the person paying the money, then the joining in 
 the receipt by the person who did not actually receive amounted 
 to a direction to pay to his co-executor (for it could have no 
 other meaning), and he became responsible for the money, 
 just as if he had actually received it (a). Thus, where two 
 executors join in a receipt to a debtor, though the receipt of 
 one would have been a discharge to the debtor, yet, they 
 joining in the discharge, the debtor is taken to have paid them 
 to them both. His requiring the discharge of the executor who 
 has not received the money amounts to saying, ' I make this 
 payment to you both, and not to him only who actually receives 
 the money.' " (&). 
 
 In Chwchill v. Hohson (c). Lord Harcourt took a distinction Churchill v. 
 between creditors and legatees {d) ; that in the case of creditors, 
 who were entitled to the utmost benefit of the law, the joining 
 of the executors in the receipt might make each liable for the 
 whole ; but when legatees were concerned, who had no remedy 
 for their demand except in equity, it was altogether unequit- 
 able, that one executor should answer for the receipt of the 
 other. But this refinement of Lord Harcourt -has by subse- 
 quent authorities been clearly overruled (e). The comment of 
 Lord Northington, though it may not express faithfully the 
 distinction intended by Lord Harcourt, is too ingenious not to 
 be here mentioned. " At law," he said, " a joint receipt is 
 conclusive evidence that the money came to them both, and is 
 not to be contradicted ; but a court of equity, which rejects 
 estoppels and pursues truth, will decree according to the justice 
 and verity of the fact ; and what is said by Lord Harcourt as 
 to the distinction between a receipt of this kind as to a legatee 
 and a creditor seems to have this meaning — that a creditor 
 may at law charge both executors on a joint receipt, but 
 
 [a] Joyv. Campbell, 1 Sell. & Lef. [d) See OibbsY. Herring, Pr. Ch. 
 
 34] . 49. 
 
 \b) Boyle v. Blake, 2 Soli. & Lef. (e) See Sadler v. Sobbs, 2 B. C. 
 
 242. C. 117; and see Boyle v. Sluke, 2 
 
 (c) 1 P. W. 241. Sch. & Lef. 239. 
 
314 LIABILITY OF CO-TEUSTEES. [CII. XIL 
 
 that in a court of equity, where alone legacies are received, 
 such receipt should not be conclusive, but the Court will see 
 who actually received, and charge that person accordingly " (a). 
 Executor may be Lord Eedesdale has rightly observed, that " there may be a 
 creditora when ''^se, where executors would be charged as against creditors, 
 uot to legatees, though not as against legatees, for legatees are bound by the 
 terms of the will, creditors are not ; and therefore, if the tes- 
 tator direct the executors to collect the assets, and pay the 
 proceeds into the hands of A., which is done accordingly, and 
 A. fails, if a creditor remain unpaid, he may charge the exe- 
 cutors ; but, as regards a legatee, the executors may justify 
 themselves by the directions of the will " (b). 
 Executor respon- On the Same principle that an executor is liable for joining 
 which puts assets ii^ ^ receipt he is responsible for any act by which he reduces 
 into thehands of ,^^j ^^^ q£ ^j^g testator's property into the possession of his 
 co-executor (c), as if an executor join in drawing ((Z), or in- 
 dorsing (e), a bill, or invest a sum in the joint names of himself 
 and his co-executor, so that on his own death the entire con- 
 trol of the fund devolves on the co-executor (/). So it is laid 
 down in an old case, that " if by agreement between the exe- 
 cutors one be to receive and intermeddle mth such a part of 
 the estate, and the other with such a part, each of them will 
 be chargeable for the whole, because the receipts of each are 
 pursuant to the agreement made betwixt both " (g). So an 
 executor is answerable, if he give a power of attorney, or 
 other authority, to his co-executor to collect the assets (k). 
 Executor not But under particular circumstances the joining of an exe- 
 
 answerabkfor^^ g^^^j, £g ^^ absolutely uecessary as the joining of a trustee, 
 act is necessary, and of course in such cases executors and trustees are put upon 
 the same footing in respect of liability. 
 
 (a) Sarden v. Parsons, 1 Ed. (/) Clough y. Dixon, 8 Sim. 594 ; 
 
 147. 3 M. & C. 490. 
 
 (J) JDoyle V. Blake, 2 Soli. & Lef. {g) GiUv.Attonu';/-Oe,ifral,Ea.TL 
 
 2.39, 24.5. 314 ; see Moses v. Leii, 3 Y. & C. 
 
 (c) Townsend v. Barber, 1 Dick. 3.59. 
 
 •■iofi ; Moses v. Levi, 3 T. & C. 3.59. {h) Doyle v. Blake, 2 Sch. & Lef. 
 
 {d ) Sadler v. Hohhs, 2 B. C. C. 231 ; Lees v. Sanderson, 4 Sim. 28 ; 
 
 114. Kilbee v. Sneyd, 2 Moll. 200, per 
 
 (e) Horny v. Blakeman, 4 Ves. Sir A. Hart ; sfo J/>/.?™ v. im, 3 Y. 
 
 008, per Lord Alvanley. & C. 3-59. 
 
CH. XII.] LIABILITY OF CO-TRXJSTEES. 315 
 
 Thus, if a bill of exchange be remitted to two agents pay- ^^ i° bills of ex- 
 
 ° . r . change, held 
 
 able to them personally, who on the death of their principal are jointly. 
 made his executors, the mere indorsement of one, after they are 
 executors, in order to enable the other to receive the money, 
 will not operate to charge him who does not actually receive («). 
 
 And so where the joining of both executors is necessary to And in transfer 
 
 of stock, 
 
 the transfer of stock {b). 
 
 But even where the ioining of an executor is absolutely tTniees the act be 
 
 _ with improper 
 
 indispensable, it is still incumbent on the executor to see that view. 
 the act in which he joins is perfectly consistent with the due 
 execution of the trust (c). 
 
 And the executor will not be excused if he rely on the mere Executor must 
 
 representation of his co-executor as to the necessity or pro- j^^re representa- 
 
 priety of the act, for the executor has imposed upon him at tioiofl"sco- 
 
 s- ^ ^ 1 r executor. 
 
 least ordinary and reasonable diligence to inquire whether the 
 representation is true (d). 
 
 And if, at a period when in the ordinary course of adminis- Greater caution 
 
 l'6QUir6Q. Wil6rG 
 
 tration the debts should long since have been discharged, an the testator has 
 executor is applied to by his co-executor to join in a transfer been long dead. 
 of stock for the purpose of payment of debts, and the executor 
 does inquire, and ascertains there are such debts, but after- 
 wards it turns out that the co-executor had in his hands a 
 fund sufficient for the payment of the debts, in such a case 
 the executor who joins in the receipt is liable to the imputation 
 of negligence for not having acquainted himself how the co- 
 executor had dealt with the assets during the preceding period, 
 and is liable for the application of the money he enables the 
 co-executor to receive (e). 
 
 («) Hovey v. Blaheman, 4 Ves. 186; Shipbrooh y . Hinchinhrook, \\ 
 
 608, per Lord Alvanley. Ves. 252 ; Zhiderwoocl v. Stevens, 1 
 
 (J) Chambers Y. Minchin, 1 Ves. Mer. '712; -BickY. Motley, 2 M. & 
 
 197, per Lord Eldon ; Shiphrook v. K. .312 ; Williams y. Nixon, 2 Beav. 
 
 Sinehinbrook, 11 Ves. 254; S. C. 472; HeicettY. Foster, &'&&a.Y.25'd. 
 
 X&'^es. 4:'%, per eundem ; see Mur- {d) Shipbrook y. HincJiinbrook, 11 
 
 rell Y. ■ Cox, 2 Vern. 570, and com- Ves. 252, see 254 ; Underwood v. 
 
 pare Scurjield y. Howes, 3 B. C. C. Stevens, 1 Mer. 712 ; HewettY. Fos- 
 
 94; (note, the doctrine at the period ter, 6 Beav. 259. 
 
 of the last case had not been set- (e) SliipbrookY. Hinchinbrook, 11 
 
 tied) ; and see Moses v. Levi, 3 Y. Ves. 254, per Lord Eldon ; Bick v. 
 
 & C. 359. Motley, 2 M. & K. 312. 
 
 (c) Chambers v. Minchin, 7 Ves. 
 
316 
 
 LIABILITY OF CO-TRUSTEES. 
 
 [oh. XII. 
 
 Executor must 
 not leave the 
 money in the 
 hands of the co- 
 executor. 
 Not called upon 
 to make good 
 what was pro- 
 perly applied. 
 
 Liability of exe- 
 cutor for money 
 in the hands of a 
 co-executor. 
 
 Co-administra 
 tors on same 
 footing as co- 
 executors. 
 
 How trustee 
 ought to act 
 
 And the executor will be answerable if he leave the monej', 
 as for two years, in the hands of the co-executor, when by 
 the terms of the trust it ought to have been invested on proper 
 securities (a). But, of course, an executor will not be called 
 upon to replace so much of the fund as it can be proved 
 the co-executor bond fide expended toward the purposes of the 
 trust (b). 
 
 A notion was very commonly entertained, until recent deci- 
 sions, that if an executor merely proved the will and remained 
 passive, he incurred no liability for a devastavit by the co- 
 executors ; but the contrary has now been established. Thus, 
 in Styles v. Guy (c), a testator appointed three executors, all of 
 whom proved the will ; but one of them, viz., Guy, was the 
 acting executor. Guy, at the death of the testator, had large 
 assets in his hands, with which he eventually absconded. The 
 two co-executors were held responsible for the loss ; and though 
 free from blame morally, had to pay upwards of 20,000Z. out of 
 their own pockets. They knew, or ought to have known, that 
 Guy was a debtor to the estate ; and having by probate 
 accepted the executorship, it was their duty to have recovered 
 the debt from Guj^ as from any other debtor to the estate, 
 and this they neglected to do for a period of six years. 
 
 The rules respecting co-executors are equally applicable to 
 co-administrators. Ijord Hardwicke once expressed an opi- 
 nion, that joint administrators resembled rather co-trustees, 
 and that any one of them could not exercise the office without 
 the concurrence of the rest (d) ; but it was afterwards deter- 
 mined in the Court of King's Bench, that joint administrators 
 and co-executors stood in this respect precisely on the same 
 footing (e). 
 
 To return to the liabilities of co-trustees, if one trustee be 
 
 (a) Scurfieldy. Howes, 3 B. C. C. 
 91 ; and see Lincoln v. Wright, 4 
 Beav. 427. 
 
 (J) Shipbrook v. Hinchinhrook, 1 1 
 Yes. 252 ; S. C. 16 Ves. 477 ; Wil- 
 liams V. Nixon, 2 Beav. 472 ; Kilbee 
 Y. Sneyd, 2 Moll. 213, per Sir A. 
 Hart ; Underwood v. Stevens, 1 Mer. 
 712 ; and see Brice v. Stokes, 11 Ves. 
 
 328; Hewett v. Foster, 6 Beav. 
 259. 
 
 (c) 1 Mac. & Gor. 422 ; and see 
 Sciilly V. Delany, 2 Ir. Ec[. Eep. 
 165. 
 
 {d) Hudson v . Hudson, 1 Atk. 
 460. 
 
 (e) Willandy.Fenn, cited Jacomh 
 V. Harwood, 2 Ves. 267. 
 
CH. XU.] LIABILITY OF CO-TEUSTEES. 317 
 
 cognisant of a breach of trust committed by another, and either where a breach 
 
 industriously conceal it {a), or do not take active measures for fitted by a oo- 
 
 the protection of the cestui que trust's interest (fe), he wiU him- *™^*^^- 
 
 self become responsible for the mischievous consequences of 
 
 the act. A trustee is called upon, if a breach of trust be 
 
 threatened, to prevent it by obtaining an injunction (c), and, if 
 
 a breach of trust has been already comrmUed, to file a bill for 
 
 the restoration of the trust fund to its j)roper condition {d), or, 
 
 at least, to take such other active measures, as, with a due 
 
 regard to all the circumstances of the case, may be considered 
 
 the most prudential (e). 
 
 An express clause is usually inserted in trust-deeds, that Effect of the in- 
 one trustee shall not be answerable for the receipts, acts, or ^°^^ ^ "^ '"'^^^' 
 defaults of his co-trustee. But the proviso, while it informs 
 the trustee of the general doctrine of the Court, adds nothing 
 to his security against the liabilities of the office. In Westley 
 V. Clarke (/) Lord Northington was incliued to attach some 
 importance to the clause. " The testator," he said, "might 
 direct the condition of his executors so as not to be questioned 
 by his volunteers. The proviso, therefore, that one executor 
 should not be answerable for the acts of another, though not 
 very frequent in wills, was a good proviso between executors 
 and legatees who took under the will." But equity infuses 
 such a proviso into every trust-deed (g), and a party can have 
 no better right from the expression of that which, if not 
 expressed, had been virtually implied (h). It is clear, that, 
 in later cases, the Court has considered it an immaterial cir- 
 cumstance whether the instrument creating the trust contained 
 such a proviso or not (i). 
 
 (a) Boardman v. Mosman, 1 B. C. {d) Franco v. Franco, 3 Ves. 7n ; 
 
 C. 68. Farl Powlet v. Herbert, 1 Ves. Jan. 
 
 (5) Brice v. StoTtes, 11 Ves. 319; 297. 
 
 and see Walker v. Symonds, 3 Sw. (e) See Walker v. Symonds, 3 Sw. 
 
 41; Oliver y. Court, 8 Price, 166; 71. 
 
 In re Chertsey Market, 6 Price, 279; (/) 1 Ed. 360. 
 
 Attorney-General-^, Holland, 2 T. {g) See Dawson y. Clarke, 18 Yes. 
 
 & C. 699 ; Booth v. Booth, 1 Beav. 254. 
 
 125; Williams v. Nixon, 2 Beav. (/») Worrally. Harford, 8 Yes. 8. 
 
 472 ; Blackwood v. Borrowes, 2 (») Brice y. Stokes, 11 Ves. 319; 
 
 Conn. & Laws. 477. Bone v. Cook, M'Clel. 168 ; S. C. 13 
 
 (e) See In re Chertsey Market, 6 Price, 332 ; Hanhury v. Kirkland, 
 
 Price, 279. 3 Sim. 265 ; Moyle v. Mmjle, 2 R. & 
 
318 
 
 TRUSTEES NOT TO PROFIT BY THE TRUST. [CH. XII. 
 
 Trustee shall 
 derive no advant- 
 age from the 
 trust. 
 
 Not entitled to 
 the game on the 
 trust estate where 
 it can he let. 
 
 Nor to the pre- 
 sentation of an 
 advowson. 
 
 Trustee may not 
 huy up dehts for 
 himself. 
 
 garded as a 
 trustee. 
 
 VI. It is a general rule established to keep trustees in the 
 Une of their duty, that they shall not derive any personal 
 advantage from the administration of the property committed 
 to their charge (a). It was upon this principle that Lord Eldon 
 once directed an inquiry, whether the liberty of sporting over 
 the trust estate could be let for the benefit of the cestuis que 
 trust, and, if not, he thought the game should belong to the 
 heir ; the trustee might appoint a gamekeeper, if necessary for 
 the preservation of the gamej but not to keep up a mere 
 establishment of pleasure (6). So, if an advowson be devised 
 to trustees upon trust to sell, and, before the sale has been 
 effected, a vacancy occurs, the right of presentation is not to 
 be exercised by the trustee at his own pleasure, but he must 
 adopt the nomination of the testator's heir at law (c). 
 
 So, if trustees or executors buy in any debt or incum- 
 brance to which the trust estate is liable for a less sum than 
 is actually due thereon, they will not be allowed to take the 
 benefit to themselves, but the other creditors or legatees 
 shall have the advantage of it ; and if there be no such 
 claimants, it shall go to the party who is entitled to the 
 surplus (d). 
 
 Mortgagees are to some though not to all intents and pur- 
 poses trustees, and in one case, the authority of which, how- 
 
 M. 710; Sadler Y. ITobbs, 2B. C. C. 
 114; 3fueMoWY. Fuller, Jao. 198; 
 Pride v. Fooks, 2 Bear. 430 ; Wil- 
 liams V. Nivon, 2 Beav. 472. 
 
 (a) Burgessy. Wheate, 1 Ed. 226, 
 per Lord Mansfield; ib. 251, per 
 Lord Henley ; O'Herlihy v. Hedges, 
 1 Sch. & Lef. 126, per Lord Redes- 
 dale ; Fx parte Andrews, 2 Rose, 
 412, per Sir T. Plumer ; Middleton 
 V. Spicer, 1 B. C. C. 205, per Lord 
 Thurlow ; Docker v. Somes, 2 M. & 
 K. 664, per Lord Brougliani ; Oub- 
 hins V. Creed, 2 Sch. & Lef. 218, per 
 Lord Redesdale ; and see Hamilton 
 V. Wright, 9 CI. & Fin. Ill ; Bent- 
 ley V. Craven, 18 Beav. 75. 
 
 (5) Webb V. Farl of Shaftes- 
 bury, 7 Ves, 480, see 488 ; and see 
 
 Hutchinson v. Morritt, 3 T. & C. 
 647. 
 
 (c) Hill V. Bishop of London, 1 
 Atk. 618 ; In re Shrewsbury School, 
 
 1 M. & Cr. 647 ; Martin v. Martin, 
 12 Sim. 579 ; Sherrardy. Lord Har- 
 borough, Amb. 165 ; Coohe v. Chol- 
 mondeley, 3 Drewry, 1 ; and see 
 Hawkins v. Chappell, 1 Atk. 621 ; 
 Gubbins v. Creed, 2 Soh. & Lef. 218. 
 
 {d) Robinson v. Pett, 3 P.W. 251, 
 note (A) ; Barcy v. Hall, 1 Vern. 
 49 ; Ex parte Lacey, 6 Tes. 628, 
 per Lord Eldon ; Morrett v. Paske, 
 
 2 Atk. 54, per Lord Hardwioke ; 
 Anon. 1 Salk. 1 55 ; Carter v. Home, 
 1 Eq. Ca. Ab. 7 ; Bunch v. Kent, 1 
 Vern, 260 ; Fosbrooke v. Balgvy, 1 M. 
 & K. 226. 
 
CH. Xn.] TRUSTEES NOT TO PROFIT BY THE TRUST. 319 
 
 ever, has been doubted, where a mortgagor in fee died, and the 
 mortgagee bought in the mortgagor's wife's right of dower 
 it was decreed that the heir of the mortgagor, on bringing his 
 bill to redeem, might take the purchase at the price paid (a). 
 
 Again, if trust monej^ be laid out by a trustee in buying and Trustee trading 
 selling land, and a profit be made by the transaction, that shall estate must 
 go, not to the trustee who has so applied the money, but to the '^^gYs* ^"^ ^^ 
 cestui que trust whose money has been applied (6). So, where 
 a trustee or executor has used the fund committed to his care 
 in stock speculations, though any loss must fall exclusively 
 upon himself, he must account to the trust estate for every 
 farthing of profit. If he lay out the trust money in a com- 
 mercial adventure, as in buying or fitting out a vessel for a 
 voyage, or put it in the trade of another person from which he 
 is to derive certain stipulated gains (c), or if he employ it him- 
 self for the purposes of his own business, in all these cases he 
 must account to the cestui que trust for the profits {d). 
 
 As the trustee of an estate cannot receive any advantage Trustee may not 
 from it, he cannot be appointed the receiver at a salary (e) ; and ^^^^^ estate. 
 even should he offer his services gratuitously, he would not be 
 appointed except under particular circumstances, for it is the 
 duty of the trustee to superintend the receiver and check the 
 accounts with an adverse eye (/) ; but if a person be merely a 
 trustee to preserve contingent remainders, the reasons for 
 excluding him are held not to be applicable (g). 
 
 So a trustee or executor who is a factor (h), broker (i), com- 
 
 (a) Baldwin v. Banister, cited Hare, 603 ; Cummins v. Cummins, 
 
 Robinson v. Pett, 3 P. W. 251, note 8Ir.Eq.Eep. 12Z; Parker Y.Bloxam, 
 
 (A), and see comments thereon ; 20 Beav. 295. 
 
 Dobson V. Land, 8 Hare, 220 ; and (e) Sutton v. Jones, 15 Ves. 584 ; 
 
 compare Arnold v. Oarner, 2 Phil. Syhes v. Hastings, 11 Ves. 363 ; 
 
 231 ; MathiUon v. Clarhe, 3 Drewry, 3. • v. Jolland, 8 Ves. 72 ; Anon. 
 
 (6) Fosbrooke v. Balguy, 1 M. & 3 Ves. 515 ; and see Morison v. 
 
 K. 226. Morison, 4 M. & C. 215. 
 
 (e) Backer -v. Somes, 2 M. <& K. (/) St/kes v. Hastings, 11 Ves. 
 
 664, per Lord Brougham. 364, per Lord Eldon. 
 
 [d) S. C. id. 665 ; Wedderhurn v. [g) Sutton v. Jones, 15 Ves. 587, 
 
 Wedderburn, 2 Keen, 722; S. C. 4 ^er Lord Eldon. 
 
 M. & Or. 41 ; but see S. C. 2 Jar. N. S. {h) Scattergood v. Harrison, Mose- 
 
 674 ; Willett v. Blandford, 1 Hare, ley, 128. 
 
 253 ; and see Portlock v. Gardner, 1 [i) Arnold v. Oarner, 2 Phil. 231. 
 
320 TRUSTEES NOT TO PROFIT BY THE TRUST. [CH. XII. 
 
 mission agent (a), or auctioneer (6), can make no profit from the 
 trust estate in the way of his business. 
 
 Solicitor a So a trustee who is a solicitor cannot charge the estate for 
 
 his professional labours, but will be allowed merely his costs 
 out of pocket (c), unless there be a special contract to that 
 effect (d), nor can the charge be made by a firm of which the 
 trustee is a partner (e), even though the business be done by 
 one of the partners who is not a trustee (/) ; but a country 
 solicitor defending a suit in Chancery as executor, through a 
 town agent, will be allowed such proportion of the agent's bill 
 in respect of the defence as such agent is entitled to receive {g). 
 
 Cradock v. Piper. In one case the principle of the rule was held not to apply 
 where several co-trustees were made defendants to a suit, this 
 being a matter thrust upon them and beyond their own control. 
 One of the trustees, who was a solicitor, was allowed to act for 
 himself and the others, and to receive the fuU costs, it not 
 appearing that they had been increased through his conduct (/*)■ 
 But this decision is open to comment. If the distinction be 
 made betewen costs out of court and costs in court, because, 
 as regards the latter, the conduct of the trustee is under the 
 cognizance of the Court, and the costs are to be taxed, the rule 
 would equally apply to the case of a single trustee defending 
 himself ; yet it is difiicult to conceive any other ground for the 
 distinction (i). The exception made appears to stand by itself, 
 and is not likely to be extended. Indeed where a single trustee 
 defended himself by his partner, the professional profits were 
 disallowed (k). 
 
 Attorneys, The foregoing principles affect not only express trustees, 
 
 fre tmXes^°" ^^* ^^^° ^^^ ^^'^^ ^^ ^^^ clothed with the same character by 
 
 (a) Sheriffs. Axe, i Rusa. 33. (/) Christophers v. White, 10 
 
 6) ilffliteow v. CTorSe, 3 Drewry, 3. Beav. 523. 
 
 (c) New V. Jones, Excli. Aug. 9, {g) Surge v. Burton, 2 Hare, 373. 
 
 1833, 9 Bythew. by Jarm. 338; \h) Cradoeh v. Piper, 1 Mac. &, 
 
 Moore v. Frowd, 3 M. & Cr. 46; Gor. 664; S. C. 1 Hall. & Tw. 617; 
 
 Fraser v. Palmer, 4 Y. & C. 515 ; overruling Bainhrigge v. Blair, 8 
 
 YorkY. Brown, 1 Coll. 260; Brough- Beav. 588. 
 
 ton V. Broughton, 5 De Gex, Mao. & (i) See Brovghton v. Broughton, 
 
 Gor. 160. 2 Sm. & Gif. 422 ; 5 De Gex, Mao. 
 
 {d) In re Sherwood, 3 Beav. 338. & Gor. 160. 
 
 (e) Collins v. Carey, 2 Beav. 128; [k) Lyon v. Baker, 5 De Gex & 
 
 Lincoln v. Windsor, 9 Hare, 158. Sm. 622. 
 
CH. XII.] TRUSTEES NOT TO PROFIT BY THE TRUST. 321 
 
 construction of law, as if a person purchase an estate with 
 another's money, or invest another's property in some trade or 
 speculation (a). So, an attorney, guardian, or other person 
 invested with a fiduciary character, must account for all profits 
 to the client, or infant, or other party whose confidence he has 
 abused {b). 
 
 However, a trustee may by possibility derive a benefit from Trustee may ao- 
 the trust estate, not from any positive right in himself, but advantaged, aa 
 from the want of right in any other ; as if lands be vested in J^i^f of ftf 
 A. and his heirs upon trust for B. and his heirs, and B. die cestui que trast. 
 without an heir, the equitable interest in this case can neither 
 escheat to the lord(c), nor, if the trust was created by con- 
 veyance from B. whose seisin or title wa.s' ex parte paternd, can 
 the lands, upon failure of heirs in that line, descend to the 
 heir ex parte maternd id) ; but the trustee, no person remaining 
 to sue a subpoena, must, as the legal proprietor, himself enter 
 upon the beneficial enjoyment. Lord Hale was clearly of this 
 opinion, and compared it to the case of the grantee of a rent 
 charge in fee dying without heirs, when the tenant of the land 
 should hold it discharged of the rent (e). In Burgess v. 
 Wheate Sir Thomas Clarke said he would give no opinion on 
 the right of the trustee, but at the same time admitted the 
 trustee must hold until a better right appeared (/). Lord 
 Henley seemed to entertain no doubt upon the subject, and 
 considered Lord Hale's illustration by the extinguishment of 
 a rent as a sufficient answer to the objection of want of title in 
 the trustee icf), and the point must now be considered as clearly 
 settled Qi). 
 
 But if an estate be held by A. upon trust for B., and B. die Ouslowt).Wallis. 
 without leaving an heir, but having devised the estate to C. 
 and D. upon trusts, which fail or do not exhaust the beneficial 
 
 (a) Docker ST. Somes, 2 M. & K. (e) Attorney- General v. Sands, 
 
 665 ; Crawshay v. Collins, 15 Ves. Hard. 496 ; and see Gary, 14. 
 
 218 ; & C. 1 J. & W. 267 ; 8. C. {/) 1 Ed. 212, 213. 
 
 2 Euss. 325. [g] 1 Ed. 253. 
 
 (J) See Docker v. Somes, 2 M. & {h) Taylor v. Haygarth, 14 Sim. 
 
 K. 665. 8; Davall v. New Miver Company, 
 
 (c) Burgess V. Wheate, I m. in. 3 De Gex & Sm. 394; Cox v. 
 
 {d) See id. 186, 216, 256. Parker, 2 Jur. N. S. 842. 
 
329 TRUSTEES NOT TO PROFIT BY THE TRUST. [CH. XII. 
 
 interest ; A. cannot insist on retaining the estate upon oifering 
 
 to satisfy the charges, if any, but will be bound to convey the 
 
 estate to C. and D. as the nominees in the will, and entitled as 
 
 against A., the bare trustee, and the Court as between those 
 
 parties will not inquire into the nature of the trust or how far 
 
 it can be executed (a). 
 
 Purchaser dying It seems to follow from the principles laid down in Burgess 
 
 after payment of V. Wlieate, that, where a purchaser has paid the consideration 
 
 and°beforrcon-^' i^o^ey, and then dies without an heir before the execution of 
 
 veyance. the conveyance, the vendor must keep both the estate and the 
 
 money {b). 
 Mortgagor dying In the Same case, and in reference to the supposed event of 
 
 without an heir. , .„.. ... ^ • ,i .■ 
 
 a mortgagor in fee dying and leaving no heir, the questions 
 were asked : first, should the mortgagee hold the estate abso- 
 lutely ? and, secondly, if the mortgagee demanded his debt 
 of the personal representative, should he take to himself both 
 the land and the debt? "If the mortgagor," observed Sir 
 Thomas Clarke, " dies without heir or creditor, I see no 
 inconvenience if the mortgagee do hold the estate absolutely ; 
 and as to the supposition that the mortgagee may demand his 
 debt too, I think, if the mortgagee took his remedy against 
 the personal representative, the Court would compel him to 
 reconvey, not to the lord by escheat, but to the personal repre- 
 sentative, and would consider the estate reconveyed as coming 
 in lieu of the personalty, and as assets to answer even simple 
 contract creditors " (c). Lord Mansfield said, " He could not 
 state on any ground established what would be the determina- 
 tion in that case " (d). Lord Henley observed, " The lord has 
 his tenant and services in the mortgagee, and he has no right 
 to anything more. Perhaps it would not be difficult to answer 
 what would be the justice of the case, but it is not to the 
 business in hand " (e). A recent decision of the present Master 
 of the Eolls establishes that the mortgagee holds absolutely, 
 subject only to the qualification that the equity of redemption 
 is assets for the payment of the mortgagor's debts (/). 
 
 {a) Onslow v. WalKs, 1 Mae. & (d) 1 Ed. 236. 
 
 Gror. 506. (e) Id. 256 ; and see Viscount 
 
 (J) 1 Ed. 211, per SirT, Clarke. Bowne v. Morris, 3 Hare, 394. 
 (c) Id. 210. (/) BealeY.Symonds,ieBea.YA06. 
 
CH. Xn.j TEtrSTEES NOT TO PROFIT BY THE TRUST. 323 
 
 But a failure of inheritable blood may happen not only for Cestui que trust 
 
 attainted for 
 
 ony. 
 
 want of an heir, (as in the case of an illegitimate person dying ^^j 
 without issue), but through the corruption of blood caused by 
 attainder, under the old law for felony, or now for petit 
 treason or murder ; and in the case of such attainder, the 
 question arises, shall the trustee hold against the person 
 attainted if pardoned, or against his heir where attainder is 
 followed by execution ? Sir Thomas Clarke said, " The detain- 
 ing the estate against the Crown where the cestui que trust 
 dies without leaving a relation is different from detaining it 
 against the cestui que trust himself. The Court would go as 
 far as it could, and he thought the trustee would be estopped 
 from setting up such a claim " (a). Lord Mansfield said, 
 " He could not resolve the case upon principle, for he could 
 find no clear and certain rule to go by " (6). But Lord 
 Henley agreed with Sir Thomas Clarke, and asked, " If the 
 King thinks proper to pardon the felon, what hinders him 
 from suing his trustee ? — what hinders him from instantly 
 assigning his trust for the benefit of his family " (c) ? If trusts 
 were to follow the analogy of uses, the heir of the attainted 
 person could not sue his subpoena by reason of the corruption 
 of blood (cZ); but trusts at the present day are administered 
 on much more liberal principles than uses formerly were. 
 
 A question was put by Lord Mansfield in Burgess v. Wheate, wiiether the 
 but was neither answered at the time, nor received any notice f'^*'^*"' °^ ^^^ 
 
 ' •' trust can assert 
 
 from the bench afterwards, viz. whether the right to the estate * claim. 
 might not, in particular cases, result to the author of the 
 trust (e). As, if A. infeoff B. and his heirs upon trust for C. 
 and his heirs, and C. die without heirs, why may not the 
 equitable interest result in favour of A. ? Such a case has 
 never occurred, and there is no authority upon the subject; 
 but the claim of A. appears at least to have some plausibility. 
 
 As the trustee in these cases advances not a positive, but trustee cannot 
 merely a negative claim, he has no ground for coming into a ""^^ ™*o » <=ourt 
 
 •' ° ... of equity for his 
 
 court of equity for the establishment of his right (/). Thus, own benefit. 
 
 (a) 1 Ed. 210. (e) 1 Ed. 185. 
 
 (6) Id. 236 ; and see id. 184. (/) See id. 212 ; and see Onslow 
 
 (c) Id. 255. V. WalUs, 1 Mac. & &or. 506. 
 
 Id) Br. Feff. al. Us. 34 ; Gary, 14. 
 
 T 2 
 
324 TRUSTEES NOT TO PROFIT BY THE TRUST. [OH. XD. 
 
 where A. devised a copyhold estate to B. and his heirs in trust 
 for C. and his heirs, and C. died without heirs, and then B. 
 died, having entered upon the lands, and applied the rents to 
 the trust, hut never having been admitted, and the heir of B. 
 filed a hill against the lord for compelling him to grant him 
 admission. Lord Loughborough said, " The ground for the 
 Court's acting between the lord and tenant is, that the lord 
 de jure may call upon the tenant to be admitted if he stands 
 out, for he has a right to the fine and his services ; and the 
 Court would not let the parties stand in this situation, that the 
 lord who had his remedy against the tenant should, by refusing 
 to caU upon him, prevent him from having evidence of his title 
 under the lord upon the rolls, which are in the lord's keeping. 
 The Court acts in this case upon the ground of the tenant's 
 having the beneficial interest in the land, but is there any 
 instance of a bill sustained upon a mere legal title for an 
 accessory to the legal estate ? If the admission be a legal 
 duty, I do not know what I have to do with it. Burgess v. 
 Wheate, supposing it well decided, established, that, if a man 
 had got the legal estate, the Court would not take it from him, 
 except for some person who had a claim ; but does it follow 
 that the Court will give him the legal estate " (a) ? 
 May assert his As courts of law have no cognisance of any but legal rights, 
 
 ega ng . j^ should seem that a mandamus might be issued from the 
 
 Queen's Bench for compelling the admission even of a bare 
 trustee (h). 
 If cestui que If the ccstui que trust of chattels, whether real or personal, 
 
 Mxt ofkin^ the ^^^ without leaving any next of kin, the beneficial interest will 
 trust chattel goes jjQf jn this case, remain with the trustee, but Hke all other 
 
 to the Crown. 
 
 bona vacantia will vest in the King by his prerogative. How- 
 ever, this doctrine will only take effect where the cestui que 
 trust dies intestate (c), or has appointed an executor, who by 
 the language of the will itself is excluded from any beneficial 
 interest (d) ; for an executor not expressly made a trustee by 
 
 (o) Williams v. Lord Lonsdale, 3 (c) Jones v. Goodehild, 3 P. W. 
 
 Ves. Y52 ; see 756, 757. 33 ; Rutherford v. Maule, 4 Hagg. 
 
 (6) See King v. Coggan, 6 East, 213. 
 
 431 ; iS. C. 2 Smith, 417 ; King v. {d) Middleton v. Spicer, 1 B. C. 
 
 Wilson, 10 B. & 0. 80. C. 201 ; Taylor v. Haygarth, 14 
 
CH. 301.] TRUSTEES NOT TO PBOFIT BY THE TBUST. 335 
 
 the will, was, before the late act (a), entitled prima facie to the 
 surplus for his own benefit, and that statute has now converted 
 him into a trustee for the next of kin only, and does not seem 
 to have altered the old law, as between him and the Crown, in 
 case there be no next of kin. 
 
 "We may conclude this head with the general proposition, 
 that a trustee is, under no circumstances, allowed to set up a 
 title adverse to his cestui que trust (6). But though he may 
 not claim against his own cestui que trust, yet he is not bound 
 to deliver over the property to his cestui que trust if he cannot 
 safely do so by reason of notice of title in another which is 
 paramount to the trust (c). 
 
 Sim. 8; HussellY. Clowes, 2 Colljev, 76; Ux parte Andrews, 2 Rose, 
 
 648 ; Powell v. Merrett, 1 Sm. & 412 ; Kennedy t. Daly, 1 Soh. & 
 
 Gif. 381 ; and see Barclay v. Rus- Lef. 381 ; Shields v. Atkins, 3 Atk. 
 
 sell, 3 Ves. 424; Henchman v. At- 560 ; Pomfret v. Windsor, 2 Ves. 
 
 tomey- General, 2 S. & S. 498 ; iS. C. 476 ; Conry v. Caulfield, 2 B. & B. 
 
 3 M. & K, 485 ; Cave v. Roberts, 8 272 ; Langley v. Fisher, 9 Beav. 90 ; 
 
 Sim. 214. Meece v. Trye, 1 De Grex & Sm. 
 
 (a) 11 G. 4 & 1 W. 4, c. 40. 279. 
 
 (5) See Attorney-Gen. v. Munro, (c) Neale v. Davies, 5 De Gex, M. 
 
 2 De Gex & Smale, 163 ; Stone v. & G. 258. 
 Godfrey, 5 De Gex, Mac. & Gor. 
 
CHAPTER XIII. 
 
 THE DUTIES OF TRUSTEES OF CHATTELS PERSONAL. 
 
 We next advance to the duties of trustees, and as trusts of 
 chattels personal are of the most frequent occurrence, we may 
 first advert to trustees of property of this description. We 
 may consider this branch of our subject under five heads : — ■ 
 1. The reduction of the chattel into the possession of the 
 trustee. 2. The safe custody of it. 3. The proper investment 
 of the trust fund. 4. The liability of trustees to payment of 
 interest in cases of improper detainer : and, 5. The distribution 
 of the trust fund. 
 
 SECTION I. 
 
 OP KEDTJOTION" INTO POSSESSION. 
 
 Of reduction 
 into possession. 
 
 The first duty of trustees is to place the trust property in 
 a state of security. Thus if the trust fund be an equitable 
 interest of which the legal estate cannot be at present trans- 
 ferred to them, it is their duty to lose no time in giving notice 
 of their own interest to the persons in whom the legal estate is 
 vested ; for otherwise the party who created the trust might 
 incumber the interest he has settled in favour of a purchaser 
 without notice (a). 
 
 If the trust-fund be a chose en action, which may be reduced 
 
 into possession, it is the trustees' duty to be active in getting it 
 
 in ; and any unnecessary delay in this respect will be at their 
 
 own personal risk. 
 
 CaiTiey v. Darby. Thus, in Caffrey V. Darby (&), a woman, in contemplation of 
 
 dwse en action. 
 
 {a) See Jacob y. Lucas, 1 Beav. 481 ; McGachenr. Dew, 15 Beay. 
 
 436. 84 ; Wiles v. Gresham, 2 Drewry, 
 
 (6) 6 Ves. 488 ; and see Platel v. 258 ; Waring v. Waring, 3 Ir Ch. 
 
 CVa(ZrfocA,C.P.Cooi)er'aCases,1837-8, Rep. 33o. 
 
CH. Xin. S. 1.] GETTING IN THE TRUST ESTATE. 327 
 
 a second marriage, had assigned a leasehold interest with stock 
 in trade, household goods, &c., to trustees upon trust to raise 
 8001. to be applied to the purposes in the settlement men- 
 tioned, with a proviso that, so long as her intended husband 
 should pay lOOl. per annum until the whole 800L should be 
 discharged, the trustees should allow him to remain in posses- 
 sion of the premises. In the course of the first four years the 
 trustees were paid to the amount of 250i., but by small instal- 
 ments and at irregular periods, and received nothing afterwards. 
 At the end of eight years the husband became bankrupt, and a 
 great part of the 800Z. was lost. Sir "VV. Grant said, " This 
 was money payable by instalments, not a sum to be paid at 
 once as a mortgage is, and secured, too, partly upon an estate 
 daily diminishing in value, a short lease for twenty-five years 
 commencing three years before the settlement, and upon stock 
 in trade, &c., a sort of property very uncertain in its nature. 
 From these two considerations, the diminishing value of the 
 property and the mode of payment by instalments, I am of 
 opinion the trustees were not justified in any great indulgence, 
 for it was evident the debtor's inability would be constantly 
 augmenting. If he was unable to pay the first instalment, he 
 must be still less able to pay the sums accumulated from 
 permitting them to run together. The cases of payment by 
 instalments and at once are quite different. In the latter the 
 debtor may be able to pay that sum to-morrow, or next year ; 
 but the chance of receiving money by instalments depends 
 upon its being regularly received. Therefore, even though the 
 trustees might not have been under the necessity of exacting 
 from the husband the money on the precise day, yet they ought 
 not to have given great latitude. They were hardly justifiable 
 in permitting two instalments to become due ; still less three ; 
 stiU less four. But here they permit him to remain four years 
 in possession without receiving a shilling. That is evidence 
 he was not prosperous : it did not turn out as well as he 
 expected. It might be supposed that he was running in debt 
 with other people. The trustees might have expected a con- 
 troversy with the creditors. They ought therefore to have 
 taken some step for the security of the infant cestuis que trust, 
 particularly when that is combined with the other circumstance 
 
328 
 
 GETTING IN THE TEUST ESTATE. [CH. Xin. S. 1. 
 
 Tebbs V. Car- 
 penter. 
 
 Personal Becu- 
 rity. 
 
 that the property was diminishing in value." And his Honour 
 decreed the trustees to make good the deficiency. 
 
 Again, a testator had directed the money arising from his 
 rents to be invested by his executors in the 3 per cent, annuities 
 for the purpose of accumulation. Arrears were allowed to run 
 to the amount of 1500L, and from the tenor of the Master's 
 report it was evident, that, by the employment of proper means, 
 the whole of the arrears might have been recovered. The 
 executors produced no evidence in justification of their conduct. 
 Sir Thomas Plumer said, " I am anxious not to discourage 
 persons from acting as executors by throwing difficulties in 
 their way, and I am willing to make every proper allowance ; 
 but I must not forget the established doctrine of this Court. 
 If persons accept the trust of executors, they must perform it ; 
 they must tjse due diligence, and not suffer infants to he injured 
 by their negligence. If there be ceassa negligentia, and a 
 loss sustained by the estate, it falls upon the exemtors. Here, 
 for want of evidence, I cannot say that aU this rent could not 
 have been recovered ; and I am reluctantly obliged to assume 
 that no exculpatory evidence could be produced, and therefore 
 they must be charged with these arrears. Interest upon the 
 arrears was but faintly pressed for, and ought not to be 
 given " (a). 
 
 An executor is not to allow the assets of the testator to 
 remain outstanding upon personal security (6), though the debt 
 was a loan by the testator himself on what he considered an 
 eligible investment (c). And it will not justify the executor, if 
 he merely apply for payment through his attorney, but do not 
 follow it up by instituting legal proceedings {d). Personal 
 security changes from day to day, by reason of the personal 
 responsibility of the party giving the security; and as a 
 testator's means of judging of the value of that responsibility 
 
 (a) Tehhs v. Carpenter, 1 Mad. (c) Powell v. Ecans, 5 Ves. 839 ; 
 
 290. 
 
 (5) Lowson V. Copeland, 2 B. C. 
 C.156; Coweyv. 5oMrf, 6Beav. 486; 
 Bailey v. Gould, 4 Y. & C. 221 ; 
 and seeAtiorney- Generaly.Hiyham, 
 a y . & C. Ch. Ca. 634. 
 
 SuUock V. WJieatley, 1 Coll. 130; 
 and see Tebbs v. Carpenter, 1 Mad. 
 298 ; Clouffh v. Bond, 3 M. & Cr. 
 496. 
 
 {d) Lowson v. Copeland, uhi supra. 
 
CH. Xin. S. l.J GKTTING IN THE TRUST ESTATE. 329 
 
 are put an end to by his death, the executor who omits to get 
 in the money within a reasonable time becomes himself the 
 security (a). An executor wiU be equally liable, as has lately 
 been decided, if he knows that a co-executor is a debtor to the 
 testator's estate, and does not take the same active steps for 
 recovery of the amount from the co-executor, as it would have 
 been his duty to take against a stranger. And it does not vary 
 the case that the testator himself was in the habit of leaving 
 money in the hands of that co-executor, and treating him as a 
 private banker (b). Nor will an executor be excused for not 
 calling in money on personal security by a clause in the wUl, 
 that the executors are to call in " securities not approved by 
 them ; " for such a direction is construed as referable to 
 securities upon which a testator's property may allowably be 
 invested, and not as authorising an investment which the Court 
 win not sanction (c). If, however, it appears, or there is 
 reasonable gTound for believing, that had legal steps been 
 taken they would have produced no result, the executor or 
 trustee is not liable (d). 
 
 But where a great part of the assets was outstanding on Buxton v. 
 Mexican bonds, and the executors sold in the course of the 
 second year from the testators decease, it was held by Lord 
 Cottenham, that, if executors were bound at once to convert 
 the assets without considering how far it was for the interest 
 of the persons beneficially entitled, there would of necessity 
 be always an immediate sale, and often at a great sacrifice of 
 property ; that executors were entitled to exercise a reasonable 
 discretion according to the circumstances of the particular case. 
 The will had directed the trustees to convert " with all con- 
 venient speed," but this, observed his Lordship, was the 
 ordinary duty implied in the office of every executor (e). 
 
 Money outstanding upon good mortgage security an executor Case of trust 
 
 . . , J, fund outstanding 
 
 IS not called upon to reause until it be wanted m the course ol on mortgage. 
 
 (a) Bailey v. Gould, 4 T. & C. [d) Clack Y.JIoUand, 19 Bea.Y. 262; 
 
 226, per Baron Alderson. Maitland v. Sateman, 16 Sim. 233, 
 
 (5) StylesY. Guy, l'M.a.c.&GoiA22. note. 
 
 (c) Styles V. Guy, 1 Mao. & Gor. (e) Buxton v. Buxton, 1 M. & C. 
 
 428 ; and see Scully v. Delany, 2 80. 
 Ir. Eq. Rep. 165. 
 
330 
 
 GETTING IN THE TEUST ESTATE. [CH. XIU. S. 1. 
 
 How money to 
 be received by 
 trustees. 
 
 Receipts of 
 trustees. 
 
 administration (a). " For what," said Lord Thurlow, " is tlie 
 executor to do ? Must the money lie dead in his hands, or 
 must he put it out on fresh securities? On the original 
 securities he had the testator's confidence for his sanction, but 
 on any new securities it will be at his own peril " (b). But the 
 trustee is bound to ascertain that there is no reason to suspect 
 the goodness of the security (c). 
 
 When the property is reduced into possession by actual 
 payment, as both trustees cannot receive, but both must join 
 in signing the receipt, the money may be paid to one without 
 responsibility on the part of the other. But a trustee will not 
 be justified in allowing the co-trustee to retain the money in 
 his hands for a longer period than the particular circumstances 
 of the case may necessarily require. And, indeed, the safer 
 course, where practicable, is, that the money should not be 
 handed to either of the trustees personally, but should, in the 
 first instance, be paid into some bank of credit to their joint 
 account (d). 
 
 The powers of trustees to sign receipts wiU be considered 
 more at large hereafter, but we may here observe that if money 
 be payable to A., who is simply a trustee for B., it would 
 clearly be a breach of trust to pay it to the trustee against the 
 wishes of the cestui que trust (e) ; on the other hand, if the 
 nature of the trusts be such that the person having the money 
 in his hands could not reasonably be expected to see to the 
 application, he may pay safely to the trustee (/). Some recent 
 cases in Ireland have gone further, and taken a distinction 
 between monies being pure personalty and monies payable on 
 sales or mortgages. Thus where the owner of a policy assigned 
 it to a trustee for a minor without a power of signing receipts, 
 the Master of the EoUs expressed an opinion (for a decision was 
 not then called for), that if the Insurance Company were re- 
 leased from the debt by the person to whom they were liable at 
 
 («) Orr V. Newton, 2 Cox, 274 ; 
 and see Howe v. Earl of Dartmouth, 
 7 Ves. 150. 
 
 (i) Orr V. Newton, 2 Cox, 276. 
 
 (c) See Ames v. Parhinson, 7 
 Beav. 384. 
 
 [d) See post, pp. 332, 333. 
 
 (e) Pritchard v. Langher, 2 Vern. 
 197. 
 
 (/) GT^ynn v. Loche, 3 Dru. & 
 War. 11. 
 
CH. XIII. S. 1.] GETTING IN THE TEUST ESTATE. 331 
 
 law, and -whom the owner of the policy had constituted the 
 trustee of it, they would not be answerable in equity for the 
 execution of the trusts, and he did not understand how the 
 rules applicable to purchasers of real property could be ex- 
 tended to debtors so as to implicate them in trusts created 
 by their creditors (a). And in another case (6), where the 
 insurer effected a policy in 700Z., and then assigned it to a 
 trustee to pay 400L to one, and 300Z. to another, without an 
 express power of signing receipts, and a bonus of 33i. was 
 added to the policy, and the insurer being dead without a per- 
 sonal representative, and one of the cestuis que trust being also 
 dead without a sufficient personal representative, and the other 
 cestui que trust being in America, the company instituted an 
 interpleader suit, — the Lord Chancellor of Ireland laid down the 
 same distinction as the Master of the Rolls between a personal 
 debt and money arising out of real estate, and held that the 
 trustee could sign a discharge, and that the interpleader suit 
 could not be sustained. In the case of a debt, he said, the person 
 indebted was bound and compellable to pay to some one ; but in 
 the case of realty, the purchaser or mortgagee was a voluntary 
 intervenient, and could pay or not at his owil free will. The 
 decision of the Lord Chancellor may have been correct, for the 
 circumstance of one cestui que trust being abroad, and the other 
 dead without a personal representative, as was also the insurer 
 himself, may have justified the company in paying to the 
 trustee, but the principles laid down went far beyond any 
 previous authority, and it remains to be seen whether they will 
 be adopted by the English courts. In the mean time the 
 suggested distinction between pure personalty and money raised 
 out of realty cannot be relied upon. 
 
 Where the holder of the money knows that the trustee Eeceiptofa 
 intends to commit a breach of trust, it would not be safe to known to intend 
 pay to the trustee, whether he has an express power of signing 
 receipts or not. But, of course, the fact of such knowledge 
 must be brought home to the person paying, so as to make 
 him particeps criminis, a privy to the fraud (c). 
 
 (a) Fernie v. Maguire, 6 Ir. Bq. (c) See Fernie v. Maguire, 6 Ir. 
 
 Rep. 137. Eq. Rep. 137. 
 
 (J) Jbr(;v.iJyan,4Ir.Cli.Rcp.342. 
 
 a breach of 
 trust. 
 
332 
 
 CUSTODY OF THE TRUST PROPERTY. [CH. Xni. S. 2. 
 
 SECTION II. 
 
 Trustee must 
 take same care 
 of the trust pro- 
 perty as of his 
 own. 
 
 Robbery of the 
 trust property. 
 
 Insurance. 
 
 Trustee should 
 place trust 
 money m a 
 responsible bank, 
 but not to his 
 own credit. 
 
 OF THE SAFE CT7ST0DT OF THE CHATTEL. 
 
 Lord Northington once observed, " No man can require 
 or with reason expect that a trustee should manage another's 
 property with the same care and discretion that he would his 
 own " (a) ; but the maxim has never failed, as often as men- 
 tioned, to incur strong marks of disapprobation. A trustee 
 is called upon to exert precisely the same care and solicitude 
 in behalf of his cestui que trust as he would do for himself; but 
 greater measure than this a court of equity wiU not exact (6). 
 
 A trustee, in an old case, had kept 40Z. of trust money in 
 his house, and 200Z. belonging to himself, and was robbed of 
 both by his servant, and was held not to be responsible (c). 
 An administratrix had left goods with her solicitor to be 
 delivered to the party entitled. The articles were stolen, and 
 the Court said it was the same as if they had been in the 
 custody of the administratrix, and it was too hard to charge 
 her with the loss {d). 
 
 An executor has been held not to be answerable for having 
 omitted to insure leasehold premises against fire (e). 
 
 If the subject of the trust be money, it may safely and most 
 properly be deposited for temporary purposes in some respon- 
 sible banking-house (/); but the trustee will make himself 
 
 (a) Harden v. Parsons, 1 Ed. 148. 
 
 (J) Morley v. Morley, 2 Ch. Ca. 
 2, per Lord Nottingham ; Jones v. 
 Lewis, 2 Ves. m, per Lord Hard- 
 wioke ; Massey v. Banner, 1 Jao. 
 & Walk. 247, per Lord Eldon ; At- 
 torney-General V. Dixie, 13 Ves. 
 634, per eimdem. 
 
 (c) Morley v. Morley, uhi supra; 
 and see Jones v. Lewis, 2 Ves. 241 ; 
 Ex parte Belchier, Amb. 220 ; Ex 
 parte Griffin, 2 Gl. & J. 114. 
 
 [d) Jones v. Lewis, 2 Ves. 240. 
 (c) Bailey v. Gould, 4 Y. & C. 
 
 221 ; and see Ex parte Andrews, 2 
 
 Rose, 410 ; Bobson v. Land, 8 Hare, 
 216. 
 
 (/) Bowth V. Sowell, 3 Ves. 565 ; 
 Jones V. Lewis, 2 Ves. 241, per Lord 
 Hardwioke; Adams v. Claxton, 6 
 Ves. 226 ; Ex parte Belchier, Amb. 
 219, per Lord Hardwioke; Attor- 
 ney-General V. Bandall, 21 Vin. 
 Ab. 534, per Lord Talbot ; Massey 
 V. Banner, 1 Jao. & Walk. Ui, per 
 Lord Eldon ; Horsley v. Chaloner, 2 
 Ves. 85, per Sir J. Strange ; France 
 V. Woods, Taml. 172; Lord Dor- 
 chester V. Earl of Effingham, id. 
 279 ; Freme v. Woods, Taml. 172. 
 
CH. Xin. S. 2.] CUSTODY OF THE TRUST PEOPEBTT. 333 
 
 liable for the failure of the bank, if he pay the money to his own 
 credit and not to the separate account of the trust estate (a). 
 
 Thus a receiver transmitted two bills to a banker to be Wren v. Kirton. 
 placed to his account, and in each bill the receiver's own 
 money was mixed up with the trust-fund. The bank failed, 
 and Lord Eldon decreed the receiver to make good the loss. 
 " A receiver," he said, " cannot be allowed to say he is trans- 
 mitting the money of the estate as such, if he permit it to 
 stand with his own money to his own credit ; for, in that case, 
 if any intermediate failure of the receiver happen, his estate 
 gets the benefit of the remittance, and the trust estate none. 
 Then, on the failure of the barik, I will not permit him to say he 
 shall not suffer the loss, but the trust estate shall suffer it " (b). 
 
 And in the more recent case of Massey v. Banner (c), where Massey v. 
 
 A. and B. were trustees for creditors, and C. acted for them 
 in collecting the debtor's estate, and paid the assets into a 
 bank to his own account, and, on the failure of the bank, A. and 
 
 B. filed a bill against C. to compel him to account for the loss, 
 Lord Eldon said, " C. is liable in the same manner as other 
 persons acting as trustees, executors, receivers, or assignees ; 
 and the principle applying to all these classes of persons is 
 properly expressed in these terms — That the Court does not 
 expect them to take mo7-e care of the property entrusted to 
 them than they would do of their own. If a receiver of the 
 Court undertake to receive rents in the country he cannot 
 send them in cash, and if he collect them in paper, taking the 
 same care with respect to it as a reasonable attention to his 
 own affairs would dictate to him if it was for himself, if he 
 remits what he has collected by the best bills he can find by 
 the same means that would be reasonable if it were on his 
 own account, then I should say that it would be very difficult 
 to charge him, for he has done the best he could for his 
 employers. But I cannot persuade myself that the principle 
 is satisfied, unless the result is as beneficial to them as it 
 
 [a) Wren Y. Kirton, IIYbs. 317; (c) 1 Jac. & "Walk. 241. See 
 
 Fletcher Y.Walker, SMa.i.13; Mae- observations of L. J. K. Bruce and 
 
 donnell v. Harding, 7 Sim. 178; L. J. Turner on this case; Pennell 
 
 Matthews v. Brise, 6 Beav. 239. v. Deffell, 4 De Gex, Mae. & Gor. 
 
 (6) Wren v. Kirton, 11 Vesey, 380. pp. 386, 392, 
 
334 
 
 CUSTODY OF THE TRUST PBOPEETr. [CH. Xm. S. 3: 
 
 would be to himself. If an assignee pays money into his 
 banker's hands as money belonging to the estate, and the 
 banker fails, the assignee is undoubtedly clear from the loss • 
 but if instead of distinguishing it, he pays it all into his own 
 account, then it is his account there ; there is- nothing like a 
 declaration of trust of it, and it is familiar to consider him as 
 haying it in the banker's hands for himself, making him liable 
 for it, and charging him with interest at the rate (since the 
 late statute) of 20Z. per cent. This is because, if he had 
 become bankrupt, it would have gone to the credit of his 
 estate ; for it is clear in that case, that, if the bankers had 
 any account with him by way of set-off, that set-off would 
 affect equally his money and the money Of the estate paid in 
 to his account; they have no notice that it belongs to the 
 estate : the account is between him and them. The same has 
 been the case with executors and trustees ; and I apprehend, 
 that, for the safety of mankind, the principle must be, that, 
 if you desire to deal for me as you would for yourself, it must 
 be so that the dealing for me, if unfortunate, shall not be more 
 so to me than it would have been to you, if it had been for 
 yourself. In the case of the assignee, if he fails, his estate 
 has all the benefit of the money: the parties for whom he 
 acts have none : he does not therefore deal for them as he 
 would for himself." His Lordship therefore held that C. was 
 responsible. 
 Trustee mast not And a trustee must not lodge the money in such a manner 
 fund out of his ^^ *° -P"* ^* °"* °f ^^^ "*"'* control, though it be not under the 
 own control. control of another. White, a receiver appointed by the court, 
 
 in order to induce Adams and Burlton to become his sureties, 
 entered into an arrangement with them, that the rents, as 
 received, should be deposited in a bank in the joint names of 
 Salway v. the Sureties, and that all drafts should be in the handwriting 
 
 a nay. ^^ Anderson, who was Adams's partner, and should be signed 
 
 by White. An account was opened upon this footing: the 
 bank failed; and a considerable loss was incurred. Sir J. 
 Leach held that the receiver and his sureties were not to be 
 answerable (a) ; but his Honour's decision was reversed on 
 
 (a) Salway v. Salway, 4 Kuss. 60. 
 
CH. Xni. S. 2.] CUSTODY OF THE TRUST PROPERTY. 335 
 
 appeal by the Lord Chancellor (a) ; and this reversal was after- 
 wards affirmed on the final appeal, by the House of Lords (b). 
 On the latter occasion Lord Brougham observed, " It is clearly 
 the duty of a receiver, as an ofiicer of the Court, to keep in 
 his own hands the control over the fund. It is admitted, 
 that, if he had parted altogether with that control, he would have 
 been answerable, whether the loss actually incurred could be 
 traced to and connected with that severance and that want of 
 power over the fund or not. Does it make any difference, 
 that, instead of entirely parting with the control, he gave a veto 
 on all his dealings with it to a mere stranger ? Anderson was 
 wholly unknown to the Court, which reposed its confidence in 
 its own officer, and looked only to him : the acts of a stranger 
 it had no power over, and could in no respect control. Con- 
 sider the position of the fund, had a sudden run come upon 
 the bank. White, on hearing it, would be bound, in the dis- 
 charge of his official duty, instantly to draw the whole balance, 
 and put it in a place of greater safety ; but the arrangement 
 which he had made prevented him from doing this without the 
 concurrence of Anderson, who lived at some distance, and 
 who, even had he lived in the same town, might have been 
 absent, or unable from illness to act, and who, had he been 
 both on the spot and able to write the cheques, might have 
 been unwilling and refused. He might have been disposed 
 to court the favour of his bankers at the risk of the estate ; he 
 might have drawn all his own money out, and recompensed the 
 banker by leaving that of the receivership, and this without 
 incurring the least risk himself; for he was not surety, nor 
 in any way bound either to the Court or the receiver. Let 
 us ask ourselves how any individual would like, during a run 
 upon his banker, to have his hand paralysed by such a veto as 
 was given to Anderson ? What anxiety would he feel during 
 the delay that must elapse in the interval between the run 
 beginning and the messenger returning with the cheques filled 
 up for his signature ! Is a receiver entitled to place the 
 custody or administration of the fund in a situation which, 
 in the case of any individual dealing with his own estate, would 
 
 (o) 2 E. & M. 215. (6) Id. 220. 
 
336 
 
 CUSTODY OF THE TRUST PROPERTY. [CH. XIH. S. 9. 
 
 Whether execu- 
 tors may place 
 money in bank 
 payable to either 
 of the co-execu- 
 tors. 
 
 Trustee respon- 
 sible for bank if 
 he ought not to 
 have placed the 
 money there. 
 
 be the source of such anxiety ? No person hi his own case 
 would make such an engagement without extreme necessity or 
 ample equivalent ; and the least that can be required by the 
 Court of its officers is that degree of diligence and care which 
 any man would use in the conduct of his own affairs " {a). 
 
 In a case before Sir A. Hart, in Ireland, an executor was 
 held to be justified, though he had placed the assets in a banli: 
 so as to be under the control of the co-executor. The money 
 was entered in the books to the joint account of the co-execu- 
 tors, but the bank was in the habit of answering the cheques 
 of either co-executor singly. " It is the custom of bankers,'' 
 said Lord Chancellor Hart, " that what is deposited by one 
 to the joint account may be withdrawn by the cheque of the 
 other ; and for convenience of business, it is necessary this 
 risk should be incurred, for it would be very hard to transact 
 business if every cheque should be signed by all the executors. 
 The mode in which the account has been kept, brings it, in 
 effect, I admit, almost to the same thing as paying it directly 
 to the co-executor ; but each executor has full dominion and 
 may deal with the general fund as he thinks proper, without 
 making his co-executor chargeable for a devastavit" (b). How- 
 ever, his Lordship admitted that " if there were any fraud or 
 collusion, wilful default, or gross neglect, or if the executor 
 had any reason to put a stop to the mismanagement by the 
 co-executor, the case would be altered "(c). But even with 
 this qualification the doctrine is so contrary to the principle 
 of other cases that no trustee or executor could be advised 
 to rely upon it in practice (d). 
 
 The trustee will also be answerable for the failure of the 
 bank, if he deposited the money there for safe custody when 
 it was his clear duty to have invested it in the funds for im- 
 provement (e), or if when the purposes of the trust do not 
 require a balance to be kept in hand he lend a sum to the 
 bank at interest upon no other security than their notes, for 
 
 (a) MS. 
 
 (6) Kilbee v. Sneyd, 2 Moll. 186 ; 
 see 200, 213. 
 (c) Id. 203, 213. 
 
 (d) See Clough v. Dixon, 8 Sim. 
 594 ; 3 M. & Cr. 490. 
 
 (e) Moyle v. Moyle, 2 E. & M. 710; 
 Johnston v. Newton, 17 Jur. 826. 
 
•CH. XIII. S. 3.] INVESTMENT. 337 
 
 this in effect cannot be distinguished from an ordinary loan on 
 personal security, which the Court never sanctions (a). 
 
 The trustee in the custody of the trust property, wherever Mixing the trust 
 it may be placed, must always be careful not to amalgamate it private property. 
 with his own, for, if he do, the cestui que trust will be held 
 entitled to every portion of the blended property which the 
 trustee cannot prove to be his own {b). 
 
 SECTION III. 
 
 OP INVESTMENT. 
 
 Where the trust-money cannot be applied, either imme- of investment of 
 diately or by a short day, to the purposes of the trust, it is ^^^ t™st-money. 
 the duty of the trustee to make the fund productive to the 
 cestui que trust by the investment of it on some proper 
 security. 
 
 It was the opinion of Lord Northington that a trustee might Trustee may not 
 be justified in lending on personal credit. " The true touch- g"™! secunty. 
 stone," he said, " by which such cases are to be tried is, whether 
 the trustee has been guilty of a breach of trust or not. If he 
 has been guilty of a gross negligence, it is as bad in its conse- 
 quences as a fraud, and is a breach of trust. The lending 
 money on a note is not a breach of trust, without other circum- 
 stances Grasses negligentice" (c). But the case from which this 
 dictum is taken has been called by Lord Eldon, from the 
 extraordinary doctrines contained in it, " a curious document 
 in the history of trusts " {d) ; and certainly it is now indispu- 
 tably settled that a trustee cannot lend on personal security (e). 
 
 (a) Darke v. Martyn, 1 Beav. Holmes v. Bring, 2 Cox, 1 ; Terry 
 
 525. v. Terry, Pr. Ch. 273; Ryder v. 
 
 (6) Lupton V. White, 15 Ves. 432 ; Bicherston, cited Harden v. Par- 
 
 and Panton v. Panton, cited ib. sons, 1 Ed. 149, note (a), and more 
 
 440 ; Chedworth v. Edwards, 8 Ves. fully Walker v. Symonds, 3 Sw. 
 
 46 ; White v. Lincoln, 8 Ves. 363 ; 80, note (a) ; Vigrase v. Binfield, 
 
 Fellowes v. Mitchell, \ P. W. 83. 3- Mad. 62 ; Walker v. Symonds, 3 
 
 , (c) Harden v. Parsons, 1 Ed. 148. Sw. 63 ; Anon, case, Lofft. 492 ; 
 
 {d) Walker v. Symonds, 3 Sw. 62. KeUe v. Thompson, 3 B. C. C. 
 
 . {e) Adyey.Feuilleteau,\Gox,'2,i; 112; Wilkes v. Steward, Coo^^, (> ; 
 
 Darke v. Martyn, 1 Beav. 525 ; Clough v. Bond, 3 M. & Cr. 496, 
 
338 
 
 INVESTMENT. 
 
 [CH. xin. s. 3. 
 
 Unless he be 
 expressly em" 
 powered. 
 
 Where em- 
 powered to lend 
 
 Lord Hardwicke said, " a promissory note is evidence of a debt, 
 but no security for it " {a) ; and Baron Hotham observed, that 
 " lending on personal credit for the purpose of gaining a larger 
 interest was a species of gaming " (b) ; and Lord Kenyon said, 
 that " no rule was better established than that a trustee could 
 not lend on mere personal security, and it ought to be rung in 
 the ears of every one who acted in the character of trustee " (c). 
 And it will not alter the case that the money is lent on the 
 joint security of several obligors {d), or to a person to whom 
 the testator himself had been in the habit of advancing money 
 on personal security (e). 
 
 Of course a trustee may lend on personal security, where 
 he is expressly empowered to do so by the instrument creating 
 the trust (/). But no such authority is communicated by a 
 direction to place out the money at interest at the trustee's dis- 
 cretion (g), or on such good security as the trustee can procure, 
 and may think safe (h). And if joint trustees be empowered to 
 lend on personal security, they may not lend to one of them- 
 selves, for the settlor must be taken to rely upon the united 
 vigilance of all the trustees with respect to the solvency of the 
 borrower (i). And when the Court has assumed the adminis- 
 tration of the estate by the institution of a suit, it will not 
 direct an investment on personal security, though there be a 
 power to lay out on either personal or government security, 
 but will order all future investments to be made on govern- 
 ment security (k). 
 
 And where the trustees of a sum of money for A. for hfe, 
 
 per Cur. ; and see Poeock v. JRed- 
 dington, 5 Ves. 799 ; Collis v. Collis, 
 2 Sim. 365 ; Blackwood v. Sorrowes, 
 2 Conn. & Laws. 477 ; Watts v. Gir- 
 dlestone, 6 Beav. 188. 
 
 {a) Ryder v. Bickerston, cited 
 Walker-^. Symonds, 3 Sw. 81, note(a). 
 
 (6) Adye v. Feuilleteau, 1 Cox, 25. 
 
 (c) Holmes v. Bring, 2 Cox, 1. 
 
 {d) s. a 
 
 (e) Styles v. Guy, 1 Mao. & Gor. 
 423. 
 
 (/) See Forbes y.Boss, 2 B. C. C. 
 430; S. C, 2Cox, 113. 
 
 {ff) See Poeock v. Beddington, 6 
 Ves. 794. 
 
 (h) Wilkes v. Steward, Coop. 6 ; 
 Styles V. Guy, 1 Mao. & Gor. 422 ; 
 Attorney-General v. Sigham, 2 Y. 
 & C. Ch. Ca. 634 ; and see Mills v. 
 Osborne, 7 Sim. 30; Westover v. 
 Chapman, 1 Coll. 177. 
 
 (i) V. Walker, 5 Kuss. 7 ; 
 
 and see Stickney v. Sewell, 1 M. & 
 C. 14 ; Westover v. Chapman, 1 Coll. 
 177. 
 
 {k) Holmes v. Moore, 2 Moll. 328. 
 
CH. Xni. S. 3.] INVESTMENT. 339 
 
 remainder for her children, were authorised by the settlement on personal se- 
 to lend the trust fund upon real or personal security as should ji^JccommoIate 
 be thought good and sufficient, and the trustees lent it to a * person. 
 person in trade whom A. had married, and the money was lost, 
 they were made responsible for the amount. Sir William 
 Grant said, " The authority did not extend to an accom- 
 modation : it was evident the trustees had, upon the marriage, 
 been induced to accommodate the husband with the sum, which 
 they had no power to do " (a). In one case, where trustees were 
 empowered to lend money to the husband on his personal 
 security, to be used by him in business, and the trustees 
 advanced 600Z. to the husband, and he became insolvent, and 
 the trustees received a dividend of 701., and they afterwards 
 lent this sum to the husband on his recommencing business 
 upon the security of his bond, and the money was lost, it was 
 held that the trustees were not to be punished for the dis- 
 cretion they had exercised, for it did not follow, that, if a 
 person once became insolvent, he was never again to be 
 trusted (b). In another case, however, where a trustee was 
 required at the request of the wife to advance money to the 
 husband upon his bond, and the husband took the benefit of 
 the Insolvent Act, and the wife requested the trustee to 
 advance SOL to the husband upon his bond, and the trustee 
 refusing, the wife filed her bill to have the trustee removed, 
 the Court said, " that so total a change had taken place in the 
 circumstances and position of the husband that the clause in 
 question became no longer applicable to him and ceased to 
 have any effect, and the trustee had done his duty when he 
 refused to lend the money " (c). 
 
 No applications from cestuis que trust to their trustees are Tenant for life 
 SO frequent as for a more productive investment tor the benetit faToured. 
 of the tenant for life. In these cases the trustees must 
 remember that the power was not given them for the purpose 
 of favouring one party more than another, and that if they 
 lend themselves improperly to the views of the tenant for Hfe 
 
 (a) LangstoHY. OUwant,Coop.Z3. (c) Boss v. Godsall, 1 T. & C. Ch. 
 
 (6) SurtY.Inffram, July 15, 1835, Ca. 617. Compare cases, p. 349, 
 V.C.E. MSS. «"»/'•* note (e). 
 
 z 2 
 
340 
 
 INVESTMENT. 
 
 [CH. xm. s. 3, 
 
 Trustees bound 
 to protect the 
 remainderman. 
 
 Consent. 
 
 Investment in 
 trade. 
 
 at the expense of the remaindermen, they will be held per- 
 sonally responsible (a). 
 
 And in particular where there is the ordinary power of 
 varying securities with the consent of the tenant for life, the 
 trustees must consider the intention to be that as the control 
 is given to the tenant for life for his protection, so the trustees 
 have a discretion reposed in them for the protection of the 
 remaindermen. Thus the power would not authorise a con- 
 version of the trust fund from Three per cent. ConsoUdated 
 Bank Annuities into Long Annuities, for though the tenant 
 for life would improve his income the capital by the terminable 
 nature of the security would be gradually deteriorating (6) ; nor 
 even from Three per cent. Consolidated Bank Annuities into 
 Three and a Quarter per cent. Bank Annuities, or any perma- 
 nent annuities of a higher rate, for the latter annuities being 
 more likely to be redeemed, and therefore less valuable, the 
 gain, however small, of the tenant for life, would be at the 
 expense of the remaindermen (c). 
 
 All the conditions annexed to the power must be strictly 
 observed, as if the authority be to lend to the husband with the 
 consent of the wife, the trustees cannot make the advance on 
 their own discretion, and take the consent of the wife at a 
 subsequent period {d). 
 
 A power " to place out at interest, or other way of improve- 
 ment," will not authorise an investment of the money in any 
 trading concern (e); or in fact any other investment than a 
 government or real security (/), but otherwise it seems if the 
 direction be not to " invest " but to " employ " the money, 
 which has been thought to savour of a trading concern (g). 
 
 («) Maby v. Ridehalgh, 1 Jur. N. S. 
 363 ; and see iStuart v. Stuart, 3 
 Beav. 430. 
 
 (6) Bate v. Sooper, 5 De Gex, 
 Mao. & Got. 338. 
 
 (c) In reference to the New Three 
 per cent. Annuities (formerly Three 
 and a Quarter per cent.), it is to 
 be observed that, though specially 
 exempt from further reduction until 
 1874, which the Three per cent. 
 Consols are not, the latter are pro- 
 
 tected by a legislative provision 
 requiring a year's notice to be given 
 before redemption. 
 
 {<?) Baieman v. Davis, 3 Mad. 98 ; 
 and see Cocker v. Quayle, 1 E. & M. 
 535 ; Norris v. Wright, 14 Beav- 
 303 ; Wiles v. Gresham, 2 Drewry, 
 258 ; 5 De Gex, Mac. & Gor. 770. 
 
 (e) Cock V. Goodfellow, 10 Mod.489. 
 
 (y) Dickonson v. Player, C. P. 
 Cooper's Cases, 1837-8, 178. 
 
 {g) s. a 
 
CH. XIII. S. 3.] INVESTMENT. 341 
 
 Upon a marriage the wife's portion was settled upon the Loan by way of 
 intended husband and wife for their respective lives, remainder ° "^ ^' 
 to the issue, and a power was given to the trustees to " call in 
 and lay out the money at greater interest if they could." The 
 trustees sold out stock to the amount of 4=001., and laid it out 
 in the purchase of an annuity for one life, and had the life 
 insured. Lord Manners said the purchase of the annuity 
 was not a proper disposition of a trust-fund settled as this 
 was (a). 
 
 If trustees be authorised to invest in stock or real security, Trustee autho- ^ 
 
 nsed to invest in 
 
 and they lend on personal security, and the money is lost, they stook or real 
 shall be answerable, not for the amount of the stock which iendIn»'on per- 
 might have been purchased, but for the principal money lost, ^°^^^ security. 
 for if real security had been taken, the principal only would 
 have been forthcoming to the trust, and the want of real 
 security is all that is imputable to the trustees (6). 
 
 A trustee may not invest the trust-fund in the stock of any Investment on 
 
 stock of private 
 
 private company, as South Sea Stock, Bank Stock (c), &c., for company. 
 the capital depends upon the management of the governors 
 and directors, and is subject to losses. The South Sea Com- 
 pany, for instance, might trade away their whole capital, pro- 
 vided they kept within the terms of their charter (d). " Bank 
 stock," said Lord Eldon, "is as safe, I trust and believe, as 
 any government security ; but it is not government security, 
 and therefore this Court does not lay out or leave property in 
 Bank stock ; and what this Court will decree it expects from 
 
 (a) Fitzgerald v. Pringle, 2 Moll. v. Emelie, 7 B. P. C. 259. The re- 
 
 534. porter speaks in the last case of 
 
 (6) Marsh v. Hunter, 6 Mad. 295 ; South Sea Annuities ; hut no douht 
 
 Shepherdy. Mouls, 4:'Ra,re, 500; Itees the investment had been made in 
 
 V. Williams, 1 De Grex & Sm. 814 ; South Sea Stock. In Trafford v. 
 
 iJo5mso«v.JEoJ»Mso«, 1 DeQ-ex, Mao. Boehm the investment had been in 
 
 & Gor. 247, overruling HocUey v. South Sea Stoch, but the reporter 
 
 Bantoch, 1 Euss. 141 ; Watts v. Oir- cites the case by a similar mistake as 
 
 dlestone, 6 Beav. 188 ; Ames v. Par- one of investment in South Sea An- 
 
 icinson, 7 Beav. 379. nuities. For the difFerence between 
 
 (c) Hynes v. Redington, 1 Jones & the two, see Trafford v. JBoehm, 3 
 
 Lat. 589 ; 7 Ir. Eq. Eep. 405 . Atk. 444. Adie v. Fennilitteau, or 
 
 {d) Trafford Y.Boelim, 3 Atk. 440, more correctly, Feuilleteau, has been 
 
 see 444 ; Mills v. 3Glls, 7 Sim. 501 ; examined in the Registrar's Book^ 
 
 Adie V. Fennilitteau, cited Hanconi but the point does not appear. 
 V. Allen, 2 Dick. 499, note ; Emelie 
 
343 
 
 INVESTMENT. 
 
 [CH. xni. s. 3. 
 
 trustees and executors " (a). But if a trustee or.executor make 
 the mistake of investing in Bank Stock instead of Bank 
 Annuities, he is not liable for the actual loss in sterling value, 
 but only for the excess of the loss beyond that which would 
 have resulted if the investment had been made in Bank 
 Annuities (6). 
 
 Exchequer tills. Where a trustee was authorised to invest in " the Three per 
 cent. Consols, or Three per cent. Reduced, or any government 
 securities," the Court refused to allow an investment on Ex- 
 chequer biUs as not within the power (c). But where a trustee 
 haviug engaged to lend a sum upon mortgage, which was autho- 
 rised by the powers of the wUl, instead of leaving the money idle 
 at his banker's, laid it out in Exchequer bills as a temporary 
 investment, and productive of interest with little fluctuation of 
 value during the interval while the mortgage was in prepara- 
 tion, the Court held that such a dealing with the fund was 
 justifiable (d). And it has since been expressly ruled that 
 Exchequer bills do fall within the description of government 
 securities (e). 
 
 Greek bonds. And where a testator directed all his property, except ready 
 
 money or monies in the funds, to be converted, and the pro- 
 ceeds to be invested in Three per cent. Consols or other 
 government securities in England, it was held, that Greek 
 bonds, though guaranteed by this country, were not compre- 
 hended in the word "funds " (/), and that they ought to be 
 converted, though the Court disavowed any intention of saying 
 that bonds of that description might not, in other cases, be 
 deemed government securities {g). 
 
 With respect to investments upon mortqaqe Lord Harcourt 
 
 Investmeiits on -^ . . 
 
 mortgage. said, " The case of an executor's laying out money without the 
 
 (a) Howe v. Harl of Dartmouth, 
 7 Ves, 150. 
 
 (6) Hynes v. Redington, 7 Ir. Eq. 
 Eep. 405 ; 1 Jones & Lat. 589. 
 
 (c) Ex parte Chaplin, 3 T, & C. 
 397. 
 
 id) Matthews v. Brise, 6 Beav. 
 239. But the trustee having left 
 the Exchequer hills in the hands of 
 the broker for more than a year, and 
 without being earmarked, and the 
 
 broker having disposed of the Ex- 
 chequer bills for his own purposes, 
 and become bankrupt, the trustee 
 was, on that ground, made respon- 
 sible for the value of the bills at the 
 date of the bankruptcy, with 4 per 
 cent, interest. 
 
 [e] Ex parte South Eastern Rail- 
 way Company, 9 Jur. 650. 
 
 (/) 16 Beav. 76. 
 
 Iff) Burnie v. Getting, 2 Coll. 324. 
 
CH. Xni. S. 3.] INVESTMENT. 343 
 
 indemnity of a decree, if it were on a real secwity and one that 
 there was no growid at the time to suspect, had not been settled; 
 but it was his opinion the executor, under such circumstances, 
 was not liable to account for the loss " (a). And Lord Hard- 
 wicke {b), and Lord Alvanley (c), appear likewise to have held 
 that a trustee or executor would be justified in laying out the 
 trust-fund upon well secured real estates. But at the present 
 day, when there is such a facility of investing upon government 
 security through the medium of the public funds, a trustee or 
 executor could scarcely be advised to make an investment upon 
 mortgage where no authority was expressly given him. The 
 practice of the Court, which ought to regulate the conduct of 
 trustees, is now clearly established. Upon application to Lord 
 Thurlow to have part of a lunatic's estate invested upon landed 
 security, his Lordship said, " Though he felt perfectly con- 
 vinced by what was stated to him, that the security was unex- 
 ceptionable, yet he would not permit such a precedent to be 
 made. In latter times the Court had considered it as improper 
 to invest any part of the lunatic's estate upon private secu- 
 rity " (d). And Sir John Leach refused a similar application 
 with reference to the money of infants, at the same time ex- 
 pressing his surprise that any precedent could have been pro- 
 duced to the contrary (e). Where there was no power of 
 investing on mortgage, and the trustees intending to invest on 
 government securities, afterwards, at the instance of the tenants 
 for life, and to procure a higher rate of interest, invested on 
 mortgages which proved deficient, they were liable for the 
 difference to the cestui que trust in remainder. The ground of 
 the decision was, that the trustees had consulted the benefit of 
 the tenants for life at the expense of the remainderinan. The 
 
 {a) firown v. Litton, 1 P. W. 141 ; 191 ; and see Widdowaon v. Diich, 
 
 and see Lyse \, Kingdon, 1 Coll. 2Mer. 494; Ex parte Ellice, Jaxsob, 
 
 188. 234 ; Ex parte Fust, 1 C. P. Cooper, 
 
 (6) Knight v. Earl of Plymouth, T. Cott. 157, note (e) ; Ex parte 
 
 1 Dick. 126. FranMyn, 1 De Gex & Sm. 531 ; 
 
 (e) Pocock V. Reddington, 5 Ves. Barry v. Harriot, 2 De Gex & Sm. 
 
 800. 491 ; Ex parte Johnson, 1 Moll. 
 
 {d) ExparteCathorpe,\Go:s.,lS2; 128; Ex parte Ridgway, 1 Hog. 
 
 Ex parte Ellice, Jao. 234. 309. 
 
 (e) Norhury v. Norlury, 4 Mad. 
 
344 
 
 INVESTMENT. 
 
 [CH. xin. s. 8. 
 
 Trustees where 
 there is power 
 to vary, may sell 
 out stock and 
 invest on mort- 
 gage. 
 
 Mortgage to re- 
 place stock and 
 pay interim divi- 
 dends. 
 
 Mortgage to re- 
 place stock and 
 pay interim 
 interest. 
 
 Court gave no opinion upon the dry question, whether trustees 
 without a power could safely invest on mortgage, but did not 
 encourage the idea that they could (a). Of course trustees 
 would not be justified in lending upon mortgage, when they 
 are directed by the testator to invest exclusively in the 
 funds (h). 
 
 Trustees may be, as they generally are, expressly empow- 
 ered to invest on real security. Where this is the case, the 
 trustees may sell out Three per cent. Bank Annuities, and invest 
 the jproceeds on a mortgage ; for, in this case, although the 
 tenant for life may obtain a higher rate of interest, yet no 
 injury is done to the remainderman, as the capital is a con- 
 stant quantity, and if the tenant live long enough, he himself 
 will have the- benefit. 
 
 Under the ordinary power of varying securities, a trustee 
 would not be justified in lending a sum of stock upon a mort- 
 gage of real estate, conditioned for the replacing of the specific 
 stock at a future day, and the payment of half-yearly sums 
 equal to the dividends in the mean time. For the exercise of 
 the power must be supposed to be beneficial to the parties 
 interested^ or some of them; whereas, in this case, it is difficult 
 to point out what possible advantage can accrue, though the. 
 dividends be repaid and the stock be replaced. Nothing more 
 is secured to the trust than would have been by the effect of 
 the original investment, had it remained in statu quo ; while a 
 government security is changed for the risk of a private 
 security, and perhaps some expenses may be incurred and 
 this for no purpose. In short, such an arrangement would 
 look like an accommodation to some friend, rather than an 
 investment in furtherance of the trust. 
 
 The case is not so objectionable when the stock is to be re- 
 placed, and in the mean time interest is to be paid on the 
 amount produced by the sale ; for here, one of the persons 
 whose interest is to be consulted, viz., the tenant for life, 
 does receive a benefit in prcesenti, and the remainderman, if 
 
 (a) Rahy v. Ridehalgh, 1 Jar. N. Waring v. Waring, 3 Ir. Ch. Rep. 
 S. 363. 331. 
 
 (6) Pride v. Fooks, 2 Beav. 430 ; 
 
CH. Xm. S.'S.] INVESTMENT. 345 
 
 he outlive the tenant for life and the mortgage continue so long, 
 will derive the same advantage. 
 
 When trustees propose to lend upon mortgage, their atten- Attention to 
 tion should be directed to two leading topics of inquiry ; viz., J^i^^^g on * 
 1. The sufficiency of the value ; and 2. The title of the mortgage. 
 borrower (a). 
 
 They must be careful not to advance more than two-thirds '^alue of the 
 of the actual value of the estate, if it be freehold land (h) ; or 
 if the property consist of freehold houses they should not' 
 lend so much as two-thirds (c), but only half of the actual 
 value {d). The rule, however, of two-thirds, or one-half, iif 
 only a general one; and where trustees have lent on the 
 security of property of less value, but have acted honestly, 
 they have been protected by the Court, and have even been 
 allowed their costs (e). As to buildings used in trade, and the 
 value of which must depend on external and uncertain circum- 
 stances, trustees would not be justified in lending so much as 
 one-half (/). 
 
 Trustees are also precluded from lending on mortgage to one Trustees may 
 of themselves (g) ; and a power to lend on real securities will mortgage to one 
 not justify a loan upon railway mortgages, for how is the value "^ tl'^^^^l'^^s- 
 to be ascertained ? (h) And where trustees are empowered to mortgages, &c. 
 lend " on such securities as they should approve," they are 
 still bound to make inquiries, and exercise a sound discretion, 
 whether the securities are of sufiBcient value (i) ; and if trustees 
 lend on any irregular securities, the onus lies on the trustees 
 to show the sufficiency of the security (k). 
 
 {a) See Waring v. Waring, 3 Ir. 1852, but on wtat grounds not 
 
 Ch. Eep. 336. known. 
 
 (J) Stickney v. Sewell, 1 M. & C. (/) Stichney v. Sewell, 1 M. & 
 
 8 ; Norris v. Wright, 14 BeaT. 307 ; Cr. 8. 
 
 Macleod v. Annesley, 16 Beav. 600. [g) Stichney v. Sewell, uhi supra ; 
 
 (c) Stickney v. Sewell, Norris v. and see v. Walker, 5 Eass. 7 ; 
 
 Wright, uhi supra ; Phillipson v. Francis v. Francis, 5 De Grex, Mao. 
 
 Gatty, 7 Hare, .516 ; Drosier v. & Gor. 108. 
 
 Brereton, 15 Beav.' 221. [h) Mant v. Leith, 15 Beav. 525. 
 
 (d) StrettonT.Ashmall,^'Dx6yr.\2; («) Stretton-v.Ashmall, SDrewry, 
 Macleod v. Annesley, 16 Beav. 600. 10. 
 
 (e) Jones v. Lewis, 3 De Gex & (k) Stretton v. Ashmall, 3 Drewry, 
 Sm. 471. Reversed on appeal, it is 10. 
 
 believed, by Lord Truro, on Feb. 26, 
 
346 
 
 INVESTMENT. 
 
 [CH. xm. s. 3. 
 
 Existing mort- 
 
 Fowler v. Eey- 
 nal. 
 
 As to mortgage 
 where property 
 tinder adminis- 
 tration of the 
 Court. 
 
 Boad bonds, &c. 
 
 In loan of trust- 
 money, the trust 
 kept out of sight. 
 
 Of course where trustees and executors are empowered by 
 the will to lay out the money upon real securities, they are 
 authorised in continuing it upon existing mortgages (a). But 
 the trustee should make inquiry as to the sufficiency of the 
 security. 
 
 If trustees have a power of lending to three, on a mortgage 
 of their joint interest in a particular property, they cannot 
 lend to two of them, though the two may be able to pass 
 the whole interest. Neither can the trustees lend to the three 
 without taking any security at the time, though after an 
 interval of two years they succeed in obtaining the security. 
 It is no excuse to say that the delay in taking the security did 
 not occasion the loss. The answer is, that the terms of the 
 power were not complied with (&). 
 
 Though trustees, having an express power, may without risk, 
 if upon a proper motive, sell out Bank Annuities and invest 
 the proceeds on mortgage ; yet, where the Court has had the 
 administration of the trust, it has refused so to exercise the 
 power, as a measure not for the benefit, except remotely, of 
 those iu remainder, and of questionable advantage to the 
 tenant for life (c). 
 
 Eoad bonds, or mortgages of the tolls and toU-houses, are 
 reed securities, though they may not be eligible real securities ; 
 and if a testator, having road bonds, empower his executor to 
 leave any part of his assets on existing " real securities," they 
 are not bound to call in the road bonds, but may exercise a 
 discretion. Trustees, however, might not be justified in lending 
 trust money on road bonds as an original investment (d). 
 
 Where trust-money is lent upon mortgage, it is desirable 
 to keep the trust out of sight, that when the money is paid 
 off, the trust deed may not become an essential link in the 
 mortgagor's title. It is usual, therefore, to insert in the mort- 
 gage deed a declaration, that the money advanced belongs to 
 the trustees (not, however, described in that character, but by 
 
 (a) Angerstein v. Martin, T. & R. 
 239 ; Ames v. Parkinson, 7 Beav. 
 379. 
 
 (6) Fowler v. JReynal, 3 Mae. & 
 Gor. 500 ; 2 De G. & Sm. 749. 
 
 (c) Barry v. Marriott, 2 De Gei 
 & Sm. 241. 
 
 ((?) Robinson v. JRohinson, 1 De 
 Gex, Mao. & Gor. 447. 
 
GH. Xin. S. 3.] INVESTMENT. 347 
 
 name), on a joint account, and that the receipt of the survivors 
 or survivor, his executors or administrators, shall be a sufficient 
 discharge ; a practice which, assuming the principal deed to 
 confer the power of executing the trusts and of giving receipts 
 on the survivors and survivor, his executors and adminis- 
 trators, does not seem open to much objection, and has 
 received the sanction of frequent usage. Any declaration of 
 trust that may be requisite is executed by a separate deed. 
 By this method, should the mortgage be called in before any 
 change of trustees occurs, no inconvenience arises. Upon a 
 change of trustees, however, the difficulty of so framing a 
 transfer to them of the mortgage as not to disclose the trust 
 is very great. Some conveyancers, indeed, treat the difficulty 
 as insurmountable, and disclose the trust ; others recite in the 
 transfer an actual payment of the mortgage money by the new 
 trustees to the old, a practice open to the objection that it 
 involves a recital absolutely contrary to fact. A third and 
 middle course, frequently adopted, is as follows : A. and B. 
 being appointed new trustees in the room of C. and D., the 
 recitals omit to notice the appointment of A. and B. as new 
 trustees, and merely state that A. and B. " have become 
 entitled to the mortgage, and required C. and D. to convey 
 and assign to them." But this last method is by no means 
 free from difficulty. The degree of inaccuracy of statement 
 is perhaps no greater than that involved in the original joint 
 account clause ; but the absence of consideration creates 
 embarrassment, and there seems room for contention by a 
 future purchaser of the mortgaged estate that he has a right 
 to know how A. and B. became entitled. Another mode is to 
 recite that C. and D. are possessed of the mortgage monies 
 and security in trust for A. and B. to whom the same belong 
 on a joint account, and who are desirous of having the same 
 vested in them ; a method affording greater prospect of success 
 than that last mentioned, but involving at the same time some- 
 what more divergence from the real facts. 
 
 Where trustees are expressly authorised to lend on real if empowered to 
 securities in England, Wales, or Great Britain, they are now rity in EnglancT 
 empowered by the act of parUament, 4 & 5 Gul. 4, c. 39, to ^eonritT iu°° """^ 
 lend on real securities in Ireland. But the second section Ireland. 
 
3*8 INVESTMENT. [CH. Xm. S. 3. 
 
 enacts, that all loans in which any minor, wnhorn child, or person 
 of unsound mind is interested, shall he made by the direction 
 of the Court of Chancery or Exchequer, such direction to be 
 obtained in any cause or (a) upon petition in a summary way. 
 And the fourth section provides, that every such loan shall be 
 made with the consent of the person or persons, if any, whose 
 consent may be required as to the investment of such money 
 upon real securities in England, Wales, or Great Britain. 
 And by the fifth section it is declared, that the provisions of 
 the act shall not apply to any case in which the trust contains an 
 express restriction a</ainsi investment on securities in Ireland. 
 
 Upon an application to the Court under this act, for the 
 investment of a fund in Court upon an Irish security, the 
 Master of the Rolls refused even a reference as to the pro- 
 priety of such a step ; for though it would be beneficial to the 
 tenant for life as increasing the annual produce, it was not so 
 safe a security as regarded the remaindermen, and it was the 
 duty of trustees to act impartially for the benefit of all par- 
 ties alike (fe). And Lord Justice Knight Bruce, when Vice- 
 Chancellor, appears to have entertained similar views (c). But 
 such an order had been made by the Vice-Chancellor of 
 England {d) ; and a similar order was afterwards made by the 
 Lord Chancellor, though his Lordship's attention was called 
 to the case at the Rolls. His Lordship observed, that since 
 the act of parliament, England and Wales must, for the 
 purpose, be taken to include Ireland ; and that the parties 
 in remainder were interested, as well as the tenant for life, 
 in investing the money upon a security which would yield 
 a higher rate of interest, for if it remained there long enough 
 they would have the benefit of it (e). 
 
 If the consent of a married woman be required by the trust, 
 and the husband and wife present a petition, with her con- 
 currence, under the act, this does not fulfil the requisition of 
 the wife's consent to the investment ; for when the husband 
 and wife join in any legal proceeding, it is not the act of the 
 
 (o) Ux parte French, 1 Sim. 510. {d) Ex parte French, 7 Sim. 
 
 [h) Stuart v. Stuart, 3 Beav. 430. 510. 
 
 (c) KirhpatricKs Trust, 15 Jurist, (e) Ex parte Pawlett, 1 Phill. 
 
 941. 570. 
 
CH. Xm. S. 3.] INVESTMENT. 349 
 
 wife ; and whenever she is to be bound, it is necessary that 
 she should appear distinctly and separately from the hus- 
 band [a). 
 
 Trustees under a power to lend on mortgage, ought not to Leaseholds for 
 invest on security of leaseholds for lives, for there can be no 
 security without resorting to a policy of insurance, and then, 
 quatenus the policy, they rely upon the funds and credit of a 
 private company (&). This remark, however, does not apply to 
 leases for lives in Ireland renewable for ever, (where the power 
 authorises an investment on real securities in Ireland) ; but the 
 trustees must not advance more than one-half the value of the 
 property (c). In the case of leaseholds, the lessee generally 
 does not know the lessor's title ; and where this is the case, 
 it is an additional reason why trustees cannot accept the 
 security. 
 
 Where there is a power to lend on mortgage, there may be For years. 
 no objection to an investment on long terms of years at a 
 pepper-corn rent ; but, as to leaseholds of short duration, and 
 incumbered with covenants and clauses of forfeiture, without 
 laying down the rule that a trustee would not be justified under 
 any circumstances in lending on such a security, he would at 
 least be treading on very delicate ground, and the onus would 
 Ke heavily upon him to make out the perfect propriety of the 
 investment {d). If the trustees be authorised and required, at 
 the instance of the tenant for life, to invest the trust fund in 
 a purchase of leaseholds, they have no option if the tenant for 
 ■life insist upon his right (e). 
 
 If a power be given to invest trust money in a purchase of Puroiiase of 
 lands, or other freehold hereditaments, a trustee may no doubt 
 purchase an estate with a suitable house upon it ; but it is 
 conceived, that under such a power trustees ought not to pur- 
 chase a house merely. This is a property of a wasting nature ; 
 and although the tenant for life might be bound to keep it in 
 ordinary repair, he could not be compelled to preserve it 
 
 (a) JVbrns v.iVbrm, 14 Beav. 291. (d) SeeWj/attY.SharrattjS'Sesfv. 
 
 (b) See Lander v. Weston, 3 Drew. 498 ; Fuller v. Knight, 6 Beav. 209. 
 389. (e) Cadogan v. Earl of Essex, 2 
 
 (c) Macleod v. Annesley, 16 Beav. Drewr. 227 ; Beauclerh v. Ashhurn- 
 600. ham, 8 Beav. 322. 
 
350 
 
 INVESTMENT. 
 
 [CH. xm. s. 3. 
 
 Copyholds for 
 Kves. 
 
 Second mort- 
 
 Iklixing trust 
 money in a mort- 
 
 Mortgage of a 
 reTersion. 
 
 Loan upon a 
 judgment. 
 
 against natural decay. It is clear that a power to invest in 
 government annuities would not justify the purchase of Long 
 Annuities ; and there is a similar difference between land and 
 houses, the former being worth about thirty years' purchase, 
 but the latter much less, so that the tenant for life would be 
 benefited at the expense of the remainderman. 
 
 Trustees having a power to invest in a purchase of copyholds 
 would not be justified in buying copyholds for lives only (a). 
 
 Trustees cannot be advised to make advances upon a second 
 mortgage, not only because they have neither the legal estate 
 nor the possession of the title deeds, but also because they 
 may be placed under serious difficulties by the acts of the first 
 mortgagee. If he file a bill of foreclosure, the trustees will 
 forfeit their interest unless they redeem, which they have no 
 means of doing ; and if the first mortgage contain a power of 
 sale, the mortgagee may sell the property at a great disadvan- 
 tage, and the trustees cannot prevent it, unless by redemption, 
 which the state of the trust fund may, very probably, not 
 permit (b). 
 
 Of course, trustees may not join with others in a mortgage, 
 so as to mix up the trust fund with the rights of strangers ; 
 and still less could they take a joint mortgage in the name 
 of a common trustee, for this would be also a delegation of 
 their duty. 
 
 There does not appear to be any absolute objection to a loan 
 by trustees on the security of a reversion ; but they should be 
 careful, in such a case, not to advance more than the' proper 
 proportion, according to the nature of the property, of the 
 present value of the reversion, and in taking a security 
 of this kind a full power of sale would be an essential 
 provision. 
 
 Trustees who have a power to lend on real securities, may not 
 lend on personal security with a judgment entered up against 
 the borrower ; though by the 1 & 2 Vict. c. 110, judgments are 
 
 (a) Trench v. Harrison, 17 Sim. 
 111. N.B. The words, " of inhe- 
 ritance," in tlie marginal note, do 
 not occur in the settlement itself. 
 
 (6) See Norris v Wright, 14 Beav. 
 
 308 ; Mohinson v. Robinson, 16 Jur. 
 256 ; Drosier v. Brereton, 15 Beav. 
 226; Waring v. Waring, 3 Ir. Ch. 
 Eep. 337. 
 
CH. Xm. S. 3.] INVESTMENT. 351 
 
 made a charge on all the lands of the debtor, as if he had, by 
 writing under his band, agreed to charge the same (a). 
 
 When trustees propose to lend on mortgage, they should be Caution in pay- 
 careful not to part with the money, except on delivery of the money, 
 security ; for, of course they will be liable for all the con- 
 sequences if they sell out stock, and allow their solicitor or 
 agent to receive the money on his representation that the 
 mortgage is ready, and it afterwards turns out that the pro- 
 posed security was a pure invention, and that the money has 
 been misapplied (6). 
 
 In the absence of any express power^the^onlyun objection::,. Where no ex- 
 able investment is in one of the Government or Bcmk..Amiu-_ trustees must 
 ities7~Tov here, as the directors have no concern with the "lI^!*A't *^ 
 
 ' ' per cents. 
 
 principal, but merely superintend the payment of the dividends 
 and interest till such time as the government may pay off the 
 capital, it is not in their power, by mismanagement or specula- '■ 
 tion, to hazard the property of the shareholder (c). And of the / 
 Government or Bank Annuities, the one which the Court has 
 thought proper to adopt is the Three per cent. Consolidated 
 Bank Annuities, the fund, from its low rate of interest, the 
 least likely to be determined by redemption (d). Let a trustee 
 who has money in hand which he ought to render productive, 
 invest it on this security, at the same time executing a decla- 
 ration of trust, that in the event of his bankruptcy or insol- 
 vency the fund may be identified, and he has done his duty, 
 and will not be answerable for any subsequent depreciation (e). 
 
 In the report ot Hancom v. Allen (f) it is said, "The trust "Wietw trustees 
 
 (a) Johnston v. Lloyd, 7 Ir. Eq, Franklin v. Frith, 3 B. C. C. 434 ; 
 Eep. 252. Decided upon the cor- Powell v. Evans, 5 Ves. 841, and 
 responding enactment in the Irish Sowe v. Farl of Dartmouth, 7 Ves. 
 Act, 3 & 4 Vict. c. 105. 150 ; Knight v. Farl of Plymouth, 
 (6) JRoiElandY.Witherden, 3 Mao. 1 Dick. 126, per Lord Hardwioke ; 
 & Gor. 568 ; Hanbury v. Kirkland, PeatY. Crane, GiteillancomY. Allen, 
 3 Sim. 265. 2 Dick. 499, note ; Clough v. Jiond, 
 (c) Traffordr.Boehm, 3 Atk. 444, 3 M. & C. E. 496, per Lord Cotten- 
 per Lord Hardwicke. ham ; Holland v. Hughes, 16 Ves. 
 {d) See Howe v. Earl of Eart- 114, per Sir W, Grant; Moyle v. 
 mouth, 7 Ves. 151. See too p. 340, Moyle, 2 R. & M. 716, per Lord 
 supra noiB {c). Brougham; a,nA.&ee Jackson y. Jack- 
 ie) Bird Y. Lackey, 2 Vern. 744, son, 1 Atk. 513. 
 4th point; Ex parte Champion, cited (/) 2 Dick. 498. 
 
353 INVESTMENT. [CH. XIII. S. 3. 
 
 any other govern- money had teen laid out by the trustees in funds which sunk 
 
 ment security. . , 
 
 in their vahie, without any mala fides ; but the same not being 
 laid out in the fund in which the Court directs trust money to 
 be laid out, the trustees were ordered to account for the prin- 
 cipal and pay it into the Bank, and then that it should be laid 
 out 'in Bank Three per cent. Annuities.'' It might be inferred 
 from this statement, that, if a trustee invest in any other 
 government security than the Three per cent. Consols, the 
 Court would hold him accountable for any loss by a fall of the 
 stock ; but such a doctrine would be extremely severe against 
 trustees {a), and the case as extracted from the Registrar's book 
 is no authority for any such proposition. Thomas Phillips, a 
 trustee of 1500L, instead of investing the money in a purchase 
 of land and in the mean time on some sufficient security, as 
 required by the trust, had advanced it to his brother, John 
 Phillips, a banker, without taking any other precaution than 
 accepting a simple acknowledgment of the loan. John Phillips 
 continued to pay interest upon the money for some time, but 
 eventually became insolvent, and the fund was lost. The 
 Court under these circumstances called upon the trustee to 
 make good the amount. The decision was reversed in the 
 House of Lords, perhaps on the ground of the plaiutiff's 
 acquiescence (&). A trustee, however, must confine himself to 
 government securities; for he, isjftot aflfi^lSd to invest even on 
 puBEc securities, which are not govermnentsesiaxiiies (c). 
 Where there is a Where successive estates are limited, the scale should of 
 m^^r'^mainders ^ourse be held evenly as between all parties, and the tenant 
 trustees must for life should not be allowed, by an investment on a security 
 
 invest on Three „ ^ i i i i i r 
 
 per cents, exclu- less Safe or less permanent than the usual one, and thereiore 
 *'™ ^' yielding to the present holder an increased rate of interest, to 
 
 advance himself at the expense of the remainderman. Upon 
 this principle, if a testator's estate consist of Bank Stock, Long 
 Annuities, or other fund either not a government security or 
 not of the raost permanent character, the Court, as soon as its 
 
 (a) See Angell v. Dawson, 3 Y. & {h) 7 B. P. C. Zlo. 
 
 C. 316 ; Ex parte a projected Eail- (c) Sampayo v. Oould, 12 Sim. 
 
 way, 11 Jur. 160 ; Matthews v. Brise, 435, per Sir L. Shadwell. 
 6 Beav. 239 ; BandY. Fardell, 1 Jur. 
 N. S. 1214. 
 
CH. Xin. S. 3.] INVESTIiIENT. 353 
 
 observation is attracted to the circumstance, invariably directs 
 a conversion of such estate into Three per cent. Bank Annui- 
 ties (a). Even Four per cent, and Five per cent. Bank Annui- 
 ties, as more liable to the chance of redemption, are ordered 
 to be similarly converted (6). It follows that trustees, who must 
 be guided by the conduct of the Court, should, where succes- 
 sive interests are limited, invest in the Three per cent. Bank 
 Annuities, and in that fund exclusively. 
 
 However, when the trustees were directed by the will to Navy 5 per cents, 
 invest " on government or other good security," and part of the 
 testator's estate consisted of Navy Five per cents., and the 
 tenant for life continued to receive the dividends for more than 
 thirty years, the Court refused to hold the trustees liable, for 
 not having converted the Navy Five per cents, into Three per 
 cent. Consols (c). Of course, where the fund is already invested 
 in Consols, it would be a gross breach of trust to sell out and 
 invest the proceeds in an irregular fund, as, for instance, in 
 Long Annuities (d), 
 
 "Where a tenant for life has been wrongly in possession of Where such in- 
 
 ,,..,,» 11.1 iji 1 ii Testment has not 
 
 the dividends oi a stock which ought to have been converted, teen made, the 
 he will be accountable to the remainderman for the excess of *™^^pgrhaps the 
 his receipts beyond the income he would have received had trustees, may be 
 
 called upon to 
 
 the fund been properly invested (e). Should the tenant for answer the dif- 
 life be insolvent, the executors of the testator would probably 
 be decreed to make compensation to the suffering party ; but 
 Lord Eldon said, he would not state what the Court would 
 do in such a case, for it depended on many circumstances (/). 
 In the subsequent case of Dimes v. Scott {g), where the execu- 
 tors were expressly directed to convert the testator's personal 
 
 (o) Sowe V. Harl of Dartmouth, [d] Kellmmy v. Johnson, 5 Beav. 
 
 7 Ves. 137 ; and tke cases cited, ib. ; 319. 
 
 Mills V. Mills, 7 Sim. 501 ; Bate v. (e) Howe v. Earl of Dartmouth, 
 
 Hooper, 5 De G. M. & G. 338. See 7 Ves. 137, see 150, 151 ; Mills\. 
 
 PicTiering v. Pickering, 4 M. & Cr. Mills, uhi supra ; and see Pickering 
 
 289. V. Pickering, 4 M. & Cr. 289. 
 
 (5) Howe v. JEarl of Dartmouth, (/) See Howe v. Harl of Dart- 
 's Ves. 151, per Lord Eldon ; Powell mouth, 7Ve3. 150; Hollands. Hughes, 
 V. Cleaver, and other cases, cited id. 16 Ves. 114. 
 142. {g) 4 Russ. 195 ; and see Mehr- 
 
 (c) Band v. Fardell, 1 Jur. N. S. tens v. Andrews, 3 Beav. 72. 
 1214. 
 
 ference. 
 
354 
 
 INVESTMENT. 
 
 [CH. xm. S. 3. 
 
 No conTersion 
 into three per 
 cents, where the 
 stock is specifi- 
 cally bequeathed. 
 
 Investment on 
 other stock 
 ordered under 
 particular cir- 
 cumstances. 
 
 Wot necessary to 
 convert a mort- 
 gage into three 
 per cents. 
 
 estate into money, and invest the proceeds in government or 
 real securities in trust for A. for lifsj remainder to B., and the 
 executors for eleven years permitted A. to receive 10 per cent, 
 interest upon an Indian loan, it was held they were chargeable 
 with the difference between the 10 per cent, interest they had 
 wrongfully paid, and the interest that would have resulted 
 from a conversion into Three per cent. Consols at the expira- 
 tion of one year from the testator's decease. 
 
 If any stock, other than Three per cent. Consols, be specifi- 
 cally bequeathed to A. for life, remainder to B., in that case 
 the Court has no power to direct a conversion into Three per 
 cent. Consols (a); and a power of varying the securities ex- 
 pressly given to the executors will make no difference in this 
 respect, for the testator is held to have given them the autho- 
 rity, not with the intention of varying the relative rights of 
 the legatees, but merely with, the view of adding security to the 
 property (6). 
 
 A testator gave his residuary estate to executors upon trust 
 to pay the annual produce to A. for life in equal portions at 
 Lady-day and Michaelmas-day, and after his decease in trust 
 for other purposes. A motion was made that the executors 
 might invest a sum in their hands in the Three per cent. 
 Bank Annuities, but it was objected that the dividends of 
 this stock were payable in January and July, whereas, if 
 the money were laid out in the Three per cent. Reduced 
 Annuities, the dividends would be payable at the time 
 directed by the testator ; and Sir John Leach made the order 
 accordingly (c). 
 
 A mortgage may produce a higher rate of interest than an 
 investment in the Three per cent. Consols ; but in this case 
 ■the advantage does not arise from the inferior nature of the 
 security as in the instance of Bank Stock, nor from any perish- 
 able or redeemable quality as in the instance of the Long 
 Annuities or the Four per Cents. ; the Court, therefore, will 
 
 {a) Lord v. Godfrey, 4 Mad. 465 ; 
 Alcock V. Sloper, 2 M. & K. 699 ; 
 Collins V. Collins, ib. 703 ; Bethune 
 V. Kennedy, 1 M. & C. 114 ; Vin- 
 cent V. Newcomhe, 1 Tounge, 599 ; 
 
 and see Pichering v. Pickering, 4 M. 
 & Cr. 289. 
 
 (i) Lord V. Godfrey, 4l Mad. 455. 
 
 (c) Caldecdtt y. Caldecott, 4 Mad. 
 189. 
 
CH. Xm. S. 3.] . INVESTMENT. 356 
 
 not permit the mortgage to be called in without a previous 
 inquiry by the Master whether it will be for the benefit of all 
 the parties interested (a). 
 
 And where a testator dies in India, and neither the fund Of conversion of 
 
 , . . , , assets in India. 
 
 nor the parties entitled to it are under the jurisdiction of the 
 Court of Chancery, it is not the duty of the executor to trans- 
 mit the assets to England to be invested in the Three per 
 cent. Consols, but he may invest the property in the securities 
 of the East India Company, and the tenant for life will be 
 entitled to the dividends or interest, though to the amount of 
 10 or 12 per cent. If the parties return to England, and so 
 come under the jurisdiction of the Court, the fund may then 
 be brought over at the instance of the remainderman, and 
 the tenant for life must submit to the consequential reduction 
 of his income (b). 
 
 If trustees are bound by the terms of their trust to invest Trust to invest 
 in the public funds, and instead of so doing they retain the the money re- 
 money in their hands, the cestuis que trust may clearly elect ^^^ ' 
 to charge them with the amount of the money or with the 
 amount of the stock which they might have purchased with 
 the money (c). And as the Court expects a trustee, where the 
 trust is of a permanent character, to invest the fund in Three 
 per cent. Bank Annuities, even though the settlement contain 
 no express direction to that effect, the trustee, if he improperly 
 retained the money in his hands, would, it seems, in this case 
 also be held liable at the option of the eestms que trust for 
 the principal sum or the amount of stock which it would have 
 purchased {d). 
 
 But if trustees or executors be directed by the will to con- Trustees ordered 
 
 ... to invest in stock 
 
 vert the testator's property and invest it m government or and neglecting it. 
 real securities, it was long a question whether they should be 
 answerable for the principal money with interest, or the 
 amount of stock which might have been purchased at the 
 period when the conversion should have been made, and sub- 
 
 (a) See Howe v. Earl of Dart- 504, per Sir J. "Wigram; JRoUnson 
 
 mouth, 7 Ves. 150. v. Rohmson, 1 De Gex, Mae. & Gord. 
 
 (6) Holland v. Hughes, 16 Ves. 25Q,per Cur. 
 
 Ill; S. C 3 Mer. 685. [d] Iiobmsony.Eobinson,ll)eQex., 
 
 (c) Shepherd v. Mouls, 4 Hare, Mao. & Gor. 266, per Cur. 
 
 A A 2 
 
356 
 
 INVESTMENT. 
 
 [CH. xin. s. 3. 
 
 Tnistee selling 
 out stock im- 
 properly. 
 
 sequent dividends, at the option of the cestms que t/rust{a); 
 or whether they should be charged with the amount of prin- 
 cipal and interest only, without an option to the cestuig que 
 trust of taking the stock and dividends (b). It has now been 
 decided that the trustee is answerable only for the principal 
 money and interest, and that the cestms que trust have no option 
 of taking the stock and dividends. The principle upon which 
 the Court proceeded, was that the trustee could be held Hable 
 only for not having done what it was his duty to have done, 
 and the measure of his responsibility was that which the cestvAs 
 que trust must have been entitled to in whatever mode that 
 duty was performed ; that the trustee might have discharged 
 his duty without purchasing Three per cent. Bank Annuities ; 
 that the trustee was not bound retrospectively to have exer- 
 cised the discretion one way or the other, but was answerable 
 only for the consequences of not having exercised the discre- 
 tion ; that to compel the trustee to purchase a sum of stock 
 because the price had since risen, was to regulate the liability 
 by an accidental or subsequent occurrence, and not by the 
 superiority of the stock over a mortgage at the time when the 
 investment ought to have been made (c). 
 
 If the trust- fund be standing on a proper security, and the 
 trustee call it in for no purpose connected with the trust, and 
 therefore in dereliction of his duty, or for a purpose not 
 authorised by the terms of the trust, he will be compellable, 
 at the option of the cestuAs que trust, either to replace the 
 specific stock, or the stock into which, if not sold out, it would 
 have been converted by Act of Parliament (d), with the interme- 
 diate dividends (e), or to account for the proceeds of the sale (/) 
 
 (o) Hockley v. Bansock, 1 Russ. 
 141 ; Watts V. GirdUstone, 6 Beav. 
 188 ; Ames v. Parkinson, 7 Beav. 
 379 ; Ouseley v. Anstruther, 10 Beav. 
 456. 
 
 (6) Marsh v. Hunter, 6 Mad. 295 ; 
 Gale V, Pitt, M. R. 10 May, 1830 ; 
 Shepherd v. Mauls, 4 Hare, 500; 
 Pees V. Williams, 1 De G. & 8m. 319. 
 
 (<j) Robinson v. Robinson, 1 De 
 Gex, Mac. & Gor. 247. 
 
 (d) Phillipson v. Gatty, 7 Hare, 
 
 616; Norris v. Wright, 14 Beav. 
 304, 305. Phillipo v. Munnings, 2 M 
 & Cr. 309. 
 
 (e) Davenport v. Stafford, 14 
 Beav. 335. 
 
 (/) Rostock V. Blaheney, 2 B. C. 
 C. 653 ; Ex parte Shakeshaft, 3 B. 
 C. C. 197 ; O'Brien v. O'Brien, 1 
 Moll. 533, jjer Sir A. Hart; Ra- 
 phael V. Boehm, 11 Ves. 108, per 
 Lord Eldon ; Harrison r. Harrison, 
 2 Atk, 121 ; Bate v. Scales, 12 Ves. 
 
CH. Xm. S. 3.] INVESTMENT. 857 
 
 with interest at 5 per cent. (a). And the breach of trust will not 
 be cured by a subsequent reinvestment upon the trusts of the 
 stock unless the reinvestment be the same in specie (6). But 
 in a case where the trustee did not seek to make any thing 
 himself, but was honourably unfortunate in having yielded 
 to the importunity of one of the cestwis que trust, it was held 
 by Sir A. Hart, that, although the trustee was bound to 
 replace the specific stock, the cestuis que trust should not have 
 the option of taking the proceeds with iaterest(c). If the 
 trustee become bankrupt, the cestuis que trust may at their 
 option prove for the proceeds with interest, or for the price of 
 the specific stock at the date of the commission (d ). 
 
 If trustees are under an obligation to iavest in the funds, Neglect to invest 
 and they pay the money into a Bank with a direction to lay it 
 out in Bank Annuities, and the bankers neglect to do it, and 
 the trustees make no inquiry for five months, and the bankers 
 fail, the trustees are answerable for the money or the stock at 
 the option of the cestuis que trust (e). 
 
 Trustees would not be justified in making any investment Trustees may 
 that would subject the trust-money to the power or control of to°*subIeet the*' 
 any one of the trustees singly : they could not, for instance, lav ^™,'^ *,° *^^ "'"'■ 
 
 •' ... . ti^ol of 3jiy one 
 
 out the fund upon India bills (supposing such a security were trustee. 
 warranted by the settlement), if made payable, not to all the 
 trustees ia their joiat capacity, but to one of the trustees 
 individually (/). 
 
 Attornies and solicitors employed in negotiating a loan of Attorniesaud 
 trust-monies, may not be liable for a breach of trust if they ^° °"°'^^' 
 have no other privity with the transaction than what arises 
 from their professional duties, but they will be deemed trustees 
 
 402 ; Phillipson v. Gatti/, 7 Hare, (c) O'Brien v. O'Brien, 1 Moll. 
 
 516 ; Norris v. Wright, 14 Beav. 533. 
 
 305 ; Rowland Y. Witherden, 3 Mac. {d) Ex parte Shaheshaft, 3 B. C. 
 
 &Gor. 568; Wiglesworth v. Wigles- C. 197; ex parte Ourner, 1 Mont. 
 
 worth, 16 Beav. 269. Deao. & De Gez, 497. 
 
 (o) Crachelt v. Bethune, IJ. & W. (e) Challen v. Shippam, 4 Hare, 
 
 686; Mosley v. Ward, 11 Ves. 581 ; 555. 
 
 Pocook V. Beddington, 5 Ves. 794; (/) Walker v. Symonds, 3 Sw. 1, 
 
 Piety V. Stace, 4 Ves. 620 ; Jones v. see 66 ; and see Salway v. Salway, 
 
 Foxall, 15 Beav. 392. 2 E. & M. 218 ; Ex parte Griffin, 
 
 (6) Lander v. Weston, 3 Drew. 2 Gl. & J. 114 ; Cloughv. Dixon, 8 
 
 389. Sim. 594 ; 3 M. & C. 490. 
 
858 
 
 LIABILITY OF TRUSTEES 
 
 [CH. xm. S, 4. 
 
 and be responsible as such if they act professionally in cany- 
 ing out a transaction which they know to be a breach of trust, 
 and which is calculated to promote their own private ends («)> 
 In laying out trust-monies, trustees would do well not to em- 
 ploy the same solicitor who acts for the borrower. Besides 
 the inconveniences that arise from the doctrine of imphed 
 notice, there is in this case such a conflict of duties on the part 
 of the solicitor, that he cannot adequately represent the interests 
 of both lender and borrower (6). 
 
 SECTION IV. 
 
 General laches. 
 
 LIABIIITT OF TSTTSTEES TO PAYMENT 01' IirTEEEST, 
 
 If the trustee be guUtj of any unreasonable delay in in- 
 vesting the fund or transferring it to the hand destined to 
 receive it, he will be answerable to the cestui que trust for 
 interest during the period of his laches, and a trustee may 
 be decreed to pay interest even though it be not prayed by 
 the bill (c), and wUl be liable to pay personally the costs of the 
 suit {d). 
 
 An executor should discharge the testator's liabilities as 
 soon as he has collected assets sufficient for the purpose, and 
 therefore if he keep money in his hands idle, when there is 
 an outstanding debt upon which interest is running, he will 
 himself be charged with interest on a sum equal in amount to 
 the debt, and if the outstanding debt carry interest at 5 per 
 cent., the executor will be charged with interest at the same 
 rate (e). 
 After payment of After payment of debts and legacies, if the executor or 
 cies, mustaccount administrator be guilty of laches in accounting for the surplus 
 
 for surplus. 
 
 Executor must 
 pay testator's 
 debts as soon aa 
 he has assets. 
 
 (a) AUeyne v. JDarcy, 4 Ir. Ch. 
 Be. 199, see 204, 208; Fyhr v. 
 Fyler, 3 Beav. 550. 
 
 (J) See Waring v. Waring, 3 Ir. 
 Ch. Ee. 331. 
 
 (c) Woodhead v. Marriott, C. P. 
 Coop. Cases, 1837-38, 62; Turner 
 V. Turner, IJ. & "W. 39, 
 
 {d) Tickner v. Smith, 3 Sm. & Gif. 
 42. 
 
 (e) Dornford v. Dornford, as 
 cited in Tehbs v. Carpenter, 1 Mad. 
 301 ; Sail v. Ballet, 1 Cox, 134 ; 
 Turner v. Turner, 1 .J. & W. 
 39. 
 
CH. Xin. S. 4.] TO PAYMENT OF INTEREST. 
 
 369 
 
 estate to the residuary legatee (a), or next of kiii(&), he will 
 be charged by the Court with interest for the balance impro- 
 perly retained, whether the prayer of the bill extend to it or 
 not (c). 
 
 And, on the same principle, if the assignees of a bankrupt 
 neglect to pay a dividend to the creditors (d), or the receiver 
 of an estate do not move the Court in proper time to have the 
 rents invested (e), they will be ordered to account for the 
 money with interest from the time the breach of duty com- 
 menced. 
 
 And an executor or other person cannot excuse himself by 
 saying that he made no actual use of the money, but lodged it 
 at his banker's (/), and to a separate account (g), for it was a 
 breach of trust to retain the money : he was bound to make it 
 productive to the cestui que trust. 
 
 But, where an executor conceived he was himself entitled 
 to the residue, and the Court considered his claim to be just 
 in itself, but was obliged from a particular circumstance in 
 the case to give judgment against him, it was thought too 
 severe to put him in the situation of one who had neglected 
 his duty, and the demand against him for interest was conse- 
 quently disallowed (h) . 
 
 Assignees must 
 not neglect to pay 
 dividends. 
 
 No excuse that 
 the trustee or 
 executor did not 
 use the money. 
 
 Delay may tie 
 explained ty the 
 mistake of the 
 trustee or 
 executor. 
 
 (a) Forbes v. Hoss, 2 Cox, 113; 
 Seers v. Hind, 1 Ves. jun. 294 ; 
 YoungeY. Combe, 4 Ves. 101 ; Long- 
 more Y. Broom, 7 Ves. 124; Roche 
 V. Sart, 11 Ves. 58 ; Fiety v. Stace, 
 4 Ves. 620 ; Ashhurnham v. Thomp- 
 son, 13 Ves. 402 ; Raphael v. Boehm 
 11 Ves. 92 ; 8. C. reheard, 13 Ves, 
 407 ; S. C. spoken to, 13 Ves. 590 
 Dornford v. Dornford, 12 Ves. 127 
 Franklin v. Frith, 3 B. C. C. 433 
 LittlehalesY. Gascoyne, 3 B. C. C. 73 
 Newton v. Bennet, 1 B. C. C. 359 
 Lincoln v.. Allen, 4 B. P. C. 553 
 Crackelt v. Bethune, 1 J. & W. 586 
 Tebbs Y. Carpenter, 1 Mad. 290. 
 
 (6) Hall Y. HalleU, 1 Cox, 134 ; 
 Perkins v. Baynton, 1 B. C. C. 375 ; 
 Staehpoole v. Stackpoole, 4 Dow, 
 209, see 224 ; Seathcote v. Hulme, 
 IJ. & W. 122 ; Holgate v. Haworth, 
 17 Beav. 259. 
 
 (c) Hollingsworth v. Shakeshaft, 
 14 Beav. 492. 
 
 {d) Treves v. Townshend, 1 B. C. 
 C. 384 ; In re Hilliard, 1 Ves. jun. 
 89. 
 
 (e) Foster v. Foster, 2 B. C. C. 
 616 ; Hicks y. Hicks, 3 Atk. 274 ; 
 Hanhey v. Garret, 1 Ves. jun. 236. 
 
 (_/) Younge v. Combe, 4 Ves. 101 ; 
 Franklin v. Frith, 3 B. C. C. 433 ; 
 Treves v. Townshend, 1 B. C. C. 384; 
 In re Hilliard, 1 Ves. jun. 89 ; Daw- 
 son Y. Massey, 1 B. & B. 230 ; 
 Browne v. Soiithouse, 3 B. C. C. 
 107 ; and see Roche v. Hart, 11 Ves. 
 60. 
 
 [g) Ashhurnham v. Thompson, 13 
 Ves. 402. 
 
 (A) Bruere v. Pemherton, 12 Ves. 
 386. But see Sutton v. Sharp, 1 
 Russ. 146 ; and Turner v. Maule, 3 
 DeG. &Sm. 497. 
 
360 
 
 XIABILITT OF TBUSTEES 
 
 [CH. xni. S. 4- 
 
 Formerly the 
 executor^might 
 hare used the 
 
 At least where 
 he was solvent. 
 
 And where the 
 assets used were 
 not specifically 
 hequeathed. 
 
 Kule now general 
 that executor 
 must account for 
 all profits. 
 
 Formerly, indeed, it was held by the Court, that an executor 
 might employ the assets in his trade, or lend them upon 
 security, and he should not be called upon to account for the 
 profits or interest (a). And such was the case even where 
 money which had been lent by the testator on good security 
 was called in by the executor for the express purpose of being 
 re-lent by himself. The executor, it was argued, was not 
 bound to lend the assets, and if he did so, it was at his peril, 
 and he was answerable for losses, and, if accountable for any 
 loss, he was surely entitled to any gains (b). But Lord North 
 overruled the doctrine in spite of the alleged practice of the 
 Court for the last twenty years, and the authority of above 
 forty precedents. As to the argument, that, if the money 
 should be lost, the executor would be personally responsible, 
 his Lordship said, it was very well known that a man might 
 insure his money at the rate of 1 per cent. (c). 
 
 A distinction was afterwards taken between a solvent and 
 an insolvent executor ; that the former, as he might suffer a 
 loss, should take the gain, but, as an executor who was 
 insolvent at the time of the loan could incur no risk of a loss 
 personally, he should not be allowed to take to himself any 
 benefit (d). 
 
 And Lord Hardwicke drew another distinction ; that if an 
 executor liad ^placed out assets that were specifically bequeathed, 
 he should be made to account for the interest, but the Master 
 was never directed to charge interest upon an executor who 
 made use of general assets, come to his hands, in the way of his 
 trade (e). 
 
 But all these refinements have long since been swept 
 away (/) ; and the rule is now universal, that, whether the 
 executor was solvent or insolvent, whether the money was part of 
 
 (a) Grosvenor v. Cartwright, 2 Ch. 
 Ca, 21 ; Linch v. Cappy, 2 Ch. Ca. 
 36 ; and see Brown v. Litton, X P. 
 "W. 140. 
 
 (6) See RatcUff v. Graves, 2 
 Ch. Ca. 152. 
 
 (c) RatoKffe v. Graves, 1 Vern. 
 196; S.C. 2Ch. Ca. 152. 
 
 {d) Bromfleld v. Wytherley, Pr. 
 
 Ch. 505; Adams v. Gale, 2 Atk. 
 106. 
 
 (e) Chad V. Gibson, 2 Atk. 603. 
 
 {/) As to the former distinction, 
 see Newton v. Bennet, 1 B. C. C. 
 361; Adye v. Feuilleteau, 1 Cox, 25; 
 and as to the latter, see Newton v. 
 Bennet, 1 B. C. C. 361. 
 
CH. Xin. S. 4.] TO PAYMENT OF INTEREST. 361 
 
 the general assets or specifically bequeathed, whetlier lent upon 
 security or employed in the way of trade, the executor shall 
 account for the utmost actual profits to the testator's estate {a). 
 
 And where the money has been employed in trade, the cestui Trustee using 
 que trust has the option of taking the actual profits or of trade, must ' 
 charging the executor with interest (6). And an executor who ^Xfite^^Vr* 
 is a trader is considered to employ the money in trade, if he cent, interest, or 
 
 . 1 • 1 1 T 1 ■ • • !• the actual profits. 
 
 lodge it at his banker s, and place it m his own name, for a 
 merchant must generally keep a balance at his banker's, and 
 this answers the purpose of his credit as much as if the money 
 were his own (c). 
 
 The' rate of interest with which an executor is usually Executor charged 
 charged is 4 per cent.(<^); but the rule holds only where it ^toest^on'riin*^ 
 does not appear that the executor, has made greater interest, less he made more. 
 for the Court invariably compels the executor to account 
 for every farthing he has actually received (e). 
 
 It is not easy to define the circumstances under which the Under what 
 Court win charge executors and trustees with more than 4 per tmst^ will be 
 cent, interest, or with compound interest, and the principles by charged with 
 
 •*■ ' X i ./ compound 
 
 which the Court is regulated in so doing are involved in much interest. 
 uncertainty. In a late case, the rule was thus laid down by 
 the present Master of the Rolls : " If an executor has retained 
 
 ■{a] Tebbs v. Carpenter, 1 Mad. v. Carpenter, 1 Mad. 306 ; In re 
 304, per Sir T. Plumer ; £ee v. Lee, HilUard, 1 Ves. jun. 90 ; Browne v. 
 
 2 Vern. 548; Adyey. Feuilleteau, 1 Southouse, 3 B. C. C. 107; 
 
 Cox, 24; Piety Y. Stace, 4 Yes. 622, v. Ward, 11 Ves. 582; Perkins v. 
 
 per Lord Alvanley. Saynton, 1 B. C. C. 875 ; Treves v. 
 
 (S) Heatheote v. Sulme, 1 J. & Townshend, 1 B. C. C. 386; Sicks 
 
 "W. 122 ; Anon, case, 2 Ves. 630, per v. Hicks, 3 Atk. 274 ; Younge v. 
 
 Sir T. Clarke ; Docker v. Somes, 2 Combe, 4 Ves. 101 ; Roche v. Mart, 
 
 M. & K. 655; Ex parte Watson, 2 11 Ves. 58; Hankey v. Garret, 1 
 
 V. & B. 414 ; Brown v. Sansome, 1 Ves. jun. 236 ; but see Bird v. 
 
 M'Clel. & Y. 427 ; Robinson v. Ro- Lackey, 2 Vern.' 744, 4th point ; 
 
 linson, 1 De Gex, Mae. & Gor. 257. Carmichael v. Wilson, 3 Moll. 79 ; 
 
 (e) Treves Y. Townshend, ubi su- Attorney-General v. Alford, 4 De 
 pra ; Moons v. De Bernales, 1 Kuss. Gex, Mae. & Gor. 843. 
 301; Jm re BVKart^, 1 Ves, jun. 90 ; (e) Forbes v. Ross, 2 Cox, 116, 
 Sutton V. Sharp, 1 Euss. 146 ; per Lord Thurlow ; In re Hilliard, 
 Rocke V. Hart, 11 Ves. 61 ; but 1 Ves. jun. 90, per eundem ; Han- 
 sea Browne v. Southouse, 3 B. C. C. key v. Garret, 1 Ves. jun. 239, per 
 107. eundem : Brown v. Litton, 10 Mod. 
 
 ((^) See -ForSesv. iJoss, 2 Cox, 116; 21,^e»'LordHarcourt; Hall y. Hal- 
 Hall Y.Hallet, 1 Cox, 138; Tebbs let, 1 Cox, 138, jjer Lord Thurlow. 
 
362 LIABILITY OF TEUSTEES ' [CH. Xjn. S. 4. 
 
 balances in his hands, which he ought to have invested, the 
 " Court will charge him with simple interest, at 4 per cent. If, in 
 addition to such retention, he has committed a direct breach of 
 trust, or if the fund had been taken by him from a proper state 
 of investment, in which it was producing 5 per cent., he wiU be 
 charged with interest after the rate of 5 per cent, per annum. 
 If, in addition to this, he has employed the money so obtained 
 by him in trade or speculation, for his own benefit or advan- 
 tage, he will be charged either with the profits actually obtained 
 from the uses of the money, or with interest at 5 per cent, per 
 annum, and also with yearly rests, that is, with compound 
 interest" (a). 
 Trustee charged The previous dicta and decisions undoubtedly seem to esta-i 
 cent, where gross blish, in accordance with the views just quoted, that an 
 nusconduot. executor will be charged with interest at 6 per cent, where 
 he is guilty, not merely of negligence, but of actual corruption 
 or misfeasance, amounting to a wUful breach of trust (6). 
 But in a recent case before the present I/ord Chancellor, his 
 lordship expressed his disapprobation of charging the executor, 
 with a higher rate of interest by way of penalty, and stated 
 his own opinion as follows : " What the Court ought to do, I 
 think, is to charge him only with the interest which he has 
 received, or which it is justly entitled to say he ought to have 
 received, or which it is so fairly to be presumed that he did 
 receive that he is estopped from saying that he did not receive' 
 it. I do not think there is any other intelligible ground for 
 charging an executor with more interest than he has made, 
 than one of those I have mentioned. Misconduct does not 
 seem to me to warrant the conclusion that the executor did 
 in point of fact receive, or is estopped from saying that he did 
 not receive, the interest, or that he is to be charged with 
 anything he did not receive, if it is not misconduct con- 
 tributing to that particular result " (c). The particular case 
 
 {a) Jo«es V. i^oaoZZ, 15 Beav. 392, 1 J. & W. 588; Backers. Somes, 
 
 (6) Tebhs V. Carpenter, 1 Mad. 2M. &K. 670; Munch y. Cockerell, 
 
 306, per Sir T. Plumer ; Bick v, 5^M. & Or. 220 ; but see Meader v. 
 
 Motly, 2 M. & K. 312 ; Mousley v. M'Cready, 1 Moll. 119. 
 
 Carr, 4 Beav. 53, per Lord Lang- (c) Attorney-General v. Alford, 
 
 dale ; and see Crackelt v. Betlmne, 4 De Grex, Mao. & Gror. 851, 852. 
 
CH. Xni. S. 4.] TO PAYMENT OP INTEBEST. 363 
 
 before his lordship was taerely one of omission to inmst, under 
 circumstances of gross negligence; and it is conceived that,- 
 although his observations cast a certain degree of doubt over 
 the class of authorities last referred to, they cannot be con- 
 sidered as overruled. 
 
 Wlaether, where the money has been employed in trade. Whether simple 
 simple or compound interest shall, as a general rule, be charged, terest chargeable 
 is a point upon which the decisions are at conflict, the older ^^a'^tre^ecutor 
 
 pointing invariably to simple interest as the proper measure °^ trustee in 
 
 „,.,.,. trade. 
 
 of liability, but some of the more recent to compound, interest. 
 
 Respecting the rate of interest there has been no conflict. It 
 has been almost invariably held to be 5 per cent, {a), the Court 
 presuming every business to yield a profit to that amount; 
 though Lord Thurlow, in one case, offered an inquiry whether, 
 under the circumstances, such a rate of interest might not be 
 too high (6) ; and in axiother, where an executor proved exte- 
 nuating circumstances, 4 per cent, only was charged (c). The 
 first case in which a trustee appears to have been charged with 
 compound interest, by reason only of his having used ttust 
 money in trade, appears to have been that of Walker v. Wood- 
 ward (d). There Lord Gifford, the trustee acknowledging that 
 he had made great profits, though he could not furnish the 
 particulars, and the cestui que trust waiving the investigation 
 of the actual gains, directed 5 per cent, interest to be charged 
 with annual rests. Subsequently the late Vice- Chancellor 
 of England refused to charge a trustee of a charity estate, 
 who had used the trust monies in carrying on his trade, with 
 compound interest (e); but in a later case. Sir John Leach 
 charged an executor with compound interest under similar 
 circumstances (/), and in the two latest reported decisions on 
 the subject, the present Master of the Rolls, in accordance 
 
 (o) Treves v. Towmhend, 1 B. C. Rohinson, 1 De Gex, Mac & Gor. 257. 
 
 C. 384; Mocke v. Hart, 11 Ves. 61, (6) Treves v. Townshend, 1 B. G. 
 
 per Sir W. Grant ; Heathcote v. C. 384. Sed qucere. 
 
 Hulme, 1 J. & "W. 122, see 134 ; (e) MellandY. Gray, 2 CoH. 295. 
 
 Attorney- General v. Solly, 2 Sim. {d) 1 Euss. 107. 
 
 618 ; Mousley v. Carr, 4 Beav. 53, (e) Attorney- General v. Solly, 2 
 
 per Lord Langdale; Westover v. Simons, 518. ^ 
 
 Chapman, 1 €6)1. Ill ; Williams r. [f) HeighingtonY. Grant,5M..& 
 
 Powell, 16 Beav. 461 ; Rohinson v. Cr. 258 ; 2 Phil. 600. 
 
364 
 
 LIABILITT OF TEUSTEES 
 
 [CH. xm. S. 4. 
 
 Trustee neglect- 
 ing a direction to 
 accumulate, wiU 
 be charged with 
 compound inte- 
 rest. 
 
 Executor not 
 charged with 
 interest during 
 first year from 
 testator's death. 
 
 with the rule laid down by him (as before stated), directed an 
 account with rests (a). 
 
 Where a testator expressly directs an accvmulation to be 
 made, and the executor disregards the injunction, it seems 
 compound interest wUl be decreed (&). " Where there is an 
 express trust," said Lord Eldon, "to make improvement of 
 the money, if he wUl not honestly endeavour to improve it, 
 there is nothing wrong in considering him, as to the principal, 
 to have lent the money to himself, upon the same terms 
 upon which he could have lent it to others, and as often 
 as he ought to have lent it if it be principal, and as often 
 as he ought to have received it, and lent it to others, if the 
 demand be interest, and interest upon interest " (c). And 
 Lord Erskine said he concurred in the same principle, viz. 
 "that a trustee directed to do an act from which the cestui 
 que trust would derive a particular advantage, and not per- 
 forming that trust, shall be charged precisely in the same 
 manner as if he had performed it " (d). 
 
 An executor wUl not in general be charged with interest 
 but from the end of a year from the time of the testator's 
 decease. "The question, " said Lord Thurlow, "whether an 
 executor shall be charged with interest on the assets retained 
 in his hands, turns upon this, viz. whether the fund has been 
 so kept for any other purpose than that of discharging the 
 growing claims upon it. It frequently may be necessary for 
 an executor to keep large sums in his hands, especially in the 
 course of the first year after the decease of the testator, in 
 which case such necessity is so fully acknowledged, that, 
 according to the constant course of the Court, the fund, until 
 that time, is not considered distributable. After that, if the 
 Court observes that an executor keeps money in his bands 
 without any apparent reason, but merely for the purpose of 
 using it, then it becomes negligence and a breach of trust, 
 the consequence of which is that the Court will charge the 
 
 (o) Jones Y Foxall. 15 Beav. 388 ; 
 Williams v. Powell, id. 461. 
 
 (6) Raphael v. Boehm, 11 Ves. 
 92 ; Ste Ves. 407, 590 ; Dornford v. 
 Dornford, 12 Ves. 127 ; Brown v. 
 Sansome, 1 M'Clel. & Younge, 427 ; 
 
 Knott v. Cottee, 16 Beav. 77 ; but 
 see Tebbs v. Carpenter, 1 Mad. 290 ; 
 Attorney/- General v. Solly, 2 Sm. 
 518. 
 
 (c) Rapliael v. Boehm, 11 Ves. 107. 
 
 \d) 8. C. 13 Ves. 411. 
 
CH. Xin. S. 5.] TO PAYMENT OP INTEREST. 365 
 
 executor with interest " (a). " With respect to the general 
 question of charging executors with interest," observed Sir 
 A. Hart, " there are two things to be kept m view, first, we 
 are not to look so closely into the dates of a running account 
 to calculate interest upon it, as to deter respectable men from 
 undertaking the office of executor ; and on the other hand we 
 are not loosely to permit any man, however respectable, to 
 retain the money of others in his hands without making it 
 productive. An executor's duty in this respect is to deal with 
 the trust estate as a provident man would deal with his own, 
 and every provident person makes interest of his money when 
 he has got together a sum which he thinks to be worth while 
 to lay out at interest " (b). 
 
 It will be observed that, in the preceding cases, trustees Interest on 
 
 J ,,,, , , -ii- J. money lost that 
 
 and executors have been decreed to pay interest, m respect never came to 
 only of monies actually come to hand, and improperly retained ; ''™'^- 
 for when a fund has never been received, but has been inex- 
 cusably left outstanding and lost, it seems the Court contents 
 itself with holding the trustees liable for the principal, without 
 enforcing against them the equity, that as the fund, if got in, 
 would have become productive, the trustees ought further to 
 be charged with interest (c). 
 
 SECTION V. 
 
 OF THE DISTEIBTJIION OE THE lEITST ETTNI). 
 
 It is incumbent upon the trustee to satisfy himself beyond ^'^\^^fg^t*^g 
 
 doubt, before he parts with the possession of the property, who expense of the 
 
 . , , , . „ . trustee. 
 
 are the parties legally entitled to it. And the necessity ot seeing 
 
 that the trust-money comes to the proper hand is obligatory, 
 
 not only on trustees regularly invested with the character, but 
 
 to all persons having notice of the equities ; as if A. lend 
 
 a sum to B., and B. afterwards discovers that it is trust-money, 
 
 he cannot pay it back to A. unless A. had a power of signing 
 
 (a) Forbes v. Hoss, 2 Cox, 115. 290 ; and see Lowaon v. Copeland, 2 
 
 (6) Flanagan v. Nolan, 1 Moll. 85. B. C. C. 166. 
 (c) Tebhs v. Carpenter, 1 Mad. 
 
366 DISTEIBUTION OF THE TEUST FUND. [CH. XIH. S. 5. 
 
 a receipt for it (a). If through any misapprehenBion on the 
 part of the trustee the trust-money finds its way into a channel 
 not authorised by the terms of the trust, he will be held per- 
 sonally responsible for the misapplication to the parties who 
 can establish a better claim. " I have no doubt," said Lord 
 Eedesdale upon one occasion, "the executors meant to act 
 fairly and honestly, but they were misadvised ; and the Court 
 must proceed, not upon the improper advice under which an 
 executor may have acted, but upon the acts he has done. If 
 under the best advice he could procure he acts wrong, it is his 
 misfortune ; but public policy requires that he should be the 
 person to suffer" (b). 
 Advice of This must be considered as the general rule ; but under 
 
 particular circumstances the Court ' might possibly hold an 
 executor justified by having acted upon the advice of counsel. 
 Thus, a testator had executed a promissory note in Switzerland 
 for 600?., but by a counter-note executed shortly after, it was 
 declared that 400Z. only was due upon valuable consideration. 
 A Swiss Court, upon proceedings taken there, had awarded 
 the payment of the whole 600L The executor in England, 
 though by our law under the circumstances of the case but 
 400^ was demandable, had discharged the whole amount. 
 Lord Alvanley said, " I very much wish, upon the rules of the 
 Court, I could hold the executor fully justified ; but when I 
 consider his neglect in making this payment of his own con- 
 jecture and to the wrong of the cestuis que trust, I must hold 
 that the Master was right in charging him. He certainly 
 acted with a good intention, and imagined himself justified ; 
 but he thought fit to depend upon that which a prudent 
 executor would not have relied on — this strange transaction 
 in Switzerland. If he had taken advice, and been advised by 
 any gentleman of the law in this country that he was bound to 
 make this payment, I would not have held him liable, for I will 
 
 (o) Sheridan v. Joyce, 7 Ir. Eq. 3 De Gex, Mac. and Gor. 608, the 
 
 Eep. 115. fact that the trustees had acted 
 
 (6) Doyle v. Blahe, 2 Sch. & Lef. upon the advice of counsel was not 
 
 243 ; and see Ureh v. Walker, 3 M. in evidence, which accounts for the 
 
 & C. 705, 706; Turner v. Maule, 3 silence of the L. J. upon this point 
 
 De G. & Sm. 497 ; Peers v. Ceeley, in their judgments. 
 15 Beave. 209. In Boulton v. Beard 
 
CH. Xni. S. 5.J DISTRIBUTION OF THE TETJST FUND. 367 
 
 not permit a testator to lay a trap for his executor, by doing a 
 foolish act which may mislead him" (a). 
 
 Every executor is taken to know the law of this country, Foreign law. 
 but otherwise as to foreign law's. Thus, where a legacy was 
 given to a married woman domiciled in Scotland, and before 
 payment of the legacy the husband died, and the executors of 
 the testator paid the legacy to the wife, and the executors of 
 the husband sued the executors of the testator for the same 
 legacy on the ground that, by the law of Scotland where the 
 wife was domiciled, the chose in action did not survive, as by 
 the law of England, to the wife, but passed to the representa- 
 tives of the husband, it was held, that the executors were not 
 bound to know the law of Scotland, and as express notice of 
 it was not proved against the executors, the prior payment was 
 declared to be valid (6). 
 
 in cases where there exists a mere shadow of doubt as to Bond of 
 the rights of the parties interested, and it is highly impro- ^" emmty. 
 bable that any adverse claim will, in fact, be ever advanced, 
 the protection of the trustee may be provided for by a sub- 
 stantial bond of indemnity. In general, however, a bond of 
 indemnity is a very unsatisfactory safeguard, for when the 
 danger arises, the obligors are often found insolvent, or their 
 assets have been distributed. And if the bond be to indem- 
 nify against a breach of trust, the Court shows no mercy 
 towards a trustee who admits himself to have wilfully erred by 
 having endeavoured to arm himself against the consequences. 
 
 A trustee cannot be expected to incur the least risk, and Suit. 
 therefore if all the equities be not perfectly clear, he should 
 decline to act without the sanction of the Court, and he will 
 be allowed all costs and expenses incurred by him in an appli- 
 cation for that purpose (c). And as the trustee is indemnified 
 
 (a) Vez-v. Smery,5Yes.l'il. As (c) Tulbot-^. Earl of Radnor, Z'K. 
 
 to the effect of acting under advice & K. 262 ; Goodson v. Ellisson, 3 
 
 of counsel in reference to costs, see Euss. 583 ; Curteis v. Candler, 6 
 
 Angler v. Stannard, 3 M. & K. 566 ; Mad. 123 ; Knight v. Martin, 1 K. 
 
 Bevey v. Thornton, 9 Hare, 232 ; & M. 70 ; /S. C. Taml. 237 ; Taylor 
 
 Field V. Bonoughmore, 1 Dru. & v. Glanville, 3 Mad. 176 ; Angier v. 
 
 War. 234. Stannard, 3 M. & K. 566. And see 
 
 (6) Leslie v. Baillie, 2 Y. & C. Camphell v. Home, 1 Y. & C. Ch. Ca. 
 
 Ch. Ca. 91. 664. 
 
368 DISTEIBUTION OF THE TEUST FUND. [CH. XIII. S. 5^ 
 
 by the decree of the Court, he will appeal from any decisioii 
 to the Court above at his own risk (a). 
 
 Frame of the The proceeding may be instituted either by the trustee or 
 
 the cestui que trust ; but in most cases a suit is sustained 
 rather than originated by the trustee, but whether the trustee 
 be plaintiff or defendant, he should take care before an order 
 is made, that all parties who have any color of title are before 
 the Court,; for if the trustee fail in his duty to point out the 
 proper parties, it might be held that the order of the Court 
 under such circumstances did not indemnify him. 
 
 Plaintiff held to Where the bill is filed by a cestui que trust and it is found at 
 
 have no interest. . p i ' 
 
 the hearing that upon the true construction of the mstrument 
 he has no interest in the fund, yet if the point was so doubtful 
 that the trustees could not safely act without the opinion of 
 the Court, the plaintiff will have his costs, as the declaration 
 of the rights of the parties was necessary to the administration 
 of the trust (&). But the case of a plaintiff filing a bUl on 
 the ground of a contingent interest which fails stands on a 
 different footing (c). 
 Alterations in The Court, according to the old practice, could not have 
 
 made a mere declaratory order without consequential direc- 
 tions (cZ), and could not have administered the trust in the 
 presence of some only of the parties interested, or as to a 
 part only of the trust estate, or as to the rights of persons 
 entitled under a will without taking preliminary accounts ; but 
 now by 15 & 16 Vic. c. 86, sects. 50 & 51, the Court is autho- 
 rised to make declaratory orders merely, as also to adjudicate 
 on questions in the presence of some only of the persons 
 interested, and as to part only of the trust estate, and without 
 ascertaining the particulars or accounts of the property 
 touching which the questions have arisen. The opinion of 
 the Court may also be now obtained upon a special case under 
 the provisions of Sir Geo. Turner's Act, 13 & 14 Vic. c. 85. 
 
 (a) Rowland v. Morgan, 13 Jur. 23. (c) Hay v. Bowen, 5 Beav. 610. 
 
 (6) WestcoU V. Culliford, 3 Hare, (d) See Darnell v. Warren, 2 T. & 
 
 274, and oases there cited ; Turner v. C. Ch. Ca. 292 ; Shewell v. Shewell, 
 
 J^Vfljrapiow, 2 Collyer, 336 ; Boreham 2 Hare, 154; Oaskell y. Holmes, 3 
 
 V. Bignall, 8 Hare, 134 ; Lee, v. Hare, 438 ; Say v. Creed, 3 Hare, 
 
 Belane, 1 De Gex & Sm. 1. 455. 
 
CH. Xm. S. 5.] DISTRIBUTION OF THE TEUST FUND. 869 
 
 A not unfrequent difficulty with a trustee in the distribution Cestui que trust 
 of a trust-fund is, that the cestui que trust is a feme covert -^hose hiWband 
 ■whose husband has become bankrupt or insolvent, or has f^so"^^^^* ""^ 
 assigned the wife's share of the trust fund, or has deserted 
 the wife. In the case of bankruptcy or insolvency, it is com- 
 petent to the trustee to agree with the assignees, as he might 
 have done with the husband, to divide the fund (a), and the 
 payment of one half to the assignees, and the settlement of 
 the other half on the wife and children, is, in the absence of 
 special circumstances, considered a reasonable apportion- 
 ment (6). As the moiety paid to the assignees represents 
 the whole of the husband's interest, the entirety of the other 
 moiety must be settled on the wife and children, to the 
 utter exclusion of the husband (c), except on failure of 
 issue (d). It would appear that in Lord Eldon's time a rule 
 existed against giving the wife the whole fund (e). More 
 recently in a case (/) in the Exchequer, where the hus- 
 band was an insolvent, Baron Alderson directed a settle- 
 ment of the whole fund. " The situation," he said, " of an 
 insolvent is very different from that of a bankrupt. The wife 
 of an insolvent may be in the workhouse with her children, 
 and yet if the insolvent afterwards acquires property, neither 
 the wife nor the children will be benefitted by it, but the whole 
 goes to the creditors. A bankrupt, on the other hand, after 
 he has obtained his certificate, is a, free man. It appears to 
 me, therefore, that the insolvent's wife and children are entitled 
 to the whole fund, and if I am bound by the practice of the 
 Court to take away any portion of it, I will take away a 
 shilling." At the present day, it is clear that no distinction 
 exists between insolvency and bankruptcy, and that the Court 
 will, wherever the special circumstances warrant the step, settle 
 
 (a) JRylandY. Smith, 1 M. & C. 56, {d) Carter v. Taggart, 5 De Gex 
 
 (J) Napier v. Napier, 1 Dru. & & Smale, 49 ; Gent v. Harris, 10 
 
 War. 407 ; Vaughan v. Buck, 1 Sim. Hare, 383 ; Bagshaw v. Winter, 5 
 
 N.S. 287 ; Bagshaw v. Winter, 5 De Gex & Sm. 468. 
 
 De Gex & Sm. 468. (e) Dunkleyy. Dunkley, 2 De Gex, 
 
 (c) Lloyd V. Williams, 1 Mad. Mao. & Gor. 396. 
 
 450; Barker v. Lea, 6 Mad. 330; (/) Brett v. Greenwell, 3 Y. & C. 
 
 Whittem v. Sawyer, 1 Beav. 593. 230. 
 
370 
 
 DISTRrBUTION OF THE TEUST FUND. [CH. XIH. S. 5. 
 
 Equity to a set- 
 tlement as 
 against assignees 
 for value. 
 
 Reduction into 
 possession of 
 /erne coverts 
 chose in action 
 ty purchase of 
 particular 
 interest. 
 
 the whole on the wife and children (a). Indeed, in every case 
 arising in reference to the wife's equity to a settlement, the 
 Court exercises a discretion with reference to the particular 
 circumstances, namely, the conduct of the parties (6), the 
 wife's means of livelihood (c), the settlement, if any, previously 
 made upon her (cZ), and the sums before received by the 
 husband in respect of the wife's fortune (e). The trustee 
 should of course endeavour to act as the Court itself would 
 direct. 
 
 The wife's claim in equity to a settlement prevails even 
 against the assignees of the husband for valuable considera- 
 tion, except where the wife is tenant for life only, when the 
 wife has no equity against the purchaser (/). 
 
 A case of perplexity to trustees which, until recent decisions 
 had settled the law, arose not unfrequently, was as follows : — 
 A fund was settled on A. for life, and after his decease on B., 
 a married woman, absolutely ; and, in order to reduce the 
 wife's chose in action into possession, the husband proposed 
 to purchase the prior life -interest, and have it assigned to 
 himself or his wife. In such case, it was asked, were the 
 trustees justified in considering the fund as reduced into 
 possession, and payable to the husband, or could the wife 
 claini by survivorship, on the ground that her interest, not- 
 withstanding the assignment of the life-estate, must stiU be 
 regarded in equity as of a reversionary nature, and so iu- 
 capable of reduction into possession ? If the assignment was 
 made to the husband, it might be said, that, as the life-interest 
 was possessed by him in his own right, and the reversionary 
 interest in right of his wife, the two could not coalesce ; and if 
 the assignment was made to the wife so that the husband 
 
 {a) Gardner v. Marshall, 14 Sim. 
 575 ; and see JRe Kincaid, 1 Drew. 
 326; Watson v. Marshall, 17 Beav. 
 363 ; Dunhley v. Dunhley, 2 De Gex, 
 Mac. & Gor. 390 ; Carter v. Taggart, 6 
 De Gex & Smale, 49 ; Gent v. Harris, 
 10 Hare, 383 ; and see Bonner v. 
 Bonner, 17 Beav. 86. 
 
 (S) Gilchrist v. Cator, 1 De Gex 
 & Sm, 188. 
 
 (c) Bagshaw v. Winter, 5 De Gex 
 & Sm. 467 ; -Ba; parte Pugh, 1 
 Drewry, 202. 
 
 {d) Scott V. Spashett, 3 Mao. & 
 Gor. 599. 
 
 (e) Gardner v. Marshall, 14 Sim. 
 575 ; Vaughan v. Buck, 1 Sim. 
 N.S. 287. 
 
 (/) Tidd V. Lister, 10 Hare, 140. 
 
CH. Xm. S. 5.] DISTEIBUTION OF THE TRUST FUND. 371 
 
 would have both interests in the same right, it might be said 
 that the feme on the coverture ceasing might disclaim the 
 accession of interest that caused the merger, and that, as the 
 transaction on the face of it was a mere contrivance of the 
 parties to defeat the right of the wife, she might hold the 
 trustees answerable for the consequences. 
 
 In a case where 10,000Z. stock was settled in this manner, Opinion of the 
 and it was proposed that the husband should purchase the ^^ ^' ^^°^' 
 life-interest for 3000Z., and take an assignment of it to the 
 wife, the opinion of the late Mr. Jacob was as follows : — " I 
 understand that Mrs. B. has a vested interest in the 10,000Z., 
 subject only to the life-interest of A. her father; and if so, 
 A. can assign his life-interest to Mrs. B., and the effect will 
 be to convert her interest into an immediate right to the fund 
 in possession. And when a married woman has such an 
 immediate right, the trustees in general may safely transfer 
 to the husband. But I do 'not think it safe for the trustees to 
 do this of their own authority when the interest was originally 
 reversionary, and has by an assignment of this description 
 been converted into a present interest. If the wife survived 
 her husband, she might contend (and possibly with success) 
 that the assignment was a contrivance to defeat her right by 
 survivorship, and I do not think it quite clear that the Court 
 would hold her bound by it. But after the assignment has 
 been made, Mr. and Mrs. B. may file an amicable bill against 
 A. and the trustees praying a transfer to Mr. B., and I think 
 there would be very little doubt of the Court making the 
 decree for a transfer as prayed, upon Mrs. B. being examined 
 in Court, and consenting, and upon an affidavit of there being 
 no settlement affecting this fund. And I think that the decree 
 of the Court would fuUy indemnify the trustees in making the 
 transfer." A bill was accordingly filed by the husband and 
 wife against A. and the trustees : and on the wife being ex- 
 amined in Court, and waiving a settlement, the trustees were 
 ordered to sell out the stock, pay the costs, and hand over the 
 balance to the husband (a). 
 
 A similar order was made by the Vice-ChanceUor of Eng- 
 
 (a) Wilson v. Oldham, V, C. March 5, 1841, MS. 
 
 B B 2 
 
372 
 
 DISTRIBUTION OF THE TEUST FUND. [CH. Xin. S. 5. 
 
 Authority from 
 the cestui que 
 trust to receive 
 the money. 
 
 Genuineness of 
 the authority. 
 
 Payment to an 
 infant. 
 
 land in several subsequent cases (a), and Lord Cottenham, 
 on being applied to under one of the orders, seems to have 
 assented to the doctrine (&). But in a case before the Master 
 of the Rolls, the question was considered to involve too much 
 difficulty to be disposed of on petition (c), and the case of 
 Whittle V. Henning (d), before Lord Cottenham, has now decided 
 that a reversionary chose in action of the wife cannot by means 
 of this machinery be reduced into possession so as to be made 
 disposable. 
 
 When the trustee is satisfied as to the parties rightfully 
 entitled, he may pay the money either to the parties them- 
 selves, or to any agent empowered by them to receive it ; and 
 the authority need not be by power of attorney, or by deed, or 
 even in writing. The trustee is safe if he can prove the 
 authority, however communicated. But a trustee would not 
 be acting prudently if he parted with the fund to an agent 
 without some document producible at any moment by which , 
 he could establish the fact of the agency. 
 
 The trustee must look well to the genuineness of the autho- 
 rity, for if he pay a wrong party it will be at his own peril. 
 Thus where A., possessed of lOOOZ. Million Bank Stock, em- 
 ployed B., a broker, to receive the dividends for her, and B. 
 forged a letter of attorney authorising him to sell the stock, 
 and a sale was effected accordingly, it was decreed by Lord 
 Northington that the company was bound to make good the 
 loss ; for " a trustee," he said, " whether a private person or 
 body corporate, must see to the reality of the authority em- 
 powering him to dispose of the trust-money ; and if the transfer 
 be made without the authority of the owner, the act is a nullity, 
 and in consideration of law and equity the rights remain as 
 before " (e). ' 
 
 Where an infant cestui que trust represented himself to be 
 
 (a) Creed v. Ferry, 14 Sim. 592 ; 
 Beanr. Syhes, ib. 693; Lachtony. 
 Adams, ib. 594 ; Sail v. Sugonin, ■ 
 ib. 595 ; Bishop v. Colehrook, 16 
 Sim. 39. 
 
 (J) Zachton v. Adams, 14 Sim. 
 594. 
 
 (c) Story v. Tonge, 1 Beav. 91 ; 8 Beav. 168. 
 
 and see JBoa; v. Box, 2 Conn. & Laws, 
 605. 
 
 {d) 2 PhiU. 731. 
 
 (e) Ashby v. Blackwell, 2 Ed. 
 299 ; Sloman v. Bank of England, 
 14 Sim. 475 ; and see Harrison v. 
 Pryse, Barn. 324 ; JEx parte Joliffe, 
 
■CH. Xm. S. 5.] DISTErBDTION OF THE TEUST FUND. 873 
 
 of age, and induced the trustee to pay him, it was held that 
 as the infant was old enough to commit a fraud, the trustee 
 could not be liable to him over again when he came of age (a). 
 
 It is the practice of the Court in administration suits, where Payment to a 
 a debt is owing to a firm jointly, to pay the amount to the ^ 
 surviving partners without the concurrence of the represen- 
 tatives of the deceased partners, and " prima facie" a trustee 
 would be justified in doing the same (&). 
 
 ■ If a trustee or executor has made an overpayment to a Overpayment. 
 cestui que trust or legatee, he has a right to reeotip himself 
 out of any other interest of that cestui que trust or legatee, 
 and the Court will even make an order on such cestvA que trust 
 or legatee, personally to repay the trustee or executor (c), but 
 not after a lapse of thirty years (d). 
 
 On the final adjustment of the trust accounts it is usual for Release, 
 the trustee, on handing over the balance to the parties enti- 
 tled, to require from them an acknowledgment that all claims 
 and demands have been settled (e). It is reasonable, that when 
 -the trustee parts with the whole fund, and so denudes himself 
 of the means of defence, he should be placed by the party 
 receiving the benefit in the utmost security against future 
 litigation. In practice it is usual to require a release under 
 seal, for an acquittance of this kind may be opened by the 
 cestui que trust on showing fraud, concealment or mistake; 
 hut prima facie it is a simple and valid defence, and throws 
 . on the releasor the onus of displacing it. In strict right, 
 however, a trustee in the absence of special circumstances 
 cannot insist upon a release under seal. Thus, in ChadwicJc v. 
 Heatley (f), a residuary legatee who had become entitled in 
 possession called for the transfer of a sum of stock representing 
 the residue. The trustee insisted on a general release in 
 respect of the testator's estate, and the residuary legatee offered 
 only a receipt for the particular sum. A bill was filed by the 
 
 (o) Overton v. Banister, 3 Hare, {d) Bate v. Hooper, 5 De Gr. M. & 
 
 503. G. 338. 
 
 (J) Philips V. Pidlips, 3 Hare, [e] See v. Osborne, 6 Yes. 
 
 289. 455 ; but the release here spoken of 
 
 (c) Livesey v. Livesey, 3 Russ. -yf^ apparently a conveyance. 
 
 287 ; Fordham v. WalUs, 10 Hare, fj'\ 2 Coll. 137. 
 217 ; Dibhs v. Goren, 11 Beav. 483. 
 
374 DISTEIBXJTION OF THE TEUST FUND. [CH. XHI. S. 5. 
 
 claimant against tlie trustee, and the Vice-Chancellor K. Bruce 
 held that in strictness a release by deed could not be demanded, 
 though he thought it was not out of the ordinary course of 
 business or unreasonable ; that the plaintiff's refusal to execute 
 a deed was justifiable, but that he was bound to have given 
 an acquittance in writing in full of all demands. It seems also 
 to have been decided in a case at the Eolls (a), that a trustee 
 cannot as a matter of right insist on a release under seal. 
 
 King V. Mullins. In King v. Mullins{b), a sum of 174Z. had been placed in 
 the hands of a trustee upon trust by a parol declaration for 
 Sarah for life, and on her death to pay her funeral expenses, 
 and subject thereto to divide the fund between John and 
 WiUiam. The costs of the suit depended on the question 
 whether the trustee ought, as required, to have transferred the 
 sums on the joint receipt of Sarah, John, and WiUiam, or 
 whether he was right in refusing, unless they executed a 
 release under seal. The Vice-Chancellor decided that the 
 trustee was entitled to a release on the ground, first, that the 
 trust was by parol, and secondly, that the time of payment, 
 according to the tenor of the deed, was anticipated, as the 
 tenant for life was still living. These reasons cannot be 
 regarded as satisfactory. The circumstance that the trust was 
 by parol, and therefore obscure, might have been ground for 
 demanding an indemnity ; but seems to afford no reason for 
 requiring a release under seal as distinguished from a simple 
 receipt or acquittance in writing. Neither does the anticipation 
 of the time appear to be material, for Sarah, John, and WiUiam 
 were admitted to be the only eestuis que trust, and their con- 
 currence in. the receipt was equivalent to a reduction iuto 
 possession. 
 
 From tnistees to The trust fund is not unfrequently transferred from the 
 trustees of an old settlement to the trustees of some new 
 settlement, and the trustees of the old settlement insist on 
 a general release before they will part with the fund, while, 
 on the other hand, the trustees of the new feel a reluctance to 
 
 (a) Fulton v. Oilmour, 15 Peb- (6) Vice-Chanoellor Kindersley, 
 
 ruary, 1845, Hill on Trustees, 21st December, 1852, MS.; 1 Drewry, 
 604. 308. 
 
 trustees. 
 
CH. Xm. S. 5.] DISTRIBDTION OF THE TBOST FUND. 375 
 
 give more than a simple receipt. It is believed that the requi- 
 sition of the trustees of the old settlement has been generally 
 complied with ; but of course the trustees of the new cannot 
 be called upon to enter into any covenant of indemnity. 
 
 As the party to benefit by a deed is, in general, the one Expense of the 
 to prepare it, the release wiU be drawn by the solicitor of the 
 trustee. Another reason would be that the trustee has the 
 necessary documents in his possession. The expence must, 
 of course, be paid out of the trust fund. 
 
 When a trustee pays money under the direction of the Court, Order of the 
 he is indemnified by the order itself, and is not entitled to any 
 release from the parties (a). It would be impossible to hold 
 a trustee answerable for an act not of himself but of the Court. 
 It is the duty, however, of the trustee to fuUy inform the 
 Court of all the material facts within his knowledge, and if he 
 improperly withheld them he might be made responsible for 
 the deception practised on the Court. 
 
 Now by the 10th & 11th Vict. c. 96, entitled " An Act for lo & n Vict, 
 better securing trust funds and for the relief of trustees " (&), 
 after reciting that it is expedient to provide means for better 
 securing trust funds, and for relieving trustees from the 
 responsibility of administering trust funds in cases where they 
 are desirous of being so relieved ; it is enacted : 
 
 I. That all trustees, executors, administrators, or other 
 ■persons having in their hands any monies belonging to any 
 trust whatever {c), or the major part of them shall be at 
 
 (a) See Oillespie v. Alexander, 3 act, for he has not the monies in his 
 
 E.US3. 137 ; Underwood v. Hatton, hands ; and if it were held other- 
 
 5 Beav. 39 ; Farrell v. Smith, 2 B. wise, the money might he paid into 
 
 6 B. 337 ; Fletcher v. Stevenson, 3 Court, and the incumbrancer would 
 Hare, 370 ; Knatchhull v. Fearn- have to bear the costs of getting it 
 head, 3 M. & Cr. 126; David v. out: whereas the nature of the 
 Frowd, 1 M. & K. 209 ; Sawyer t. charge is, that the beneficiary is en- 
 Birchmore, 1 Keen, 401, &c, titled to have it raised out of the 
 
 (6) See an Essay on this act by estate, together with the costs of 
 
 F. H. Appaeh, where all the cases raising it; Re Buckley's Trust, 17 
 
 up to the date of that of publication Beav. 110. 
 
 will be found carefully collected. But it has been thought that 
 
 (c) The owner of an estate charged where there is a power of sale 
 
 with a sum in favour of another is without a power of signing receipts 
 
 not a trustee of that sum within the the purchaser may take the estate 
 
376 
 
 mSTEIBUTION OF THE TEtTST FUND, [GH. XIH. S. 5^ 
 
 liberty (a) on filing an affidavit shortly describing the instrwnent 
 creating the trust, according to the best of their knowledge and 
 belief (6), to pay the same with the privity of the Aecountant- 
 General. of the High Court of Chancery into the Bank of 
 Engla,rid (c), to the account of such Accountant-General in the 
 matter of the particular trust (d), (describing the same by the 
 
 under the power of sale, and pay the 
 money into Court under the Trustee 
 Eelief Act, Cox v. Cox, 1 Kay & 
 Johns. 251. 
 
 A sum of money was payable by 
 instalments, and the trustee, after 
 receiving one instalment, paid it 
 into court, and on a petition by the 
 cestui que tritst, the Court not only 
 administered the instalment paid in, 
 but also gave directions to the trustee 
 as to the future instalments; and said 
 the order would give ample indemnity 
 to .the trustee ; He Wright's Settle- 
 ment, 1 Sm. & Gif. App. V. The 
 Court had, in fact, no jurisdiction as 
 to the instalments payable in future, 
 and the order would be an . indem- 
 nity in this sense only, that the 
 trustee would be acting in a way 
 which had received the sanction of 
 the Court, though extra-judicially. 
 
 Where money in which a lunatic is 
 interested has been paid into court, 
 the Lord Chancellor has jurisdiction 
 under the act to order repayment to 
 the guardians of the part of the ex- 
 penses incurred by them for the 
 support of the lunatic ; Re UpfuU's 
 Trust, 3 Mao. & Gor. 281. 
 
 (o) Liberty only is given to trus- 
 tees to transfer the fimd into court, 
 and bUls or claims for the adminis- 
 tration of the trust may be filed by 
 or against trustees, or cestuis que 
 trust as before, at any time previous 
 to the transfer into court ; Thorp v. 
 Thorp, 1 Kay & Johns. 438. 
 
 When the fund has been actually 
 transferred into court under the 
 Trustee Relief Act, the Court's ju- 
 risdiction attaches, and any proceed- 
 ing must be taken under the Act, 
 
 and no bill or claim can be filed 
 with reference to the fund trans- 
 ferred, though, as to any portion 
 deducted for costs, or other part 
 retained by the trustees, or for 
 which they are accountable, the or- 
 dinary remedies are preserved to the 
 cestuis que trust; Ooode v. West, 9 
 Hare, 378 ; Attorney- General v. 
 Alford, 2 Sm. &. Gif. 488. 
 
 (6) The afB.davit must not go into 
 the whole history of the trust, so as 
 to show upon the accounts how the 
 particular sum arose, or the trustee 
 wiU be deprived of his costs ; In re 
 Waring, 16 Jur. 652. AH the trus- 
 tees should properly join in the af- 
 fidavit, as all may have some infor- 
 mation to contribute, but under par- 
 ticular circumstances the Court wiU 
 order the Accountant-General to re- 
 ceive the money on the affidavit of 
 one of several co-trustees ; — '— v. 
 , V. C. Wood, 1 Jur. N. S. 974. 
 
 (c) The payment may of course be 
 made without an order of the Court ; 
 In re Biggs, 11 Beav. 27. And when 
 an executor, after paying money into 
 court, discovered debts of the testator, 
 he was allowed to have the money 
 paid back to him out of court, on his 
 undertaking to apply it properly. 
 Re Tournay, 3 De Gex & Sm. 677. 
 
 {d) The money must not be paid 
 in by an executor to an account, 
 "the trusts of the testator's wiU," 
 for this implies not a particular 
 trust, but a general administration 
 of the testator's estate. The executor 
 must take on himself the responsi- 
 bility of severing the fund from the 
 testator's assets, and appropriating 
 it to the particular purpose, and then 
 
CH. Xm. B. 5.J DISTRIBUTION OF THE TRUST FUND. 377 
 
 names of the parties as accurately as may be for the purpose of 
 distinguishing it), in trust to attend the orders of the Court, and 
 that all trustees or other persons having any annuities or stocks 
 standing in their names {a) in the books of the Governor and 
 Company of the Bank of England, of the East India Company, 
 or South Sea Company, or any Government or Parliamentary 
 securities standing in their names, or in the names of any 
 deceased persons of whom they shall be personal representa- 
 tives, upon any trust whatever, or the major part of them shall 
 be at liberty to transfer or deposit such stocks or secui-ities 
 into or in the name of the said Accountant- General, with his 
 privity in the matter of the particular trust (describing the 
 same as aforesaid), in trust to attend the orders of the said 
 Court (b), and in every such case the receipt of one of the 
 cashiers of the said Bank for the money so paid, or in 
 the case of stocks or securities the certificate of the proper 
 officer of the transfer or deposit of. such stocks or securities, 
 shall be a sufficient discharge to such trustees or other per- 
 sons for the money so paid, or the stocks or securities so 
 transferred or deposited (c). 
 
 II. That such orders as shall seem fit shall from time to time 
 be made by the High Court of Chancery in respect of the trust 
 monies, stocks, or securities, so paid in, transferred, and depo- 
 sited as aforesaid ; and for the investment and payment of any 
 
 pay it in to the limited account. If into court under the act ; In re Parry y 
 
 it has already been paid in to an 6 Hare, 306. 
 
 account too general for the Court to (6) Where the Court ia not satis- 
 deal with, it may, on a separate ap- fled as to the facts by affidavit, it 
 plication, be carried over to the right will, before making an order, direct 
 account, and the Court will then an inquiry; Re Wood's Trust, 15 
 proceed to adjudicate upon the rights Sim. 469 ; and see Re Sharpens Trust, 
 of the parties; Me Joseph's Will, 11 15 Sim. 470. 
 
 Beav. 625 ; Re Everett, 12 Beav. (c) The payment into court is a 
 
 485 ; Me Wright's Will, 16 Beav. discharge only as to the money paid 
 
 367. As to the proper heading in, and leaves the trustee liable to a 
 
 of the account, see further In 're suit in respect of the costs deducted 
 
 Jervoise, 12 Beav. 209 ; Me Till- by him, or any other monies that 
 
 stone's Trust, 9 Hare, Append, lis. ; might be recovered upon the footing 
 
 and see Appach on the Acts, p. 44. of the trust ; see Goode v. West, 9 
 
 (o) Where stock is standing in the Hare, 378; Attorney- General y. 
 
 names of deceased and surviving ^ZforeZ, 2 Sm. & Gif. 488 ; Thorp y. 
 
 trustees, the survivor may transfer Thorp, 1 Kay & Johns. 438. 
 
378 
 
 DISTRIBUTION OF THE TRUST FUND. [CH. XIH. S. 5; 
 
 such monies, or of any dividends or interest on any sucli stocks 
 or securities, and for the transfer and delivery out of any such 
 stocks and securities, and for the administration of any such 
 trusts generally, upon a petition (a) to be presented in a 
 summary way to the Lord Chancellor or the Master of the 
 Eolls without bill by such party or parties as to the Court 
 shall appear to be competent and necessary in that behalf, 
 and service of such petition shall be made upon such person 
 or persons as the Court shall see fit and direct; and every 
 order made upon any such petition shall have the same 
 authority and effect, and shall be enforced, and subject to 
 rehearing and appeal, in the same manner as if the same had 
 been made in a suit regularly instituted in the Court ; and if 
 it shall appear that any such trust funds cannot be safely 
 distributed without the institution of one or more suit or suits 
 the Lord Chancellor or Master of the Eolls may direct any 
 such suit or suits to be instituted (6). 
 
 (o) The application must he made 
 by petition, and cannot be made 
 upon motion ; In re Masselin's Will, 
 15 Jur. 1073 ; or upon a summons at 
 chambers. But when an order has 
 been once made upon a petition in 
 compliance with the act, so as to 
 found the jurisdiction, any further 
 proceeding may be at chambers ; 
 Re Hodges, 4 De Gex, Mac. & Gor. 
 491. 
 
 The trustees themselves are com- 
 petent to present the petition, but 
 they are not the proper persons, 
 ftnd the Court will not allow them 
 more than respondents' costs ; Re 
 Pazneau's Legacy, 2 Eay & J. 249. 
 
 It was once held that where the 
 fund had been transferred into court, 
 there was still no such suit or matter 
 actually pending as to dispense with 
 the consent of the Charity Commis- 
 sioners to an application on behalf of 
 a charity ; ReMarkwelVs Legacy, 17 
 Beav. 618. But afterwards it was 
 ruled by the Court of Appeal that 
 in such a ease there was a matter 
 pending within the meaning of the 
 
 Charitable Trusts Act, 1853; Re 
 Lister's Hospital, 6 De Gr. M. & G. 
 184. 
 
 The petition should set out the 
 material statements of the affidavit 
 under which the money is paid in, 
 as the affidavit is regarded. as a 
 declaration of the trust to which 
 the attention of the Court is to be 
 called ; Re Levett's Trust, 5 De Gex 
 & Sm. 619 ; Re Flack's Settlement, 
 10 Hare, Append, xxx. But the 
 petition must not set out the affi- 
 davit in extenso, or at a needless 
 length ; Re Courtois, 17 Jur. 852, 
 10 Hare, Append, lxiv. 
 
 A claimant may proceed in formA 
 pauperis under the act ; Re Money, 
 13 Beav. 109. 
 
 (i) The Court under this act has 
 ample jurisdiction as upon a bill 
 filed, and may therefore declare the 
 validity or invalidity of a deed, with- 
 out directing a suit, if the Court ia 
 the exercise of its discretion do not 
 think a suit necessary; Lewis v. 
 Hillman, 3 H. L. C. 607. Where 
 trustees of a marriage settlement 
 
CH. XIII. S. 5.] DISTRIBUTION OP THE TEUST FUND. 379 
 
 The following general orders relative to this act have since, General orders. 
 in pursuance of the power given by the act, heen issued by 
 the Court. 
 
 1. Any trustee desiring to pay money or transfer stock or 
 securities into the name of the Accountant-General of the 
 -Court of Chancery under the said act, is to file an affidavit 
 entitled in the matter of the act and of the trust, and setting 
 forth — 
 
 1. His own name and address. 
 
 2. The place where he is to be served with any petition 
 
 or any notice of any proceeding or order of the 
 Court relating to the trust fund. 
 
 3. The amount of stock, securities, or money which he 
 
 proposes to deposit, or to transfer, or to pay into 
 Court to the credit of the trust. 
 
 4. A short description of the trust, and of the instrument 
 
 creating it. 
 6. The names of the parties interested in or entitled to 
 
 the fund, to the best of the knowledge and belief of 
 
 the trustee. 
 6. The submission of the trustee to answer all such 
 
 inquiries relating to the application of the stocks, 
 ' securities, or money transferred, deposited, or paid in, 
 
 under the act, as the Court may think proper to make 
 
 or direct. 
 
 2. The Accountant-General, on production of an office 
 
 had transferred the fund into court, might be necessary ; but that other- 
 
 and a petition was presented by a wise the Court had jurisdiction as in 
 
 person claiming adversely to the a suit, and might direct an issue to 
 
 settlement, Vice-Chancellor Wood try a question of sanity or the like ; 
 
 disposed of the case upon the peti- Re Allen's Will, Kay's Rep. App. 
 
 tion, no party having objected ; but xi. ; and see In re Bloye's Trust, 2 
 
 before the Lords Justices, the re- Hall & Tw. 140 ; 1 Mac. & Gror. 488 ; 
 
 spondent not consenting, the peti- Ex parte Stutely, 1 De Gex & Sm. 
 
 tion was ordered to stand over that 703. 
 
 a bill might be filed ; Me Fozard's The Court directs a suit for its 
 Trust, 1 Kay & Johns. 233, 24 Law own satisfaction only, and wUl not 
 Jpur. 441, Ch, In another previous authorise the petitioner to file a bill 
 case, Vice-Chancellor Wood had also because it may be the more con- 
 disposed of the matter on petition, venient course for making out his 
 and said that if there were creditors title ; JRe Harris's Trust, 18 Jur. 
 or other unascertained claims, a suit 721. 
 
380 
 
 DISTRIBUTION OF THE TEUST FUND. [OH. XUI. S. 5. 
 
 copy of the aflSdavit, is to give the necessary direction's for 
 transfer, deposit, or pajmient, and to place the stock, securities, 
 or money, to the account of the particular trust,, and such 
 transfer, deposit, or payment is to be certified in the usual 
 manner. 
 
 3. The trustee having made the payment, transfer, or deposit, 
 is forthwith to give notice thereof to the several persons named 
 in his affidavit as interested in or entitled to the fund. 
 
 4. Such persons or any of them, or the trustee, may apply 
 by petition, as occasion may require, respecting the investment, 
 payment out, or distribution of the fund, or of the dividends 
 or interest thereof. 
 
 5. The trustee is to be served with notice of any apphcation 
 made to the Court respecting the fund, or the dividends or 
 interest thereof, by any party interested therein or entitled 
 "thereto {a)'. 
 
 (o) If the trustee try to avoid, 
 service, the Court, on being satis- 
 fied of the fact, will make the 
 order without service ; Hx parte 
 ^ougham, 16 Jur. 325. 
 
 The trustee who is served with the 
 petition is prima, facie entitled to his 
 costs ; lie JErskine's Trust, 1 Kay & 
 Johns. 302 ; Croydon's Trust, 14 Jur. 
 54. But where the trustee has paid 
 in the fund ahusimh/, as in order to 
 evade a bill about to be filed against 
 him, he vrill have no costs ; lie Wa- 
 ring, 16 Jur. 652 ; and see lie Fagg's 
 Trust, 19 L. J". 175. And where he 
 has transferred the fund into court 
 without sufficient reason, though he 
 may be allowed the costs of the trans- 
 fer, he will not be allowed the costs 
 of appearing on the petition ; In re 
 Covington, \ Jur. N. S. 1157; Ex 
 parte Hemming, 2 Jur. N.S. 1186 ; 
 and see CroyderHs Trust, 14 Jur. 54. 
 
 If the person who pays in is the 
 personal representative of a testator 
 whose will creates the difficulty, the 
 executor must take his costs of pay- 
 ing ia the fund out of the testator's 
 estate, but the subsequent costs 
 come out of the fund ; He Caw- 
 
 thorne, 12 Beav. 56. SecHs, however, 
 if the trust fund has been- severed 
 from the testator's estate, and is 
 paid in by a trustee and not by the 
 executor; iJe Larimer, 12 Beav. 
 521 : Ex parte Lucas, V. C. Bruce, 
 6 July, 1849. And the Court cannot 
 direct the costs to be paid out of 
 another fund also paid in by the 
 trustee, but standing to a different 
 account, though it may form part of 
 the testator's residuary estate, and 
 therefore be, per se, liable to costs ; 
 lie Sodgson, 18 Jur. 786; and of 
 course not out of the! testator's resi- 
 duary estate, where it has not been 
 paid in ; B,e Bartholomew's Trust, 
 13 Jur. 380 ; and see lie Sharpens 
 Trusts, 15 Sim. 470 ; lie Feltham's 
 Trusts, 1 Eay & Johns. 534 ; though 
 where five-sixteenths of a fund paid 
 into court had lapsed, the Court 
 threw the whole costs on the lapsed 
 shares as constituting part of the 
 residue ; Sam's Trust, 2 Sim. N.S. 
 106. And if a trustee deduct his 
 costs before paying in the fand, the 
 Court has no jurisdiction as to the 
 sum deducted ; In re Bloye's Trust, 
 1 Mac. & Gor. 504 ; 2 HaU & Tw. 
 
« C,H. Xni. S.,5.] DISTRIBUTION OF THE TEUST FUND. 381- 
 
 6. The parties interested in or entitled to the fund, are to 
 be served with notice of any application made to the Court 
 by the trustees respecting the fund in Court, or the interest 
 or dividends thereof {a). 
 
 7. No petition is to be set down to be heard, until the 
 petitioner has first named a. place where he may be served 
 with any petition or notice of any proceeding or order of the 
 Court relating to the trust fund. 
 
 8. Petitions presented and affidavits filed under the said lo & il Vict. 
 
 0. 96. 
 act, are to be intitled in the matter of the said act (10 & 11 
 
 Vict. c. 96) and in the matter of the particular trust. 
 
 The 10 and 11 Vict. c. 96, did not enable the major part of 
 trustees to pay in or transfer a fund where the other trustees 
 had a legal control over the fund and would not concur. 
 Accordingly, by 13 and 13 Vict. c. 74, it was enacted, that 
 where monies, annuities, stocks, or securities were vested in 
 persons as trustees, executors, administrators, or otherwise, 
 and the major part of them were desirous of transferring the 
 funds into court, under the Trustees' Eelief Act, the Court 
 on a petition presented under the said act for that purpose, 
 might direct the transfer by the major part, without the con- 
 currence of the rest, and might make an order on the necessary 
 parties to permit such a transfer. 
 
 By an order of 7th May, 1852, it was directed, that where General order, 
 the affidavit on which the money is paid in did not state it 
 to be unnecessary to invest the money, the Accountant- General 
 should invest it in Three per cent. Bank Annuities. 
 
 153. Whether on a petition, by trary view, Ex parte Fletcher, 12 
 
 tenant for life for payment of the Jut. 619; 17 L, J. 169; and -Er 
 
 dividends, the costs come out of the parte Peart, 12 Jur. 620 ; 17 L. J. 
 
 corpus or out of the income is 168, V. C. Knight Bruce ; JRe Lori- 
 
 a point on which the practice in mer, 12 Beav. 521, Lord Langdale ; 
 
 the courts of different judges has Bangley's Trust, 16 Jur. 682, and 
 
 much varied. In favour of pay- Re Ingram, 18 Jur. 811, V. C. Kin- 
 
 ment out of corpus, the following dersley. 
 
 cases may be cited : Re Ross, 1 Sim. (o) If a person not appearing by the 
 
 N. S. 196, V. C. Cranworth ; Re affidavit to have an interest, but who 
 
 Field's Trusts, 16 Beav. 146, M. E. made a claim, be served with the 
 
 Sir J. Romilly ; Re Staple's Trust, petition, and disclaim at the bar, he 
 
 13 Jur. 273, Y. C. E. ; Re Butler's will not be allowed his costs ; Re 
 
 Trust, 16 Jur. 32, M. E. Sir J. Eo- Parry's Trust, 12 Jur. 615. 
 mUly ; and in support of the con- 
 
382 DISTRIBUTION OF THE TEUST FUND. [CH. XHl. S. 5. « 
 
 18 & 19 viot. By 18 and 19 Vict. c. 134, s. 23, any trustee or other person 
 
 having stock or money in his hands for a charity inay, by 
 an order of the board of Charity Commissioners, transfer the 
 stock or pay the money to the official trustees of charitable 
 funds, and such payment or transfer will be an indemnity to 
 the person paying or transferring. 
 
CHAPTER XIV. 
 
 THE DUTIES OF TRUSTEES OF RENEWABLE LEASEHOLDS. 
 
 Upon this head we shall first examine the preliminary 
 question, in what cases the obligation to renew is imposed 
 by the settlement. We shall then proceed to inquire in what 
 manner the trustees are to levy the fines payable upon the 
 renewals. 
 
 I. In what cases the obligation to renew is imposed by the 
 settlement. 
 
 It might naturally be considered, that, from the very circum- Settlement of 
 stance of the leaseholds being of a renewable character, a ^1,°^ se ii^piy 
 settlement of them to several persons in succession would per * iiirection to 
 
 renew. 
 
 se imply a right in the remainderman to call upon the tenant 
 for life to contribute to the fine (a); and indeed Lord Thurlow, 
 in the instance of a lease which had not previously been treated 
 as renewable, observed, " The cases in which the natwre of the 
 estate or the will of the testator compels a renewal, appear not 
 to apply to the present : where there is no such custom, or 
 direction, it is in the discretion of the tenant for life to 
 renew or not " (&). However, it seems to be now established 
 generally, that, in a devise of renewable leaseholds without the 
 interposition of a trustee, the remainderman cannot oblige the 
 tenant for life to contribute to the fine (c). And so it was 
 determined even where the devise was expressly made, " sub- 
 ject to the payment of all fines, and as they became due yearly 
 
 (o) See White v. White, 4 Ves. per Lord Alvanley ; S. C. 9 Ves. 
 
 32. 561, per Lord Eldon; Stone v. 
 
 (6) Nightingale v. Lawson, 1 B. Theed, 2 B. C. C. 248, per Lord 
 
 C.C. 443. • Thurlow.. 
 
 (c) White V. White, 4 Ves. 32, 
 
384 RENEWAL OF LEASES. [CH. XIV. 
 
 and for every year " (a). But as the interest given is in its 
 nature capable of renewal, tlie Court says, " If the tenant for 
 life do renew, he shall not by converting the new acquisition 
 to his own use derive an unconscientious benefit out of the 
 estate " (b), but, on the remainderman's contributing to the 
 fine, shall be regarded as a trustee, and shall hold the renewed 
 interest upon the trusts of the settlement (c). 
 Whether a direc- Next, will the interposition of a trustee sufficiently indicate 
 
 tion to renew be . . 
 
 implied by the an mtention of obliging the tenant for life to renew ? " In a 
 truster^ '™ ° * devise to trustees," said Lord Hardwicke, " if cestui que trust 
 for life be one of the lives, I should doubt whether such cestui 
 que trust could be compellable to contribute ; but here all these 
 lives were strangers ; the intent of the testator certainly was, 
 that the lease should continue, and he kept on foot, and some" 
 thing must he done for a renewal, though nothing is mentioned," 
 {d). Lord Alvanley on one occasion alluded to the point, but 
 said he was not called upon to decide it (e). In a late case 
 where the devise was to trustees upon -trust to permit one to 
 receive the rents for life, with remainders over, " subject to the 
 payment of the rents and performance of the covenants reserved 
 and contained, or to he reserved and contained, in the present 
 or future leases, whereby such premises were or should he held, 
 and also all taxes, fines, and expenses attending the premises," 
 it was held that the obligation of renewing the lease was imposed 
 by the will (/). In Lock v. Lock {g) a testator had devised a 
 coUege lease of twenty-one years to his wife for life, remainder 
 to her son, she paying 101. per annum to the son during her 
 life ; and it was held, that, as the testator contemplated the 
 continuance of the lease during the life of the wife, she was 
 bound to renew. It has now been decided by Lord Plunkett, 
 in Ireland, that a settlement with the mere interposition of a 
 trustee does not impose an obligation to renew (h). 
 
 {a) Capel v. Wood, i Rubs. 500, {d) Verney v. Verney, 1 Ves. 429. 
 
 [b) Stone V. Theed, 2 B. C. C. 248, (c) White v. White, 4 Tes. 33. 
 per Lord Thurlow. (/) Sulkes v. Barrow, Taml. 264. 
 
 (c) Nightingale v. Lawson, 1 B. (g) 2 Vern. 666. 
 
 C. C. 440; Stone V. Theed, 2 B. C. (A) O'Ferrallv. 0' Ferratt, Lloyi 
 
 0. 248, per Lord Thurlow ; Cojjpin & Goold, Eep. temp. Plunket, 79. 
 
 V. Fernyhough, 2 B. C. C. 291 ; In Trench v. St. Oeorge, 1 Dru. & 
 
 Fitzroy v. Howard, 3 Russ. 225. "Walsh, 417, before the same Judge, it 
 
CH. XrV.] EENEWAL OF LEASES. 385 
 
 Where leaseliolds of this kind are made the subject of a Wiether implied 
 marriage settlement, it raay be argued, that, as all the parties ^ttlementf^^ 
 who have any interest given them are purchasers, the enjoy- 
 ment of the tenant for life should be consistent with that of 
 the other subsequent takers. 
 
 In Lawrence v. Maggs (a), the case of a marriage settlement 
 with trustees interposed, but without any mention of renewals. 
 Lord Northington said, " The husband renewed twice ; first, 
 when he put in his own life, which was of no benefit to those 
 in the settlement who were to take in remainder after his death. 
 He renewed a second time, and put in his wife's life, and this he 
 does voluntarily and without there being any direction for it in 
 the settlement. The renewing the lease with any other life than 
 that of the tenant for life is for the benefit of the remainder- 
 man, and he is to be deemed a creditor, keeping down the 
 interest during his enjoyment." The plain implication from 
 which remark is, that in his Lordship's opinion the tenant for 
 life was considered not bound to renew. 
 
 There appears to be no other authority upon the subject but 
 
 what may be collected from Sir W. Grant's observations in 
 
 Lord Montfort v. Lord Cadogan. " The proposition," he said, 
 
 " that under the marriage settlement it was the duty of the 
 
 trustees to renew does not admit a question. The lease being 
 
 made the subject of a settlement, it was clearly meant that it 
 
 should be kept on foot by renewals. The trustees were to apply 
 
 so much of the rents and profits as would be necessary for that 
 
 purpose. They are not in so many words directed to renew, 
 
 but the means being given, and the purpose expressed, there 
 
 is no doubt that they were to apply those means to that 
 
 purpose " (6). 
 
 But, if renewable leaseholds be articled to be settled on the implied in arti- 
 cles for a settle- 
 ment. 
 
 is not clear whether his Lordship which the remainderman suhmitted 
 
 ^d or not consider the wUl as to contribute. See pp. 454 — 456. 
 
 creating an obligation to renew, but {a) 1 Ed. 453. Search has been 
 
 it would rather appear that he did. made for this case in the E. L. 
 
 The remainderman was held not through several years, but the decree 
 
 liable to contribute towards the re- has not been found. 
 
 newal fines in favour of the tenant (6) 17 Ves. 488 ; and see S. C. 
 
 for life, except as respected certain 19 Ves. 638 ; and see Trench v. St. 
 
 fines paid subsequently to 1819, as to George, 1 Dru. & Walsh, 417. 
 
386 
 
 RENEWAL OF LEASES. 
 
 LCH. XIV. 
 
 Of discretionary 
 renewals. 
 
 husband for life, remainder to the wife for life, remainder to 
 the children, the Court will, in executing the settlement, insert 
 the proper directions for renewals. This, it seems, was directly- 
 determined in Graham v. Lord Londonderry (a) ; and the case 
 of Lawrence v. Maggs, before Lord Northington, was cited in 
 Pickering v. Vowles, before Lord Thurlow (&), as establishing 
 the same doctrine ; but it appears by -the report taken from 
 Lord Northington's own MS. that the bar were mistaken in 
 this (c). However, Lord Thurlow himseK seems to have 
 entertained that opinion, for, in Pickering v. Vowles, where 
 the property was articled to be settled, but there were no 
 directions for renewals, his Lordship said, " It was intended 
 the lease should be fully estated, and that the husband and 
 wife should have life estates, and that so fully estated it should 
 go to the children." 
 
 A direction for renewals is sometimes in the form of a 
 discretionary power. The instrument may, indeed, be so 
 specially worded, that the power should be perfectly arbitrary ; 
 but, if the proviso be simply that " it shall be lawful for the 
 trustees to renew, from time to time, as occasion may require, 
 and as they may think proper," the clause will be construed, not 
 as conferring an option upon the trustees of renewing or not, 
 but as a safeguard against any unreasonable demands on the 
 part of the lessor (d). 
 
 How fines on 
 renewals to be 
 levied. 
 
 How to be levied 
 out of "rents, 
 issues, and 
 profits," where 
 the leases are 
 for years. 
 
 II. We next proceed to inquire in what manner the fines 
 for renewals are to be levied by the trustees. 
 
 Upon this subject we shall Jirst advert to the cases where the 
 settlor himself has specifically marked out the fund from which 
 the fines are to be raised, and, secondly, we shall examine the 
 rules adopted by the Court, where the settlor himself has 
 omitted to declare any intention. 
 
 First, If there be an express trust to provide the fines for 
 renewals out of the " rents, issues, and profits," and the lease' 
 
 (a) Cited Stone v. Theed, 2 B. C. 
 C. 246. 
 
 (6) 1 B. C. C. 197. The cause 
 does not appear in R. L. 
 
 (c) 1 Ed. 453. 
 
 ((/) Milsington v, Mulgrave, 3 Mad. 
 491, 5 Mad. 472 ; Mortimer v. 
 Watts, 14 Beav. 616; and see Ver- 
 ney v. Verney, 1 Ves. 430; Harvey 
 v. Harvey, 5 Beav. 134. 
 
CH. XIV.] RENEWAL OF LEASES. 387 
 
 holds are terms of years not determinable on lives, so that the 
 times of renewal can be certainly ascertained, it will be the 
 duty of the trustees to lay by every year such a proportion of 
 the annual income as against the period of renewal will consti- 
 tute a fund sufficient for the purpose (a). 
 
 If the trust be to levy the fines for renewal out of the "rents, Fines to be levied 
 
 , 0-a.t oi rents and 
 
 issues, and profits, or by mortgage, it was held m a case before profits, or by 
 Sir J. Leach (&) that the annual rents only would in the first ™'""*«"'^«- 
 instance be applicable, for he considered the authority to 
 mortgage not as making it optional with the trustees whether 
 they should or not affect the interests of the remainderman, 
 by throwing the charge of the renewal upon the corpus of the 
 property, but as given for the protection of the cestuis que trust 
 in case the amount of the fine should not be otherwise forth- 
 coming (&), and intimated that should the trustees be under 
 the necessity of mortgaging, the Court would call back from 
 the party in possession the amount of the incumbrance 
 thus temporarily" incurred (c). However, in the later case 
 of Jones V. Jones (e), where the trustees were empowered 
 to levy the fines " by and out of the rents, issues, and profits, 
 or by mortgage, or by such other ways and means as 
 should be advisable," the Court, after observing that to levy 
 the fines from the rents would throw them on the tenant for 
 life, while a mortgage would be oppressive to the remainder- 
 man, declined to give any opinion whether the trustees might 
 not, in the exercise of their discretion, have determined on 
 whom the burden should fall; but as the trustees had not 
 exercised their discretion, it was open to the Court to adjust 
 the oniCs amongst the parties according to the equitable 
 rule, viz. in proportion to their actual enjoyment, as soon as 
 it could be ascertained (/). And in Greenwood v. Evans {g), 
 and Reeves v. Creswick {h), the fines were to be raised out of 
 
 (a) Lwd Montfort v. Lord Ca- and see Shaftesbury v. Marlborough, 
 
 dogan, 17 Vea. 485; S. C. 19 Yes. 2 M. & K. 121, 123. 
 635 ; see Earl of Shaftesbwy v. («) 5 Hare, 440. 
 
 Duke of Marlborough, 2 M. & K. 121. (/) Jones v. Jones, 5 Hare, 440. 
 
 (J) Milsintown v. Earl of Port- (g) 4 Beav. 44. 
 
 more, 5 Mad. 471 ; Milles v. Milles, [h) 3 Y. & C. 715, as corrected 
 
 6 Yes. 761. from Eeg. Lib. ; see^osi, p. 393. 
 
 (c) 5 Mad. 472, per Sir J. Leach ; 
 
888 EENEWAL OF LEASES. [CH. XIV. 
 
 the rents, issues, and profits, or by mortgage, and the' Court 
 adopted the principle of throwing the onus on |,the successive 
 tenants of the estate, in proportion to their actual or pro- 
 spective enjoyment. The leaseholds were for lives, but no 
 distinction was taken on that account. The present leaning 
 of the Courts would appear, therefore, to be, to consider the 
 language of the iustrument, as directing only the temporary 
 mode of raising the fines, without prejudice to the ultimate 
 equitable adjustment, according to the principles now acted 
 upon in equity in ordiaary cases. 
 How to be levied jf the trust be to raise the fines for renewal out of the 
 
 when the leases 
 
 are for lives. " rents, issues, and profits," and the leaseholds are either for 
 lives or for years determinable on lives, the expenses of renewal 
 must still be cast upon the annual rents, if it clearly appear 
 that such were meant, though, from the uncertainty of the time, 
 the trustees cannot be sure they shall have accumulated an 
 adequate fund. 
 
 Whether rents But the expression " rents, issues, and profits " often stands 
 
 annual rents. ^J itself, without any sufficient indication aliunde that annual 
 rents were intended, and then the question arises, and is 
 attended with great difficulty, whether the fines shall be raised 
 out of the annual rents or the corpus. 
 
 Stone V. Theed. In Stone V. Theed (a), where was a gift to trustees of 
 freeholds and leaseholds and personal estate upon trust (subject 
 to annuities) for a person for life, with remainders over, and the 
 testator " directed that his trustees should from time to time 
 renew the lease and add new lives, if they could obtain such 
 lease, and empowered his said trustees to place out at interest 
 the overplus of the rents of his real and leasehold estates ia 
 Government or real securities," Lord Thurlow held that the 
 annual rents only were to be so applied, observing, " He must 
 consider the thing bequeathed to be the subsisting lease, 
 subject to renewal. Suppose it were the case of an estate to 
 which an embankment was necessary ; there could be no doubt 
 it was a clear indication of intention that the first trust was to 
 keep the estate productive by embankment or other buildings, 
 
 (o) 2 B. C. C. 243 ; see the case remarks in Jones v. Jones, 5 Hare, 
 stated from Eeg. Lib., with some 451, note (a). 
 
CH. XIV.] RENEWAL OF LEASES. 389 
 
 or, in the present case, by a very strict analogy, by keeping 
 the leases renewed. It was objected, 'Could the testator be 
 understood to make a provision which might exhaust the estate 
 of the first taker? ' But the expressions were as strong as if 
 he had said expressly he meant the lease to be kept up, and 
 he must be understood to sacrifice the intent of a provision for 
 the first taker to the original intent of keeping up the estate." 
 In this case it will be observed that from the direction to 
 accumulate the overplus of the rents, it appeared the tes- 
 tator meant the annual rents only to be applicable to the 
 renewals. 
 
 In Allan Y. Backhouse (a) a testator devised leaseholds and Allan «. 
 freeholds to trustees, and directed the fines to be levied " out 
 of the rents and profits of the leaseholds, or out of the rents 
 and profits of the freeholds." There was nothing in the will 
 from which it could be collected that annual rents and profits 
 Only were meant, and Sir T. Plumer considered that, as a gross 
 sum might at any moment be demanded by the lessor, who was 
 not bound to wait, the trustees, by the expression " rents and 
 profits," were not confined to the annual rents, but were 
 authorised to sell and mortgage ; and that the tenant for life 
 and the remainderman should afterwards' contribute to the 
 fine in the usual proportions. An appeal was presented to 
 Lord Eldon, by whom the decree was affirmed (6). 
 
 In Shaftesbury v. Marlborough (c), where there was a devise Shaftestury v. 
 of renewable leaseholds to trustees upon trust to raise the ^^ °™"^ ' 
 fines out of the rents, issue, and profits, and subject thereto 
 upon the same trusts as the testator's freeholds. Sir J. Leach 
 observed upon the discrepancy between Stone v. Theed, and 
 Allan V. Backhouse {d), and, so far as the two cases were appli- 
 cable to the question before him, followed the authority of the 
 former. " The first trust," he said, " is, that the trustees by 
 and out of the rents and profits shall from time to time renew 
 the several leases as occasion may require : the trust as to the 
 renewals over-rides all beneficial interest in the lease, and 
 such interest cannot take effect until this trust be performed." 
 
 (o) 2 V. & B. 65. (c) 2 M. & K. HI. 
 
 (6) Jac. 631. {d) 2 M. & K. 121. 
 
390 
 
 RENEWAL OF LEASES. 
 
 [CH. XIV. 
 
 Playters v. Playters V. Abbott (a) was a special case. A testator devised 
 
 copyholds upon trust "out of the rents and profits, or by 
 mortgage, sale, or other disposition" of the trust-estate, to 
 raise the fines of admission to the copyholds, make repairs, 
 pay the land-tax and quit-rents, &c., and Sir J. Leach (con- 
 sidering the fine on admission to copyholds to stand on the 
 same footing with fines on renewal of leases), determined, that 
 as no rents could have accrued before the fines were demand- 
 able, viz. immediately on the testator's death, the meaning was 
 referenda singula singulis, that the trustees should raise the 
 fines by mortgage or sale, and should keep down the annual 
 expenses as repairs, land-tax, and quit-rents out of the annual 
 rents : that the tenant for life was only called upon to keep 
 down the interest on the mortgage for raising the fines and 
 not to contribute to the principal, for the trustees might 
 clearly have sold, and it was not to be supposed that they were 
 afterwards to impound the accruing rents from the tenant for 
 life in order to purchase other lands of equal value. 
 
 Townley J). Bond. In Townley V. Bond (&) there was a lease for lives at 4s. an 
 acre rent, with a covenant by the lessor for renewal, on 
 payment of an additional rent, by way of fine, and on the 
 marriage of the lessee, the lease was vested in trustees " upon 
 trust to pay and discharge the yearly rents reserved and 
 payable upon any renewal," and subject thereto, upon trust 
 for the husband for life, with remainders over, and the Court 
 apparently assumed that the fines were raisable out of the 
 annual rents (&). 
 
 In Cresivick v. Reeves (c), the trustees were empowered to 
 levy the fines from the rents, issues, and profits, or by mortgage, 
 and the Court apportioned the burthen amongst the successive 
 tenants, according to their prospective enjoyment. 
 
 In Greenwood v. Evans (d), the trustees were directed to 
 raise the fines out of the rents, issues, and profits, or by mort- 
 gage, and the Court decided that the successive tenants ought 
 to bear a proportionate part of the fine according to the benefit 
 derived by them respectively from the renewal of the lease. 
 
 Creswick v. 
 
 Greenwood v. 
 
 (a) Id. 97 ; and see Greenwood v. 
 Evans, 4 Beav. 44. 
 (6) 2 Conn. & Laws. 393. 
 
 (e) 3 T. & C. 715, corrected from 
 Reg. Book, post 393. 
 {d) 4 Beav. 44. 
 
CH. XIV.] EENEWAL OF LEASES; 391 
 
 In Jones v. Jones {a), the trustees were directed to raise the Jones v. Jones. 
 fines by and out of the rents, issues, and profits, or by mort- 
 gage, or by such other ways and means as should be advisable, 
 and the Court apportioned the burthen amongst the parties 
 according to the actual benefit derived by them. 
 
 It thus appears that where the direction is to raise the fines Result of the 
 out of the rents, issues, and profits, the Court may be com- 
 pelled, by the express language of the instrument, to throw the 
 fines upon the annual rents, but that where the trustees are 
 empowered to raise the fines out of the rents, issues, and 
 profits, or by mortgage, or otherwise, the discretion to be 
 exercised is held to apply only to the temporary means of 
 raising the fund, and the Court apportions the burthen accord- 
 ing to the general rule. 
 
 On a reference to the Master by Sir J. Leach, how a fund Of raising the 
 for payment of fines on the renewals of leaseholds for lives, insurance. 
 where the fines were to be paid from the rents, could best be 
 secured, the Master proposed in his report, that each of the 
 lives, upon which the leases were held, should be insured 
 against the life of the tenant for life in a sum sufficient to cover 
 the amount of the fine, the premiums upon the policies to be 
 paid out of the annual rents and profits (b). Upon this ar- 
 rangement we must remark, that the lives of the cestuis_ que vie 
 ought to have been insured unconditionally and not against 
 the life of the tenant for life, for the estate was continually 
 deteriorating as the lives wore out, and the remainderman 
 was entitled to have good lives or equivalent insurances. In 
 leaseholds for years, the remainderman has right to a pro- 
 portional accumulation towards the payment of the next fine, 
 and why is not the same principle to prevail in the case of 
 leaseholds for lives ? Subject to this observation, a more 
 convenient mode of raising the fines could not perhaps be 
 suggested, and a trustee under similar circumstances would 
 scarcely incur a risk in following the precedent of the Court. 
 
 Where freeholds and leaseholds for lives are limited to the Po^or to charg& 
 
 • • If 1 T /v. T !• • 1 freeholds for 
 
 same uses, it is usual, from the dif&culty of mortgaging lease- raising fines. 
 
 [a) 5 Hare, 440. of Marlborough 2 M. & K. 124 ; and 
 
 (6) Earl of Shaftesbury v. Duhe see Greenwoods. Evans, 4 Beav. 44. 
 
393 
 
 RENEWAL OF LEASES. 
 
 [CH. XIV. 
 
 Wlo shall have 
 the accumula- 
 tions where re- 
 newal cannot 
 he had. 
 
 Who must 
 compensate the 
 remainderman 
 where no 
 renewal has 
 been made. 
 
 Of fines of under- 
 
 holds vested in trustees (who will not covenant beyond their 
 own acts), to insert a power to charge the freeholds for raising 
 the fines ; and it would be well to provide that the freeholds 
 and leaseholds might be joined together in the security, and 
 that the loan should precede other charges, and that the 
 corpus of the property should be subject to the mortgage, so as 
 to shut out the question of apportionment between the 
 tenant for life and the remainderman. 
 
 If a portion of the annual rents and profits be destined by 
 the settlor to defray the expenses of renewals, then, should it 
 happen from the unwillingness or incapacity of the lessor that 
 no renewal can be obtained, the sums which would have been 
 raised, will not, it seems, merge for the benefit of the tenant 
 for life, but will belong to the person who would have been the 
 gainer by the renewal {a). 
 
 If a trustee (&), or tenant for life, in the situation of a 
 trustee (c), fail in his duty to apply the given fand, the re- 
 mainderman may call for a compensation from such trustee, 
 or tenant for life, or their assets. But when, by the permis- 
 sion of the trustee, the tenant for life has been in the full 
 enjoyment of the rents and profits without deduction for 
 renewals, though the trustee is primarily answerable to the 
 remainderman, yet the tenant for life, who has had the- actual 
 pernancy, must make it good to the trustee (d). 
 
 And where the leaseholds were annually renewable for 
 twenty-one years, and the custom had been for the lessee 
 annually to grant under-leases for twenty years, the tenant for 
 life, as bound to pay the fines to the lessor out of the annual 
 rents and profits, was declared entitled to the fines paid 
 annually by the under-lessees (e). 
 
 (o) See CoUgrave v. Manly, 6 
 Mad. 86, 87; 8. C, 2 Euss. 252 ; 
 Bennett v. Colley, 5 Sim. 181 ; 2 M. & 
 K. 231 ; \)wt&e6Richardson-^,\Moure, 
 and Tardiff-f. Sobinson, cited Cole- 
 grave V. Manby, 6 Mad. 82, 83. 
 
 (5) Lord Montfort v. Lord Ca- 
 dogan, 17 Ves. 485 ; 8. C, 19 Ves. 
 635 ; aad see Wadley v. Wadley, 2 
 Coll. 11. 
 
 (c) Cohgrave v. Manby, 6 Mad. 
 72 ; 8. a, 2 Russ. 238. 
 
 (d) Lord Montfort v. Lord Ca- 
 dogan, ubi supra ; Tuwnley v. Bond, 
 2 Conn. & Laws. 403, 406, per Sir 
 E. Sugden; and see Wadley v. 
 Wadley, 2 Coll. 11. 
 
 (e) Milles v. Milks, 6 Ves. 
 761. 
 
CH. XIV.] fiENEWAL OF LEASES. 393 
 
 Secondly. It often happens that renewable leaseholds are Ho-w fines to 
 devised to trustees with a direction, either expressed or implied, ^l direction by 
 to keep the leases continually renewed, but without any deck- *^ settlor. 
 ration of intention from what fund the settlor meant the 
 expenses should be levied. 
 
 Where this is the case, the tenant for life and remain- Where paid by 
 
 -, T T p c tenant for life or 
 
 aerman may possibly agree to contribute toward the fine out or remainderman. 
 
 their own pockets, at the time of the renewal ; or if the tenant 
 
 for life and remainderman cannot agree to join in raising the 
 
 fine, one of them may be willing to advance the whole amount 
 
 pro tempore out of his own pocket, and then an apportionment 
 
 on the principles adopted by the Court may be compelled 
 
 between the tenant for life's estate and the remainderman 
 
 at the tenant for life's decease, and either party advancing 
 
 the fine will have a lien on the renewed lease for the amount 
 
 expended beyond his proportional part. If tenant for life 
 
 and remainderman wiU neither jointly nor either of them 
 
 singly advance the fine, then it is said the trustees must 
 
 raise the expenses out of the estate by way of mortgage (a) ; 
 
 and at the tenant for life's decease the apportionment must 
 
 be made in like manner. However, a mortgage, where Mortgage by 
 
 neither the tenant for life nor remainderman wiU make the 
 
 advance, is more easily to be suggested than to be carried into 
 
 eifect, for few persons would be disposed to lend their money 
 
 on such a security, in the absence of any express power to 
 
 mortgage. 
 
 In such a case, therefore, it seems necessary to have recourse Application to 
 to the Court, Thus, in a recent case (6), where leaseholds for 
 
 (a) See Buoheridge v. Ingram, 2 consult tte Reg. Lib., has obligingly 
 
 Ves. jun. 666 ; Earl of Sha/teshury furnished me with the following ex- 
 
 v. Buhe of Marlborough, 2 M. & K. tract from the will: "It shall be 
 
 121 ; Allan v. Backhouse, 2 V. & B. lawful for my said trustees, and the 
 
 72. survivor of them, and the heirs, 
 
 (J) Reeves v. Creswich, 3 Y. & C. executors, administrators and assigns 
 
 715. It is stated in the report that respectively of such survivor, to re- 
 
 " there were no funds provided for new, or use their or his endeavours 
 
 the purpose of renewal by the tes- to renew, the leases for the time 
 
 tator's will ;" from which it might being of such part of my said estates 
 
 be supposed that the will was alto- as shall be aocustomably renewable 
 
 gether silent upon the subject, but from time to time and as often as 
 
 Mr. Shapter, who had occasion to occasion shall rec[uire, and for that 
 
394 EENEWAIi or liEABES-. [CH. XIV. 
 
 lives were devised to trustees upon trust for A. for life, with 
 remainder to her children, and a bill was filed by the trustees 
 for the purpose of having the expenses of renewal raised, the 
 following scheme, which had been approved by the Master, 
 was directed to be carried into effect. The period of enjoy- 
 ment of the property by the tenant for life under each of the 
 old leases, being the joint duration of her own life, and that 
 of the then surviving cestui que vie named in such lease, and 
 the period of her enjoyment of the property imder each cor- 
 responding renewed lease being in like manner the joint 
 duration of her life and those of the new cestms que vie, or 
 the longest liver of them ; the difference between the values 
 of the estates of these two periods gave the benefi^t derived by 
 the tenant for life from the renewals in question. The residue 
 of the increased value of the property necessarily expressed 
 the benefit derived from the renewals by the remainderman. 
 Calculations were accordingly made by the actuary of an 
 insurance office, upon the above principles, of the benefit 
 derived by the respective parties from the renewal of each 
 lease, and the fines and expenses of renewal being divided in 
 the proportions so ascertained, the total amount which there- 
 upon appeared to fall to the share of the tenant for Hfe, was 
 directed to be insured upon her own life for the purpose of 
 providing, upon her decease, for the payment of a correspond- 
 ing part of the principal of the mortgage debt to be raised 
 upon the property. The policy of insurance was ordered to be 
 assigned to the mortgagee, and directions were given for 
 paying the premiums on the policy, and for keeping down the 
 interest on the entire mortgage-debt out of the annual rents 
 and profits of the estates. The only observation that occurs 
 upon the propriety of this arrangement is, whether the tenant 
 for life ought to have been directed to keep down the interest 
 on the entire mortgage-debt out of the annual rents as between 
 
 purpose to make such surrenders of may be so renewed, or hy mortgage 
 
 the then leases, or any renewed thereof, to raise so much monies as 
 
 leases, as shall be requisite and ne- shall be sufficient for paying the se- 
 
 cessary in that behalf, and ly and vera! renewal fines and other neoes- 
 
 out of the rents, issues, and profits sary charges for such renewals." 
 of the premises, the leases whereof 
 
CH. XIV.] EENEWAL OF LEASES. 395 
 
 him and the remainderman, or only of that part of the prin- 
 cipal which fell to the share of the tenant for life. It will 
 he seen also from this statement, that the Court made an 
 apportionment according to the speculative benefit, a course 
 which the Court has since disclaimed, except for the pur- 
 pose of raising the fine in prcesenti, without prejudice to 
 the ultimate apportionment on the death of the tenant for 
 life, when the relative benefits derived can be ascertained. 
 It is possible, though it does not so appear from the report, 
 that the decree was without prejudice to an ultimate adjust- 
 ment. 
 
 We proceed to inquire upon what principles the apportion- 
 ment is regulated upon the tenant for Hfe's decease. 
 
 The old rule of contribution was, that the tenant for life Old rule of con- 
 should advance one-third, and the remainderman two- 
 thirds (a) ; but the question was put by Lord Thurlow, 
 " Is a tenant for life at the age of ninety-nine, whose title 
 accrued in possession when he was niaety-eight, to pay one- 
 third — a great deal more than any possible enjoyment ? 
 According to that rule, a man of the age of ninety-nine, who 
 has the enjoyment only of ten^ days, pays as much as a man 
 of twenty-five" (&). 
 
 It might possibly be thought reasonable that the proportion Court wUl not 
 of the expense to fall upon the tenant for life should be regu- t^e°cabiilationB. 
 lated by his actual age and probable duration of life ; but acci- 
 dent might render such a course unjust to the one party or 
 the other, as the tenant for life happened to live a longer or 
 shorter period than was allowed by the calculation (c), and the 
 Courts, it was observed by Lord Brougham, have made it a 
 maxim not to admit an estimate which the events may after- 
 wards falsify (cQ. 
 
 {a) Earl of Shaftesbury v. Buke Sprainger, Pr. Ch. 62 ; Cornish v. 
 
 of Marlborough, 2 M. & K. 118, per Mew, 1 Ch. Ca. 271. 
 
 SirJ. Leaoh; Lock ^. Lock, 2Vern, (J) See Wliite v. Wliite, 9 Tes. 
 
 666, K. L. 1710, B. fol. 120 ; Verney 555. 
 
 v. Verney, 1 Ves. 428 ; Linibroso v. (c) Earl of Shaftesbury v. Buhe 
 
 Franda, cited ib. ; OrahamY. Lord of Marlborough, 2 M. & K. 119, per 
 
 Londonderry, cited Stone v. Theed, Sir J. Leacli. 
 
 2 B. C. C. 246 ; and see Rowel v. (<^) Bennett v. ColUy, 2 M. & K. 
 
 Walley, 1 Ch. Eep. 218 ; Ballet v 234. 
 
396. 
 
 EENEWAL OP LEASES, 
 
 [CH. XIV.. 
 
 Eule of keep- 
 ing down the 
 interest on tlie 
 fine. 
 
 Present rule of 
 contribution. 
 
 Nightingale v. 
 Lawson. 
 
 Lord Alvanley adopted the rule {a), and from the case of 
 Lawrence v. Maggs it would seem that Lord Northington had. 
 before acted upon the same principle (6), that the tenant for 
 life should merely keep down the interest of the fine : but Lord 
 Eldon said, " he could not agree to that. In the case of tenant 
 for life and remainderman in tail or in fee, the inheritance 
 being charged with the mortgage, it was fair the tenant for 
 life should only keep down the interest, for the natural division 
 was, that he who had the corpus should take the burden, and 
 he who had only the fruit should pay to the extent of the 
 fruit of the debt : but leases, whether for lives or years, 
 were in their nature temporary, and "therefore the position 
 that the tenant for life was bound to pay the interest was 
 to be understood with this qualification, that he was further 
 bound to contribute a due proportion of the principal ac- 
 cording to the benefit he derived from the renewed interest (c)." 
 
 The rule now in operation was first clearly laid down by 
 Lord Thurlow in Nightingale v. Lawson (d), a case, said Lord 
 Eldon who was one of the counsel in it, to which, from 
 the intricacy of the subject, the reports have failed to do 
 justice (e). 
 
 The circumstances may be very briefly stated as follows : — 
 A widow, tenant for life of a term which had twelve years to 
 run, renewed for a further term of twenty-eight years, to com- 
 mence from the expiration of the twelve years, and afterwards 
 renewed for the additional term of fourteen years to commence 
 from the expiration of the twenty-eight years. The widow 
 lived through the original term of twelve years, and through 
 nine of the renewed term of twenty-eight years. The question 
 was raised after the death of the widow, in what proportions 
 the tenant for life and the remainderman should contribute 
 to the fines. The following points were resolved by Lord 
 Thurlow, after a very anxious, frequent, and grave considera- 
 tion of the subject (/), and have ever since been acquiesced in 
 by the Courts. 
 
 (a) Bucheridge v. Ingram, 2 Ves. 
 jun. 652, see 666 ; White v. White, 
 4 Ves. 24, see 33. 
 
 (i) 1 Ed. 453, see 455. 
 
 (c) White v. White, 9 Ves. 560. 
 {d) 1 B. C. C. 440. 
 (e) White v. White, 9 Ves. 556. 
 {/) See White v. White,^ Ves. 560. 
 
CH. XIV.] Renewal of leases. 397 
 
 1. " That, as the widow had lived nine years after the expi- Proportions to 
 ration of the twelve leaving niaeteen years to run of the twenty- tenant for life 
 eight, the Master ought to take the sum paid by her for the ^""^ remainder- 
 renewal of the lease as the value of the term purchased, that 
 
 is, of the term of twenty-eight years, to commence at the 
 expiration of the twelve years ; he should then consider the 
 value of the term of nine years after the existing term, and 
 what the term of nineteen years after the existing term and 
 the nine years was worth, and the latter was the proportion 
 to be paid by the remainderman" (a). Upon which resolution 
 Lord Eldon thus comments : — ■" It was first considered," he 
 said, " what the interest of the tenant for life was in that term 
 which had to run out at the time of the renewal, and then 
 what benefit the tenant for life had received by the enjoyment 
 of the renewed term from the period when the old term would 
 have expired: and Lord Thuriow determined that the re- 
 mainderman took that interest in the renewed term which 
 was ultra so much of the renewed term as expired in the life- 
 time of the person who renewed, and the value of that interest 
 he made the remainderman pay" (6). 
 
 2. " That as to the kind of interest to be allowed, simple Kind of interest 
 interest would not be a satisfaction, as the widow had laid 
 
 out her money totally, and the value of the lease was calculated 
 upon the ground of compound interest : compound interest 
 was therefore to be computed upon the proportional value of 
 the nineteen years' term to the whole expense of renewal " (c). 
 
 3. " That as to the rate of interest, in computing compound Rate of interest, 
 interest, you go upon the idea that the interest is paid upon 
 
 the exact' day and immediately laid out ; but as this was im- 
 possible, it would be sufficient to compute interest at 4 per 
 cent " (d). 
 
 4. " That such interest was only to be paid till the widow's Rate after the 
 -death, for after that her executors had the demand upon the tenant for life. 
 
 (a) See Coppin v. Fernylumgh, 2 nauze v. Malone, 3 Ir. Ch. Ee. 354. 
 B. C. C. 291 ; Barnard v. Heaton, (J) White v. White, 9 Ves. 558. 
 
 cited White v. White, 4 Ves. 29 ; (c) See White v. White, 4 Ves. 
 
 Playters v. Ahhott, 2 M. & K. 108 ; 35, 36 ; 8. C, 9 Ves. 557, 558. 
 JEarl of Shaftesbury v. Dulce of (d) See Giddings v. Giddings, 3 
 
 Marlborough, 2 M. & K. 118; La- Buss. 260. 
 
398 EENEWAL OF LEASES. [CH. XIV. 
 
 remainderman, and it became a common debt, and must carry- 
 simple interest only" (a). 
 Case of tenant 5. " With respect to the second renewal, as the widow had 
 
 for life lia%'ing 
 
 tad no enjoy- not lived to enjoy any part of that term, her executors were 
 "*° ■ entitled to the whole of the expenses, with interest to be com- 
 
 puted on the same principle as before " (b). 
 Risk of losing the In this case it will be observed, the tenant for life had dis- 
 
 contribution. ■,■•■, n i i i • 
 
 bursed the nne, and, the payment bemg a charge upon the 
 property, the widow was in no danger of eventually losing 
 her demand. But where the tenant for life has not the means 
 of renewing, but the remainderman comes forward with the 
 money, if the contribution is to be suspended till the death of 
 the tenant for life, it may happen, that, when the proportions 
 can at last be ascertained, the estate of the tenant for life may 
 be insolvent, and so the contribution be lost. " I admit," says 
 Lord Eldon, " there is this difficulty in the case ; but perhaps 
 from the nature of the thing it cannot be helped: the 
 utmost extent you can go is to make the tenant for life give 
 security for the sum which may eventually be due " (c). 
 How the rule to There occurs, also, this other difficulty, viz. how to apply the 
 
 be applied to . , 
 
 leaseholds for principle to the case of leaseholds for lives. The new cestui que 
 ™^' vie may die in the lifetime of the original cestui que vie, and 
 
 then no actual benefit accrues either to the tenant for life or 
 to the remainderman. If the tenant for life paid the fine, 
 is the remainderman to contribute nothing, because he took 
 no benefit ? If the remainderman paid the fine, is the tenant 
 for life to contribute nothing, because he can excuse himself 
 under the same plea ? 
 
 From the nature of leaseholds for lives it seems difficult to 
 discover any better principle than one of the following : — 
 
 First, That the tenant for life and the remainderman should 
 contribute according to their chance of benefit at the time of the 
 renewal, in which case the proportions would be settled thus : — 
 The chance of benefit to the tenant for life is the value of the 
 new life commencing from the death of the last surviving 
 
 (a) See Qiddings v. Giddings, 3 (c) See White v. White, 9 Tea. 
 
 Euss. 260. 558, 559 ; Earl of Shaftesbury v. 
 
 (6) Coppin, V. Fernyhoughf 2 B. Duke of Marlborough, 2 M. & K. 
 
 C, C. 291. 122. 
 
CH. XrV.] EENEWAL OF LEASES. 399 
 
 original cestui que vie, and determining on the deatli of the 
 tenant for life. The chance of benefit to the remainderman is 
 the value of the new life commencing on the death of the original 
 cestuis que vie after the death of the tenant for life. In the propor- 
 tion of these two values would be the respective contributions. 
 
 Secondly, that the remainderman's proportion should be 
 regulated by the actual benefit derived. Thus, if the new cestid 
 que vie die in the lifetime of any of the original cestuis que vie 
 or of the tenant for life, the remainderman takes no benefit and 
 has nothing to pay. In this case the tenant for life is the 
 loser. Should the new cestui que vie survive the original 
 cestms que vie and also the tenant for life, the value of the 
 new life should be taken at the tenant for life's death, and 
 that interest be paid for by the remainderman. It might 
 happen that the original cestuis que vie and the tenant for life 
 might die soon after the renewal, and then the estimated value 
 of the new life would be greater than the whole fine. In such 
 a case the tenant for Hfe would be a gaiuer. Thus the tenant 
 for life might sometimes be a gainer, sometimes a loser : the 
 remainderman would never either gain or lose, but would 
 pay the exact value of the interest which he actually took. 
 
 The authority of Lord Eldon upon the subject is so obscurely Dictum by Lord 
 worded, that little light can be gained from it. 
 
 " There is no difference," he said, " between a renewable 
 term for years and a lease for lives renewable. In the former 
 case the difficulty does not arise so much, upon the probable 
 value of a term certain, as upon an estate for Uves in estimating 
 what is the value of that life which may survive the three 
 cestuis que vie, and that interest to be paid for by the re- 
 mainderman, as the case may happen that one, twoj or three 
 lives may determine in the life of the man entitled to the bene- 
 ficial interest" (a). 
 
 In the recent case of Jones y. Jones {b), before Vice- Chan- Jones % Jones. 
 cellor Wigram, and involving leaseholds for lives as well as 
 leaseholds for years, and where the fines were to be raised out 
 of the rents or by mortgage, or by such other means as should 
 be advisable, the mode of raising and ultimately apportioning the 
 
 («) White v. White, 9 Yes. 559, (6) 5 Hare, 440. 
 
400 RENEWAL OP LEASES. [CH. XIV. 
 
 fines was fully considered, and the importance of the subject 
 may justify a somewhat lengthened extract from the judgment. 
 " The rule," said the Vice-Chancellor (a), " is, that the parties are 
 to pay in proportion to their enjoyment, by which I under- 
 stand their actual enjoyment to be meant, and not an extent 
 of enjoyment to be determined by mere speculation, or by a 
 calculation of probabilities, and the question is, how that 
 apportionment is to be effected. If the tenant for life is 
 willing to take upon himself to renew, it appears to me accord- 
 ing to the cases there is very little difficulty in carrying out 
 the transaction. He will enjoy the estate during his own life, 
 and when the actual period of his enjoyment is ascertained, 
 his estate wiU have a lien upon the residue of the term for 
 any overpayment which may have been made. The tenant 
 for life having paid the whole, if he has not the whole enjoy- 
 ment his estate will have a lien for whatever ought to be paid 
 by the remainderman. The case is one of much greater diffi- 
 culty where the renewal is made by the remainderman, or 
 (which as to this difficulty is the same thing), where the trustee 
 is to raise the money and charge it on the corpus. In 
 that case, unless some course be taken to protect the interest 
 of the remainderman, the tenant for life may enjoy the estate 
 during his whole life without hearing any greater charge than 
 the interest on the debt created by the renewal, and he may 
 leave no assets to pay his proportion of the principal money. 
 That inconvenience may perhaps be avoided by requiring the 
 tenant for life to give security. The late cases of Greenwood 
 V. Evans (b), and Beeves v. Creswick (c), are authorities which 
 recognise the course of giving security as a course proper to 
 be pursued where no other means are open for providing for 
 a proper apportionment. It is not to be disputed that there 
 is a practical difficulty even in this mode of proceeding ; the 
 difficulty is in determining for what sum the tenant for life 
 is to give security. If he gives security for the whole amount 
 of the fine, because by possibility he may enjoy the whole 
 benefit resulting from the renewal, the difficulty is got over ; 
 but the tenant for life may not be able to give security for 
 
 (a) p. 496. (J) 4 Beav. 44. (c) 3 Y. & C. 715. 
 
CH. XIV.] RENEWAL OF LEASES. 401 
 
 the whole although he might for a part, and how is the Court 
 in such a case to deal with the interests of the parties ? I do 
 not mean to give any opinion as to the way in which the 
 Court would proceed in cases that might be suggested, but 
 in considering what is proposed as a general rule, it is right 
 not to disregard the inconvenience or difficulty which in some 
 cases might arise in its application. I do not, however, think 
 that the difficulty to which I have adverted is insuperable. 
 The tenant for life may in the first instance be required to 
 give security for an amount calculated upon the assumption 
 that his life wiU. last during a portion of the renewed lease. 
 If he should die within the time during which it was assumed 
 that his life would last, the security would of course be more 
 than sufficient to satisfy his proportion of the fine, and it 
 would be void for the excess. If he outlived that time he 
 might, if necessary, be called upon to give a further security 
 to cover the additional proportion then to be attributed to 
 him. In the case of Allan v. Backhouse {a), and other cases, 
 it would appear that the party was not called upon in the first 
 instance to pay the whole, but it was apportioned, and I pre- 
 sume on the principle that he should be required to pay the 
 apportioned sum in the first instance without prejudice to the 
 question whether he might not ultimately be liable to pay 
 more. It appears to me, being guided by the light which the 
 cases afford me, proper to declare that each party is to bear 
 the burden of the renewal in the proportion of his actual 
 enjoyment of the estate. There will be a direction for the 
 tenant for life to keep down the interest, and a reference, as 
 in Allan v. Backhouse {a), to ascertain what proportion of the 
 fine was properly payable by him. This inquiry is necessarily, 
 by anticipation. There will then be a reference, as in Green- 
 wood V. Evans (b), for the Master to approve of a security, 
 and these directions must be followed by a declaration that 
 the reference and security are to be without prejudice to the 
 question whether the tenant for life may or may not be liable 
 to pay less or more than the sum for which the security is 
 given." The doctrines enunciated in this case have been since 
 
 (a) 2 Vea. & Be. 65. (6) 4 Beav. 44. 
 
402 
 
 EENEWAL OF LEASEi3. 
 
 [CH. XIV.' 
 
 Tenant for life 
 regarded as a 
 trustee. 
 
 Tenant for life 
 refusing to 
 renew. 
 
 Admission fines 
 in copyholds. 
 
 approved as sound law, and the tenant for life, where the fine 
 has been paid out of the trust fund, has been ordered to give 
 security for his contribution to the fine in proportion to the 
 benefit which he should derive from the new life (a). 
 
 Where the legal estate of renewable leaseholds is devised 
 without the interposition of a trustee, but the testator at the 
 same time directs, either expressly or by implication, that the 
 leases should be renewed, the tenant for life is then himself a 
 trustee (&), and as such is compellable to obtain renewals (c), 
 and ought before applying for a renewal to consult the re- 
 mainderman (d). 
 
 It has been said, that if from the threats or acts of the 
 tenant for life there appears the intention of suffering the' 
 lease to expire, the Court would appoint a receiver of the 
 estate to provide a fund for the renewal (e) ; and that if the 
 tenant for life has already allowed the period of renewal to 
 pass, the rents and profits may be sequestered for either 
 procuring a renewal (/), or finding the remainderman a com- 
 pensation (g). But no suit for damages can be effectually 
 prosecuted before the tenant for life's decease ; for so long 
 as it remains uncertain how much of the renewed term wiU 
 survive to the remainderman, the amount of the injury done 
 to him cannot be ascertained Qi). It follows that the mere 
 forbearance of the remainderman to bring a suit during the 
 continuance of the life estate cannot be construed into laches 
 or acquiescence (i). 
 
 We may remark in conclusion, that the admission fines of 
 trustees of copyholds are regulated by the same principles as fines 
 on renewal of leaseholds. Thus a testator devises copyholds to 
 A. and his trustees upon trust for B. for life, with remainder 
 to C. in fee. A. pays a fine on his admission and dies. His 
 
 (o) Huddlestone v. Whelpdale, 9 
 Hare, 775. 
 
 (i) White V. White, 5 Ves. 554. 
 
 (e) Lock V. Lock, 2 Vern. 666; 
 and see White v. White, 4 Ves. 24. 
 
 {d) White V. White, 5 Ves. 554. 
 
 (e) See Bennett v. Colki/, 2 M. & 
 K. 233. 
 
 (/) See S. C. 5 Sim. 192. 
 
 (>) S. C. 5 Sim. 181 ; 2 M. & K. 
 225 ; and see Zord Montfort v. Lord 
 Cadogan, 17 Ves. 490. 
 
 {h) Bennett Y. Colley, 5 Sim. 181; 
 S. C. 2 M. & K. 225. 
 
 {i) S. C. 
 
CH. XIV.] RENEWAL OF LEASES. 403 
 
 heir is admitted and pays a fine and dies, and his heir again 
 is admitted and pays a fine. Thus the fine for the admission 
 of the trustee is a kind of purchase money for an estate for 
 the life of that trustee. The burthen must of course be borne 
 by the cestuis que trust of the estate, and they contribute 
 to the fines in proportion to their actual enjoyment, as in the 
 case of leaseholds (a). These observations are on the assump- 
 tion that the wiU or settlement contains no express directions 
 how the fines are to be raised. 
 
 (a) See Playters v. Abbott, 2 M. & Cli. Ca. 447 ; Jones v. Jones, 5 Hare, 
 K. 108 ; Bull V. Birkleck, 2 T. & C. 461, 
 
 D D 2 
 
CHAPTER XV. 
 
 DUTIES OF TRUSTEES TO PRESERVE CONTINGENT 
 REMAINDERS (a). 
 
 How settle- 
 ments usually 
 framed. 
 
 Object of Test- 
 ing the freehold 
 in trustees. 
 
 Object of the 
 more usual li- 
 mitation to 
 preserve contin- 
 gent remainders. 
 
 Settlements which embrace limitations to trustees to pre- 
 serve contiagent remainders are usually penned in one of the 
 two following forms : either, First, the estate is limited to the 
 use of the parent for 99 years if he should so long live with 
 remainder to the use of trustees and their heirs during the life 
 of the parent upon trust to preserve contingent limitations 
 with remainders over ; or to the use of trustees and their heirs 
 during the life of the parent in trust for him with remainders 
 over ; or, Secondly, it is settled to the use of the parent for life, 
 with remainder to trustees and their heirs during the life of 
 the parent upon trust to preserve contingent limitations, with 
 remainders over. 
 
 In the first form of settlement the object in view by the 
 interposition of trustees is not merely to preserve the contin- 
 gent estates from the parent's legal power to destroy them, 
 but also to prevent the exercise of any undue influence of the 
 father over the son, which, if the father were tenant of the 
 first freehold, he might be disposed to practise, in order to 
 induce the son to join in barring the entail for purposes not 
 authorised by the spirit of the settlement (6). 
 
 In the second form it is imposed upon the trustees, as 
 before, to preserve the contingent limitations; but as the 
 freehold in possession is vested in the parent, the trustees can 
 have no power to prevent a recovery by the father and son so 
 
 (a) The law upon the subject has 
 since been most materially altered 
 by recent Acts, as will be noticed 
 at the end of the chapter. 
 
 (5) See Woodhouse v. Soskins, 3 
 Atk. 24 ; Woolmore v. Burrows, 1 
 Sim. 527. 
 
CH. XV.] DUTIES OP TEUSTEES, ETC. 405 
 
 soon as the son has attained the age of twenty-one ; but should 
 the tenant for life commit a forfeiture, and so the freehold in 
 possession become vested in the trustees, it would then be 
 their duty, though the settlor himself might not have contem- 
 plated such a purpose, not to allow the interests of the child 
 to be prejudiced by any improper exercise of the authority of 
 the parent. 
 
 The duties of these trustees may be regarded, first, as the 
 case stands before the eldest son has attained twenty-one ; and, 
 secondly, as the obligations of the trustees are varied by the 
 occurrence of that event. 
 
 I. Until the eldest son has attained twenty-one the duty of Duties of 
 the trustees not to join in any act to destroy the contingent the^'eldestton* 
 remainders is express and imperative (a). " When trustees," it '^^^ attained 
 
 twenty-one. 
 
 was once observed by the Court, "are appointed to preserve an 
 estate in a family and for no other purpose, and they, instead 
 of pursuing it, do a wilful act with an intent and in order to 
 destroy it, how can this be otherwise than a plain breach of 
 trust, or how can it be rendered clearer than by barely putting 
 the case ? Should the Court hold it no breach of trust, or 
 pass it by with impunity, it would be making proclamation that 
 the trustees in aU the great settlements in England were at 
 liberty to destroy what they had been intrusted only to pre- 
 serve. Where an estate is limited to A. for life, remainder to 
 his first and other sons in tail, though it be a plain wrong and 
 tort in A. to do any act which wiU. destroy those remainders 
 before the birth of a son, notwithstanding his legal power of 
 doing so, yet, as in this case there is no trustee, there can be 
 no trust, nor consequently any breach of trust; and therefore a 
 court of equity may have no cognisance of such a case nor 
 handle for relief, the matter being left purely at the common 
 law. To prevent this inconvenience, the remedy of appointing 
 trustees was invented on purpose to disable the tenant for life 
 from doing such an injury to his issue, which is not a very 
 
 (a) Mansell v. Mansell, 2 P. W. Tipping v. Pigrjntt, \ Eq. Ca. Ab. 
 
 678; Moody Y. Walter, l&Ye&.ZQI 385, per Lord Haroourt; Pye v. 
 
 & 307, per Lord Eldon ; Biscoe v. Oorge, 1 P. W. 128, per eundem ; 
 
 Perkins, 1 V. & B. 491, per eundem: 8. C. 7 B. P. C. 221. 
 
406 
 
 TEUSTEES TO PRESERVE 
 
 [CH. XV. 
 
 Immaterial 
 •whether settle- 
 ment be Toluu- 
 tary or not. 
 
 Remedy on 
 breach of trust. 
 
 No relief to per- 
 sons not contem- 
 plated by the 
 settlement. 
 
 Issue during 
 the life of the 
 parent cannot 
 sue as "heir." 
 
 old invention. Now as it was a tort in the tenant for life 
 where there were no trustees to destroy contingent remainders, 
 so must it more plainly be one in trustees to join in the 
 destruction of them being contrary to their trust, upon which 
 account only is such act of theirs punishable in a court of 
 equity" (a). 
 
 It was formerly contended, that in settlements upon mar- 
 riage, or for other valuable consideration, it would be a breach 
 of duty to join in the destruction of the remainders, but that 
 in limitations created by will or other voluntary settlement the 
 same doctrine was not applicable ; but in Mansell v. Man^ 
 sell (6) the distinction was unhesitatingly over-ruled, for 
 " whether the trustee did it on a voluntary conveyance or not 
 was immaterial, for still every trustee ought to be faithful to 
 his trust "(c). 
 
 If the trustees destroy the contingent remainders in favour 
 of a volunteer or purchaser with notice, the specific estate may 
 be followed into the hands of such volunteer or purchaser; 
 but if the trustees pass the property into the hands of a pur- 
 chaser without notice, then, as the identical estate cannot be 
 recovered, the trustees will be decreed to buy other lands of 
 equal value to be settled to the same uses {d). 
 
 Where the ultimate limitation of a marriage settlement is 
 to the heirs of the husband, if the trustee join with the husband 
 and wife in the destruction of that remainder, and there is no 
 issue of the marriage, the heir of the husband is not entitled 
 to come upon the trustee to compensate him for the loss of the 
 estate : relief is extended to those only who come in and claim 
 as purchasers, as first and other sons ; not to all the subsequent 
 remainder-men, as the right heirs of the husband, who are 
 regarded in the light of volunteers, and not to be aided in a 
 court of equity {e). 
 
 And in a limitation to trustees and their heirs during 
 
 (o) Mansell v. Mansell, 2 P. W. 
 680. 
 
 (6) Id. 6Y8. 
 
 (c) Id. 683. 
 
 {d) Mansell v. Mansell, 2 P. W. 
 681, ^er Ciir. ; Parkesv. White, 11 
 
 Ves. 209, see 220, 236; Pye v. 
 Gorge, Pr. Ch. 308 ; S. C. 1 P. W. 
 128. 
 
 (e) Tlj>ping v. Piggott, 1 Eq. Ca. 
 Ab. 385. 
 
-Cn. XV.] CONTINGENT EEMAINDEES. 407 
 
 • the life of the hushand, remainder to the heirs of the body 
 of the husband, remainder to the husband in fee, the issue 
 of the marriage cannot claim compensation for a breach 
 of trust during the lifetime of the husband, for nemo est hares 
 viventis (a). 
 
 As any disturbance of the settlement before the eldest son Court will not 
 has attained twenty-one is a clear breach of trust, it follows struction of the 
 that even the Court cannot sanction such a proceeding, though settlement. 
 very particular circumstances may be alleged in support of 
 the reasonableness of the demand. Thus, where the plahitifif 
 and his wife had been married twelve years without issue, and 
 the prayer of the bill was that part of the estate might be sold 
 for payment of debts, and the trustees submitted to act as the 
 Court should direct, Lord North said " he could not justify to 
 decree a breach of trust : he had known where people had been 
 married near twenty years without issue, and afterwards had 
 children " (6). 
 
 But two cases are to be noticed, in which the Court did Exceptions. 
 conceive itself justified, from the great particularity of the cir- 
 cumstances, in departing from this rule. 
 
 The first is the case of Piatt v. Sprigg (c), in which R. mort- Piatt ». Sprigg. 
 gaged lands to M. for 1000 years, to secure lOOOL and interest, 
 and afterwards upon his marriage made a settlement, subject to 
 the incumbrance, to the use of himself for life, remainder to 
 trustees to preserve contingent remainders, remainder to the 
 wife for life, remainder to the first and other sons. The mort- 
 gagee threatened to enter, and the lands were in consequence 
 articled to be sold. The purchaser filed a bill praying specific 
 performance, and that the trustees might be directed to join in . 
 the conveyance, and so it was decreed by the Court. But the 
 ground of this decision was, that, as the mortgagee was not 
 bound by the subsequent settlement, he might have foreclosed 
 the estate, and so have precluded the parties entitled under the 
 settlement from all interest in the property ; but if the lands 
 were sold, the surplus proceeds, after discharging the mort- 
 
 (a) Else V. Osborn, 1 P. W. 387. (c) 2 Vern. 303. 
 
 (6) Davies v. Weld, 1 Vern. 181 ; 
 S. a 2 Cli. Ca. 144. 
 
4^08 TRUSTEES TO PRESERVE [CH. XV, 
 
 gage, would be so much gained to the uses of the settlement. 
 Thus the principle acted upon was not that trustees to pre- 
 serve contingent remainders might join in the destruction of 
 them, but that the best mode of executing the trust, under the 
 circumstances, was to substitute a sale for a foreclosure, and to 
 lay out the surplus in lands to be settled to the same uses (a). 
 Ck^f "• In the case of Basset v. Clapham {b) A., after marriage, made 
 
 a voluntary settlement of lands to himself for life, remainder 
 to trustees to preserve contingent remainders, remainder to the 
 first and other sons in tail, remainder to himself in fee, and 
 afterwards, becoming insolvent, executed a conveyance of the 
 same premises to trustees for payment of his debts. The 
 creditors filed a bill for the purpose of obtaining a sale, and 
 prayed that the trustees might join in destroying the con- 
 tingent remainders. Sir Joseph Jekyll at first refused the 
 application, saying there was no precedent for such a direction; 
 but afterwards, a precedent being produced to him, he granted 
 the relief, "it being," he said, " at the suit of ered/itors, and for 
 raising money for payment of debts." > 
 
 Duty of Trustees It should also be mentioned as another duty of this class of 
 &(.. ' trustees, that if an estate be limited to A. for life, remainder 
 
 to trustees to preserve contingent remainders, remainder to 
 the first and other sons of A. in tail, &c. should A. threaten to 
 commit waste it would be the duty of the trustees to file a bill 
 for an injunction for the benefit of the contingent remainder- 
 men (c). 
 
 Duties of II. Of the duties of trustees to preserve contingent re- 
 
 the eldest son mainders after the eldest son has attained twenty-one. 
 wt^-^ne*^ Upon the occurrence of this event the joining or not joining 
 
 of the trustees in the destruction of the remainders ceases to 
 Honorary be imperative, and becomes matter of discretion : they are said 
 
 trustees. . . i j. 
 
 to be honorary trustees (d), that is, bound m honour only to 
 
 [a) See Barnard v. Large, 1 B. per Lord Hardwioke ; Garth v. CoU 
 
 C. C. 536 ; Moody v. Walters, 16 ton, 2 Ves. 555, per eundem. 
 
 Ves. 303. {d) See Barnard^. Large, 1 B.C. 
 
 (6) 1 P. W. 358. C. 535 ; Biscoe v. Perkins, 1 Y. & 
 
 (c) Perrot v. Perrot, 3 Atk. 95, B. 492 ; Woodhouse v. Hoskins, 3 
 
 Atk. 24. 
 
CH. XV.] CONTINGENT REMArNDERS. ^09 
 
 decide on tlie most proper and prudential course. However, 
 the Court, where application was made to it, would always, 
 as the general trustee in these cases, exercise the discretion 
 vicariously for the trustees (a); and, where the trustees had 
 abused the discretion, would, whatever might have been the 
 ancient doctrine (6), hold them responsible as for a breach of 
 trust (c). 
 
 The only case in which the Court has directed the con- Settlement may 
 
 . . , ... be remodelled on 
 
 tmgent umitations to be destroyed, has been where the object marriage of 
 of the parties was to re-settle the property upon the marriage ®^'^^^' ^°'^' 
 of the eldest son(ci). Thus iu Winnington v. Foley, it was 
 reported by the Master that the marriage of the eldest son 
 was beneficial, and that it was necessary a new settlement 
 should be made of the estate, and Lord Chancellor Parker 
 said, " It would be greatly mischievous if the trustee should 
 stand out, and not joia with the father and son in cutting off 
 the old settlement and making a new one : it was plainly for 
 the benefit of the family ; for by the intended settlement the 
 son was to be but tenant for life, instead of tenant in tail; " 
 and so decreed the trustee to join in the recovery (e). 
 
 Where the Court has been called upon to disturb the settle- Will not be dis- 
 ment, and for no other purpose than merely to disturb it, the good re^on."'^ 
 application has of course been refused (/). 
 
 And a fortiori the Court would not lend its sanction if the A fortiori not 
 object of the parties were such as the Court ought positively culpable object. 
 to discourage, as where the intention of defeating the settle- 
 ment was to pay off the father's incumbrances at the expense 
 of the child (g). " The reason of making the father tenant for 
 niaety-nine years only," said Lord Hardwicke, " is in order to 
 preserve the estate: it may likewise be the design of such 
 
 (a) See Moody v. Walters, 16 Ves. C. C. 536, per Sir T. Sewell ; and see 
 
 307 ; JBiscoe v. Perkins, 1 V. & B. Symance v. Tattam, 1 Atk. 614 ; 
 
 492. Dormer v. JFortescue, 3 Atk. 129. 
 
 (J) See Symance v. Tattam, 1 Atk. (e) 1 P. W. 636 ; and see Towns- 
 
 614. end v. Lawton, 2 P. W. 380. 
 
 (c) Barnard v. Large, 1 B. C. C. (/) Barnard v. Large, 1 B. C. C. 
 
 535, per Sir T. Sewell. 534. 
 
 ((?) J^retomv. CTarfeioM, 1 Eq. Ca. {g) Townsendr. Lawton, 2 7. W. 
 
 Ab. 386 ; Townsend v. Lawton, Sel. 379 ; Woodhouse v. Hoshins, 3 Atk. 
 
 Ch. Ca. 71 ; Barnard y. Large, 1 B. 22. 
 
410 TRUSTEES TO PRESERVE [CH. XV. 
 
 settlements to prevent the father's influence over the son when 
 
 of age, if the father was seised of the freehold, to get the son 
 
 to destroy the settlement. Here the intention is to pay the 
 
 debts of the father. It is the very case which was intended to 
 
 be prevented by the trust (a)." And Sir T. Sewell observed; 
 
 " Trustees to preserve contingent remainders, who have the 
 
 freehold in possession, are appointed for two purposes — one to 
 
 preserve the estate against the father's power to destroy it, and 
 
 the other to prevent the injury of any improper influence of 
 
 the father over the son to induce him to join in destroying the 
 
 entail created, in cases where he ought not to join(&). 
 
 Trustee not ne- From the Conduct of the Court on these occasions, maybe 
 
 able because the inferred the duties imposed upon the trustees. However, 
 
 court would not ghould the trustees exercise their discretion where the Court 
 
 have so acted. 
 
 would not have interfered, it does not therefore foUow that 
 they are liable as for a breach of trust : it is one thing for the 
 Court to say the object of barring the entail is not so clearly 
 beneficial as to justify the Court in overturning the settlement; 
 it is another to hold the object so absolutely mischievous as to 
 make the trustees responsible on the ground of a breach of 
 duty(c). 
 Distinction be- The preceding remarks have been general, without distin- 
 
 tween settle- . . . , . , . -, -n ■, , 
 
 ments and wills, guishmg between marriage settlements and wills ; but upon 
 principle, perhaps, the two instruments ought not to be con- 
 founded. The object of a marriage settlement is to preserve 
 the estate in the family, and, were it not for the rule against 
 perpetuities, the limitation to the eldest son would be not in 
 tail, but for life, with remainder to his eldest son ; and if on 
 the marriage of the eldest son, the trustee has joined in a new 
 settlement for the purpose of further tying up the estate, he 
 has undoubtedly acted in conformity with the original inten- 
 tion. But in a will, as all the devisees are volunteers, and 
 the trustee does not hold upon trust for the first tenant in tail 
 more than for the successive remainder-men, if the trustee has 
 
 (a) Woodhouse v. SCoskins, 3 Atk. (c) See Siscoe v. Perkins, 1 Y. & 
 
 24. B. 491 ; Woodhouse v. Hoskins, 3 
 
 (5) Barnard v. Large, 1 B. C. C. Atk. 24 ; Barnard v. Large, 1 B. 
 535. C. C. 535; Moody v. Walters, 16 
 
 Ves. 309. 
 
CH. XV.] CONTINGENT REMAINDEES. 4 11 
 
 enabled an eldest son to get possession of the fee simple at 
 the expense of the remainder-man's interest, it might be 
 argued he has overstepped his duty, and ought to answer for 
 it as for a breach of trust. The distinction was thus observed 
 upon by Sir T. Sewell, in the case of Barnard v. Large [a). 
 " The trustee," he said, " though properly appointed to pre- 
 serve contingent remainders only, is, in effect, a trustee for all 
 vested as well as contingent remainders, and has been so 
 considered ; but with respect to vested remainders if they 
 have been to remote relations upon settlements, where the 
 persons to whom they are limited are not the immediate objects 
 of the parties, or where they stand in opposition to the first 
 tenant in tail desiring a reasonable benefit consistent with the 
 intention of the creators of the limitations, their pretensions 
 have not been much considered : in a will all take as volun- 
 teers, and are equally to be considered." 
 
 But this distinction, though supported by the authority we 
 have mentioned, was not noticed by Lord Eldon in the dis- 
 cussion of Biscoe V. Perkins, the case of a devise (b). 
 
 The law upon the duties of trustees to preserve contingent Effect of the 
 
 . , , , . . . fines and re- 
 
 remainders has recently undergone great alterations. coreries act upon 
 
 By the 15th section of the Fines and Eecoveries Act (c) it *™th>genr'''''^ 
 is declared, that every tenant in tail, whether in possession, remainders. 
 remainder, contingency, or otherwise, shall have power to dis- 
 pose of the lands entailed for an estate in fee simple absolute ; 
 but by the 40th and two following sections, the disposition 
 must be by deed inrolled, and must be made with the consent 
 of the protector of the settlement. 
 
 Under the old law, the key of the settlement was in the 
 hands of the person who was owner of the freehold in posses- 
 sion ; but now, by the 32d section, any settlor entailing lands 
 may appoint any number of persons in esse, not exceeding 
 three and not being aliens, to be protector of the settlement 
 during the period therein specified, and may perpetuate the 
 protectorship by means of a power of appointment of new 
 protectors. If the settlor has not taken advantage of this 
 permission, then, by the 22d section, if there be subsisting 
 
 (a) 1 B. C. C. 535. (6) 1 V. & B. 485. (c) 3 & 4 Will. 4. c. 74. 
 
413 PINES AND EECOVEEIES ACT. [CH. XV. 
 
 under the settlement any estate for years determinable on 
 the dropping of a live or lives, or any greater estate (not 
 being an estate for years) prior to the estate tail, the owner 
 of such prior estate, or of the first of such prior estates if 
 more than one, or the person who would have been owner 
 had he not disposed of his hiterest, is constituted the pro- 
 tector of the settlement; but, by the 27th section, no 
 dowress, hare trustee, heir, executor, or administrator shall be 
 protector. However, by the 31st section, it is enacted, that 
 " where, under a settlement made before the passing of the act, 
 the person, who under the old law should have made the 
 tenant to the prcecipe, shall be a bare trustee, such trustee 
 during the continuance of the estate conferring the right to 
 make the tenant to the prcecipe shall be the protector ; " but, 
 by the 36th section, the protector of a settlement shall not be 
 deemed to be a trustee in respect of his power of consent, and 
 a Court of equity shall not control or interfere to restrain the 
 exercise of his power of consent, nor treat his giving his con- 
 sent as a breach of trust. 
 
 Under the provisions, therefore, of this act, as regards set- 
 tlements made since the passing of the act, a bare trustee 
 cannot be protector in any case ; and, as regards settlements 
 made before the passing of the act, though the trustee may 
 become protector by the operation of the 31st section, he is 
 not accountable to a Court of equity for the exercise of his 
 discretion. 
 
 7 & 8 V. 0. 76. By the 7 & 8 Vict. c. 76, s. 8, it was declared that no estate 
 
 should be created by way of contingent remainder; but that 
 every estate which before that time would have taken effect as 
 a contingent remainder, should take effect as an executory 
 devise, or if in a deed, as an estate having the same properties 
 as an executory devise, and that contingent remainders already 
 created should not be defeated by the destruction or merger of 
 the preceding estate. 
 
 8 & 9 V. c. 106. But this sweeping clause was repealed by 8 & 9 Vict. 
 
 c. 106, s. 1 ; and in lieu thereof it was enacted (s. 8), that a 
 contingent remainder should be deemed capable of taking 
 effect, notwithstanding the determination by forfeiture, sur- 
 render or merger of any preceding estate of freehold, in 
 
CH. XV.] FINES AND RECOVEEIES ACT. 413 
 
 the same manner in all respects as if snch determination had 
 not happened. 
 
 It is consequently now unnecessary to make use of any 
 machinery for preserving contingent remainders from destruc- 
 tion hy the forfeiture, surrender, or merger of the preceding 
 estate. But limitations to trustees, during the lives of the 
 tenants for life, are still frequently introduced in settlements 
 for the purpose of creating a check upon the tenants for life, 
 as, in cases of- waste by them, it would he the duty of the 
 trustees to interfere as protectors of the remainder-men's 
 interests. 
 
 Moreover, in the absence of such limitations, questions of 
 considerable difficulty- would arise in reference to the right 
 of protectorship of an entailed estate, in cases where the 
 estate which would otherwise confer the protectorship became 
 extinguished by forfeiture or otherwise ; so that, on the whole, 
 the insertion of such limitations is conceived to be the safer 
 course. 
 
 It must, of course, be borne in mind, in connection with 
 this question, that contingent remainders are still liable to be 
 defeated should the preceding life estate determine, in due 
 course, before they become vested. And, in this point of view, 
 the limitation of life estates adequate to support the contingent 
 remainders is still a matter of considerable importance. 
 
CHAPTER XVL 
 
 DUTIES or TRUSTEES FOR SALE. 
 
 The subject of trusts for sale may be conveniently distri- 
 buted into three branches : first, The general duties of trustees 
 for sale ; secondly, The power of trustees to sign discharges for 
 the purchase -money ; and, thirdly. The disability of trustees to 
 become purchasers of the trust property. 
 
 Trustees taay 
 sell without 
 applying to the 
 court. 
 
 Must consult 
 the interest of 
 the cestuia que 
 trust. 
 
 SECTION I. 
 
 THE (JENEEAL BTrilES OE TBTISTEES FOE SALE. 
 
 It need scarcely be observed that trustees for sale, whether 
 expressly such, or only by implication, as persons enabled to 
 seU by virtue of a charge {a), are authorised to enter into con- 
 tracts without the previous sanction of the Court (&) ; but where 
 a bUl has been filed for the execution of the trust, that attracts 
 the jurisdiction of the Court, and the trustee would not be 
 justified in proceeding to a sale out of Court (c). 
 
 The trustee will remember that he is bound by his office to 
 bring the estate to a sale under every possible advantage to 
 his cestui que trust {d), and in the case of several cestuis que 
 trust, with a fair and impartial attention to the interests of 
 all the parties concerned (e). If the trustee, or those who act 
 
 {a) Shaw v. Sorrer, 1 Keen, 559. 
 
 (b) Earl of Bath v. Earl of 
 Bradford, 2 Ves. 590, per Lord 
 Hardwioke. 
 
 (c) Walker v. Smalwood, Amb. 
 676 ; and see Raymond v. Wehb, 
 LofFt, 66 ; Dray son v. Pocock, 4 Sim. 
 283 ; Culpepper v. Aston, 2 Ch. Ca. 
 
 116, 223 ; and see further, infra, 
 pp. 523, 524. 
 
 (d) Downes v. Orazebrook, 3 Mer. 
 208, per Lord Eldon ; and see Mat- 
 thie V. Edwards, 2 CoU. 480. 
 
 (e) Ord V. Noel, 5 Mad. 440, per 
 Sir J. Leach ; and see Anon, case, 6 
 Mad. 11. 
 
OH. XVI. S. 1.] TEDSTEES FOE SALE." 415 
 
 by his authority, fail in reasonable diligence in the manage- 
 ment of the sale, as if he contract under circumstances of 
 haste and improvidence, or contrive to advance the interests 
 of one party at the expense of another, he will be personally 
 responsible for the loss to the suffering party (a); and the 
 Court, however correct the conduct of the purchaser, will 
 refuse at his instance to compel the specific performance of 
 the agreement (6). In no case will the Court enforce the where sale is a 
 specific performance of a contract where a breach of trust is ^■'^'"=1^ "^ *™st. 
 involved (c). 
 
 A trustee who takes no active part in the business cannot Each trustee 
 
 rp^Tinn^i DIG for 
 
 excuse himself by saying he had nothing to do with the the sale. 
 conduct of the other to whom the management was confided; for 
 where several trustees commit the entire administration of the 
 trust to the hands of one, they are all equally responsible for 
 the faithful discharge of their joint duty by that one whom 
 they have substituted (d). 
 
 The trustees will be allowed a reasonable time for disposing What time 
 of the estate, and though the instrument creating the trust posing of the 
 direct them to sell "with all convenient speed," that is no ^^''''*'^- 
 more than is implied by law, and does not render an immediate 
 sale imperative (e). On the other hand, if the trust be to sell 
 " at such time and in such manner as the trustees shall think 
 fit," this will not authorise the trustees to postpone the 
 sale arbitrarily to an indefinite period ; at all events the trustees 
 cannot by such postponement vary the relative rights of the 
 tenant for life and remainder-men, and so interfere with the 
 settlor's intention (/). 
 
 {a) See Pechel v. Fowler, 2 Anst. {d) Oliver v. Court, 8 Price, 166, 
 
 550, per Lord Chief Baron Richards ; In 
 
 (6) Ord V. Noel, 5 Mad. 440, per re Chertsey Market, 6 Price, 285, 
 
 Sir J. Leaoh ; Turner v. Harvey, per eundem. 
 
 Jac. 178, per Lord Eldon. ; Bridger (e) Buxton v. Buxton, 1 M, & C. 
 
 V. Mice, 1 Jac. & "Walk. 74 ; Mart- 80 ; GarreU v. Nolle, 6 Sim. 504 ; 
 
 loch V. Buller, 10 Ves. 292; and and see Fitzgerald v. Jervoise, 5 
 
 see Hill v. J^uchley, 17 Ves. 394 ; Mad. 25 ; Vickers v. Scott, 3 M. & 
 
 White v. Cuddon, 8 CI. & Fin. 766. K. 500. 
 
 (c) Wood y. Michardson, 4: Bea,Y. {/) See Walker Y. Shore, 19 Yes. 
 
 176, per Lord Langdale; Fuller y. 391; Hawkins v. Chappell, X Atk. 
 
 Knight, 6 Beav. 205 ; Thompson v. 623. 
 Blackstone, 6 Beav. 470. 
 
416 
 
 TRUSTEES FOR SALE. 
 
 [CH. XVI. S. 1, 
 
 Trust to sell 
 ■within a limited 
 period. 
 
 Trustees for 
 sale may not 
 grant leases. 
 
 Trust for sale 
 mil not in gene- 
 ral authorise a 
 mortgage. 
 
 If the trust be " with all convenient speed and within five 
 years" to sell the estate and apply the funds in payment of 
 debts, &c., the proviso as to the five years is considered as 
 directory only, and the trustees can sell and make a good title 
 after the lapse of that period. The Court could scarcely im- 
 pute to the settlor the intention that the sale at the end of the 
 five years should be made by the Court, which would be the 
 case if the power in the trustees were extinguished {a). 
 
 In a case where the trustees had endeavoured for some time 
 to sell, and not having succeeded, they agreed to execute a 
 lease, the Court, on a bill filed by the trustees to compel 
 specific performance, refused to decree the lease, as the trust 
 for sale did not prima facie imply a power to grant leases (6). 
 And so executors, although quasi trustees for sale, may, imder 
 special circumstances, be justified in granting a lease (c) ; but 
 such an act is not regularly within their province, and there- 
 fore it is incumbent on the persons taking a lease from them 
 to show that it was called for by the interests of the parties 
 intitled to the property (d). 
 
 A trust for sale, if there be nothing to negative the settlor's 
 intention to convert the estate absolutely, will not authorise 
 the trustees to execute a mortgage (e). But where an estate 
 is devised to trustees, charged with debts, and subject thereto, 
 upon trust for certain parties, so that a sale, though it may be re- 
 quired, is not the testator's object, the trustees may, for the pur- 
 pose of paying the debts, more properly mortgage than sell (/). 
 "A power of sale out and out," observed Lord St. Leonards, 
 "for a purpose, or with an object beyond the raising of a parti- 
 cular charge, does not authorise a mortgage ; but where it is for 
 raising a particular charge, and the estate is settled subject 
 to that charge, then it may be proper, under the circumstances, 
 to raise the money by mortgage, and the Court will support it 
 
 (a) Pearce v. Gardner, 10 Hare, 
 287 ; and see Cuf v. Hall, 1 Jur. 
 N. S. 973. 
 
 (i) J^vans v. Jackson, 8 Sim. 217. 
 
 (tf) Hackett v. M'Namara, LI. & 
 G. Rep. t. Plunket, 283. 
 
 {d) Keating v. Keating, LI. & G. 
 Rep. «. Sugden, 133. 
 
 (e) Haldenby v. Spofforth, 1 Beav. 
 390; StroughillY. Anstey, 1 De G., 
 M. & G. 635; Page v. Cooper, 16 
 Beav. 396. 
 
 (/) Ball V. Harris, 4 M. & Cr. 
 264. 
 
CH. XVI. S. 1.] TRUSTEES FOR SALE. 417 
 
 as a conditional sale, as something within the power, and as a 
 proper mode of raising the money (a). 
 
 A testator devised a estate to trustees upon trust to apply Where the power 
 
 J.1 n ^r. ,. , , is left to the dis- 
 
 the rents for fifteen years m payment of incumbrances charged oretion of the 
 thereon, and if, by any reason whatever, in the opinion of the ohaeer^cannot'"'^' 
 trustees a sale should become necessary, " they were autho- iiestion the ex- 
 
 •^ "^ eroise oi the dis- 
 
 rised to sell." The purchaser objected that the amount of cretion. 
 the incumbrances would not justify a sale of the whole estate, 
 but it was held that the power of sale depended on the opinion 
 of the trustees, and the fact that they thought it necessary 
 would be evidenced by the conveyance (6). 
 
 A trust to raise money bv mortqaqe will not authorise a ^ t™^* '" """■*" 
 
 •' •' ^ ^ . gage will not 
 
 sale, though the latter may be more beneficial to the estate ; authorise a sale. 
 and the Court itself has no jurisdiction to substitute a sale 
 for a mortgage (c). 
 
 A power to trustees to sell will not authorise a partition, A power of sale 
 
 will not antho- 
 
 though whether a power to sell and exchange will do so remains rise a partition. 
 at present doubtful {d). 
 
 In settlements of real estate a power of sale is usually given ^^^'^^ "^ ^^^^^ 
 
 power of sale m 
 
 to trustees, to be exercised with the consent of the tenant for settlements. 
 life, with a direction to lay out the proceeds, with all conve- 
 nient speed, in another purchase, and in the mean time to 
 invest them upon some proper security. For determining 
 upon what occasions the trustees would be justified in pro- 
 ceeding to a sale, it will be proper to notice, in the words of 
 Lord Eldon, the intention of the settlement in so framing the 
 power : " The most improvident course that could be adopted," 
 he said, "would be to intrust the tenant for life with the 
 execution of the power ; for it is generally the interest of the 
 tenant for life to convert the estate into money, either with a 
 view to sell another estate to his family, or for the ordinary 
 - purpose of getting a better income during his life. The mode 
 of settlement, therefore, in such a case, is, that the trustees 
 are to sell, but not without calling to their aid all fair attention 
 to the nature of the subject and the convenience of the 
 
 (a) Stroughill v. Anstey, 1 De G. (c) Drake v. Whitmore, 5 De Gr. 
 M. & G. 645 ; Page v. Cooper, 16 & Sm. 619. 
 
 Beav. 400. (d) BrasseyY. Chalmers, IQBeay. 
 
 (b) Eendlesham v. Meux, 14 Sim. 223, 4 De G. M. & G. 528 ; Brad- 
 249. shaw v. Fane, 2 Jur. N. S. 247. 
 
^^^ TEUSTEES FOR SALE. [CH. XVI. S. L 
 
 property ; they are to sell, therefore, with the consent of the 
 tenant for life ; and as he is a purchaser for the future family, 
 the providence of the settlement requires that the fact of such 
 consent and approbation should be evidenced by deed, &e. 
 With that consent and approbation necessary to protect the 
 interest of the tenant for life, the trustees, bound to a due 
 attention to the interest of the children, have a power of selUng 
 for such price as shall appear to them to be reasonable, that 
 is, after they have with due diligence examined." His Lord- 
 ship then proceeds to lay down the rule that ought to regulate 
 the conduct of trustees in the following terms : — "The object 
 of the sale," he said, " must be to invest the money in the 
 purchase of another estate, to be settled to the same uses, and 
 they are not to be satisfied with probability upon that, but it 
 ought to be with reference to an object at that time supposed 
 practicable, or, at least, this Court would expect some strong 
 purpose of family prudence justifying the conversion, if it is 
 likely to continue money " (a). Sir W. Grant is said to have 
 concurred in the same sentiments (&), so that clearly the 
 trustees would not be justified in selling to gratify the caprice 
 or promote the exclusive interest of the tenant for life. It 
 might happen that particular circumstances might call for an 
 immediate sale, as where an extremely advantageous offer is 
 made, or there is a prospect of great deterioration by abstaining 
 from exercising the power ; but, generally speaking, the trustees 
 ought not to Convert the estate without having another specific 
 purchase in view, and then not for the mere purpose of conver- 
 sion, but in the honest exercise of their discretion, for the 
 benefit of all parties claiming under the settlement (c). The 
 power of investing the proceeds upon some security in the 
 mean time was not meant to authorise the continuance of the 
 property as money, but only to meet the exigencies of particular 
 circumstances, as where the trustees are disappointed of the 
 contemplated new purchase, or the state of the title leads to 
 necessary delay. 
 
 (a) Mortlock v. Butter, 10 Yes. (c) See CowgUl v. Lord Oxman- 
 
 308, 309. town, 3 Y. & C. 369 ; Watts r. Gir- 
 
 (J) Lord Mahon v. Earl Stan- dlestone, 6 Beav. 188 ; Marshall y. 
 
 hope, cited 2 Sug. Pow. 512. Sladden, 4 De Gex & Sm. 468. 
 
CH. XVI. S. 1.] TEUSTEKS FOR SALE. 419 
 
 Trustees for sale at the request and by the direction of 
 another party, to be testified by writing, &c., cannot obtain a 
 decree for specific performance without first proving that the 
 contract was entered into at such request and by such direction, 
 and that such request and direction have, either before or since 
 the coatract, been testified by the requisite writing (a). 
 
 If an estate be vested in trustees upon trust for A. for life, Trust to sell after 
 and then to sell, the trustees have no power to sell during the person. 
 life of A., however beneficial it may be to the parties interested 
 in the trust (6). 
 
 Where an estate is vested in two or more trustees upon Trust for sale 
 trust to raise a sum by sale or mortgage, and one of the 
 trustees dies, the survivors or survivor may sell or mortgage, 
 unless there be words in the settlement which expressly 
 declare that the trust shall not be exercised by the survivors 
 or survivor, for the execution of a trust is not treated on the 
 footing of a power ; but the presumption is that, as the estate, 
 so the discretionary part of the trust passes to the survivors 
 or survivor (c). 
 
 The objection is sometimes taken that, where there is a Thougii there be 
 power of appointment of new trustees, and one of the trustees pob.rnewtrus- 
 has died and a new trustee has not been substituted, the survivor *®''^' 
 is incompetent to execute a valid conveyance. But the legal 
 estate passes to the surviving joint tenant at law (d), and the 
 trust, as we have seen, shifts to the survivor in equity (e) : 
 and though a proviso for appointment of new trustees may 
 certainly be so framed that the execution of the trust 
 should, until a new trustee has been substituted, remain in 
 suspense (/), yet the clause, as usually penned in settle- 
 ments, is considered by the Courts to be merely of a directory 
 character (g). 
 
 In a mortgage to two persons where there is a power of sale to Power of sale in 
 " them, their heirs and assigns," and one dies, the survivor may 
 
 (a) Adams v. Broke, 1 T. & C. {d) Doe v. Godwin, 1 D. & R. 
 
 Ch.. Ca. 627 ; see the decree at the 259. 
 
 foot of the case, and see Blachwood (e) See supra, pp. 299, 300. 
 
 v. Borrowes, 2 Conn. & Laws. 459. (/) See Foley v. Wontner, 2 Jao. 
 
 (6) Johnstone ^.Baber, 8 Beav.233. & Walk. 246. 
 
 (c) LaneY.Debenham,l'J 3\iT.W04:. {g) See supra, p. 301. 
 
 S B 2 
 
430 TRUSTEES FOE SALE. [CH. XVI. S. ]. 
 
 sell (a) ; and in a mortgage to A. in fee, with a power of sale to 
 him, "his heirs, administrators, executors and assigns,'' the 
 administrator of the assign of A., though the legal estate of the 
 lands be not in himself, but in a trustee for him under a con- 
 vjeyance from the heir of the assign, is, together with such 
 trustee, an assign within the meaning of the power, and can, 
 therefore, sell (6). 
 Eaising portions. In respect of sales and mortgages for raising portions, if a 
 specific sum be given to A., payable on her age of twenty-one 
 years, or day of marriage, the money cannot be raised until 
 the interest has become vested ; for should the fund created 
 by the money raised prove deficient, the portionist might still 
 have recourse to the estate (c) : and so where the trust of a 
 term was to raise 3000?. for younger children, payable at their 
 respective ages of twenty-one years, or days of marriage, it 
 was held the trustees were not authorised, when one chUd had 
 attained his age of twenty-one years, to raise the entire sum ; 
 for the infant children could not be deprived of the real 
 security for their shares [d). But from the manifest convenience 
 of raising the portions at once, it seems the Court will lean to 
 that construction where any thing appears upon the instrument 
 to contemplate such a course. Thus the trustees of a 
 marriage settlement were directed, after the death of the 
 husband, to levy and raise by mortgage, sale, or other disposi- 
 tion of the estate, if there should be more than three children, 
 the sum of 10,OOOZ. for their portions, the shares of the sons to 
 be vested in, and payable to them at the age of twenty-one, and 
 the shares of the daughters at twenty-one or marriage ; and it 
 was provided that no mortgage should be made until some one 
 of the portions should become payable ; and four of the children 
 had attained twenty-one and three were under age ; the Vice- 
 Chancellor said, " In this settlement there is a clause that no 
 mortgage is to be made untU some one of the portions shall 
 become payable. The whole 10,000Z. must therefore be raised 
 at once. It is objected that some of the shares may become 
 
 (a) HindY. Poole, 1 Kay ^ Johns. (c) Dickenson y, Dickenson, 3 B. 
 
 383. C. C. 19. 
 
 (6) Salowaj/ -v. Strawbridffe,'! Kay (d) Wynter v. Bold, 1 S. & S. 
 
 & Johns. 371. 507. 
 
CH. XVI. S. 1.] TRUSTEES TOR SALE. 421 
 
 diminished in amount : the answer to that is, that the Court 
 considers the investment in the three per cent, consols as 
 equivalent to payment. If there is any rise in the funds the 
 children under age will have the benefit of it " (a). 
 
 A trustee for sale wiU of course inform himself of the real Valuation of 
 value of the property, and for that purpose, wUl, if it he 
 necessary, employ some experienced person to furnish him 
 with an estimate (b). 
 
 And as a trustee, like any ordinary vendor, is hound to make Trustees must 
 the purchaser a good title (c), it would be prudent, before y^j^ * ^°° 
 proceeding to the execution of the trust, to take the opinion 
 of some professional person whether a good title can be de- 
 duced. Should the contract for sale be unconditional and 
 the title prove bad, the purchaser in a suit for specific per- 
 formance would be allowed his costs against the trustee {d), 
 though the trustee, where his conduct was excusable, might 
 charge them upon the trust estate under the head of expenses. 
 
 If lands be devised to trustees in trust to sell for payment of Where the 
 debts, and subject to that charge be given to A. for life without the timber can- 
 impeachment of waste, with remainders over, the trustees must ^^rateiy 
 not raise the money by a sale of timber, which would be a hard- 
 ship on the tenant for life, but by a sale of part of the estate 
 itself; and should they have improperly resorted to a fall of 
 timber, the tenant for life would have a charge upon the lands 
 to the amount of the proceeds (e). And, on the other hand, if Trustees should 
 there be a sum given to be laid out in the purchase of an wood ratateln 
 estate to be settled on A. for life without impeachment of ^*™,?f°^?;*^°^* 
 
 ■■^ tor life without 
 
 waste, with remainders over, the trustees would not be jus- impeachment of 
 
 tified in purchasing a wood-estate, so that the tenant for life 
 
 when put in possession could, by a fall of the timber, possess 
 
 himself of a great part of the capital or corpus of the fund. 
 
 But it is presumed that the trustees might purchase an estate 
 
 where the timber standing formed no very considerable part 
 
 (a) CHllihrandv. Goold, 5 Sim. 149. 343, 345, per Lord Eldon ; and see 
 
 (6) See Oliver v. Court, 8 Price, M' Donald v. Hanson, 12 Ves. 277 ; 
 
 165 ; Campbell v. Walker, 5 Ves. Vend. & Ptiroli. 61, 11th Ed. 
 
 680 ; Conolly v. Parsons, 3 Ves. [d) Edwards v. Harvey, Coop. 
 
 628, note; Sugd. Vend. & Pureh. 40. 
 
 55, 11th Ed. (c) Bavies v. Westcomb, 2 Sim. 
 
 (c) White V. Foljambe, 11 Ves. 425. 
 
433 
 
 TEUSTEES FOE SALE. 
 
 [CH. XVI. S. 1. 
 
 Sale may be by 
 private contract 
 or by auction. 
 
 Sale must not 
 be delegated. 
 
 If the sale be 
 by auction, 
 proper adver- 
 tisements must 
 be given. 
 
 of the value, for it can hardly he supposed that the trustees 
 were meant to purchase land without a tree upon it. 
 
 The sale may he conducted hy puhlic auction or private 
 contract, as the one or the other mode may he most advan- 
 tageous, according to the circumstances of the case (a). And 
 it was held under the old Insolvent Debtors' Act, 7 Geo. 
 4, c. 57, s. 20, directing a sale by auction, that the assignees of 
 an insolvent might sell a real estate hy private contract, after 
 an ineffectual attempt to dispose of it by auction (b). And so, 
 under the subsequent Insolvent Debtors' Act (1 & 3 Vict. c. 
 110, s. 47, which directs the assignees of insolvents to sell "in 
 such manner" as the major part, in value, of the creditors 
 should direct), in a case where the creditors resolved that 
 there should be a reserved bidding of 3251., and the assignees 
 sold by auction for 310?., the clause was held to be merely 
 directory, and that the deviation from the resolution of the 
 creditors did not, therefore, vitiate the sale (c). 
 
 The trustee cannot without responsibility delegate the 
 general trust for sale (d) ; hut there seems to be no objection 
 to the employment of agents by him, where such a course is 
 conformable to the common usage of business, and the trustee 
 acts as prudently for the cestm que trust as he would have done 
 for himself (e). But an agent for sale must not be allowed to 
 receive the purchase money. 
 
 If the trustee think a sale by auction the more eligible mode, 
 he must see that aU proper advertisements are made, and due 
 notice given. It was ruled in an old case (/), that a cestui que 
 trust could not, by alleging the want of these preliminary 
 steps, obtain an injunction against the sale ; for, the trustee 
 being personally responsible to the cestui que trust for any 
 consequential damage, the Court could not regard it as a case 
 of irreparable injury. But, in a more recent case, where a 
 mortgage deed contained a power of sale, and the mortgagor. 
 
 (a) Bee JEx parte Dunman, 2 Rose, 
 66 ; Hx parte Hurly, 2 D. & C. 
 631; Ex parte Ladbrohe, 1 Mont. & 
 A. 384. 
 
 (J) Mather v. Priestman, 9 Sim. 
 352. 
 
 (e) Wright v. Maunder, 4 Beav. 
 
 512 ; and see Sidebotham v. Bar- 
 rington, 4 Beav. 110. 
 
 {d) Hardwick v. Mynd, 1 Anst. 
 109. 
 
 (e) Ex parte Belchier, Amb. 218; 
 and see Ord v. Noel, 5 Mad. 438. 
 
 (f)Pechal-7. Fowler, 2 Anst. 549. 
 
Ck. XVI. S. 1.] TRUSTEES FOE SALE. 433 
 
 alleging that due notice had not been given, applied for an 
 injunction agaiast the sale, though Sir John Leach in the 
 first instance, on the assumption that the power was vested in 
 the mortgagee (a), refused the motion, considering that, as 
 the plaintiff might give notice to the purchaser of the insti- 
 tution of the suit, it was better there should be an additional 
 party to the cause than a possible injury be risked to the 
 mortgagee by the interruption of the sale, yet it afterwards 
 appearing that the power was limited to a trustee, and that the 
 mortgagor had not been apprised of the intended sale, his 
 Honour granted the injunction. "It was the duty," he said, "of 
 the trustee to attend equally to the interests of both cestuis que 
 trust, and to apprise both of the intention of selling, that each 
 might take the means to procure an advantageous sale " (6). 
 
 A trustee may sell subject to any reasonable conditions of Conditions of 
 sale (c), but would not be justified in clogging the property ^ ^' 
 with restrictions that were evidently uncalled for by the state of 
 the title (d). It is notunusual in penning a trust for sale to autho- 
 rise the trustees expressly to insert special conditions of sale; 
 but still this would be no warrant for the introduction of stipu- 
 lations plainly a breach of trust as not rendered necessary by the 
 state of the title, and calculated to damp the success of the sale. 
 
 There seems to be no rule to prevent trustees from selling SeUing in lots. 
 in lots, should the auctioneer or other experienced person 
 recommend it as the most advisable course (e). 
 
 It is certain that assignees of a bankrupt cannot buy in at Buying in. 
 the auction without the authority of the creditors. "Where the 
 assignees had put up the estate in two lots, and bought them 
 in, and afterwards upon a re-sale there was a gain upon one lot 
 and a loss upon the other, the balance upon the whole being in 
 favour of the estate, Lord Eldon compelled the assignees to 
 account for the diminution of price on the one lot, and would 
 not allow them to set off the increase of price on the other (/). 
 
 (a) As to restraining a mortgagee [d) Wilkins v. Fry, 2 Rose, 375 ; 
 
 from selling, see JfaWAie V. -B(Zioo>'£?s, S. C. 1 Mer. 268. 
 
 2 Coll. 465, S. C. on appeal nomine (e) See Co. Lit. 113 a ; Ord v. 
 
 Jones V. Matthie, 11 Jurist, 504. Noel, 5 Mad. 438 ; and see Ex parte 
 
 (6) Anon, case, 6 Mad. 10 ; Blen- Lewis, 1 Gl. & J. 69. 
 
 nerhasset v. Day, 2 B. & B. 133. {/) JEx parte Lewis, 1 Gl. & J. 
 
 (c) Hobson v. Bell, 2 Beav. 17. 69 ; and see Ex parte Buxton, id. 
 
424 
 
 TRUSTEES FOR SALE. 
 
 [CH. XVI. S. 1. 
 
 Auction duty. 
 
 Hardship. 
 
 Letting into 
 
 Of " granting " 
 in the operative 
 part of the con- 
 veyance. 
 
 It may be thought perhaps that assignees acting tinder a 
 statute have less discretionary power than belongs to ordinary 
 trustees ; but in Taylor v. Tabrum (a) the same principle was 
 applied to trustees in the proper sense of the word. An estate 
 had been devised upon trust to sell, and soon after the testator's 
 death, the trustees put up the property to auction, and 6000i. 
 was bid, but one of the parties interested desiring it might not 
 be sold under 7000L, the property was bought in. Four or five 
 years afterwards they sold it for 3600Z., and they were held 
 responsible for the consequent loss to the estate. It was said 
 by Sir J. Leach, that, " if the sale be made with all the 
 circumstances of caution which a provident owner would have 
 applied in the case of his own property, it could not be a 
 breach of trust that the estate did not produce a full price, 
 for the very nature of an auction was that the adequacy of 
 price should be submitted to the chance of competition " (6). 
 
 Trustees for sale under an act of parliament are chargeable 
 with auction duty in the same manner as any other vendor (c). 
 
 The Court will not enforce a contract against trustees where 
 it presses with extreme hardship. Thus, where trustees, not 
 being apprised of the real amount of the incumbrances upon an 
 estate, entered into a personal engagement with the purchaser 
 to clear off aU incumbrances, the Court would not compel the 
 trustees to fulfil their contract, but left the parties to law {d), 
 and the bill was dismissed without costs (e). 
 
 The purchaser, after the contract, should not be let into 
 possession of the estate untU the completion of the sale by 
 payment of the full purchase money (/). 
 
 In drawing the conveyance, the word " grant " being 
 commonly (though erroneously) supposed to contain a war- 
 ranty (g), the trustee, instead of " granting, bargaining, selling, 
 and releasing," is made to " bargain, sell, and release," with 
 
 355 ; & parte Baldock, 2 D. & C. 
 60 ; Ex parte Oover, 1 De Gex, 
 349. 
 
 (a) 6 Sim. 281. 
 
 (5) Ordy. Noel, 5 Mad. 440 ; but 
 see Conolly v. Parsons, 3 Ves. 628, 
 note. 
 
 (c) King V. Winstanley, 8 Price, 
 180. 
 
 [d) Wedgwood v. Adams, 6 Bear. 
 600. 
 
 (e) 8 Beav. 103. 
 
 (/) Oliver v. Court, 8 Price, 166, 
 per Chief Baron Richards ; see 
 Browell v. Reed, 1 Hare, 434. 
 
 {g) See Co. Lit. 384 a, note (1), 
 Hargrave and Butler's Ed. ; and see 
 8 & 9 V. c. 106, s. 4. 
 
CH. XVI. S. l.J TRUSTEES FOR SALE. 435 
 
 the omission of the word "grant : " and it is usual, in order to 
 secure the trustees from the possibility of parting with any 
 interest to which they may he entitled beneficially, to insert in 
 the operative part of the instrument the words " according to 
 their estate and interest as such trustees." 
 
 A trustee cannot be compelled to enter into any other cove- Covenants. 
 nant for title than against incumbrances by his own acts (a). 
 But it would be prudent in trustees to apprise the public that 
 they sell in that character, that the purchaser may not say he 
 was led to suppose from the advertisements of sale, that the 
 vendors were the beneficial proprietors, that the contract must, 
 therefore, draw with it the usual incidents, and that the pur- 
 chaser ought to have the benefit of the ordinary covenants. 
 
 Mortgagees with a power of sale are regarded as trustees, and Mortgagees' cotb- 
 covenant only against their own acts (6). To the extent of their 
 mortgage money they are beneficially interested, but not as owners 
 of the estate, but only as incumbrancers entitled to a charge. 
 
 It was laid down by Lord Eldon, that assignees of bankrupts Attested copies 
 were bound, in case they could not deliver up the title deeds, to fo^ prod™otioii. 
 furnish the purchaser with attested copies and to covenant for 
 the production of the originals, the covenant to be confined to 
 the period during which the assignees should continue in 
 office (c). And trustees, where they retain the title deeds, are 
 equally required to give attested copies, and to covenant for 
 the production of the documents in the common form, with a 
 
 (a) White v. Foljamhe, 11 Ves. new lease to contain a recital of tte 
 345, per Lord Eldon ; Onslow v. old lease, and of the declaration of 
 Lord Londeshorough, 10 Hare, 74, the Court, in obedience to which the 
 per Cur. ; Worley v. Frampton, 5 trustees purport to demise ; Copper 
 Hare, 560; Stephens y. Sotham, 1 Mining Company y. Seach, 13Beav. 
 Xay & Johns. 571 ; and Page v. 478 ; Hodges v, Blagrave, 18 Beav. 
 Broom, 3 Beav. 36. This is car- 405. So, if A. agrees to grant a 
 ried to such an extent that, where a lease to B. and B. dies, A. can corn- 
 lessor grants a lease with a covenant pel the executors of B. to accept the 
 for perpetual renewal, devisees in lease, but the lease is so framed that 
 trust of the lessor, though bound to the executors of B. are guarded 
 grant a new lease, are not bound to against all personal liability ; Phil- 
 enter into a similar covenant. In lips v. Fverard, 5 Sim. 102 ; 
 these cases the Court has, in order Stephens y. Hotham, 1 Kay & Johns, 
 to secure the lessee without making 571°; and see Staines y. Morris, 1 V. 
 the trustees personally liable, de- & B. 12. 
 
 Glared the right of the lessee to a (6) Vend, and Pur. p. 61, 11th Ed. 
 
 perpetual renewal, and directed the (c) Ex parte Stuart, 2 Rose, 215. 
 
426 TRUSTEES FOR SALE. [CH. XVI. S. 1. 
 
 proviso, that on lawfully parting with the deeds, and obtaiaing 
 a similar covenant from the person to whom they are delivered, 
 the covenant shall be void. 
 
 Sale of lease- In a Sale of leaseholds by trustees who take under a settle- 
 
 ment they cannot, in any case, require from a purchaser a 
 covenant of indemnity against a breach of the covenants ; for, 
 as regards themselves, they took the lease by assignment, and 
 therefore cease to be liable on the assignment over ; and, as 
 regards a covenant for the protection of the settlor, he has 
 become a stranger by the execution of the trust deed, and the 
 trustees could neither, in the absence of an express stipulation, 
 insist upon a benefit to one with whom there is no existing 
 privity, nor as they are bound to make the sale the most bene- 
 ficial to the eestuis que trust, could, they insert a condition in 
 favour of a stranger, which might operate as a discouragement 
 to purchasers (a). But the executor of a lessee upon assigning 
 the term would be entitled to such a covenant, his testator's 
 estate being liable under the original covenants of his testator. 
 Indeed an executor is, in such a case, entitled prima facie 
 not merely to the vendee's covenant to indemnify, but also 
 where the estate is in course of distribution to have a portion 
 of the estate itself reserved for the purpose of forming an in- 
 demnity fund (6), though not so where the risk is inconsider- 
 able (c). But of course there can be no claim to an indemnity 
 where the testator's estate is not liable, as where the testator 
 himself was not a lessee, but the assignee of a lease who had 
 entered into no covenants {d). And if the executor has 
 assented to the bequest unconditionally, he has waived his 
 claim to indemnity (e). 
 
 Assignment of a In the assignment of a chose in action, the trustee may be 
 
 chose in action, 'jj.* p., i .,i j 
 
 required to give a power of attorney to receive the money and 
 to sue in his name, but this should be accompanied with a 
 
 (a) See Wilkins v. Fry, 1 Mer. (d) Oarratt v. LancefieU, 2 Jur. 
 
 244. N. S. 177. N. B. It may be collected 
 
 (6) Cochrane v. Rohinson, 11 Sim. from the judgment that the ordinary 
 
 378 ; Fletcher v. Stevenson, 3 Hare, covenant to indemnify had not been 
 
 360; DobsonY. Carpenter, 12 Bea- entered into by the testator on the 
 
 van ; Hichling v. Boyer, 3 Mao. & occasion of the assignment to him. 
 Gor. 635. (e) Shadbolt v. Woodfall, 2 CoU. 
 
 (c) Dean v. Allen, 20 Beav. 1. 30. 
 
CH. XVI. S. 1.] TRUSTEES FOR SALE. 427 
 
 proviso, that no action or suit shall be commenced without the 
 assignor's consent, or else tendering a sufficient indemnity (a). 
 
 As in a mortgage accompanied with a power of sale, the SaleT^ymort- 
 mortgagee, who is a quasi trustee, can under the power make 
 a title to the purchaser without the concurrence of the mort- 
 gagor (&), a clause in the mortgage deed that the mortgagor 
 shall, if required, be a party to the conveyance, is considered 
 a contract for the exclusive benefit of the mortgagee, and not 
 as imposing the necessity of procuring the mortgagor's consent 
 to the sale (c). 
 
 If the trustees have a power of signing discharges for the Whether the 
 
 , 1 , ■ . 1 . .-i cestuis que trust 
 
 purcnase money, the cestuis que trust need not necessarily should be 
 be made parties to the conveyance (cQ ; but, as trustees are P*'^'^^- 
 bound to covenant against their own incumbrances only, the 
 cestuis que trust, where it is practicable, are usually made 
 parties to the deed, that the purchaser may have the benefit 
 of their covenants for title according to the extent of their 
 respective interests (e). In sales, however, under the direction 
 of the Court of Chancery, it is the rule not to make the cestuis 
 que trust parties ; for this would involve the necessity of pre- 
 viously inquiring who were beneficially interested, and in what 
 proportions, whereas it is a common proceeding of the Court 
 to order a sale in the first instance, and leave the rights of the 
 respective parties to be settled by a subsequent adjustment (/). 
 
 Where trustees sell by auction, the auctioneer, until the sale Deposit money, 
 is cpmpleted, is the agent of both vendor and purchaser ; but 
 after completion of the purchase he is the agent of the vendor 
 only, and the trustees will be answerable if by any unnecessary 
 delay the deposit be lost (g). * 
 
 Trustees for sale and payment of debts are of course bound Trustees boupd 
 at any time to answer inquiries by the author of the trust, or q,uriea. 
 
 (a) Sx parte Little, 3 Moll. 67. (e) See In re Zondon Bridge Acts, 
 
 (h) Corder v. Morgan, 18 Ves. 13 Sim. 176. 
 344; Clayv. Sharpe, cited id. 346, (/) Waheman n. Duchess of Rut- 
 note i^'); Alexanders. Croshie,&lT. land, 3 Ves. 233, 504; affirmed in 
 Eq. Rep. 518. D. P. 8 B. P. C. 145; Colston y. 
 
 (c) Corder v. Morgan, 18 Ves. Lilley, 3 May, 1S55, V. C. Stuart at 
 347, per Sir W. Grant. chambers ; and see Loyd v. Griffith, 
 
 [d) See Binks v. Lord Rohehy, 2 3 Atk. 264. 
 
 Mad. 227. {g) Edmonds v. Feake,^ Beav. 239. 
 
428 
 
 TRUSTEES RECEIPTS. 
 
 [CH. XVI. S. 2. 
 
 Custody of 
 vouchers. 
 
 Land discharged 
 when money 
 
 the persons claiming under him, as to what estates have been 
 sold and what debts have been paid (a). 
 
 When the affairs of the trust have been finally settled, the 
 trustees wiU be entitled to the possession of the vouchers as 
 their discharge to the cestui que trust; but the cestui que trust 
 will have a right to the inspection of them (6). But not to 
 copies without paying for them. 
 
 The land is discharged so soon as the fund has been actually 
 raised, even though the proceeds may be misapplied, and not 
 reach their proper destination. The remedy of the parties 
 aggrieved is against the trustees personally, and they have no 
 lien upon the estate (c). 
 
 SECTION 11. 
 
 Trust for sale for 
 payment of debts. 
 
 THE POWEE, OF TRUSTEES TO SIGN DISCHAEGES FOE THE PtTECHASB MOITET. 
 
 The power of trustees to sign discharges for the purchase 
 money resolves itself into two questions: — First. Are the trus- 
 tees justified in making the sale ? and. Secondly. Supposing 
 the sale- itself to be proper, is the purchaser bound to see to 
 the application of his purchase money ? 
 
 First. Are the trustees justified in proceeding to the sale ? 
 
 If a testator direct a sale of his real estate for payment of 
 debts on the insufficiency of the personal assets, the trustee 
 ought not of course to dispose of the realty, until it appears 
 the personal fund is not equal to meet the demands of the 
 creditors. But the point we have here to consider is, how 
 will the purchaser be affected, and, as he has no means of 
 investigg,ting the accounts, it is held he is not to be prejudiced, 
 should it be proved that eventually the personal is sufficient (d). 
 All that could reasonably, and which perhaps would be required 
 
 (a) Clarke v. Earl of Ormonde, 
 Jac. 120, per Lord Eldon. 
 
 {b) lb. per eundem. 
 
 (e) Anon. 1 Salk. 153 ; Juxon v. 
 Brian, Pr. Ch. 143 ; Carter v. Bar- 
 nardiston, 1 P. W. 505, see 518 ; 
 Hutchinson v. Massareene, 2 B. & 
 B. 49 ; and see Omerod v. Hard- 
 man, 5 Ves. 736 ; Bunch v. Kent, 
 1 Vera. 260 ; Culpepper v. Aston, 
 
 2 Ch. Ca. 115 ; Harrison v. Cage, 2 
 Vera. 85. 
 
 (d) Culpepper v. Aston, 2 Ch. Ca. 
 115, per Lord Nottingham; Keane 
 V. Bobarts, 4 Med. 356, per Sir J. 
 Leach ; Co. Lit. 290 b, note by 
 Butler, sect. 14 ; Shaw v. Borrer, 1 
 Eeen, 559; but see 'Fearne's P. W. 
 121. 
 
CH. XVI. s. 2.] trustees' receii'ts. 439 
 
 of him, is, that he should apply to the executor, where the 
 
 trustee does not sustain that character, and ask if the necessity 
 
 of the sale has arisen {a). However, a purchaser is prevented 
 
 from dealing with the trustee out of Court, where a suit has 
 
 been instituted for the administration of the estate (&), provided 
 
 at least the suit be bond fide, and not collusive (c). But if Power of sale on 
 
 a testator give a power of sale only to his trustees on the personal estate. 
 
 insufficiency of the personal estate, then the purchaser must 
 
 at his peril ascertain that the power can be exercised (d). The 
 
 difference between a trust and a power is this. In the former 
 
 case, the trustees, having the legal estate, can transfer it to the 
 
 purchaser by their ownership ; and equity, as the purchaser 
 
 had no opportunity of discovering the true state of things, will 
 
 not impeach his title. But where there is a power merely, the 
 
 insufficiency of the personal estate is a condition precedent ; 
 
 and if it did not pre-exist in fact, the power never arose, and 
 
 the purchaser took nothing by the pretended execution of it. 
 
 Nor is a purchaser bound to ascertain whether more is Case of selling 
 offered for sale than is sufficient to answer the purposes of ^^^ requires^ 
 the trust ; for how is the purchaser to know what exact sum 
 is wanted, without investigating the accounts ? Besides, the 
 trustees are entitled, as incident to their office, to raise their 
 costs and expenses (e). 
 
 But where a testator directed, on the insufficiency of his pierce v. Soott. 
 personal estate, a sale in the first instance of A., and should 
 that not answer the purpose, then of B., and the trustees, fifteen 
 years after the testator's death, contracted for the sale of B. 
 first, and then filed a biU for specific iierformance, alleging the 
 existence of debts, and that A. was already in mortgage, or 
 otherwise charged to the full value, the Court, considering it 
 was unlikely that creditors would have lain by for so many 
 years, and that the non-existence of debts might therefore be 
 suspected, and that what was ground for suspicion might be 
 deemed notice to a purchaser, determined against the title (/). 
 
 (a) See Shaw Y.Borrer,ubi supra. (d) Culpepper y. Aston, 2 Ch. Ca.. 
 
 (b) Culpepper v. Aston, 2 Ch. Ca. 221 ; Bike v. Bicks, Cr. Car. 335 ; 
 116, 223, per Lord Nottingham ; S. C. Sir W. Jones, 327. 
 
 and see Walker v. Smallwood, Amb. («) Spalding v. Shalmer, 1 Vern. 
 
 676; and supra, p. 328. 301. 
 
 (e) Culpepper v. Aston, 2 Ch. Ca. (/) Pierce v. Scott, 1 Y. & C. 257. 
 116, per Lord Nottingham. 
 
430 
 
 TRUSTEES EECEIPT3. 
 
 [CH. XVI. S. 2. 
 
 Sale of estate 
 charged with 
 legacies not yet 
 
 Principle of re- 
 quiring a pur- 
 chaser to see to 
 the application of 
 his purchase 
 money. 
 
 The rule con- 
 trolled by the 
 intention of the 
 settlor. 
 
 Either expressed. 
 
 If an estate be devised, charged with legacies payable at 
 twenty-one, the devisee cannot sell the land discharged of the 
 legacies until the time of payment has arrived. The execution 
 of the trust is uncalled for tiU that period, and it cannot be 
 anticipated for the convenience of other parties. Should the 
 legacies be raised, and invested by anticipation, the funds 
 might afterwards become deteriorated, and the legatees be 
 defrauded of the bounty intended them (a). But where a term 
 was created, and the trustees were directed to raise, if there 
 should be one child, 6000J. ; if two, 8000?. ; if three or more, 
 10,000?.; and it was provided that no mortgage should be 
 made until some one of the said portions should become payable ; 
 there being seven children, four of whom were of age, and 
 three minors, it was held that the trustees might raise the 
 whole 10,000?. (b) ^ 
 
 Secondly. Supposing the sale to be proper, is the purchaser 
 bound to see to the application of his purchase money ? 
 
 It is a rule requiring no elucidation, that if a person have in 
 his hands money or other property to which another person 
 is entitled, he cannot discharge himself from liability but by 
 payment or transfer to the rightful owner. If an estate be 
 vested in A. upon trust to sell and divide the proceeds between 
 B. and C, in a court of law the absolute ownership is in A., 
 and his receipt, therefore, will discharge the purchaser; but 
 in equity B. and C, the cestuis que trust, are the true and 
 beneficial proprietors, and A. is merely the instrument for the 
 execution of the settlor's purpose. The receipt, therefore, to 
 be effectual, must be signed by B. and C. (c) ; and the power of 
 the vendor to sign a discharge for the purchase money is a 
 question, not of conveyance, but of title (d). 
 
 Such is the prima facie rule in trusts ; but in every instance 
 it is liable to be controlled and defeated by an intention to 
 the contrary collected from the instrument creating the trust, 
 whether that intention be expressed or implied. 
 
 The former is the case, if the settlor direct in express terms 
 
 (a) Dickenson v. Dickenson, 3 B. 
 C. C. 19. 
 
 (6) Gillihrand v. Goold, 5 Sim, 
 149. 
 
 (e) See Weatherhy v. St. Cfiorgio, 
 2 Hare, 624. 
 
 (d) Forbes v. Peacock, 12 Sim, 
 521. 
 
CH. XVI. S. 2.] TEUSTEES' RECEIPTS. 431 
 
 that the receipts of A., the trustee, shall discharge the pur- 
 chaser from seeing to the application of the purchase money ; 
 for B. and C. cannot at the same moment claim under and 
 contradict the instrument — they cannot avail themselves of the 
 sale, and reject the proviso affecting the receipt, and the words 
 in the ordinary power of attorney, viz. " to sign discharges for 
 the money to he recovered under the power, and to do all 
 other acts as the principal might have done," have been held 
 to carry such a direction (a) where not controlled by a sub- 
 sequent receipt clause tending to negative that intent (6). 
 
 In what cases the lite intention will be implied, has never Or implied. 
 been satisfactorily ascertained. However, two principles Whether trnst to 
 appear to be the basis upon which most of the distinctions ahie from a 
 taken by the Courts have been founded. " ^^^^' 
 
 1. In the creation of a trust for immediate sale, it is clearly Direction to sell 
 
 TIT T -1 T .-i-iTi !• 1 1 implies power in 
 
 impued, that a legal and equitable discharge for the purchase some one to sign 
 money shall be signed hy some one at the time of the sale, tiieof^aet* 
 There can be no conveyance of the estate without payment of 
 the money, and there can be no such payment without a com- 
 plete discharge. Should the settlor appear to have contem- 
 plated a sale at a time when the cestuis que trust, or some of 
 them, were either not in existence, or not of capacity to execute 
 legal acts, the intention must be presumed that the receipts of 
 the trustees should be a release to the purchaser. 
 
 Thus, where a deed was executed in India for payment of Balfour v. Wei- 
 debts, with a proviso that creditors in India should be allowed 
 six months to come in, and those in Europe eighteen months, 
 and if any were under disability, they should be further allowed 
 the like periods from the time the disability ceased. Sir W. 
 Grant said, " The deed very clearly confers an immediate 
 power of sale for a purpose that cannot be immediately de- 
 fined. It is impossible to contend that the trustees might not 
 have sold the whole property at any time they thought fit after 
 the execution of the deed, and yet it could not be ascertained, 
 until the end of eighteen months, who were the persons among 
 whom the produce of the sale was to be distributed. If the 
 
 (a) Sinks Y. Lord Roheby, 2 Mad. (5) Brasier v. Hudson, 9 Sim. 1. 
 
 227, see 238, 239. 
 
432 TEUSTEES' RECEIPTS. [CH. XVI. S. 3. 
 
 sale might take place at a time when the distribution could not 
 possibly be made, it must have been intended that the trustees 
 should of themselves be able to give a discharge for the produce, 
 for the money could not be paid to any other person than the 
 trustees " (a). 
 
 Case of infancy. So where A. devised certain lands to his children, "the 
 same to be sold when the executors and trustees of his wiU 
 should see proper, and the purchase-money to be equally and 
 severally divided amongst his above-named children," Sir J. 
 Leach said, " It is plain the testator intended that the trustees 
 should have an immediate power of sale. Some of the children 
 were infants, and not capable of signing receipts. I must 
 therefore infer, that the testator meant to give to the trustees 
 the power to sign receipts, being an authority necessary for the 
 execution of his declared purpose " (6). 
 
 As to cestuis que As to cestuis que trust who, after the date of the instrument, 
 
 trtist out of the 
 
 jurisdiction. go out of the jurisdiction the general rule does not apply, for 
 
 it cannot be said that the settlor meant the trustees to sign 
 receipts for them, the presumption being the other way ; but 
 though a power of signing receipts cannot in this case be im- 
 plied, it may be contended that the rule of equity obUging a 
 purchaser to see to the application of his purchase-money, ope- 
 rates only where the cestui que trust is accessible to receive the 
 money, and that when he is abroad the purchaser may pay to 
 the trustee, and need hot look to the application. Of this 
 opinion appears to be Lord St. Leonards, who remarks, " The 
 receipt of the trustee would certainly have been a sufficient 
 discharge for the shares of the infant, and also, it is conceived, 
 for the share of the cestui que trust who was abroad. It would 
 be difficult to maintain that the absence of a cestui que trust 
 in a foreign country should, in a case of this nature, impede 
 the sale of the estate " (c). 
 Where trust is 2. If a Sale be directed, and the proceeds are not simply to 
 
 purchase-money ^^ P^^*^ ^^^^ ^^ certain parties, but there is a special trust 
 it^s implied that annexed, the presumption must be that the settlor meant to 
 
 apply it. 
 
 (a) Balfour v. Welland, 16 Ves. and see Breedon v. Breedon, 1 E. & 
 
 151, see 156. M. 413 ; Cuthbert v. Baker, Vend. 
 
 (6) Sowarshy v. Lacy, 4 Mad. 142; & Puroh. 842, 843, 11th Ed". 
 Lavender v. Stanton, 6 Mad. 46; (c) Vend. & Purch. 844, 11th Ed". 
 
CH. XVI. s. 3.] trustees' eeceipts. 433 
 
 confide the execution of the trust to the hands of the trustee, 
 and not of the purchaser (a). 
 
 Thus, Lord Thurlow, where a settlement contained a power Power of sale and 
 of sale, and it was directed that the trustees should receive the newpurciiase &o. 
 purchase-money, and lay it out on a new purchase to the like 
 uses, and till that was done should invest it in government 
 funds, observed, " As to the power which the trustees have of 
 giving a discharge, it is true, that when land is to be sold, and 
 a particular debt is to be paid with it, the purchaser is bound 
 to see to the application of the purchase-money. But in cases 
 where the application is to a payment of debts generally, or to 
 a general laying out of the money, I know of no case which lays 
 down, or any reasoning in any case which goes the length of 
 saying, that a purchaser is so bound" (6). So where a trust Trust to pay 
 was created for payment of debts. Sir W. Grant, in holding the ment'meant to be 
 receipt of the trustees to be a release to the purchaser, said, ""^^"^ f^^ control 
 
 ■^ ■■■ ' ' of the trustee. 
 
 "it was evident from the whole tenor of the deed that the 
 
 parties contemplated and intended that all the money to be 
 
 produced by the sale should come into the hands of the trustees ; 
 
 should be managed by them until distribution ; should be 
 
 placed out in their names ; and should by them be ultimately 
 
 distributed " (c). And agaiu, where a person directed his exe- Trust to lay out 
 
 cutors to convert all his real and personal estate into money, 
 
 and lend the same upon good security upon trust to pay the 
 
 interest to his wife for life, with remainder over. Sir J. Leach 
 
 held, " that the authority given by the testator to lay out and 
 
 invest the money was an authority to do all acts essential to 
 
 (3) See Qlynn v. Locke, 2 Drur. struction ,of a will whick gave to the 
 
 & War. 11 ; Ford v. Ryan, 4 Ir. tenants for life the like powers of 
 
 Ch. Eep. 342. selling and exchanging as were con- 
 
 (6) Doran v. Wiltshire, 3 Sw. tained in a settlement referred to, 
 
 699. In Cox Y. Cox, 1 Kay & John, and in which were, not only powers 
 
 251, Vice-Chancellor Wood held, of sale and exchange, hut also a 
 
 that powers of sale and exchange do power of signing receipts, and the 
 
 not imply a power of signing receipts; Vice-Chancellor was of opinion that 
 
 that the latter power was by no the powers of sale and exchange 
 
 means one inserted as of course in only, without the power of signing 
 
 legal instruments, but often ex- receipts, were incorporated by refer- 
 
 cluded, and when excluded was ence. 
 
 never implied, except under very (c) Balfour v. Welland, 16 Ves. 
 
 special circumstances. The question 611, see 157. 
 in that case arose upon the con- 
 
 and iuTest. 
 
434 
 
 TRUSTEES EECEIPTS. 
 
 [oh, XVI. S. 2, 
 
 Mr. Booth's 
 opinion. 
 
 Trust to pay 
 debts. 
 
 the trust, and necessarily . tlierefore to give discharges to the 
 borrowers of the money " {a). And an opinion of Mr. Booth 
 shows the practice of the profession, even in his time, to have 
 been in conformity with these doctrines. A testator had 
 directed his trustees to sell and invest the proceeds upon the 
 trusts thereinafter mentioned, and then gave his wife an an* 
 nuity of 50Z. a year, for her life, to be paid out of the proceeds, 
 and, subject thereto, gave the fund to his son ; but in case of 
 his death under twenty-one, to the person entitled to his 
 Taunton lands. Mr. Booth wrote, " I am of opinion, that aU 
 that wiU be incumbent on the purchaser to see done will be to 
 see that the trustees invest the purchase -money, in their names^ 
 in some of the public stocks or funds, or on government secu- 
 rities, and in such case the purchaser will not be answerable 
 for any misapplication, after such investment of the money, 
 of any monies which may arise by the dividends or interest, 
 or by any disposition of such funds, stocks, or securities, it 
 not being possible that the testator- should expect from any 
 purchaser any further degree of care or circumspection than 
 during the time that the transaction for the purchase was carrying 
 on, and therefore the testator must be supposed to place his sole 
 confidence in the trustees, and this is the settled practice in these 
 cases, and I have often advised so much, and no more, to be 
 done." And in this opinion Mr. Wilbraham also concurred (6). 
 To the principle under consideration must be referred the 
 well-known rule, that a purchaser is not bound to see to the 
 application of his money where the trust is for payment of 
 debts generally; for to ascertain who are the creditors, and 
 what is the amount of their respective claims, is matter of 
 trust involving long and intricate accounts, and requiring the 
 production of vouchers, which the purchaser would have no 
 right to require (c). So if the trust be for payment of a par- 
 
 (o) WoodY.HarmanjdHlai. 368; 
 Locke v. Zomas, 5 De Gex & Sm. 326. 
 
 (6) 2 Cas. & Op. 114. 
 
 (c) Forbes v. Peacock, 11 Sim. 
 152; and see S. C. 12 Sim. 528; 
 1 Phill. 717 ; Stroughill v. Anstey, 
 1 De G., M. & G. 635 ; Bowling v. 
 Hudson, 17 Beav. 248 ; Culpepper 
 
 V. Aston, 2 Ch. Ca. 223 ; Wathins 
 V. Cheek, 2 S. & S. 205, per Sir J. 
 Leach ; Anon. Mose. 96 ; Hardwick 
 Y. Mynd, 1 Anst. 109 ; Johnson v. 
 Kennett, 3 M. & K. 630, per Lord 
 Lyndhurst; Rogers v. Skillicorne, 
 Amb. 189, per Lord Hardwicke; 
 Walker v. Smalwood, id. 677, per 
 
CH. XVI. s. 2.] 
 
 TRUSTEES EECEIPTS. 
 
 435 
 
 ticular debt named, and of the testator's other debts (a). So 
 if the trust be for payment of debts and He^acies,. the pur- 
 chaser is equally protected ; for as the discharge of the debts 
 must precede that of the legacies, and the purchaser is not 
 called upon to mix himself up with the settlement of the debts, 
 he is necessarily absolved from all liabilities in respect of the 
 legacies (&). But where the trust is for payment of particular Scheduled debts 
 or scheduled debts only (c), or of legacies only {d), then, as there "^ ^^'^ 
 is no trust to be executed requiring time or discretion, but 
 the purchase-money is simply to be distributed amongst cer- 
 tain parties, there is no reason why the purchaser should not, 
 under the general rule, be expected to see that the purchase- 
 money finds its way into the proper channel. And the 
 purchaser, where legacies only are charged, is still bound to 
 see to the application of his money, though by a late act (e) the Late Assets Act. 
 real estate of all persons deceased siuce the 29th of August, 
 1833, is liable (in the hands of the heir or devisee, but not by 
 
 Lord Camden ; Barher v. Duke of 
 Devonshire, 3 Mer. 310 ; Abbot v. 
 Gibbs, 1 Ec[. Ca. Ab. 358 ; Binks v. 
 Roheby, 2 Mad. 238, per Sir T. Plu- 
 mer ; Dunch v. Kent, 1 Vern. 260, 
 admitted; Elliot y. Merryman,'Rwm. 
 78; Smith v. Guyon, 1 B. C. C. 
 186, and cases cited, ib. note ; Ithell 
 V. Beane, 1 Ves. 215,^srLord Hard- 
 wicke; Lloyd y. Baldwin, ib. 173, 
 per eundem ; Dolton v. Hewen, 6 
 Mad. 9 ; Mx parte Turner, 9 Mod. 
 418, per Lord Hardwioke ; Oosling 
 V. Carter, 1 Coll. 644; Eland v. 
 Eland, 1 Beav. 235 ; -S. C. 4 M. & Cr. 
 420 ; Jb«es v. Pn'ee, 11 Sim. 557; 
 and see Currer v. Walkley, 2 Dick. 
 649, corrected, .from Eeg. Lib. 3 
 Vend, and Purch. 168, lOtb ed. 
 
 (a) HobinsonY. Lowater, 17 Beav. 
 592 ; 5 De Gex, Mac. & Gord. 272. 
 
 (6) Rogers v. Skillicorne, Amb. 
 188 ; Smith v. Gmjon, 1 B. C. C. 
 186 ; Jebb v. Abbott, and Beynon v. 
 GoUms, cited Co. Lit. 290 b, note by 
 Butler ; Williamson v. Curtis, 3 B. 
 C. C. 96 ; Johnson v. Kennett, 3 M. 
 & K. 630, per Lord Lyndhurst ; 6 
 
 Ves. 634, note (a); WathinsY. Cheek, 
 2 S. & S. 205, per Sir J. Leach; 
 Eland y. Eland, 1 Beav. 235 ; S. C. 
 4 M. & Cr. 420 ; Page v. Adam, 4 
 Beav. 269; Forbes v. Peacock, 12 
 Sim. 528; 1 Phill. 717. 
 
 (c) Dorany. Wiltshire, 3 Sw. 701, 
 per Lord Thurlow ; Smith v. Guyon, 
 1 B. C. C. 186, per eundem, and 
 cases cited, ib. note ; Rogers v. Skil- 
 licorne, Amb. 189, per Lord Hard- 
 wicke ; Sumble v. Bill, 1 Eq. Ca. 
 Ab. 359, per Sir N. Wrigbt ; Anon. 
 Mose. 96 ; Spalding v. Shalmer, 1 
 Vern. 303, per Lord North; Abbot 
 V. Gibbs, 1 Eq. Ca. Ab. 358 ; Elliot 
 V. Merryman, Barn. 81, per Sir J. 
 Jekyll ; Binks v. Rokeby, 2 Mad. 
 238, per Sir T. Plumer; Ithell v. 
 Beane, 1 Ves. 215, per Lord Hard- 
 wicke ; Lloyd v. Baldwin, 1 Ves. 
 173, per eundem; and see Dunch v. 
 Kent, 1 Vern. 260; Culpepper v. 
 Aston, 2 Ch. Ca. 223. 
 
 {d) Johnson v. Kennett, 3 M. & 
 K. 630, per Lord Lyndhurst ; Horn 
 V. Horn, 2 S. & S. 448. 
 
 (e) 3 & 4 "W. 4. e. 104. 
 r F 2 
 
436 trustees' receipts. [ch. xvi. s. 2. 
 
 way of lien to biiid purchasers) to the payment of debts 
 
 generally, whether by specialty or simple contract (a). And 
 
 Where, notwith- even where the estate is subjected by the testator to a trust for 
 
 of debts, the pur- payment of debts generally, the purchaser will not be indem- 
 
 to thTappitatfon nified by the receipt of the trustee if there be any collusion 
 
 of his money. between them (b) ; or if the purchaser have notice from the 
 
 intrinsic evidence of the transaction that the purchase-money 
 
 is intended to be misapplied (c) ; or if a suit has been instituted 
 
 which takes the administration of the estate out of the hands 
 
 of the trustees (d). 
 
 Purchase from And if the purchaser is dealing with trustees at a great 
 
 lOTgtrof^w" distance of time, and when the trust ought long since to have 
 
 been executedj the purchaser is bound to inquire and satisfy 
 
 himself to a fair and reasonable extent, that the trustees are 
 
 acting in the discharge of their duty (e). 
 
 Power of signing It is evident, from what has been stated, that the exemption 
 
 tioroflntmtion "f t^^ purchaser from seeing to the application of the purchase- 
 
 at the date of the money depends as a general rule upon the settlor's intention; 
 
 instrument. j x o r 
 
 and if so, the question must be viewed with reference to the 
 date of the instrument, and not as affected by circumstances 
 which have subsequently transpired, " The deed," said Sir 
 W. Grant, " must receive its construction as from the moment 
 of its execution. According to the frame of the deed, the 
 purchaser is or is not liable to see to the application of the 
 money, and that liability cannot depend on any subsequent 
 event " (/). Thus, if a trust be created for payment of debts 
 and legacies, and the trustees, after full payment of the debts 
 contract for the sale of the estate, the purchaser will not, upon 
 this principle, be answerable for the application of the money 
 in payment of the legacies. And so it has been held in several 
 cases (g). " It is said," observed Lord Lyndhurst, " that the 
 
 («) Sorn V. Horn, 2 S. & S. 448. StrougMl v. Anstey, 1 De G. M. & 
 
 (6) JRogers v. Skillicorne, Amb. Q-. 648. 
 
 189, per Lord Hardwioke; Eland {d) Lloi/d y. Baldwin, 1 Yes. 113. 
 
 V. Eland, 4 M. & Cr. 427, per Lord (e) Stroughill v. Anstey, 1 De G. 
 
 Cottenham. M. & G. 654, ^erLord St. Leonards. 
 
 (c) Watkins v. Cheek, 2 S. & S. (/) Balfour v. Welland, 16 Tes. 
 
 199; Eland Y. Eland, 4 M. & Cr. 156. 
 
 427, per Lord Cotte:ijham ; and see [g) Johnson r. Kennett, 3 M. & 
 
ctL. XVI. s. 2.] trustees' receipts. 437 
 
 debts having been paid out of the personal estate, and nothing 
 remaining but the legacies, the case falls within the general 
 rule applicable to cases where legacies alone are charged upon 
 the real estate. I find no authority for such a proposition. 
 The rule applies to the state of things at the death of the 
 testator ; and if the debts are afterwards paid, and the legacies 
 alone are left as a charge, that circumstance does not vary the 
 general rule " (a). "Otherwise," said Lord Cottenham, "the 
 purchaser must, in every case, go into an investigation of the 
 fact of how far the debts have been discharged — exactly that 
 liability to which the law considers that he should not be 
 subjected " (b). 
 
 ■ In Forbes v. Peacock (c), a testator directed his debts to be Forbes v. 
 paid, and gave the estate to his wife, (whom he appointed his 
 executrix) for life, subject to his debtsand certain legacies, and 
 empowered her to sell the estate in her lifetime, and directed 
 that if it were not sold in her lifetime, it should be sold at 
 her death, and the proceeds applied in a manner showing that 
 they were intended to pass through the hands of the executors, 
 and the testator requested certain persons to act as executors 
 and trustees with his wife. The widow lived twenty-five years, 
 and after her death the surviving executor contracted for the 
 sale of the estate. The Vice-ChanceUor of England held that, 
 after so long lapse of time from the testator's death, the 
 purchaser had a right to ask if the debts had been paid, and if 
 he received no answer, it amounted to notice that they had 
 been paid, and he must see to the application of his purchase- 
 money. " My notion," he said, " of the law is, that where a 
 testator has directed all his debts to be paid, and then appoints 
 certain persons his executors and trustees, if, at any time after 
 his death, those who have the power sell any part of the 
 testator's real estates, and nothing is said about the matter, 
 the purchaser will have a good title, because upon the face of 
 
 K. 624, reversing S. 0. 6 Sim. 384 ; (6) JEland v. Sland, 4 M. & Cr. 
 
 JSland V. :Eland, 4 M. & Cr. 420 ; 428. 
 
 Faffe V. Adam, 4 Beav. 269 ; Stroug- (c) 11 Sim. 152 ; 12 Sim. 528 ; 11 
 
 &■« V. ^nsfey, 1 De G. M. & G. 635. M. & W. 637; 1 Phill. 717; see 
 
 (a) Johnson Y. Kennett, 3 M. &K. 1 De G. M. & G. 650. 
 631. 
 
438 trustees' beceipts. [ch. xvi. s. 2. 
 
 the will there is a charge of debts, and non constat that all the 
 debts have been paid. At the same time I think that if it 
 should appear to be highly probable, at the time when the 
 executors propose to sell, that the debts have been paid, a 
 very important question may arise, whether a good conveyance 
 can be made by them alone, 'and whether the concurrence of 
 the persons interested in the proceeds of the sale may not be 
 necessary. It strikes me, therefore, that when the objection is 
 made by the purchaser that the executors cannot make a good 
 title because all the debts have been paid, if the question is 
 put by him simply, are there or are there not any debts remaining 
 unpaid, he has a right to an answer " (a). And on a subsequent 
 day he observed, " Here the purchaser has asked the executor 
 whether any of the testator's debts were unpaid at the date of 
 the contract, and the executors refused to give him an answer. 
 Under these circumstances, if it should turn out that all the 
 debts were paid, I should hold that the purchaser had notice 
 of that fact, and that he was bound to see that his purchase- 
 money was properly appHed (&). What is the general priuciple ? 
 The Court has drawn a distinction from an early time. It has 
 said that if there is a mere direction to sell, and to divide the 
 proceeds, the purchaser of the estate must see to the applica- 
 tion of the purchase-money, and the parties amongst whom 
 the proceeds are to be divided must give receipts to the 
 purchaser. But in a case where a testator charges his estate 
 with debts, and directs that there shall be a sale either by an 
 express trust, or a general power, the Court says, it is quite 
 impossible for the purchaser to ascertain who are the creditors 
 of the testator, and to see that they are paid, and if he is not 
 bound to look to the persons whose claims are first to be 
 satisfied, of course he is exempted from looking to the claims 
 of the persons who take as cestuis que trust. That is the 
 principle of the rule, and I am yet to learn how that principle 
 does not apply to a case where the purchaser is in effect 
 informed that the. debts have been paid; and I consider that 
 what is stated to have taken place in this case between the 
 vendor and purchaser does amount to that " (c). 
 
 (a) 12 Sim. 537. (6) lb. 842. , (c) lb. 546. 
 
CH. XVI. s. 2.] trustees' 'receipts. 439 
 
 It is evident that this doctrine was not in accordance with 
 former decisions, and the cause was carried upon appeal to the 
 Lord-Chancellor, when the decision below was reversed. 
 Lord Lyndhurst observed, " If the purchaser had notice that 
 the vendor intended to commit a breach of trust, and was 
 selling the estate for that purpose, he would, by purchasing 
 under such circumstances, be concurring in the breach of trust, 
 and thereby become responsible. But assuming that the facts 
 relied upon in this case amount to notice that the debts had 
 been paid ; yet, as the executor had authority to sell not only 
 for the payment of debts, but also for the purpose of distribu- 
 tion among the residuary legatees, this would not afford any 
 inference that the executor was committing a breach of trust in 
 selling the estate, or that he was not performing what his duty 
 required. The case then comes to this: if authority is given 
 to sell for the payment of debts and legacies, and the purchaser 
 knows that the debts are paid, is he bound to see to the applica- 
 tion of the purchase-money ? I apprehend not. In Johnson v. 
 Kennett, I held that the rule had reference to the death of the 
 testator, and therefore, that even supposing the debts were 
 paid before the sale took place, and that the legacies alone 
 remained as a charge, that circumstance would not vary the 
 general rule. I see no reason to depart from what I then 
 stated" (a). Lord St. Leonards, with reference to the judgment 
 of Lord Lyndhurst, and to the note appended thereto by his 
 lordship's authority, observed (6), " The case must stand upon 
 one of two grounds ; — -either that there are no debts within the 
 knowledge of the purchaser, and then it is indifferent whether 
 there were no debts at the death of the testator, or no debts at 
 the time of the purchase, or, which is more satisfactory, 
 and open to no ambiguity, on the ground that when a testator 
 by his wiU charges his debts and legacies, he shows that he 
 means to entrust his trustees with the power of receiving the 
 money, anticipating that there will be debts, and thus providing 
 for the payment of them. It is, by implication, a declaration 
 by the testator that he intends to entrust the trustees with the 
 
 (a) 1 Phill. 717, and note, p. 722. M. & G. 653 ; see Mather v. Norton, 
 (6) StrougUll v. Anstey, 1 De G. 16 Jur. 309. 
 
440. TKUSTEES' EECEIPTS. [CH. XVI. S. 2. 
 
 receipt and application of the money, and not to throw any 
 obligation at all upon the purchaser or mortgagee. That 
 intention does not cease "because there are no dehts. It remains 
 just as much if there are no debts, as if there are debts. The 
 consistent rule would be that if a trust be created for payment 
 of debts and legacies, the purchaser or mortgagee should in no 
 case (in the absence of fraud), be bound to see to the 
 application of the money raised. To this rule, " his Lordship 
 emphatically added, " I shall adhere as long as I sit in this 
 Court." 
 Charge of detts. The cases in which the testator, instead of devising the estate 
 upon an express trust for payment' of debts, creates a charge 
 of debts upon his real estate, seem to require a particular 
 examination. It might have been a simple and useful rule 
 to hold under such circumstances that the executor, and the 
 executor only, as the person who had administration of the 
 personal assets, should, by virtue of an implied power, sell the 
 real estate for payment of the debts ; but no such rule exists, 
 and we proceed to ascertain as far as we can by what principles 
 the Court has been governed. 
 De-rise to trastees 1. If a testator charge his real estate with debts, and then 
 debts? " ^^^^ ° devises it to trustees upon certain trusts, which do not include 
 or perhaps negative a power of sale, can the trustees give a 
 good title to a purchaser ? It is clear that the trustees and the 
 executor can sell together {a), and the question is, upon what 
 principle this proceeds. Is the executor the vendor, and if so, 
 has he a legal power which enables him to pass the estate at 
 law independently of the trustee ? Vice-ChanceUor Bruce 
 seemed, on one occasion, to think that the cases of Shaw v. 
 Borrer and Ball v. Harris might have been decided on this 
 
 (a) Shaw v. Borrer, 1 Keen, 559 ; executors. This, if done by the or- 
 
 Ball V. Harris, 8 Sim. 485 ; S. C. 4 der of the Court, would indemnify 
 
 Myl. & C. 264 ; Page v. Adam, 4 the trustees j hut it does not follow 
 
 Beav. 269 ; and see Forbes v. Pea- that the trustees, on the completion 
 
 coch, 11 Sim. 152 ; 12 Sim. 528 ; of the sale out of court, could have 
 
 11 M. & "W. 630; 1 Phill. 717. In allowed the executors to receive the 
 
 Shaw V. Borrer, the trustees and money. The question to whom the 
 
 executors were co-plaintiffs, and the money should be paid was not ad- 
 
 prayer of the bill was, that the pur- yerted to in the argument, nor does 
 
 chase-money might be paid to the it appear to whom it was paid. 
 
CH. XVI. s. 2.] trustees' receipts. 441 
 
 footing (a), and some recent cases leanin the same direction (&). 
 But the notion of the executor passing the legal estate in such a 
 case was never suggested until the last few years, and what was 
 said by the Court of Exchequer in Doe v. Hughes was at least 
 true at the time it was spoken, viz., that not a single case 
 could be produced in which a mere charge had been held to 
 give the executors a legal power (c). Have the executors then 
 an equitable power, and is the trustee who had the legal estate 
 bound to convey it as the executor directs? This doctrine 
 would be a very rational one, but there is no trace of it in the 
 cases themselves. Apparently they were decided on the 
 familiar principle, that in a Court of Equity there is no differ- 
 ence between a charge of debts and a trust for payment of 
 debts {d), and that the trustees therefore took the legal estate 
 upon the trusts of the will, the first of which was to pay the 
 testator's debts. It is certainly not a little remarkable that 
 after an examination of aU the authorities upon the subject, 
 there does not appear to be one in which the trustee has sold 
 alone without the concurrence of the executor. This circum- 
 stance, however, may be easily accounted for, as trustees of the 
 will are almost invariably appointed executors also, and where 
 that is not the case, the purchaser' naturally requires the con- 
 currence of the executor, not on the ground that he is the 
 vendor, but to satisfy the purchaser that the sale of the real 
 estate is hond-fde from the insufficiency of the personal assets. 
 In some of the cases the Court has noticed, but not laid any 
 stress upon, the circumstance of the personal representative 
 concurring (e), or of the characters of trustee and personal 
 
 [a) GoslinffY. Carter, 1 Coll. 649. v. Harris, 4 Myl. & C. 267; Wood 
 
 (h) See Robinson v. Lowater, 17 v. White, 4 Myl. & C. 482 ; Com- 
 
 Beav. 5,92; 5 De Gex, Mac. & Gor. missionersof Donationsr. Wyhrants, 
 
 272 ; jEidsforth v. Armstead, 2 Kay 2 Jones & Lat. 197. 
 
 & Johns. 333; Wrigley\. Syhes, 21 (e) See Shawr. Borrer, 1 Keen, 
 
 Beav. 337 ; Storry v. Walsh, 18 559 ; Forles v. Peacock, 12 Sim. 
 
 Beav. 568. 537 ; and see V. C. K. Brnce's re- 
 
 (c) Doe V. Hughes, 6 Exch. Rep. marks upon Shaw v. Borrer, and 
 231. Ball Y. Harrisjin GosIinffY. Carter, 
 
 (d) JElliot V. Merryman, Barn. 81 ; 1 Coll. 649. But in Ball v. Harris, 
 Ex parte Turner, 9 Mod. 418 ; Jen- the Y. C. of England observed, " It 
 kins V. Hiles, 6 Ves. 654, note (a) ; is manifest that Harris (the trustee), 
 Bailey y.Ekins, 7 Ves. 323; Ball who had the legal fee, was competent 
 
442 trustees' ' EECEIPTS. [CH. XVI. S. 2. 
 
 representative being combined, but in otbers that fact has been 
 passed over in silence as a mere accident, and the Court has 
 relied on the general doctrine that a trustee of the estate charged 
 with debts could sell and sign a valid discharge for the purchase 
 money (a). In Doe v. Hughes {b), the case most adverse to 
 the powers arising from a charge of debts, it was admitted 
 that by a devise to trustees of the real estate, subject to a charge 
 of debts, the trustees had thereby imposed upon them the duty 
 of raising the money to pay the debts, and this was the opinion 
 of Lord Hardwicke, as expressed in a case which we do not 
 remember to have seen cited. In Ex parte Turner (c), where 
 the estate had been given subject to debts, but no express 
 trust created for the purpose, he observed, " Where a devise is 
 ■general 'in trust,' or 'subject to pay debts,' the devisee m&j 
 sell or mortgage, but he must pay the money to the creditors 
 of his devisor ; but if he do not, the mortgagee is not to suffer, 
 for in cases of these general devises he is not obliged to see to 
 the application of the money he advances. But even in this 
 case inconveniences often arise, for where the estate is equit- 
 able assets, as it is where it is accompanied with a trust, the 
 creditors who have not specific liens upon the laud ought to 
 come in equally, and pari passu. However, if the trustee 
 prefer one creditor to another, where he ought not, the remedy 
 usually is against the trustee, and not the lender of the money, 
 for if the latter was to see to the application of his money upon 
 so general a trust, he could not safely advance his money 
 without a decree in this Court." 
 
 If the trustees of an estate charged with debts can, by virtue 
 not of the express trust but of the trust implied by the charge, 
 sell the estate, and sign a receipt for the purchase money, it 
 would seem to follow that they must not allow the proceeds to be 
 paid to the executor as not being the proper hand to receive (d), 
 
 to mortgage that estate to any person passages referred to in last previous 
 
 wlio would advance money for the note ; Forbes v. Peacock, 12 Sim. 
 
 benefit of the testator's estate," 8 546. 
 
 Sim. 497 ; and it is equally clear (J) 6 Eioh. Eep. 231. 
 
 that Lord Cottenham was of opinion (c) 9 Mod. Eep. 418. 
 
 Harris was a trustee for payment of {d) See Oosling v. Carter, 1 CoU. 
 
 debts ; 4 M. & Cr. 267. 650, where T. C. Knight Bruce says, 
 
 (a) See Ball v. Harris, at the " If payment ought to be made to 
 
GH. XVI. s. 2.] trustees' eeceipts. 443 
 
 the executor in that character having no privity -with the real 
 estate. The necessity, if it exist, of requiring the concurrence 
 of the personal representative would often lead to practical incon- 
 venience, for on the death of the executor intestate there would 
 be no personal representative of the testator, and the personal 
 assets having been exhausted, there would be no fund for 
 taking out letters of administration ; not to mention that should 
 the executor be held to have any concern with the proceeds of 
 the real estate, by virtue of the will, the administrator, not 
 being appointed by the wiU, would not succeed to the power of 
 the executor, which should be borne in mind as of some import- 
 ance in considering whether the sale is substantially that of 
 the executor or of the trustee who takes subject to the 
 charge. 
 
 The practical result is, that in the present state of the law Kesvdt of cases. 
 a purchaser cannot be advised to accept a title even from 
 trustees who sell under the charge without the concurrence of 
 the executor, but numerous purchases must have been taken 
 from the trustee only, and it is hoped, as is probable, that 
 such purchases would be supported. 
 
 2. If a testator charge his debts and devise the estate subject to Devise to a per- 
 
 . tjci- ^°^ "beneficially 
 
 the charge to A. and nis heirs not upon trusts but tor his own with a charge of 
 
 use, can the beneficiary in this case make a good title ? The ^' 
 
 preceding question is in fact identical with this, for if where 
 
 the express trust negatives a sale the trustee can still make 
 
 a good title, it is evident that he can only do so by virtue of 
 
 the charge. Any distinction between the two cases would be 
 
 in favour of the beneficial devisee, for if the trustee in defiance 
 
 of the express trust can seU, a fortiori the devisee can, 
 
 who is fettered by no such restriction. In both instances 
 
 the charge operates as a trust for payment of debts, and is 
 
 attended with all the same consequences. "A charge," said 
 
 Lord Eldon, "is in substance and efi'ect pro tanto a devise of 
 
 the estate upon trust to pay the debts " {a), and "this," observed 
 
 Lord St. Leonards, on citing the dictum, " is < supported by 
 
 the current of authorities "(&). It is clear that the devisee 
 
 one, it is not, necessarily, a good (a) Bailey v. Ekins, 7 Ves. 323. 
 
 payment to make that payment to (6) Commissioners of Donations'^. 
 
 One and another." Wyhrants, 2 Jon. & Lat. 198. 
 
444' trustees' teECEIPTS. [CH. XVI. s. 2., 
 
 can, where he also fills the character of executor, make a good 
 title (a), and in some of the cases the Court did not in terms 
 rely on the characters being combined (&), but it is singular 
 that no authority can be found in which the question whether 
 the devisee alone can make a good title has arisen. 
 
 In the Court of Exchequer (c) it was said that in a devise, 
 to trustees, subject to a charge of debts, the trustees could sell; 
 but that a charge in the hands of a devisee if the lands were 
 devised, or in the hands of the heir-at-law if the lands 
 descended, was a charge only in equity. The Court was 
 there considering, more particularly, the question of legal 
 powers; but if it was intended to be said that a devisee, subject 
 to a charge, could not sell and sign a receipt for the money, 
 the doctrine is inconsistent with the nature of a charge of 
 debts in equity as commonly understood. The prevalent 
 opinion hitherto is believed to have been that a devisee subject 
 to debts could sign a receipt for the purchase money {d), and 
 the cases in which the Court has upheld purchases from a 
 devisee with the concurrence of the executor, but without relying 
 upon such concurrence, would be a trap for purchasers should 
 the Court now refuse to uphold a purchase from a devisee 
 only. Here, again, the practical result is that a purchaser 
 '"'^ cannot be advised at present to accept a title from the devisee 
 
 without the concurrence of the executor, though in the author's 
 opinion the devisee could give a good title. 
 Charge of debts 3. If a testator charge his debts on the real estate, and does 
 de^se ofX^ ^'' ^°* devise the estate at all, but allows it to descend to the heir, 
 estate. can the heir seU and sign a receipt for the purchase money ? 
 
 It appears to be clear that he cannot, for he takes nothing 
 under the will, and cannot therefore be regarded as a person 
 constituted by the testator the trustee by implication for 
 payment of debts (e) ; he can pass the legal estate, but he could 
 
 (a) Elton V. Harrison, 2 Swan. Young, Johnson y. Kennet, Eland y. 
 
 276, note; Ellioty.Merryman,'Qaxn, Eland, ubi suprd,, 
 
 78 ; Bolton y. Young, 6 Madd. 9 ; (c) Boe v. Hughes, 6 Eioh. Kep. 
 
 Johnson y. Kennet, 6 Sim. 384; 3 231. 
 
 Myl. & K. 624; Eland y. Eland, 1 {d) See the oases cited in note (<?), 
 
 Beav. 235, 4 Myl. & C. 420; Page p. 441, supra. 
 
 V. Adam, 4 Beav. 269. (e) See Gosling v. Carter, 1 Coll. 
 
 (J) Elliot V. Merryman, Bolton v. 650, where the V. C. said that the 
 
CH. XVI. S. 2.] tEUSTEES' EECEIPTS. ■^4:5 
 
 not sign a receipt ; i. e., if the heir misapplied the money the 
 creditors might still come upon the estate. 
 
 But in this case, if the heir is disabled from selling, can the 
 executor sell ? for otherwise the charge of debts amounts to 
 a direction for a Chancery suit. The legal question arose in 
 Doe V. Hughes (a) before the Court of Exchequer. A testator 
 charged his Bala houses with his debts, and died intestate as 
 to them, and appointed his wife his executrix. The executrix, 
 in order to meet the debts of the testator, appointed and 
 conveyed the Bala houses to John Jones in fee in trust, by 
 sale or mortgage, to raise money for payment of the debts. 
 The heir of the testator brought ejectment, and recovered- 
 The way in which the power was executed was peculiar, as not 
 being a sale or mortgage in itself, but the question discussed 
 and decided was, whether, in such a case, the executrix had 
 a power of sale or mortgage, and the Court held that a charge 
 had no operation at law but must he enforced in equity. This 
 decision has been found much fault with. The Master of the 
 EoUs said that before the case in the Exchequer he had con- 
 sidered the law to be that a charge of debts gave the executors 
 an implied power of sale (6). Otherwise, it is said, in the case 
 of a charge where the estate descends, there can be no sale 
 without the aid of the Court. But this does not appear to 
 follow. If a testator expressly direct that his estate shall be 
 sold (without naming the person), and the fund is to be dis- 
 tributed in a way in which the executors alone can distribute 
 it, a power of sale is given to the executors by implication over 
 the legal estate even in courts of law (c). By analogy to this, 
 where there is no direction to sell, but only a charge of debts, 
 this last, though an umbra in a court of law, creates an equitable 
 power of sale or mortgage in the view of a Court of equity, i.e., 
 the executor may contract for the sale, and on the acceptance 
 
 intention to be collected was, ttat 601 ; and see Wrigley v. Syhes, 21 
 
 the heir at law should have nothing Beav. 337 ; Starry v. Walsh, 18 
 
 to do with it; Doe v. Hughes, 6 Beav. 568. 
 
 Exch. Kep. 231 ; Forbes -v. Peacock, (c) Forbes t. Peacock, 11 M. & 
 
 11 Mee. & W. 637, 638. W. 630 ; Tylden v. Hyde, 2 Sim. & 
 
 (a) 6 Exch. Kep. 223. St. 238 ; Bentham v. Wiltshire, 4 
 
 (6) Robinson y.Lowater, 17 Beav. Madd. 44. 
 
446 trustees' receipts. [ch. xvi. s. 2. 
 
 of the title by the purchaser, the persoo in- whom the legal 
 estate is vested will, as being a trustee for the executor, be 
 compellable to convey as the executor directs, and if he refuse, 
 the legal estate may be vested in the purchaser by the aid of 
 the Trustee Acts. In Gosling v. Ca/rter (a), Vice-Chancellor 
 K. Bruce declined to give an opinion whether a mere charge of 
 debts gave to the executors a power of sale either at law or in 
 equity, but would not compel a purchaser to take the title from 
 the executor without the concurrence of the heir-at-law. In 
 Robinson v. Lowater{b), the legal estate was already in the 
 purchaser, so that the legal question did not arise, but it was 
 held that the executors had given the purchaser a good title. 
 In Eidsforth v. Armstead (c), Vice -Chancellor Wood professed 
 to follow Robinson v. Lowater, and held the power of sale to 
 be, according to the report, in the trustees, but which appears 
 to be a mistake for -the executors. The surviving trustee had 
 devised the trust estates, and the devisee therefore could not 
 sell, but the surviving trustee was also surviving executor, and 
 appointed the devisee his executor, and in the character of 
 executor the devisee might be thought to represent the original 
 testator, though it is by no means clear that even then the 
 power of sale would pass to him (d). In Wrigley v. Sykes (e), 
 the Master of the EoUs decided that the executors could 
 contract for the sale of the estate, but guarded himself by 
 saying that the Court, as far as it could, would certainly secure 
 to the purchaser a good legal estate when the conveyance was 
 made. Thus the law stands at present, and it is conceived 
 that Doe v. Jones was a perfectly soimd decision upon the legal 
 question, and that no inconvenience will arise if the Courts 
 
 (o) 1 Coll. 650, 652. legal estate during the life of Hi 
 
 (6) 17 Beav. 592; 6 De Gex, M. Totdmin, with the ooneurTSnce of 
 
 & G. 272 ; and see Storry v. Walsh, H. Toulmin, as having the legal 
 
 18 Beav. 568. estate in remainder, so as to extin- 
 
 (c) 2 Kay & Johns. 333. It does guish his power of appointing by 
 
 not appear how the purchaser had got will. The case loses much of its 
 
 or was to get the legal estate, whether force from the amicable manner in 
 
 from the executor, as having a legal which the point was submitted to the 
 
 power, or from the trustee, on the Court. 
 
 construction that the legal fee simple (d) See 1 Sugd. Powers, 145, 6th 
 
 vested in the trustee under the will, ed. 
 
 or from the trustee, as having the (e) 21 Beav. 337. 
 
CH. XVI. s. 2.] trustees' eeoeipts. 447 
 
 liold as the Master of the EoUs has decided, that the executors 
 have an equitable power of sale, and consequently that the 
 holder of the legal estate is a trustee for them. 
 
 4. Should a testator charge his debts on the real estate, and Charge of debts 
 then devise the estate to A. and his heirs beneficially, and the lapses. . 
 devisee dies in the testator's hfetime, so that the estate 
 descends, can the heir in this case sell and sign a receipt ? If 
 
 the heir cannot sell where the estate was never devised, but 
 left to descend, a fortiori he cannot in this case, for here not 
 only the heir is not invested with the character of trustee 
 under the will, but the estate, subject to the charge, was 
 devised to another person who was therefore intended to 
 execute the implied trust. The machinery contemplated by 
 the testator failed by the act of God, and no alternative remains 
 but that the trusts should be executed by the Court of 
 Chancery [a). It is presumed that under these circumstances 
 it could not be held that the executors have a power of sale. 
 The devisee, had he lived, would have been the proper person 
 to execute the trust, and a power of sale can not belong to 
 the executors, as the testator could not be taken to have 
 contemplated his own iatestacy. 
 
 5. Suppose a testator to charge his debts, and to devise the Charge of debts 
 estate to A. for life, with contingent remainders or other Hmita- ^ subjected^o ^ 
 tions, which render it impossible that the implied power of ™™ii^ limita- 
 sale can be executed by the devisees. This has occurred in 
 
 several cases (&), and the result appears to be that the Court, 
 if it can possibly ,avoid it, will not construe a charge as a 
 direction for a Chancery suit, but will assume that a power of 
 sale for payment of the debts was given to some one, and that 
 as it was not given to the devisees it must have been intended 
 for the executors. In such a case the executors must be con- 
 sidered as having an equitable power of sale. The case in the 
 Exchequer (c) directly decided that the executors have no 
 power themselves to pass the legal estate. Where, in the case 
 
 (a) But see Hardwich v. Mynd, 337 ; and see Rohinson v. Lowater, 
 
 1 Anst. 109. 17 Beav. 592; 5 De Gex, M. & G. 
 
 (6) Gosling v. Carter, 1 CoU. 644 ; 272. 
 
 Eidsforth v. Armstead, 2 Kay & J. (c) Doe v. Hughes, 6 Exch. Rep. 
 
 333 ; Wrigley v. Syhes, 21 Beav. 223. 
 
448 
 
 TRUSTEES RECEIPTS. 
 
 [CH. XVI. S. 2. 
 
 True principle. 
 
 Storry v. Walsh. 
 
 Who must sign 
 the receipt. 
 
 Supposed, the executors take an implied equitable power of 
 sale upon the face of the will, it is immaterial whether the 
 devised estates do or not lapse, except that the legal estate 
 will, as the event happens, he in the devisees or in the heir- 
 at-law. If the concurrence of the devisees or heir in the sale 
 cannot be obtained, recourse must be had to the Trustee Acts 
 for the transfer of the legal estate. 
 
 The true principle which ought to govern these cases would 
 appear to be, that where a testator devises the estate to trustees, 
 or to a beneficiary, and charges his debts, there the trustees or 
 the beneficiary should have a power of sale and signing 
 receipts, but that where a testator charges his debts, and does 
 not devise the estate, or -devises it in such a manner that there 
 is no one who can execute the trust, there the executors should 
 have an equitable power of sale and signing receipts, and that 
 the depositaries of the legal estate should be trustees for them, 
 and bound to convey as they direct; but that where the testator 
 devised the estate, and therefore provided a hand to execute 
 the trust, but the trustee or devisee died in the testator's 
 life-time, there, as the hand to execute the trust has only 
 failed by the act of God, no person has a power of sale or 
 signing receipts, but the trust can only be executed by the 
 Court. 
 
 It remains to notice in connection with this subject the re- 
 cent case of Storry v. Walsh {a), in which the Master of the Eolls 
 held that a devisee, subject to a charge of debts and legacies, 
 may, with the concurrence of the executors, declaring that all 
 debts ,'and legacies have been paid, sell for his own private 
 purposes, and give a good title to a purchaser. This case 
 resembles that of an executor, who is also specific or residuary 
 legatee, selling a chattel interest for his own private debt (6). 
 The authority of Storry v. Walsh has, however, not received 
 the entire approbation of the profession. 
 
 To return to the subject of trustees' receipts in general. As 
 the trustfor sale is a joint office, the receipt must be signed by all 
 the trustees who have undertaken to act. And where a power is 
 given to trustees to discharge the purchaser from seeing to the 
 
 (a) 18 Beav. 559. 
 
 (6) See infra. 
 
CH. XVI. s. 3.] trustees' receipts, 449 
 
 application of his purchase-money, the receipt must be signed 
 even by a trustee who has parted with the estate by a convey- 
 ance to his co-trustees ; for the transfer of the estate at law 
 carries not along with it the confidence in equity (a). But the 
 receipt need not be signed by a trustee who has disclaimed, 
 for by the effect of disclaimer the acting trustees are put 
 exactly in the same plight as if the renouncing trustee had 
 never been mentioned (6). It was formerly held, that a trustee 
 who, with the intention of disclaiming, released the estate to his 
 co-trustees should be considered to have acted (c) ; but the 
 more liberal construction of the present day appears to be, that 
 a conveyance bond fide executed with the intention of disclaim- 
 ing shall, in despite of the want of formality, have the force 
 and effect of a disclaimer {d). 
 
 As a trust cannot be delegated, it follows that if A. and B. be Power to sign 
 trustees for payment of debts, and they convey the estate to C. ^d deie^tion to 
 upon the like trusts, the purchaser would not be safe in pay- ^''"'^^'• 
 ment of his purchase-money upon the receipt of G. Such 
 would appear to be the correct doctrine upon principle ; but in 
 Hardwick v. Mynd (e) it was ruled by the Court of Exchequer 
 to the contrary. In this case the executors and trustees 
 renounced probate, and (probably with the intention of dis- 
 claiming) conveyed the estates to C, the heir-at-law. It might 
 therefore be argued that as the trustees, by disclaiming, vested 
 the estate in the heir, he was properly the trustee to sell or 
 mortgage. It would be difficult, however, to maintain that the 
 heir under such circumstances could sign a receipt, and 
 certainly the Court did not put it upon this ground, but said 
 that the mortgages if made by the trustees would have been 
 good, and that they were in fact made by them, as they had 
 deputed C. to act for them in the trust. Such a doctrine at the 
 present day could not be supported. 
 
 As a general rule, if a power be given to trustees, the Power of signing 
 
 exercise of which is arbitrary, and the settlement contains no gards trustees ap- 
 pointed by the 
 Court. 
 (a) Crewe v. Dicken, 4 Yes. 97. (c) Crewe v. Dicken, uhi supra. 
 
 (6) Adams v. Taunton, 5 Mad. {d) See supra, p. 233. 
 
 435 ; Hawkins v. Kemp, 3 East, (e) 1 Anst. 109 ; and see Bray- 
 
 410 ; Smith v. Wheeler, 1 Vent. brooke v. Inskip, 8 Ves. 432. 
 128. 
 
450 trustees' beceipts. [oh. XVI. s. 2. 
 
 proviso for the appointment of new trustees with similar 
 powers, it is not competent for the Court, on the substitution 
 of new trustees by its own inherent jurisdiction, to iavest such 
 trustees with that arbitrary power. But an authority to sign 
 receipts is not a mere power, but enters into the substance of 
 the trust ; that is, it is so interwoven with the trust itself that 
 there can be no execution of the trust without the accession of 
 the power ; and in such cases the appointment of new trustees 
 by the Court may be taken to include the power. Thus, sup- 
 pose A. and B. are trustees of an estate to sell for payment 
 of debts, or to seU for the purpose of distribution, at their 
 discretion, amongst children who are infants, and on the death 
 of A. and B. the Court appoints C. and D. upon the like trusts j 
 if C. and D. cannot sign receipts, they cannot sell, and theip 
 appointment as trustees was nugatory. The Court must have 
 intended them to act in the execution of the trust ; and if so, 
 they must be authorised to give discharges to the purchaser (a). 
 If, indeed, the trust can be effectuated without the intervention 
 of the power, as where the proceeds are to be distributed 
 between E. and F., who are capable of signing receipts, there 
 the argument has no application, and the necessity for the 
 power does not exist. 
 Receipt after a It Sometimes happens that the trustees had clearly at first a. 
 power of signing receipts, but subsequently, by a breach of 
 trust or some irregularity in the administration of the estate, 
 the fund has got out of its proper channel, and then the 
 question arises, whether, if the person who ought never to have 
 had possession of the fund intend to restore it to its proper 
 state, the trustees can sign a receipt. It may be said that as 
 the power never contemplated a breach of trust, it would not 
 be safe to consider the exercise of the power as an indemnity, 
 if the money cannot be properly paid to the trustees upon any 
 other ground : on the other hand, if the fund be reinstated in 
 specie, so that it is standing in the exact form m which the 
 trust required it, and in the names of the persons whom the 
 
 (a) SeeDrai/son Y. Pocock, 4: Sim. Lord -v. Sunn, 2 T. & C. Ch. Ca. 
 288 ; Byam v. Syam, 19 Beav. 58 ; 98. 
 Hartley v. Hartley, 3 Drew. 385 ; 
 
 breach of trust. 
 
CH. XVI. 3. 2.] trustees' receipts. 451 
 
 settlement appointed the trustees, how can it be said that in 
 such a state of things any liability can remain ? {a) 
 
 Where the trust estate is in mortgage, and the money Sale where no 
 receivable by the trustees is applicable either wholly or in part reoeiverby the 
 in payment of the mortgage, of course the trustees may sell t™st«es. 
 and sign a receipt for the difference, or, if there be no surplus 
 beyond the mortgage, may sell without signing any receipt; 
 for the circumstances to which the receipt clause was meant to 
 apply, have, in the one case, arisen only partially, and in the 
 other not at all. 
 
 Where the trustees have a power of signing receipts, it has Hope v. Liddell. 
 been held not to be necessary that the trustees who sign the 
 receipts should themselves actually receive the money, provided 
 it be paid to some person by their direction, and the trans- 
 action do not on the face of it imply a breach of trust. 
 Thus, where the purchase-money was expressed in the deed to 
 be paid to the trustee, and a receipt by the trustee was 
 endorsed, but in fact the money was paid, by the direction of 
 the trustee, to the tenant for life ; the Master of the EoUs 
 said, that the purchaser was boimd to pay the money 
 as the trustee directed, and having obeyed that direction 
 was exonerated from the consequences. Various transactions 
 might have occurred between the trustee and cestuis que trust, 
 (such as the execution of a previous mortgage on sufficient 
 security), which would make such a payment perfectly 
 legitimate (h). The Court in this case was protecting a bond 
 fide purchaser, and the principle here laid down must be 
 applied with great caution. A purchaser who has paid his 
 money to another by the direction of the trustee may be 
 protected under the special circumstances of the case, but no 
 purchaser who has the money still in his pocket can be advised 
 to pay to any one but to the trustee personally (c). 
 
 The following observations of Lord St. Leonard's upon the Practical dii-ec- 
 subject of trustees' receipts, deserve every attention. " Where," ^^^j. ^ aign 
 he says, " a purchaser is bound to see the money applied receipts. 
 
 (o) See Lander v. Weston, 3 Drew. (5) Hope y. Liddell, 21 Beav. 202-3. 
 
 389 ; Hanson v. Beverley,. Vend. & (e) See In. re Fishhourne, 9 Ir. 
 
 Purch. 848, llthEdn. Eq. Rep. 340. 
 
 a G 2 
 
453 trustees' receipts. [ch. xvi. s. 3. 
 
 according to the trust, and the trust is for payment of debts or 
 legacies, he must see the money actually paid to the creditors or 
 legatees. In cases of this nature, therefore, each creditor or 
 legatee, upon receiving his money, should give as many receipts 
 as there are purchasers, so that each purchaser may have one; 
 or if the creditors or legatees are but few they may be made 
 parties to the conveyance. Another mode by which the pur- 
 chasers may be secured is an assignment by all the creditors 
 and legatees of their debts and legacies to a trustee, with a 
 declaration that his receipts shall be sufficient discharges, and 
 then the trustee can be made a party to the several convey- 
 ances. Sometimes a bill is filed for carrying the agreement, 
 into execution, when the purchase-money is of course directed 
 to be paid into court ; and this is the surest mode, because the 
 money will not be paid out of court without the knowledge of 
 the purchaser " (a). 
 New principle In the preceding discussion it has been stated as the funda- 
 
 mental principle, that a purchaser is in all cases bound to see to 
 the application of his purchase-money, unless a positive intention 
 to the contrary on the part of the settlor be either expressed or 
 implied in the instrument creating the trust. Such indeed is 
 the conclusion to which the authorities would seem to conduct 
 us ; but, independently of precedent, it may be suggested that 
 the better principle would be, that, prima facie, a direction to 
 sell should imply in all cases a power of signing discharges ; 
 but that where it was practicable, and no impediment to the 
 execution of the trust was thereby created, the purchaser should 
 pay his money directly to the party beneficially entitled. The 
 distinction between the two principles is very material. Ac- 
 cording to the former rule, if a trust be created for payment of 
 debts and legacies, and the debts be paid, and then the trustee 
 seU, though the purchaser have notice of all debts having been 
 discharged, he is nevertheless not bound to see to the applica- 
 tion of his purchase -money, because there was an imphed 
 intention by the settlor that the receipts of trustees should be 
 sufficient acquittances (6) ; but, by the operation of the latter 
 
 (o) Tend. & Purch. 848, 11th (J) See supra, 439, 440. 
 
 Edn. 
 
CH. XVI. s. 2.] trustees' receipts. 453 
 
 rule, the purchaser would be bound, for the necessity of his 
 paying the money immediately to the legatees would not, if 
 they were of age, prevent the completion of the sale, and there- 
 fore no reason appears why the purchaser should be exempted 
 from seeing to the application. Again, suppose a trust for Cestui que trust 
 sale, with a direction to distribute the proceeds between A., B., 
 and C, and that, after the date of the instrument, C. quits the 
 country or cannot be found. According to the first principle, 
 as the absence of C. was not an event in the contemplation of 
 the settlor, and no inference can be drawn that he meant the 
 trustees to sign receipts, it follows that the sale is rendered 
 impossible, and the contradiction arises, that the settlor having 
 in express terms directed a sale, and it being admitted that the 
 will of the settlor is authoritative, yet the execution of that 
 intention is intercepted by the construction of equity. "It 
 were difiicult," says Sir E. Sugden, " to maintain that the 
 absence of a cestui que trust in a foreign country should, in a 
 case of this! nature, impede the sale of the estate " (a), yet to 
 such a result the rule in question, if there were no exception to 
 it, would apparently lead. But according to the other principle 
 suggested, no such obstacle arises. The receipts of the trustees 
 would then prima facie be discharges, as necessary to the 
 execution of the sale ; and as C. is not at hand, the purchaser 
 in respect of C.'s share in the purchase-money could not 
 be called upon to observe a rule that would interpose a 
 bar to the accomplishment of the expressed purpose of the 
 settlor. 
 
 As executors are invested with the character of trustees, it KeoeiptB of exe- 
 may be proper to introduce a few remarks upon the large 
 powers allowed to them in disposing of the assets. 
 
 On the death of the testator the personal estate vests wholly Power to sell or 
 
 . 1 mortgage. 
 
 in the executor, and to enable him to execute the office with 
 facility, the law permits him, with or without the concurrence 
 of any co-executor (6), to sell or even to mortgage (c), by actual 
 
 (a) Vend. & Purch. 844, 11th (6) Scott r. Tyler, 2 Diok. 725, 
 
 Edn. ; and see Forbes v. Peacock, 12 per Lord Thurlow. 
 
 Sim. 545 ; Ford v. Ryan, 4 Ir. Ch. (c) Bonney Y. Ridgard, 1 Cox, 
 
 Kep. 342. 145, ^ee 148 ; Scott v. Ih/ler, 2 Diok. 
 
454 executors' beceipts. [ch. xvi. s. 2. 
 
 assignment or by equitable deposit (a), with or without a power 
 of sale (6), all or any part of the assets, legal or equitable (c) ; 
 and though liable to render an account to the Court, he cannot 
 be interrupted in the discharge of his office by any person 
 claiming either dehors the will, as a creditor, or under it, as a 
 legatee. The creditor has merely a demand against the 
 executor personally {d), the pecuniary or specific legatee is not 
 entitled to the legacy or bequest until the executor has 
 assented (e), and the residuary legatee has no lien until the 
 estate has been liquidated and cleared of all liabilities, both 
 dehors and under the will (/). Upon the sale of the chattel, 
 the purchaser is not concerned to see to the application of his 
 purchase-money : it need not be recited in the conveyance that 
 the money was wanted for the discharge of liabilities (g) : it is 
 sufficient that the purchaser trusts him whom the testator has 
 trusted (h) : if there be any misapplication, the remedy of the 
 creditor or legatee is not against the purchaser, but the 
 executor (i). It is impossible for the purchaser to ascertain 
 the necessity of the sale, for this must depend upon the state 
 of the accounts, which he has no means of investigating 
 Notice of tlje will, without the powers annexed only to the executorship (A;). Even 
 
 725, per Lord Thvirlow; Mead v. M'Zeod y. Brummond, 11 Yea. 163, 
 
 Orrery, 3 Atk. 240, per Lord Hard- per eundem. 
 
 wicke ; Andrew v. Wrigley, 4 B. C. (e) Mead v. Orrery, 3 Atk. 238, 
 
 C. 138,^6?' Lord Alvanley; M'Leod 240, ^er Lord Hardwicke. 
 
 V. -DrMmmonei, ITVes. 154, ^ej-Lord (_/) M'Leod v. Vrummond, 17 
 
 Bldon ; Keane v. Roharts, 4 Mad. Ves. 163, 169, per Lord Eldon ; and 
 
 357, ^erSir J. Leaoh; and see -Hmto- see Mead y. Orrery,^ Atk. 238, 
 
 hie V. Bill, 2 Vera. 444 ; Sanders v. 240. 
 
 JEeeAar(^s, 2CoU.568; Milesy.Durn- (g) Sonney v. Ridgard, 1 Coi, 
 
 ford, 2 De Gex, Mao. & Gror. 641. 148, jier Lord Kenyon. 
 
 (a) Scott V. Tyler, 2 Dick. 725, (h) Id. 
 
 per Lord Thurlow ; and see M'Leod {i) Humble v. Bill, 2 Vern. 445, 
 
 V. Drummond, 14 Ves. 360 ; S. 0. per Cur. ; Ewer v. Corhet, 2 P. W. 
 
 17 Ves. 167; Bally. Harris, 8 Sim. Ii9, per Sir J. Jekyll; Watts y. 
 
 485. Kancie, Toth.. 77 ; Nurtony. Nurton, 
 
 (6) JBasseW V. -Pfoece, 18 Beav. 21. id. 
 
 (c) M'Leody. Drummond, 14 Ves. (7v) Ewer y. Corbet, 2 P. W. 149, 
 360, per Sir J. Leach. ; Nugent v. per Sir J. Jekyll ; Humble v. Bill, 2 
 Oifford, 1 Atk. 463. Vern. 445, per Cur. ; Nugenty. Qif- 
 
 (d) Nugent v. Gifford, 1 Atk. ford, 1 Atk. 464, per Lord Hard- 
 463, per Lord Hardwicke ; Mead v. wicke ; Mead v. Orrery, 3 Atk. 243, 
 Orrery, 3 Atk, .238, per eundem ; per eundem. 
 
CH. XVI. s. 2.] executor's eeceipt^. 455 
 
 express notice of the will, and of the bequests contained in it, 
 works the purchaser no prejudice ; for " every person," said 
 Sir J. Leach, " who deals with an executor has necessarily 
 implied if not express notice of the will : but all dispositions 
 of personal property are by law subject to a prior charge for 
 payment of debts ; and as a purchaser of real estate, devised 
 in aid for payment of debts, is not bound to inquire into the 
 fact whether the sale is made necessary by the existence of 
 debts, because he has no adequate means to prosecute such an 
 inquiry, so he who deals for personal assets is, for the same 
 reason, absolved from all inquiry with respect to debts : he has 
 a right to assume that the executor sells in the necessary course 
 of his administration ; and it is upon this principle altogether 
 indifferent what dispositions may be made in the will with 
 respect to the personal property for which he deals ; for 
 whether it be specifically given or be part of the residuary 
 estate, it is equally charged by law with the payment of 
 ^debts " (a). 
 
 Thus nothing can be clearer than that an executor may go 
 to market with his testator's assets, even with a chattel speci- 
 fically bequeathed (&), and the purchaser will not be bound to 
 see to the application of his purchase-money (c). 
 
 But fraud and collusion will vitiate any transaction, and Fraud an exoep- 
 turn it to a mere colour {d), and therefore if fraud be proved, 
 either express or implied, the parties cannot protect themselves 
 by pleading the general rule (e). The only question is. What 
 will amount to such a case of fraud ? 
 
 (fls) Keane-v. Hobarts, 4: M.a.i. 356. Eldon; HUIy. Simpson, 1 Ves. 166, 
 
 (6) Watts V. Kaneie, Toth. 77, per Sir W. Grant ; Taner v. Ivie, 2 
 
 161 ; Nurton v. Nurton, id. ; Ewer Yes. 469, per Lord Hardwicke ; 
 
 v. CorJe*, 2 P. "W. 148. X%U Sum- Keaner. Robarts, 4 Mad. 357, per 
 
 lie V. Bill, 2 Vern. 444, 1 B. P. C. Sir J. Leaoh ; Crane v. Drake, 2 
 
 71, see Ewer v. Corbet, ubi supi'a ; Vern. 616 ; Nugent v. Gifford, 1 
 
 Andrew v. Wrigley, 4 B. C. C. 137 ; Atk. 463, per Lord Hardwicke ; 
 
 M'Zeodr. Brummond, 17 Ves. 160. Mead v. Orrery, 3 Atk. 240, per 
 
 (c) Bonney v. Ridgard, 1 Coz, eundem ; Scott v. Tyler, 2 Dick. 725, 
 147, per Lord Kenyon, per Lord Tkurlow ; Wliale v. Booth, 
 
 (d) Scott V. Tyler, 2 Dick. 725, 4 T. E,. 625, note (a), per Lord 
 per Lord Thurlow. Mansfield ; Elliot v. Merryman, 
 
 (e) WatJiins Y. Cheek, 2 S. & S. Barn. 81,^er Sir J. Jekyll; Bonney 
 205, per Sir J. Leach ; M'Leod v. v. Ridgard, 1 Cox, 147, per Lord 
 Drummond, 17 Ves, 154, per Lord Kenyon; &c. 
 
 tion. 
 
456 
 
 executors' receipts. 
 
 [CH. XVI. s. 3. 
 
 Bale at a nominal 
 price. 
 
 Sale by executor 
 for payment of 
 hia own debt. 
 
 Where the exe- 
 cutor is specific 
 or residuary 
 
 1. The sale cannot stand if the chattel be sold at a nominal 
 price, or a fraudulent undervalue (a). 
 
 2. The executor may not sell or pledge the assets to pay or 
 secure his own debt (b), or for a debt wrongfully contracted by 
 him as executor (c), for prima facie this is a diversion of the 
 assets to a purpose wholly foreign to the administration, and 
 therefore a devastavit. " Though," observed Sir W. Grant, 
 " it may be dangerous at all to restrain the power of pw- 
 chasing from the executor, what inconvenience can there be 
 in holding that the assets known to be such should not be 
 applied in any case for the executor's delt, unless the creditor 
 could be first satisfied of his right ? It may be essential 
 that the executor should have the power to sell the assets, 
 but it is not essential that he should have the power to pay 
 his own creditor ; and it is not just that one man's property 
 should be applied to the payment of another man's debt" (d). 
 
 But if the executor be also the specific (e), or residuary 
 legatee (/), then it seems to be established upon the authority 
 of several cases that he may dispose of the chattel in payment 
 of his own debt, for as" soon as the debts and legacies of the 
 testator have been discharged, the property is the executor's ; 
 and how is a purchaser to ascertain, but from the mouth of 
 the executor, whether such prior liabilities upon the estate 
 have been fully satisfied ? Unless the purchaser were indem- 
 nified, under these circumstances, there could be no sale of the 
 chattel without an investigation on the part of the purchaser 
 into the testator's accounts, a proceeding attended with so much 
 
 (a) Sepft V. Tyler, 2 Dick. 725, 
 per Lord Thurlow ; Uwer v. Corhet, 
 
 2 P. W. 149, per Sir J. Jekyll; and 
 see Drohan v. Drohan, 1 B. & B. 
 185. 
 
 (J) Scott v. Tyler, 2 Dick. 712 ; 
 Hill v. Simpson, 7 Tea. 1 52 ; Wat- 
 JcinsY. Cheek, 2 S. & S. 205, per Sir 
 J. Leach ; Keane v. Hobarts, 4 Mad. 
 357, per eundem ; Crane v. Drake, 
 
 3 Tern. 616 ; Anon, case, cited Pr. 
 Ch. 434 ; Andrew v. Wrigley, 4 B. 
 C. C. 137, per Lord Alvanley; and 
 see Mand v. Eland, 4 M. & Cr. 427 ; 
 
 Miles V. Burnford, 2 De Gex, Mao, 
 & Gor. 641. 
 
 (c) Collinson v. Lister, 20 Beav. 
 356. 
 
 (d) mil V. Simpson, 7 Ves. 169. 
 
 (e) Taylor v. Sawkins, 8 Ves. 209. 
 (/) Nuyent v. Gifford, 1 Atk. 463, 
 
 corrected from Eeg. Lib. 4 B. C. C. 
 136 ; 3Iead v. Orrery, 3 Atk. 235 ; 
 Whale V. Booth, 4 T. E. 625, note 
 (a). See the comments of Lord El- 
 don, M'Leodr. Drummond, 17 Ves. 
 163 ; and see Bedford v. Woodliam, 
 4 Ves. 40, note. 
 
CH. xvr. s. 3.] executors' eeceipts. 457 
 
 labour and intricacy, that no stranger has ever yet been called 
 Upon by the Court to undertake the burden of it. 
 
 But if the executor be specific or residuary legatee jointly with Where the exe- 
 others, or subject to certain charges under the will, then he has legatee jointly 
 no power by himself to offer the chattel in payment of his own ^utj'ect'to'T' °"^ 
 debt. For in what character does the executor sell ? It must charge. 
 be either as executor or as legatee. Not as executor, for then 
 he cannot pay his own debt with the testator's assets, and not 
 as legatee, for he is not exclusively such, but only jointly with 
 others, or subject to certain charges ; the creditor therefore 
 cajinot deal for the chattel without the concurrence of the co- 
 legatees, or of the other persons jointly entitled {a). And the 
 mere representation by the executor that he is absolute owner 
 under the will is no protection, for common prudence requires 
 that the purchaser should look at the will himself and ascertain 
 the fact; and if he neglect this precaution, and assume the 
 executor's veracity, he must incur the hazard of the executor's 
 falsehood (b). 
 
 And again, the executor in his character of specific or resi- Express notice 
 duary legatee cannot pay or secure the debt of his own creditor paid, 
 out of the testator's assets, if such creditor have express 
 notice that any debt of the testator still remains unsatisfied (c). 
 
 3. If the executor sell or mortgage for money either ad- Sale hy executor 
 vanced at the time or to be advanced, the dealing prima facie 
 is in a due course of administration (d). " Where," observed 
 Sir W. Grant, " a party having a debt due to him by the 
 executor takes, in satisfaction of that debt, the assets which 
 he knows belong to the executor only in that character, 
 undoubtedly suspicion of fraud must always arise ; but where 
 a man is applied to for a loan of money there is no motive of 
 fraud, for he may keep his money if not satisfied with the 
 security" (e). However, such is the prima facie presumption 
 
 (a) Bonney v. Ridgard, 1 Coz, note (a) ; M'Leod v. Drummond, 17 
 145 ; Hill V. Simpson, 7 Ves. 152, Ves. 163. 
 
 see 170. (d) M'Leody.Drummond,11Yes. 
 
 (b) Hill Y. Simpson, 7 Ves. 152, 155, ^er Lord Bldon. 
 
 see 170. (e) M'LeodY.BrUmmondiliVes. 
 
 (c) See Nugent v. Qifford, 1 Atk. 362. 
 464 ; Whale v. Booth, 4 T. R. 625, 
 
 for other private 
 purposes. 
 
458 
 
 EXECUTOES EECEIPTS. 
 
 [oh. XVI. S. 2. 
 
 Sale of specific 
 chattel, and 
 notice that there 
 are no dehts. 
 
 Payment to 
 executor who 
 will probably 
 misapply it. 
 
 Payment after 
 long interval 
 from testator's 
 death. 
 
 only, for if there be legal evidence to the purchaser or mort- 
 gagee that the immediate or future advance is not on account 
 of the testator's estate, but is meant to be applied to the private 
 purposes of the executor, the Court must regard the transac- 
 tion as fraudulent, and will not allow it to stand {a). 
 
 4. A purchaser cannot deal with an executor for the purchase 
 of a chattel specifically bequeathed, if the purchaser have 
 notice, (a fact however not easily to be proved, and not lightly 
 to be presumed,) that there were no debts of the testator, or 
 that they have since been discharged (6). 
 
 5. If a person owe money to a testator's estate, and be 
 apprised that the executor means to misapply it, he cannot 
 safely hand it over (c). 
 
 If there be merely a preswmption from length of time that 
 all debts are paid, it may be argued, indeed, that the executor 
 is a trustee for the next of kin, and that the money cannot 
 be paid safely to any other than the next of kin as the cestuis 
 que trust. However, the better opinion probably is, that ia 
 the absence of all mala fides the executor's receipt would be 
 sufficient. The late Vice -Chancellor of England appeared, on 
 the argument of a case in which the author was counsel, to 
 concur in this view, for he asked, " If the executor could not 
 sign the receipt, who could ? " In the case alluded to, there 
 had been a lapse of thirty-five years from the testator's death, 
 and no allegation of debts {d). As regards an administrator it 
 will be remembered, that all necessary protection is thrown 
 around the estate by the bond taken for due administration, 
 and also by the form of proceeding in the ecclesiastical court ; 
 for if A. (to whose estate the money is owing) die, leaving B. 
 his next of kin, who afterwards dies, leaving C. his next of kin, 
 who afterwards dies, leaving D. his next of kin, in order to take 
 
 (a) M'Leod v. Drummond, 14 Ves. 
 353 ; S. C. reversed 17 Yes. 152 ; 
 Scott v. Tyler, 2 Dick. 712, compare 
 17 Ves. 166 ; and see Keane t. JRo- 
 -harts, 4 Mad. 358. 
 
 (5) Bwer v. Corbet, 2 P. W. 149, 
 per Sir J. Jekyll. 
 
 (c) See WatJdns v. Chee7c, 2 S. & 
 S. 199 ; Uland v. JEland, 4 M. & Cr. 
 
 427 ; Stroughilly. Atistey, 1 De Gex, 
 Mae. & Gor. 648. 
 
 {d) Goughy.JBirch, July 10,1839, 
 MS. ; see Stroughill v. Anstey, 1 De 
 G., M. & G. 654; Ewery. Corhei, 2 P. 
 W. 148 ; Court Y. Jeffery, 1 S. & S. 
 105 ; Orroh v. Binney, Jae. 623 ; 
 Pierce v. Scott, 1 Y. & C. 257 ; 
 Forbes y'. Peacock, 11 Sim. 152. 
 
CH. XVI. S. 3.] EXECUTOES' EECEIPTS. 459 
 
 out letters of administration to A,, you must first show yourself 
 to have an interest by taking out letters to B. And again, to 
 take out letters to B. you must first, for the same reason, take 
 out letters to C. ; so that, in fact, letters cannot be taken out 
 to A. without previously taking out letters to B. and C. If, 
 in such a case, the receipt of A.'s administrator, even after the 
 lapse of twenty years, were not sufficient, it would be necessary 
 in a suit to make the administrators of B. and C. parties as 
 cestuis que trust, a thing quite unheard of in practice. 
 
 6. An agent is accountable to his principal only, and there- Sale by tanker 
 fore if an executor employ a banker to sell out part of the executor.'™ " 
 testator's stock and remit the proceeds to him, it seems the 
 banker,. though he has reason to believe that a misapplication 
 is intended, is bound to transfer the money to the executor, 
 and does not thereby render himself accountable. A contrary 
 doctrine would carry the principle of constructive trust to an 
 inconvenient and, indeed, to an impracticable length (a). But 
 an agent who derives a personal benefit from the breach of 
 trust of his principal will be accountable (&). 
 
 "Wherever, as in the several cases mentioned, there is Who may im- 
 suspicion of fraud, the transaction may be impeached by 
 creditors (c), or specific (^, residuary (e), or even pecuniary 
 legatees (/). But where two co-executors made a fraudulent 
 alienation, and they having become bankrupt, a suit was insti- 
 tuted by two other co-executors who had not interfered for 
 fourteen years, and did not state on their bill any interest in 
 themselves, and hardly a duty they had to perform in behalf 
 of others not parties on the record, the application was re- 
 fused (^). And in no case will the Court grant relief where Effect of time. 
 
 (a) Keane v. Bobarts, 4 Mad. 332, 
 see 356, 359 ; and see Davis v, 
 Spurling, 1 R. &M. 64 ; 8. C. Taml, 
 199 ; Crisp v. Spranger, Nels. 109 
 Saville t. Tancred, 3 Sw. 141, note 
 
 (5) PannellY.Surhy, 2 CoU. 241 
 Bodenham v. Eoskyns, 2 De Grex, 
 Mac. & Gor. 241 
 
 (c) Crane v. Drake, 2 Vern. 616 
 
 see Nugent v. Gifford, 1 Atk. 463 
 
 {d) Humble v. Bill, 2 Vern. 444 ; 
 Scott V. Tyler, 2 Dick. 712. 
 
 (e) See Burling v. Stonard, 2 P. 
 "W. 150; Mead v. Orrery, 3 Atk. 
 235, see 238 ; M>Leod^. Drummond, 
 17 Ves. 161, 169. 
 
 (/) Hill V. Simpson, 7 Ves. 152 ; 
 and see M'Leod v. Drummond, 17 
 Ves. 169. 
 
 Anon, case, cited Pr. Ch. 434 ; and (g ) M'Leod v. Drummond, 14 
 
 Ves. 353 ; reversed 17 Ves. 152, see 
 
 Mead v. Orrery, 3 Atk. 238. 171. 
 
460 PURCHASES BY TRUSTEES. [CH. XVI. S. 3. 
 
 the right of unravelling the transaction has been neglected for 
 a lapse of twenty years {a). 
 
 SECTION III. 
 
 DISABIIITT OP TKUSIEES SOE SALE TO BECOME PUECHASEES 01' THE 
 lEirST PEOPEETT. 
 
 We now come to the subject of purchases by trustees of the 
 property Vested in them upon trust. 
 
 Under this head it will be proper to consider, 1, The extent 
 and operation of the rule, that a trustee shall not purchase 
 the trust estate ; 2, The species of relief to which the cestm 
 que trust will be entitled ; 3, The time within which the cestui 
 que trust must apply to the Court. 
 Trustee for sale 1. The general rule is, that a trustee for sale (b) (however the 
 cha^e. case may stand with respect to mere nominal trustees, or 
 
 trustees who have no active duties to perform, as trustees 
 to preserve contingent remainders) (c) is disabled from pur- 
 chasing the trust property (d), whether it be real estate or a 
 chattel personal (e), land, or a ground rent (/), in reversion or 
 possession (^), whether the purchase be made in the trustee's 
 own name or in the name of a trustee for him (h), by private 
 
 (a) Andrew Y. Wrigley, 4 B. C. 247; Ex parte Bennett, 10 Ves. 
 
 C. 125 ; Bonney v. Bidgard, 1 Cox, 394. 
 
 145; Meady. Orrery, 3 Atk. 235, (e) Crowe \. Ballard, 2 Cox, 263; 
 
 see 243. 8. C. 3 B. C. C. 117 ; EillicJc v. 
 
 (6) SeeParkesv. White, 11 Ves. Flexney, 4 B. C. C. 161; Sally. 
 
 226 ; Randall v. Brrington, 10 Ves. Hallet, 1 Cox, 134 ; Whatton v. 
 
 426 ; Ayliffe v. Murray, 2 Atk. 59 ; Toone, 5 Mad. 54 ; 6 Mad. 153. 
 Davidson v. Gardner, cited Vend. & {f)Price v. Byrn, cited Campbell 
 
 Puroli. 890, lltk Edn. v. Walker, 5 Ves. 681. 
 
 (c) Sutton v. Jones, 15 Ves. 587; {g) Be Bloye's Trust, 1 Mac. & 
 Naylor v. Winch, 1 S, & S. 567. Gor. 488, see 492, 495. 
 
 [d] Fox v. Mackreth, 2 B. C. C. (A) Campbell v. Walker, 5 Ves. 
 400 ; S. C. 2 Cox, 320 ; affinned 678 ; S. C. 13 Ves. 601 ; Bandall 
 in D. P. 4 B. P. C. 258, &c. v. Brrington, 10 Ves. 423 ; Qroiee 
 That Fox V. Mackreth was decided v. Ballard, 2 Cox, 253 ; S. C. 3 B. 
 upon this ground, see Gibson v. CCllT ; ffally. lIallet,lCox,lSi; 
 Jeyes, 6 Ves. 277; Ex parte Lacey, Watson v. Toone, 6 Mad. 153; Baker 
 id. 627 ; Ex parte James, 8 Ves. v. Carter, 1 T. & Coll. 250 ; Knight 
 353 ; Coles v. Trecothick, 9 Ves. v. Marjoribanks, 2 Mac. & Gror. 12. 
 
CH. XVI. S. 3.] PURCHASES BY TKUSTEES. 461 
 
 contract or public auction (a), from himself as the siagle 
 trustee, or with the sanction of his co-trustees (6) ; for he who 
 undertakes to act for another in any matter cannot, in the 
 same matter, act for himself (c). The situation of the trustee 
 gives him an opportunity of knowing the value of the property 
 and as he acquires that knowledge at the expense of the cestui 
 que trust, he is hound to apply it for the cesfm que trust's 
 benefit (cZ). Besides^ if the trustee appeared at the auction 
 professedly as a bidder, that would operate as a discouragement 
 to others, who, seeing the vendor ready to purchase at or above 
 the real value, would feel a reluctance to enter into the com- 
 petition, and so the sale would be chilled (e). 
 
 Lord Rosslyn is said to have considered that to invalidate a Lord Eosslyn's 
 purchase by a trustee it was necessary to show he had gained 
 an actual advantage (/) ; but the doctrine (if any such was ever 
 held by his Lordship (g) ) has since been expressly and 
 unequivocally denied {h). The rule is now universal, that, 
 however fair the transaction, the cestui que trust is at liberty 
 to set aside the sale and take back the property (i). If a 
 trustee were permitted to buy in an honest case, he might buy 
 
 (a) Campbell v. Walker, Randall (e) See Ex parte Lacey, 6 Ves. 
 
 v. Errington, ubi supra ; Ex parte 629. 
 
 Bennett, 10 Ves. 381, see 393; Ex (/) B^&Whichcotey. Lawrence, 3 
 
 parte James, 8 Ves. 337, see 349 ; Ves. 750. 
 
 Whelpdale v. Cookson, 1 Ves. 9 ; {ff) See Ex parte Lacey, 6 Ves. 
 
 S. C. stated from R. L. ; Campbell v. 626; Lister v. Lister, id. 632. 
 
 Walker, 5 Ves. 682 ; Ex parte {h) Ex parte Bennett, 10 Ves. 
 
 Hughes, 6yes.6i7; Ex parteLacey, 385; Ex parte Lacey, 6 Yes. 627; 
 
 id. 625 ; Lister y. Lister, id. 631 ; Attorney- General v. Lord Dudley, 
 
 Whichcote v. Lawrence, 3 Ves. 740 ; Coop. 148 ; Ex parte James, 8 Ves. 
 
 Attorney- General v. Lord Dudley, 348 ; Mulvany v. Dillon, 1 B. & B. 
 
 Coop. 146 ; Downes v. Grazebrook, 409, see 418. 
 
 3 Mer. 200. (i) Ex parte Lacey, 6 Ves. 625, 
 
 (5) Whichcote v. Lawrence, 3 see 627 ; Owen v. Foulkes, cited id. 
 
 Ves. 740; Hall\. Noyes, cited id. 630, note (6); Ex parte Bennett, \Q 
 
 748 ; and see Morse v. Royal, 12 Ves. 393, per Lord Bldon ; Randall 
 
 Ves. 374. V. Errington, 10 Ves. 423, see 428 ; 
 
 (e) Whichcote v. Lawrence, 3 Campbell v. Walker, 5 Ves. 678, see 
 
 Ves. 750, per Lord Rosslyn; Ex 680; Ex parte James, 8 Ves. 347, 
 
 parte Lacey, 6 Ves. 626, per Lord 348, per Lord Eldon ; Lister v. Lis- 
 
 Eldon ; Re Bloye's Trust, 1 Mac. & ter, 6 Ves. 631 ; Gibson v. Jeyes, 6 
 
 Gror. 495. Ves. 277, per Lord Eldon; but see 
 
 {d) See Ex parte James, 8 Ves. Kilbee v. Sneyd, 2 Moll. 186. 
 348. 
 
462 
 
 PUECHASES BY TRUSTEES. [OH. XVI. S. 3. 
 
 Trustee may not 
 buy as agent. 
 
 Agent of trustee 
 may not buy. 
 
 Trustees may not 
 lease to them- 
 selves. 
 
 Trustee wlio has 
 disclaimed. 
 
 in a case having that appearance, but which, from the infirmity 
 of hv/man testimony, might he grossly otherwise (a). Thus, a 
 trustee for the sale of an estate may, by the knowledge acquired 
 by him in that character, have discovered a valuable coal-mine 
 under it, and, locking that up in his own breast, might enter 
 into a contract for the purchase to himself. In such a case, if 
 the trustee chose to deny it, how could the Court establish the 
 fact against that denial ? The probability is, that a trustee 
 who had once conceived such a purpose would never disclose it, 
 and the cestui que trust would be effectually defrauded (6). 
 
 As a trustee cannot buy on his own account, it follows 
 that he cannot be permitted to buy as agent for a third 
 person: the Court can with as little effect examine how far 
 the trustee has made an undue use of information acquired 
 by him in the course of his duty in the one case as in the 
 other (c). 
 
 And the rule against purchasing the trust property applies to 
 an agent employed by the trustee for the purposes of the sale, 
 as strongly as to the trustee himself {d). 
 
 The lease of an estate is in fact the sale of a partial interest 
 in it, and therefore trustees for sale cannot grant a demise to 
 one of themselves, but the lessee, while he shaU be held to his 
 bargain if disadvantageous to him, shall be made to account for 
 the profits if it be in his favour (e). 
 
 There can be no objection to a purchase by a person named 
 as trustee, but who has disclaimed without having acted in the 
 trust (/), or by a tenant for life whose consent to the sale is 
 required by the terms of the power (g). 
 
 (a) JEx parte Bennett, lOYes. 385, 
 per Lord Eldon. 
 
 (b) Ex parte Lacey, 6 Ves. 627, 
 per Lord Eldon ; and see Ex parte 
 Bennett, 10 Ves. 385, 394, 400 ; Ex 
 parte James, 8 Ves. 348,349; Farhes 
 V. White, 11 Ves. 226; Campbells. 
 Walker, 6 Ves. 681; Lister v. Lister, 
 6 Ves. 632 ; Ex parte Badcoch, 1 
 Mont. & Mae. 239. 
 
 (c) Ex parte Bennett, 10 Ves, 
 381, see 400; Coles v. TrecoUiick, 
 9 Ves. 248, per Lord Eldon; and 
 
 see Gregory v. Gregory, Coop. 
 204. 
 
 {d) Whitcomh v. Minchin, 6 Mad. 
 91 ; In re Bhye's Trust, 1 Mao. & 
 Gor. 488, see 495. 
 
 (e) Ex parte Hughes, 6 Ves. 617; 
 Attorney- General v. Earlof Claren- 
 don, 17 Ves. 491, see 500. 
 
 (/) Stacey v. Elph, 1 M. & K. 
 195 ; and see Chambers v. Waters, 
 3 Sim. 42. 
 
 (g) Howard V. Bucane, 1 Turn. & 
 R. 81. 
 
CH. XVI. S. 3.] PUKCHASKS BY TRUSTEES. 463 
 
 But when it is said a trustee for sale may not purchase the Trustee may pur- 
 trust property, the meaning must be understood to be that the eesTui auTteutt. 
 trustee may not purchase from himself; for there is no rule 
 that a trustee may not purchase from his cestui que trust (a). 
 However, a purchase by the trustee from his cestui que trust is 
 at all times a transaction of great nicety, and one which the 
 Courts will watch with the utmost diligence {b) : the exception 
 runs, it is said, so near the verge of the rule, that it might as 
 well be included within it (c). 
 
 Before any dealing with the cestui que trust, the relation The relation of 
 between the trustee and cestui que trust must be actually or (.estuique trust 
 virtually dissolved. The trustee may, if he pleases, retire must first be 
 from the of&ce, and qualify himself for becoming a purchaser 
 by divesting himself of that character (d), or, if he retain the 
 situation, the parties must be put so much at arm's length, 
 that they agree to stand in the adverse situations of vendor and 
 purchaser (e), the cestui que trust distinctly and fully under- 
 standing that he is selling to the trustee, and consenting to 
 waive all objections upon that ground (/), and the trustee fairly 
 and honestly disclosing all the necessary particulars of the 
 estate, and not attempting a furtive advantage to himself by 
 means of any private information (g) : the trustee will not 
 be allowed to go on acquainting himself with the nature of the 
 
 (a) Ex parte Lacey, 6 Ves. 626, " {c) Morse y. Soy al, 12 Ves, 372, 
 
 ^erLord Eldon; Coles y. Trecothick, ^er Lord Erskine. 
 
 9 Ves. 244, 246, per eundem ; Gib- (d) Downes v. Orazelrook, 3 Mer. 
 
 son Y. Jeyes, 6 Ves. 277, per eundem; 208, per Lord Eldon. 
 
 Downes v. Grazebrook, 3 Mer. 208, (e) Gibson v. Jeyes, 6 Ves. 277, 
 
 pereundem; Randall Y.Errington,\0 per Lord Eldon; and see Bx parte 
 
 Yea A26,per airW. Giant -.Whichcote Lacey, 6 Ves. 626, 627; Ex parte 
 
 Y. Lawrence, 3 Ves. 750, ^er Lord Bennett, 10 Ves. 394; Morse v. 
 
 Rosslyn; Sanderson v. Walker, 13 Royal, 12 Ves. 373; Sanderson v. 
 
 Ves. 601, per Lord Eldon ; Ayliffe Walker, 13 Ves. 601. 
 
 V. Murray, 2 Atk. 59, per Lord (/) See Randall v. Errington, 10 
 
 Hardwioke ; Kilbee v. Sneyd, 2 Ves. 427. 
 
 MoU. 214,^er Sir A. Hart. {g) Coles v. Trecothick, 9 Ves. 
 
 (J) Coles V. Trecothick, 9 Ves. 247, per Lord Eldon ; Morse v. 
 
 244, per Lord Eldon; Ex parte Royal, 12 Ves. 373, 377, per Lord 
 
 Lacey, 6 Ves. 626, per eundem ; Erskine ; Gibson v. Jeyes, 6 Ves. 
 
 Downes v. Grazebrook, 3 Mer. 209, 277, per Lord Eldon ; Randall v. 
 
 per eundem. Errington, 10 Ves. 427, per Sir W. 
 
 Grant. 
 
464 
 
 PURCHASES BY TRUSTEES. 
 
 [CH. XVI. S. 3. 
 
 Instances where 
 trustee has been 
 allowed to pur- 
 chase. 
 
 Solicitor of the 
 cestui que trust. 
 
 Creditors. 
 
 property up to the moment of sale, and then, casting 
 aside his character of trustee, turn his experience to his own 
 account (a). 
 
 In what cases a trustee wUl be at liberty to become a pur- 
 chaser may be best illustrated by a few instances. 
 
 "Where the cestui que trust took the whole management of the 
 sale himself, chose, or at least approved the auctioneer, made 
 surveys, settled the plan of sale, fixed the price, and so had 
 a perfect knowledge of the value of the property, and then 
 by his agent, but with his own personal consent, agreed to 
 sell a lot which had been bought in to one of the trustees 
 acting as agent for another. Lord Eldon said, that if in any 
 instance the rule was to be relaxed by consent of the parties, 
 this was the case, and decreed the agreement to be specifically 
 performed (6). 
 
 Again, a cestui que trust had urged the purchase upon the 
 trustee, who at first expressed an unwillingness, but afterwards 
 agreed to the terms ; and the sale was supported (c). 
 
 So, where the trustee had endeavoured in vain to dispose of 
 the estate, and then purchased himself of the cestui que trust at 
 a fair and adequate price, and there was no imputation of fraud 
 or concealment. Lord Northington said, " He did not like the 
 circumstance of a trustee dealing with his cestui que trust, but 
 upon the whole, he did not see any principle upon which he 
 could set the transaction aside " (d). 
 
 It has been pronounced too dangerous to allow the cestui que 
 trust's solicitor, without a sp^ial authority, to bind his employer 
 by such a contract with the trustee (e). 
 
 Where the cestuis que trust are creditors, the trustee cannot 
 purchase with the sanction of the major part of them, but the 
 Eberty must in strictness be given by the unanimous voice 
 of the whole body (/), though the Court is in the habit of 
 
 (a) See Sx parte James, 8 Ves. 
 352. 
 
 (b) Coles V. Trecothick, 9 Ves. 
 234. 
 
 (e) Morse Y. Royal, 12 Ves. 355. 
 {d) Clarke v. Swaile, 2 Ed. 134. 
 
 (c) Downes v. Grazehrook, 3 Mer. 
 209, per Lord Eldon. 
 
 (/) See Sir O. Colebrooke'scass, 
 cited Sx parte Hughes, 6 Ves. 622 ; 
 JSx parte Laeey, id. 628 ; the cases 
 cited id. 630, note (ft). TVhelpdale 
 V. Cookson, oiteiCamplellY. Walker, 
 5 Ves, 682, must be considered as 
 shaken. Sugd. V. & P. 894, llth 
 Edn. 
 
CH. XVI. S. 3.] PURCHASES BY TRUSTEES. 465 
 
 sanctioning purchases of a bankrupt's estate by assignees, pro- 
 vided the assent of a general meeting of creditors be obtained (a). 
 
 The Court has no jurisdiction to authorise a trustee to bid Court mil not 
 where the cestuis que trust are sui juris, for that is a question trustee to bid. 
 the cestuis que trust are entitled to decide for themselves (6). 
 
 If the cestuis que trust be under disability, as infants, the Where cestuis 
 trustee, as he cannot be released from the liabilities of his ^nts!^ 
 situation, cannot by any act in pais become the purchaser of 
 the estate (c) ; but, if it be absolutely necessary that the pro- 
 perty should be sold, and the trustee is ready to give more than 
 any one else, he may file a bill in Chancery, and apply by 
 motion to be allowed to purchase, and the Court will then 
 examine into the circumstances, ask who had the conduct of the 
 transaction, whether there is reason to suppose the premises 
 could be sold better, and upon the result of that inquiry will 
 let another person prepare the particular of sale, and allow the 
 trustee to bid (d). 
 
 The principles laid down with reference to trustees for sale Of executors, 
 
 o ^• 1 ^ j^ ^^ ^ n ^ tiv • • administrators, 
 
 are ot course appucable to all who, though dinermg m name, assignees &o. 
 are invested with the hke fiduciary character, as executors and 
 administrators (e), an executor in his own wrong (/), assignees 
 of bankrupts (g), a receiver (h), &c. ; but a mortgagee may pur- 
 chase from his mortgagor (i), and a creditor taking out 
 execution is not precluded from becoming the purchaser of the 
 property upon a sale by the sheriff (k). 
 
 2. Next as to the terms upon which the sale will be set aside. 
 
 (o) Anon, case, 2 Russ. 350; Ex (g) Ex parte Huffhes, 6Yes. 617; fP ^ (J , - 
 
 parte Bage, 4 Mad. 459. Ex parte Lacey, id. 625, and the •y'^^ - -C^^Mi^^ 
 
 '{h) See Ex parte James, 8 Vea. cases cited, id. 630, note (5) ; Ex (^ -^- Siff^ 
 
 352. parte Bennett, 10 Ves. 395, per Lord 
 
 (c) Campbell v. Walker, 5 Ves. Eldon ; Ex parte Reynolds, 5 Ves. 
 
 678 ; 3. 0. 13 Ves. 601. 707 ; Ex parte James, 8 Ves. 346, 
 
 {d) Camplell v. Walker, 5 Ves. per Lord Eldon ; Ex parte Morgan, 
 
 681, e82, per Lord Alvanley. 12 Ves. 6 ; Ex parte Bage, 4 Mad. 
 
 (e) Sail V. Hallet, 1 Cox, 134 ; 459 ; Ex parte Badcock, 1 Mont, & 
 
 Killick V. Flexney, 4 B. C. C. 161 ; Mac. 231. 
 
 Watsony. Toone, 6 Mad. 153 ; Kilhee {h) Alven v. Bond, 1 Fl. & Kell. 
 
 V. Sneyd, 2 Moll. 186; Baker v. 196; White v. Tommy, referred to 
 
 Carter, 1 T. & C. 250 ; and see ib. 224. 
 
 Naylor v. Winch, 1 S. & S. 566. (i) Knight v. Marjoribanhs, 11 
 
 (/) Mulvany v. Dillon, 1 B. & B. Beav. 322 ; 2 Mac. & Gor. 10. 
 
 408. {k) Stratford v. Ttvynam, Jac. 418. 
 
466 
 
 PURCHASES BY TEUSTEES. [CH. XVI. S. 3. 
 
 Cestui que trust 
 may recover the 
 specific estate. 
 
 Allowances for 
 repairs. 
 
 Case of actual 
 fraud. 
 
 The cestm qu6 trust, if he choose it, may have the specific 
 estate reconveyed to him by the trustee (a), or, where the 
 trustee has sold it with notice, by the party who purchased (6), 
 the cestui que trust on the one hand repaying the price at 
 which the trustee bought with interest at 4 per cent, (c), and 
 the trustee or purchaser on the other accounting for the profits 
 of the estate {d), but not with interest (e), and, if he was in 
 actual possession, submitting to be charged with an occupation 
 rent (/). 
 
 The trustee will have all just allowances made to him for 
 improvements and repairs that are substantial and lasting {g), 
 or such as have a tendency to bring the estate to a better sale (A), 
 as in one case for a mansion house erected, plantations of 
 shrubs, &c. (i) ; and in estimating the improvements, the bmld' 
 ings puUed down, if they were incapable of repair, will be valued 
 as old materials, but otherwise they will be valued as buildings 
 standing {k) : should the property have been deteriorated by the 
 acts of the trustee, his purchase-money will suffer a proportionate 
 reduction (Z). 
 
 But, it seems, where the contract was vitiated by the pre- 
 sence of actual fraud,, allowance will be made to the trustee for 
 necessary repairs (m), but not for improvements. " If," said 
 Lord Fitzgibbon, " the person reaUy entitled to the estate will 
 encourage the possessor of it to expend his money in improve- 
 
 (o) See Ex parte James, 8 Ves. 
 351 ; Bx parte Bennett, 10 Ves. 
 400 ; Lord Hardwiche. v. Vernon, 4 
 Ves. 411; York Buildings^ Company 
 V. Machemie, 8 B. P. C. 42. 
 
 (5) Attorney-General v. Lord 
 Dudley, Coop. 146 ; Dunbar v. Tre- 
 dennick, 2 B. & B. 304. 
 
 (c) Watson v. Toone, 6 Mad. 153 ; 
 Ex parte James, 8 Ves. 351, per 
 Lord Eldon ; Whelpdale v. Cookson, 
 stated from B.. L. Campbelly. Walker, 
 
 5 Ves. 682 ; Hall v. Mallet, 1 Cox, 
 134, see 139 ; York Buildings' Com- 
 pany V. Mackenzie, uhi supra, &o. 
 
 {d) Ex parte James, 8 Ves. 351, 
 per Lord Eldon ; Ex parte Lacey, 
 
 6 Ves. 630, per eundem ; Watson v. 
 
 Toone, 6 Mad. 153; Whelpdale v. 
 Cookson, York Buildings' Company 
 V. Mackenzie, ubi supra. 
 
 (e) Macartney v. Blackwood, I 
 Bidg. Knapp & Sch. 602. 
 
 (/) Ex parte James, 8 Ves. 351, 
 per Lord Eldon. 
 
 {g) Ex parte Hughes, 6 Ves. 624, 
 625 ; Ex parte James, 8 Ves. 352 ; 
 Campbell Y. Walker, 5 Ves. 682. 
 
 (h) Ex parte Bennett, 10 Ves. 
 400. 
 
 («■) York Buildings' Company \. 
 Mackenzie, ubi supra, 
 
 (k) Robinson v. Ridley, 6 Mad. 2. 
 
 \l) Ex parte Bennett, 10 Ves. 
 401. 
 
 (m) Baugh v. Price, 1 Wils. 320. 
 
CH. XVI. S. 3.] PURCHASES BY TRUSTEES. 467 
 
 ments, or if he will look on and suffer such an expenditure 
 without apprising the party of his intention to dispute his title, 
 and will afterwards endeavour to avail himself of such fraud, 
 the jurisdiction of a Court of Equity will clearly attach upon 
 the case. But does it follow from thence, that, if a man has 
 acquired an estate by rank and abominable fraud, and shall 
 afterwards expend his money in improving the estate, that 
 therefore he shall retain it in his hands against the lawful 
 proprietor ? If such a rule should prevail, it would justify a pro- 
 position I once heard at the bar, that the common equity of the 
 country was to improve the right owner out of the possession of 
 his estate" (a). 
 
 A trustee, the sale having taken place during the pendency Trustee paying 
 of a suit, had paid part of his purchase-money into court, ■X°g^^"'°"^^ 
 which had been invested in the funds. On the purchase 
 being set aside, the trustee claimed the benefit of the rise of 
 the stock, but it was held he was only entitled to his purchase- 
 money with interest, for had there occurred a fall of the stock, 
 he could not have been compelled to submit to the loss (6). 
 
 If the trustee is to be discharged from the situation of pur- Trustee to he 
 chaser, he is to be discharged at once, and the Court will order ^g^g^k ^me™ 
 an immediate conveyance upon immediate payment of the diateiy. 
 money (c). 
 
 The re-conveyance of the estate will be without prejudice Lessees not pre- 
 to the titles and interests of lessees and others who have con- ■''^ ^ ■ 
 tracted with the trustee bond fide before the pendency of the 
 suit (d). 
 
 But the bill of the cestui que trust, particularly where the Of sutmitting 
 
 » , 1 ,11 .1 1 the estate to a 
 
 assignee oi a bankrupt has become the purchaser, may pray, re-sale, 
 not a re-conveyance of the specific estate, but a re-sale of the 
 property under the direction of the Court. The terms of the 
 re-sale have not always been uniform. In Whelpdale v. Cook- 
 son (e) Lord Hardwicke said the majority of the creditors 
 
 (a) Kenney v. Browne, 3 Eidg. [d) York Buildings^ Company y. 
 
 518; but see Oliver v. Court, 8 Mackenzie, 8 B. P. C. 42; see the 
 
 Price, 172. decree. 
 
 (6) Sx parte James, 8 Yes. 337, (e) Cited Campbell v. Walker, 5 
 
 see 351. Yes. 682. 
 
 (c) See Ex parte Bennett, 10 Yes. 
 400, 401. 
 
 H H 2 
 
468 PURCHASES 3Y TEUSTEES. [CH. XVI. S. 3. 
 
 should elect whether the purchase should stand; so that 
 should they elect to re-sell, and the estate should he sold at a 
 still lower price, the creditors would suffer. The doctrine of 
 Lord Thurlow appears to have heen, that the property should 
 be put up at the price at which the trustee purchased, and if 
 any advance was made, the sale should take effect, but if no 
 bidding, the trustee should be held to his bargain (a). Lord 
 Alvanley followed the authority of Lord Hardwicke ; for in the 
 case of infant cestuis que trust, he directed an inquiry by the 
 Master, whether it was for the benefit of the infants that the 
 premises should be re-sold, and, if for their benefit, that the 
 sale should be made (&). " To this principle," said Lord Eldon, 
 "the objection is, that a great temptation to purchase is offered 
 to trustees, the question whether the re-sale would be advanta- 
 geous to the cestui que trust being of necessity determined at 
 the hazard of a wrong determination " (c). Lord Eldon there- 
 fore conceived it best to adopt the rule of Lord Thurlow, and 
 so he decreed in Ex -parte Hughes (d) and Ex parte Lacey (e). 
 Sir W. Grant, in a subsequent case (/), said he was not aware 
 that Lord Eldon had laid down any general rule as to the 
 terms ; but a few days after, having consulted the Lord 
 Chancellor upon the subject, and discovering his mistake, he 
 framed his decree in conformity with the Lord Chancellor's 
 decisions. The same principle has since been followed in 
 numerous other cases (g), and the practice may be considered 
 as settled. 
 Allowances for Should the trustee have repaired or improved the estate, 
 
 repaus, o. ^-^^ expense of the repairs and improvements would be added 
 
 to the purchase-money, and the estate be put up at the accu- 
 mulated sum (h). 
 Ee-selling in lots. Where the trustee has purchased in one lot, the cestuis que 
 trust cannot insist on a re-sale in different lots. If desirous 
 
 (a) See Lister v. Lister, 6 Ves. (/) Lister v. Lister, 6 "Ves. 633. 
 
 633; Ex parte James, 8 Ves. 351. {g) Ex parte James, 8 Ves. 337; 
 
 (J) Campbell v. Walker, 5 Ves. Exparte Bennett, 10 Ves. 381 ; Bo- 
 
 678, see 682. binsony. Ridley, 6 Mad. 2. 
 
 (c) -S. C. 13 Ves. 603. (h) Ex parte Bennett, 10 Ves. 400; 
 
 (d) 6 Ves. 617. Ex parte Hughes, 6 Ves. 625 ; Ro- 
 
 (e) Id. 625 ; and see Ex parte binson v. Ridley, 6 Mad. 2. 
 Reynolds, 5 Ves. 707. 
 
CH. XVI. S. 3.] PURCHASES BY TEUSTEES. 469 
 
 of re-selling the property in that mode, they must pay the 
 trustee his principal and interest, and then, as the absolute 
 owners, they may sell as they please (a). 
 
 ' In the application of Lord Hardwicke's rule it was a question Difficulty of Lord 
 constantly occurring, whether the body of creditors at large rule, 
 could be bound by the resolution of the majority to insist upon 
 a re-sale ; but by the practice of Lord Eldon, the difficulty on 
 that head is avoided (6), for as the creditors cannot by possi- 
 bility sustain an injury, it is competent to any individual 
 creditor to try the experiment (c). 
 
 If before the cestui que trust files his bill for relief the trustee The remedy 
 has passed the estate into the hands of a purchaser, and the quent purchasers. 
 purchaser had notice of the equity, the same remedies may be 
 prosecuted against the purchaser as against the trustee (d) ; but 
 if the sale was without notice, the cestui que trust may then 
 compel the trustee to account for the difference of price (e), or 
 for the difference between the sum the trustee paid and the 
 real value of the estate at the time of the purchase (/), with 
 interest at four per cent. (g). 
 
 An administrator had become the purchaser of some shares Purchase of 
 in Scotch mines, part of the assets, and afterwards sold them trustee. ^ * 
 to a stranger at a considerable advance of price, and Lord 
 Thurlow decreed the trustee to account for every advantage he 
 had made, but said he could not go the length of ordering the 
 defendant to replace the shares. He conceived the plaintiff, 
 one of the next of kin, had no such election of choosing 
 between the specific thing and the advantage made of it (h). 
 
 The costs of the suit will, as a general rule, follow the Costs. 
 decree — that is, if the trustee be compelled to give up his 
 purchase, unless his conduct was perfectly honourable and the 
 
 (a) See Ux parte James, 8 Yes. Hallet, 1 Cox, 134 ; Whichcote v. 
 
 351,352. , Lawrence, 3 Ves. 740; Hx parte 
 
 . (6) JEx parte Hughes, 6 Ves. 624. Reynolds, 5 Ves. 707 ; Randall v. 
 
 (c) Ex parte James, 8 Ves. 353; Errington, 10 Ves. 423. 
 
 and see Ex parte Lacey, 6 Ves. 628. (/) See Lord Uardwicke v. Ver- 
 
 (d) Attorney- General v. Lord non, i Yes. 4:11. 
 
 Dudley, Coop. U6; BunharY. Tre- {g) Hall v. HalUt, 1 Cox, 134, 
 
 dennick, 2 B. & B. 304. see 139. 
 
 (e) Fox V. Mackreth, 2 B, C. C. (h) S. C. 
 400; S. C. 2 Cox, 320 ; J£all v. 
 
470 
 
 PUECHASES BY TEUSTEES. 
 
 [CH. XVI. S. 3. 
 
 Cestui que trust 
 must set aside 
 the sale in rea- 
 sonaUe time. 
 
 What considered 
 a reasonable 
 time. 
 
 sale is set aside on the mere dry rule of equity (a), he must 
 pay the expenses he had himself occasioned (b) ; and if the 
 charge be unfounded, the costs must be paid by the plaintiff. 
 But if there be great delay on the part of the cestui que trust, 
 the costs will be refused him, though he succeed in the suit (c) ; 
 and, on the other hand, if the bill be dismissed, not because 
 the transaction was not originally impeachable, but merely on 
 account of the great interval of time, the Court may refuse to 
 order the costs of the defendant (d). 
 
 3. If the cestui que trust desire to set aside the purchase, he 
 must make his application to the Court in reasonable time, or 
 he will not be entitled to relief (e). A long acquiescence under 
 a sale to a trustee is treated as evidence that the relation 
 between the trustee and cestui que trust had been previously 
 abandoned, and that in all other respects the purchase was 
 fairly conducted (/). 
 
 A sale cannot, in general, be set aside after a lapse of twenty 
 years (g) ; but in these cases the Court does not confine itself to 
 that period by analogy to the Statute of Limitations, for rehef 
 has been refused after an acquiescence of eighteen years Qi), and 
 seventeen years (i) ; and it is presumed even a shorter period 
 would be a bar to the remedy, where the cestui que trust could 
 offer no excuse for his laches {k). However, the sale has been 
 opened after an interval of ten years (Q ; and even after a much 
 greater lapse of time where the executor had purchased in the 
 
 (a) Baker v. Carter, 1 Y. & C. 
 250. 
 
 (b) WTiichcote v. Lawrence, 3 Vea. 
 752 ; Sail v. Hallet, 1 Cox, 141 ; 
 Sanderson Y. Walker, 13 Ves. 601, 
 604 ; Crowe Y. Ballard, 2 Cox, 253 ; 
 S. O. 3 B. C. C. 117; Bunhary. 
 Tredennioh, 2 B. & B. 304. 
 
 (c) Attorney- General v. Lord 
 Dudley, Coop. 146. 
 
 {d) Gregory v. Gregory, Coop. 
 201. 
 
 (e) Campbell v. Walker, 5 Ves. 
 680, 682, per Lord Alvanley ; Chal- 
 mer t. Bradley, 1 J. & W. 59, per 
 Sir T. Plumer ; Ex parte James, 8 
 Ves. 351, per Lord Bldon ; Welh v. 
 
 Rorke, 2 Soli. & Lef. 672, per Lord 
 Eedesdale ; Bandall y. Brrington, 
 10 Ves. 427, per Sir "W. Grant. 
 
 (/) ParkesY. TiP^ife, 11 Ves. 226, 
 per Lord Eldon ; and see Morse v. 
 Royal, 12 Ves. 374, 378. 
 
 {g) Price v. Byrn, cited Campbell 
 Y. Walker, 5 Ves. 681. 
 
 {h) Gregory v. Gregory, Coop. 
 201 ; Champion v. Rigby, 1 E. & 
 M. 539 ; Roberts v. Tunstall, 4 Hare, 
 257. 
 
 (i) Baker v. Read, 18 Beav. 398. 
 
 \k) See Oliver v. Court, 8 Price, 
 167,.168. 
 
 {l') Hall Y. Noyes, cited Which- 
 cote V. Lawrence, 3 Ves. 748, 
 
CH. XVI. S. 3.] PURCHASES BY TEUSTEES. ' 471 
 
 names of trustees for himself, and the transaction was attended 
 with circumstances of disguise and concealment (a). 
 
 Persons not sui juris, a,s feme coverts and infants cannot be Of persons under 
 precluded from relief on the ground of acquiescence during the 
 continuance of the disability (6). But femes covert as to 
 property settled to their separate use, if their power of antici- 
 pation be not restricted, are regarded as femes sole (c). 
 
 A class of persons, as creditors, cannot be expected in the Time allowed to 
 
 ... . .a class of per- 
 
 prosecution of their common mterest to exert the same vigour sons. 
 and activity as individuals would do in the pursuit of their 
 exclusive rights, ((i). Accordingly creditors have succeeded in 
 their suit after a laches of twelve years (e) ; but even creditors 
 will be barred of their remedy if they be chargeable with very 
 gross laches, as with acquiescence in the sale for a period of 
 thirty -three years (/). 
 
 For laches to operate as a bar, it must be shown that the Time no bar 
 cestui que trust knew the trustee was the purchaser ; for while stances not 
 the cestui que trust continues ignorant of that fact, he cannot ^°'^^' 
 be blamed for not having quarrelled with the sale(gi). 
 
 The effect of the length of time may also be materially Distress of cestui 
 influenced by the continued distress of the cestui que trust (h), 
 but poverty is merely an ingredient in the case, and will not 
 alone displace the bar (i). 
 
 Of course the cestui que trust may ratify the sale to the Confirmation of 
 trustee by an express and actual confirmation (&) ; and if the 
 cestui que trust choose to confirm it, he cannot afterwards annul 
 
 (a) Watson v. Toone, 6 Mad. 153. jim. 87 ; and see Scott v. Neshitt, 14 
 
 (6) Campbell v. Walker, 5 Ves. Ves. 446. 
 
 678; S. 0. 13 Ves. 601; MocheY. [g) EandallY. Errington, 10 Ves. 
 
 O'Brien, 1 B. & B. 330, see 339. 423, see 427 ; Chalmer v. Bradley, 
 
 (c) See infra. 1 J. & "W. 61. 
 
 {d) Whichcotey. Lawrence, 3Yes. (A) Oliver y. Court, 8 Pvioe, 127, 
 
 740, see 752; J^x parte Smith, ID. see 167, 168; and see Oregory v. 
 
 & C. 267 ; Hardwich v. Mynd, 1 Gregory, Coop, 201 ; Boche y. 
 
 Anst. 109 ; and see Kidney y. Couss- O'Brien, 1 B. & B. 342. 
 
 maker, 12 Ves. 158 ; York Buildings^ (i) Roberts v, Tunstall, 4 Hare, 
 
 Company v. Mackenzie, 8 B. P. C. 257 ; see p. 267. 
 
 42 ; Ex parte Smith, 1 D. &. C. 267. {k) Morse y. Boyal, 12 Ves. 355 ; 
 
 (e) Anon, case in. the Exchequer, Clarke y. Swaile, 2 Ed. 134 ; and 
 
 cited Lister y. Lister, 6 Ves. 632. see Chesterfield y. Janssen, 2 Ves. 
 
 (/) See Hercyy. Binwoody, 2 Ves. }25 ; S. C. 1 Atk. 301. 
 
472 CONFIRMATION OF PURCHASE. [CH. XVI. S. 3. 
 
 his own act on the ground of no adequate consideration {a). 
 But, 
 Eequisites of 1. The confirming party must be sui juris — not labouring 
 
 tjon. under any disability, as infancy or coverture (fc). However, in 
 
 the case of real estate a feme covert can, of course, confirm 
 the purchase under the operation of the Fines and Recoveries 
 Act (c), and if property, whether real or personal, be settled 
 to her separate use (provided her power of anticipation be not 
 restricted) she has, to the extent of the interest so settled to 
 her separate use, all the capacity of a feme sole (d). 
 
 2. The confirmation must be a solemn and deliberate act, 
 not, for instance, fished out from loose expressions xa a 
 letter (e) ; and particularly where the original transaction was 
 infected with fraud, the confirmation of it is so inconsistent 
 with justice, and so likely to be accompanied with imposition, 
 that the Court will watch it with the utmost strictness, and not 
 allow it to stand but on the very clearest evidence (/). 
 
 3. There must be no suppressio veri or suggestio falsi, but 
 the cestui que trust must be honestly made acquainted with all 
 the material circumstances of the case (g). 
 
 4. The confirming party mustnotbe ignorant of the law, that 
 is, he must be aware that the transaction is of such a character 
 that he could impeach it in a court of equity Qi). 
 
 (o) Soche V. O'Brien, 1 B. & B. v. O'Brien, 1 B. & B. 338, and fol- 
 
 353, per Lord Manners. lowing pages ; Adams v. Clifton, 1 
 
 (J) Campbell v. Walher, 5 Ves. Euss. 297 ; Cockerell v. Cholmley, 1 
 
 678 ; S. C. 13 Ves. 601 ; Roche v. Russ. & M. 425 ; S. C. Taml. 444 ; 
 
 O'Brien, 1 B. & B. 330, see 339 ; Chesterfield v. Janssen, 2 Ves. 146, 
 
 and see Scott y. Davis, 4 M. & C, 149, 152, 158; Chalmerx. Bradley, 
 
 92. ■ IJ. & W. 51. 
 
 (c) 3 & 4 W. 4. 0. 74 ; and see 8 (A) See Cann v. Cann, 1 P. W. 
 
 & 9 Vict. c. 106. 727 ; Dunbar v. Tredennick, 2 B. & 
 
 {d) See infra. B. 317 ; Burney v. Macdonald, 15 
 
 (e) Carpenter v. Heriot, 1 Ed. Sim. 15 ; Molony v. L' Estrange, 1 
 
 338 ; and see Montmorency v. Deve- Beat. 413 ; Crowe v. Ballard, 2 Cox, 
 
 reux, 7 CI. & Fin. 188. 257 ; S. C. 1 Ves. jun. 220; S. C. 
 
 (/) Morse v. Boyal, 12 Ves. 373^ 3 B. C. C. 120; Watts v. Syde, 2 
 
 per Lord Erskine. Coll. 377; Bauyhv. Price, Cockerell 
 
 (g) See Murray v. Palmer, 2 Soh. v. Cholmley, Chesterfield v. Janssen, 
 
 &Lef. 486; J5«M(7A v.Pnce, IWils. Clialmer y. Bradley, Murray y. 
 
 320 ; Morse v. Boyal, 12 Ves. 373 ; Palmer, Roche v. O'Brien, ubi 
 
 Cole Y. Gibson, 1 Ves. 507 ; Roche supra. 
 
CH. XVI. S. 3.] CONFIEMATION OF PURCHASE. 473 
 
 5. The confirmation must be wholly distinct from and inde- 
 pendent of the original contract (a) — not a conveyance of the 
 estate executed in pursuance of a covenant in the original deed 
 for further assurance (&). 
 
 6. The confirmation must not be wrung from the cestui que 
 trust by distress or terror (c). 
 
 7. Where the cestuis que trust are a class of persons, as 
 creditors, the sanction of the major part wiU not be obligatory 
 on the rest ; but the confirmation to be complete, must be the 
 joint act of the whole body {d). 
 
 (o) See Wood v. Downes, IS.Ves. Crowe v. JBallard, Chesterfield v. 
 
 128 ; Morse v. Soyal, 12 Tes. 373 ; Janssen, ubi supra. 
 
 Scott y. Davis, 4 M. & C. 91, 92 ; {d) Sir Q. ColebrooVs ease, cited 
 
 'Roberts v. Tunstall, 4 Hare, 267. Bx parte Hughes, 6 Ves. 622 ; Ex 
 
 (6) SocheY. O'Brien, IB. & B. parte Zacey, id.. 628; the cases cited, 
 
 330, see 338 ; Wood v. Downes, 18 id. 630, note (J). Whelpdale v. 
 
 Ves. 120, see 123 ; and see Fox v. Coohson, cited Campbell v. Walker, 
 
 Machreth, 2 B. C. C. 400. 5 Ves. 682, must be considered as 
 
 (p) See Roche v. OBrien, 1 B. & greatly shaken, if not actually oyer- 
 
 B. 330 ; Dunbar v. Tredennick, ruled. 
 
CHAPTER XVII. 
 
 DUTIES OF TRUSTEES FOR PAYMENT OF DEBTS. , 
 
 Validity of a We shall first premise a few observations upon the validity 
 
 ment o/detts. "^ ^ trust for payment of debts. 
 
 . A trust for this purpose may be created either by will or by 
 act inter vivos. 
 
 A trust created by will for payment of debts out of personal 
 estate is so far a nullity, that the executor is bound, at all 
 events, to provide for the payment of debts out of the assets 
 in due course of administration, and would not be justified in 
 the breach of this legal obligation by pleading any expression 
 of intention on the part of the testator. It is only as respects 
 any surplus personal estate after payment of debts that the 
 executor ought to regulate his administration by the directions 
 of the wiU. A devise, however, of real estate for payment of 
 debts is, in all cases, unimpeachable, for the statutes that have 
 avoided devises as against specialty {a), and now as against 
 simple contract creditors (b), have expressly excepted devises 
 for payment of debts. 
 
 Trust created by As to trusts created by act inter vivos, a distinction must be 
 ° ™ "^ " observed between non-traders and traders. 
 
 Person not a 1. If the settlor be not a trader, and therefore not amenable 
 
 sudi^aTrastr* ° ^ ^^^ bankrupt laws, he is at perfect liberty to dispose either of 
 the whole (c) or oi part of his property (d), for payment of all{e) 
 
 (b) 11 G. 4. & 1 W. 4. 0. 47. claim any part -whidh is a damnosa 
 (5) 3 & 4 W. 4. 0. 104. possessio, see Sow v. Kennetf, 3 
 
 (c) InglissY. Grant, 5 T. E. 530; Ad. & EU. 659; Carter v. Warne, 
 Nunn v. Wilsmore, 8 T. R. 528, per M. & M. 479 ; West v. Steward, 14 
 Lord Kenyon ; Pichstoch v. Lyster, M, & W. 47. 
 
 3 M. & S. 371 ; Leonard v. Baker, {d) Estwick v. Caillaud, 5 T. E. 
 1 M. & S. 251 ; see Meux v. Howell, 420 ; Goss v. Neale, 5 Taunt. 19 ; 
 
 4 East, 1. What property will pass see Meux v. Howell, 4 East, 1. 
 
 by general words in a creditor's deed (e) Meux v. Howell, 4 East, 1 ; 
 
 and whether the trustees can dis- Ingliss v. Grant, 5 T. B. 530; 
 
CH. XVn.] VALIDITY OF TEUST, ETC. ^75 
 
 or any nwmber of his creditors (a). The argument 'formerly 
 iirged for the invalidity of such a trust was that the 13 Eliz. 
 c, 5. (&) avoided " all alienations contrived of fraud, to delay 
 creditors and others of their just debts," &c. But with respect 
 to a trust for the satisfaction of creditors generally — " How," 
 said Le Blanc, " can it be fraudulent for a person not the 
 object of the bankrupt laws to make the same provision volun- 
 tarily for the benefit of all his creditors which the law compels 
 to be done in the case of a bankrupt trader ? " (c) and if the 
 settlor direct the payment of particular debts only, "It is 
 neither illegal nor immoral," said Lord Kenyon, " to prefer 
 one set of creditors to another " {d). Nor does the creation of 
 such a trust fall within the scope of the act ; for " it is not 
 every feoffment, judgment," &c., said Lord EUenborough, 
 " which will have the effect of delaying or hindering creditors 
 of their debts, &c., that is therefore fraudulent within the 
 statute ; for such is the effect pro tanto of every assignment 
 that can be made by one who has creditors ; every assignment 
 of a man's property, however good and honest the considera- 
 tion, must diminish the fund out of which satisfaction is to be 
 made to his creditor, but the feoffment, judgment, &c., must 
 be devised of malice, fraud, or the like, to bring it within the 
 statute. The act was meant to prevent deeds, &c., fraudulent 
 in their concoction, and not merely such as in their effect might 
 delay or hinder other creditors " (e). . 
 
 But the act relating to Insolvent Debtors provides, that if InsolTent 
 any insolvent (/) shall voluntarily (g) convey or assign any 
 estate, real or personal, in trust for creditors, every such con- 
 veyance or assignment shall be deemed fraudulent and void as 
 against the assignees, if made " within three calendar months 
 before the commencement of his imprisonment, or with the 
 
 Pichstock V. Lyster, 3 M. & S. (c) Meux v. Howell, 4 East, 9. 
 
 371 ; Leonard v. Baker, 1 M. & S. (d) Estwick v. Caillaud, 5 T. E. 
 
 251. 424. 
 
 (a) Estwick v. Caillaud, 5 T. E. (e) MeuxY.JIoweU,4:'E,aat,\3,14. 
 
 420 ; Ifimn v. WiUmore, 8 T. R. (/) The words are, any prisoner 
 
 528, per Lord Kenyon ; Ooss v. &c. heing in insolvent circumstances. 
 
 Jfeale, 5 Taunt. 19; Wood r. Dixie, {g) Stuckey v. Drewe, 2 M. & K. 
 
 7 a. B. E. 892. 190 ; Mogg v. Baker, 3 M. & W. 
 
 (6) Perpetuated 29 Eliz. c. 6. 195 ; 4 M. & W. 348. 
 
476 
 
 VAIIDITI OF TEUST. 
 
 [CH. xvn. 
 
 Trust attended 
 •with fraud. 
 
 Tiew or intention of petitioning the Court for his discharge 
 under the act " (a), and a voluntary deed within the three 
 months will be void under this section though made in favour 
 of all the assignor's creditors (6). 
 
 And in all cases a trust for payment of dehts will be void, if 
 vitiated by actual fraud, as if the debtor by an understanding 
 between him and his trustees be left in possession of the estate, 
 so as to obtain a fictitious credit (c). 
 Voluntary trust. Suppose there is no fraud, but the trust deed is a mere 
 voluntary settlement not founded on any arrangement with the 
 creditors, but for the mere convenience of the debtor himself, 
 so that by the recent decisions it is revocable by the debtor at 
 any time until communicated to some creditor (d) ; in such a 
 case can a creditor, taking out execution, levy his debt upon 
 the property subject to the trust ? It seems, though the deed 
 is voluntary, yet it is not to be considered as fraudulent within 
 the statute 13 Eliz. c. 5, and if so, the creditor cannot reach 
 the property at law (e). However, the Court of Chancery 
 might perhaps hold the deed to be invalid as against the 
 creditor in a court of equity (/). 
 
 And where the trust was originally good, yet a creditor will 
 not be bound by the arrangement, but may recover his whole 
 debt, if the terms of the composition be not strictly and 
 literally fulfilled; for cujus est dare ejus est disponere, the 
 creditor has a right to prescribe the conditions of his in- 
 dulgence (g). 
 
 Wlere trust 
 Talid, the terms 
 must be strictly 
 observed. 
 
 (o) 1 & 2 V. c. 110. s. 59. 
 
 (J) Jackson v. Garneti, 2 Q,. B. 
 E. 887 ; Thompson v. Jackson, 3 M. 
 & Gr. 621 -,8.0.4: Scott, N. E. 234. 
 
 (c) Twyne's case, 3 Ee. 80 a; 
 Wilson V. Bay, 2 Burr. 827 ; Hun- 
 gerford v. Earh, 2 Vein. 261 ; Tar- 
 back v. Marhury, 2 Vern. 5]0; Law 
 V. Skinner, "W. Black. Ee. 996 ; and 
 see Worsley v. Dtmattos, 1 Burr. 
 i67 ; Stone v. Gratham, 2 Buls. 218; 
 Pickstock V. Lyster, 3 M. & S. 371; 
 Dutton V. Morrison, 17 Ves. 197. 
 
 {d) Wallwyn v. Coutts, 3 Mer. 
 707 ; S. C. 3 Sim. 14 ; Garrard v. 
 Lord Lauderdale, 3 Sim. 1 ; Acion 
 
 V. Woodgate, 2 M. & K. 492; Kir- 
 wan V. Daniel, 5 Hare, 500; Sar- 
 land V. Binks, 15 Q,. B. E. 713. 
 
 (e) Pickstock v. Lyster, 3 M. & 
 S. 371 ; Estwick v. Caillaud, 5 T. 
 E. 420. But see Owen v. Body, 5 
 Ad. & EU. 28. 
 
 (/) See Mackinnon v. Steward, 1 
 Sim. N. S. 90, 91. 
 
 {g) Sewell v. Musson, 1 Vern. 
 210; Mackenzie v. Mackenzie, 16 
 Ves, 374, per Lord Eldon ; Leigh v. 
 Barry, 3 Atk. 583, per Lord Hard- 
 wicke ; Ex parte Bennet, 2 Atk. 527, 
 per eundem ; and see Fuller Y. Lance, 
 7 Yin. Ab. 136. 
 
CH. XVII.] 
 
 TOR PATMENT OF DEBTS. 
 
 477 
 
 A deed if expressed on the face of it to be voluntary, as 
 for natural love and affection, may yet be proved to have been 
 founded on valuable consideration, and so unimpeachable by 
 creditors. The deed binds as between the parties to it, but does 
 not preclude evidence aliunde as regards third persons {a). 
 
 2. If the settlor be a trader, then the case is governed by Trader cannot 
 the operation of the bankruptcy laws. Ser "rtt 
 
 By the 12 and 13 Vict. c. 106; s. 67 (being a re-enactment ^°'' <''^^^^^- 
 of the previous statutes), it is declared that " any fraudulent 
 grant or conveyance of any lands, tenements, goods, or chattels, 
 with intent to defeat or delay creditors, shall be deemed an act 
 of bankruptcy." It has been adjudged fraudulent within the 
 meaning of this clause, if a trader assign the whole of his 
 property (&) (whether expressed to be the whole or not in the 
 deed (c) ), or all but a colourable part (d), or all the stock, 
 without which he cannot carry on his trade (e); and it is 
 immaterial whether the trust be for anj particular creditor (/), 
 or a certain number of them {g), or all the creditors at large {fi}. 
 
 («) Gale V. Williamson, 8 M. & 
 W. 405. 
 
 (6) Nunn v. Wilsmore, 8 T. R. 
 628, per Lord Kenyon ; Alderson v. 
 Temple, 4 Burr. 2240, per Lord 
 Mansfield ; Hooper v. Smith, W. Bl. 
 Re. 441, per eundem ; Wilson v. 
 Day, 2 Burr. 827 ; Hust v. Cooper, 
 Cowp. 632, per Lord Mansfield ; 
 Bowker v. Burdehin, 12 M. & W. 
 128. 
 
 . (e) See Dutton v. Morrison, 17 
 Ves. 193 ; Lindon v. Sharp, 6 Man. 
 & Gt. 905. But the assignment of all 
 Ms property at a certain, place is not 
 an act of bankruptcy, unless it be 
 proved that he had no other pro- 
 perty. Chase v. Gohle, 2 Man. & 
 Gr. 930. 
 
 (d) Law V. Skinner, W. Bl. Re. 
 996; Hooper v. Smith, ib. 442, per 
 Lord Mansfield; Wilson v. Day, 2 
 Burr. S32, per eundem; Alderson v. 
 Temple, 4 Burr. 2240, per eundem ; 
 Estwich V. Caillaud, 5 T. R. 424, per 
 Lord Kenyon; Gayner's case, cited 
 1 Burr. 477 ; Compton v. Bedfm-d, 
 W. Bl. Re. 362. 
 
 (e) Hooper -v. Smith, Bl. Re. 442; 
 
 Law V. Skinner, W. BL Re. 996; 
 
 Siebert v. Spooner, 1 M. & W. 714 ; 
 
 Porters. Walker, 1 Man. & Gr. 686; 
 
 Ex parte Bailey, 3 De Gex, M. & G. 
 
 534 ; Ex parte Taylor, 5 De Gex, 
 
 M. & G. 392. 
 
 (/) Wilson v. Day, 2 Burr. 827 ; 
 
 Hassell v. Simpson, 1 B. C. C. 99; 
 
 S. C. Doug. 89, note ; Hooper v. 
 
 Smith, W. Bl. Re. 442, per Lord 
 
 Mansfield; Worsley v. Demattos, 1 
 
 Burr. 467 ; Newton v. Chantler, 7 
 
 East, 138. 
 
 {g) Ex parte Foord, cited Wors- 
 ley y. Demattos, 1 Burr. 477 ; Aider- 
 son V. Temple, 4 Burr. 2240, per 
 Lord Mansfield ; Butcher v. Easto, 
 Doug. 282 ; Devon v. Watts, Doug. 
 86; Hooper v. Smith, W. Bl. Re. 
 442, per Lord Mansfield. 
 
 (A) Kettle V. Hammond, 1 Cooke's 
 B. L. 108, 3rd. edit. ; Eckhardt v. 
 
 Wilson, 8 T. R. 140 ; Tappenden v. 
 Burgess, 4 East, 230; Dutton v. 
 Morrison, 17 Ves. 199, per Lord 
 Eldon ; Simpson v. Sikes, 6 M. & S. 
 312. 
 
478 
 
 VAIIDITT OF TKUST. 
 
 [cn. xvn. 
 
 Grounds of the 
 rule. 
 
 What concomi- 
 tant circum- 
 stances will not 
 vary the rule. 
 
 By the assignment of his whole suhstance he hecomes utterly 
 insolvent ; and if the trust be for one or some only of his 
 creditors, it is a fraud upon the rest, and if it be for aU the 
 creditors, it is a fraud upon the spirit of the bankruptcy laws, 
 which require a bankrupt's estate to be under the management 
 of certain commissioners and assignees appointed as prescribed 
 by the legislature — not of persons nominated by the debtor 
 himself, and so more likely to further his views than promote 
 the interest of the creditors (a). But in order to avoid the 
 deed there must be in existence a debt due at the time of its 
 execution (&), and the assignment, though void as against 
 creditors and the assignees in bankruptcy (c), is good as 
 between the parties themselves (d) ; and assignments for 
 valuable consideration, at the fall price, where the purchaser 
 is not party or privy to the fraudulent designs of the vendor, 
 are not acts of bankruptcy and cannot be impeached (e). And 
 where a trader, greatly embarrassed, who had committed acts 
 of bankruptcy, executed a trust deed for the purpose of 
 effecting a conversion of his property and facilitating arrange- 
 ments with his creditors, the deed was held not to be an act of 
 bankruptcy (/). 
 
 The deed will be an act of bankruptcy, notwithstanding a 
 proviso declaring it void, if the trustees think fit (g), or if all 
 the creditors shall not execute (the acts of the trustees to he good 
 in the mean time) (h) ; or if all the creditors to a certain amount 
 shall not execute by such a time, or a commission of bankruptcy 
 shall issue (i). So it wiU be an act of bankruptcy though the 
 trustees at the time of the execution of the deed did not intend 
 to act upon it (for the fraud must be referred to the animus of 
 
 (o) See Dutton v. Morrison, 17 
 Ves. 199; Worsley v. Dematios, 1 
 Burr. 476 ; Simpson v. Sikes, 6 M. 
 & S. 312. 
 
 (5) Ex parte Taylor, 5De&ex, M. 
 & G. 392 ; Ex parte Louch, 1 De 
 Gex, 612 ; Oswald v. Thompson, 2 
 Exch. Re. 215. 
 
 (c) Doe V. Ball, 11 M. &"W. 531. 
 
 {d) Bessey v. Windham, 6 Q,. B. 
 Re. 166. 
 
 (e) Baxter v. Pritchard, 1 Ad. & 
 Ell. 456; Base v. Sayeoch, ib. 
 460. 
 
 (/) Greenwood v. Churchill, 1 M. 
 & E. 546. 
 
 {g) Tappenden v. Burgess, 4 East, 
 230. 
 
 (A) Backer. ffoocA, 4 Campb. 232; 
 S. C. Holt, 13. 
 
 {i) Button V. Morrison, 17 Ves. 
 193. 
 
CH. XTn.] FOR PAYMENT OF DEBTS. 479 
 
 the trader) (a) ; and though the trustees induced the debtor to 
 execute it, with the object of making it an act of bankruptcy (&) ; 
 and though the debtor himself meant it to be taken as 
 such (c). 
 
 But if A., B., and C. agree to execute an assignment as a No act of bank- 
 joint transaction, and A. executes, but B. and C. refuse, then, rannot'been^ 
 as the assignment of A. was made on the footing and faith of ^°''''^'^- 
 B. and C.'s concurrence, and therefore cannot be enforced 
 against A. individually and solely, it is no act of bankruptcy {d). 
 
 An assignment executed abroad was held to be no act of Assignment exe^ 
 bankruptcy in England (e) : but in this respect the law has '^^^^ ^ '^°^' 
 been altered by statute (/). 
 
 If any creditors either concur in the assignment (g), or sub- Creditors con- 
 sequently acquiesce in it {h), they cannot afterwards treat it as esd^g^cannot'^™' 
 an act of bankruptcy, for it is not fraudulent as to them. *^^* ^* ^^ f" ^"^ 
 
 ■^ •' of bankruptcy. 
 
 Nor can a trust deed which could not have been impeached 
 under a fiat sued out by any creditor be impeached under the 
 bankrupt's own fiat (i). 
 
 The late Act (fc) has now provided, that where any trader Clause in late 
 within the Act shall execute any conveyance or assignment by 
 deed of all his estate and effects to a trustee or trustees for 
 the benefit of all his creditors, it shall not be deemed an act 
 of bankruptcy, unless a petition for adjudication of bank- 
 ruptcy be filed within three months from the execution thereof ; 
 provided that such deed be executed by every such trustee 
 within fifteen days after the execution thereof by the trader ; 
 
 (a) Tappenden v. Surgess, 4 East, 142, per Cur, ; JBamford v. Baron, 
 
 230. 2 T. R. 594, note (a) ; Tappenden 
 
 (5) Id. V. Burgess, 4 East, 230, per Lord 
 
 (c) Simpson v. Sihes, 6 M. & S. Ellenborough ; Ex parte Cawhwell, 
 
 295. 1 Rose, 313. 
 
 (t?) Button V. Morrison, 17 Ves. (A) Ex parte Crawford, 1 Chris. 
 
 193, see 202 ; and see Bowher v. B. L. 97, 140 ; Ex parte Low, 1 G. 
 
 Burdekin, 1 1 M. & W. 128. & J. 84, per Lord Eldon ; Ex parte 
 
 (e) Norden v. James, 2 Dick. Cawkwell, 1 Rose, 313 ; Ex parte 
 
 533 ; Ingliss v. Grant, 5 T. R. Shaw, 1 Mad. 598 ; Back v. Gooch, 
 
 530. 4 Camp. 432; S. C. Holt, 13. 
 
 (/) 6 Gr. 4. c. 16. s. 3, repealed and [i] Ex parte Philpot, De Gex,, 
 
 re-enacted by 12 & 13 Vict. c. 106, 346 ; Ex parte Louch, id. 463 ; Ex 
 
 s. 67. parte Lofts, id. 612. 
 
 ■ {g) Eckhard v. Wilson, 8 T. R. {k) 12 & 13 Vict. o. 106, s. 68. 
 
 bankrupt act. 
 
48a 
 
 TRUSTEES FOE PAYMENT OF DEBTS. ' [CH. XVn. 
 
 Caution to 
 trustees when to 
 act. 
 
 Trader may 
 assign part in 
 trust for his 
 creditors. 
 
 Unless he con- 
 templated bank- 
 ruptcy. 
 
 and that the execution by such trader and every such trustee 
 be attested by an attorney or solicitor ; and that mo tice thereof 
 be given within one month after the execution by such trader, 
 in manner therein specified." 
 
 If the above requisitions, therefore, be complied with, the 
 trust deed will now be unimpeachable after a period of three 
 months ; but until the expiration of that time the trustees 
 must forbear to act, as all their proceedings may be over- 
 reached by a subsequent adjudication of bankruptcy. How- 
 ever, the trustees may begin the execution of their office even 
 at an earlier day, if they can only satisfy themselves either 
 that all the creditors have concurred or acquiesced in the 
 arrangement, or that such as have not cannot, either col- 
 lectively or individually, prove a debt or debts in the requi- 
 site amount to support an adjudication of bankruptcy. 
 
 Such is the law aifecting traders where the assignment is 
 of their whole property. If a trader assign part only in 
 trust for creditors, then, if the transaction be fair and bond 
 fide, and in the ordinary course of business, it is not open to 
 objection (a) ; but if the trader contemplated bankruptcy (&), or 
 even thought it probable, though not inevitable (c), and wished 
 to give an undue preference to certain creditors over others, 
 it is fraudulent within the meaning of the statute, and consti- 
 tutes an act of bankruptcy. 
 
 Before proceeding to the duties of trustees, it may be con- 
 venient to enlarge upon the two distinct classes into which 
 
 [a] Hale v. Allnut, 18 Com. B. 
 Re. 505 ; Wheelwright v. Jackson, 
 5 Taunt. 109 ; Hartshorn v. Slodden, 
 2 B. & P. 582 ; Fidgeon v. Sharp, 5 
 Taunt. 539; Small y. Oudley, 2 P."W. 
 427 ; Coch v. Goodfellow, 10 Mod. 
 489 ; Compton v. Bedford, 1 "W". Bl. 
 362, per Lord Mansfield ; Hooper v. 
 Smith, 1 W. Bl. 441 ; Alderson v. 
 Temple, 4 Burr. 2240, per Lord 
 Mansfield ; Wilson v. Dag, 2 Burr. 
 830, per eundem ; ib. 831, per Fors- 
 ter and Wilmot ; Jacob v. Shepperd, 
 cited Worsleg v. Demattos, 1 Burr. 
 478 ; Harman v. Fisher, Cowp. 
 123, per Lord Mansfield; Rust v. 
 
 Cooper, Cowp. 634, per eundem; 
 Ex parte Scudamore, 3 Ves. 85 ; 
 and see Fstwich v. Caillaud, 5 T. 
 E. 424; Newton v. Chantler, 7 
 East, 144. 
 
 (6) lAnton V. Bartlet, 3 Wils. 
 47 ; Morgan v. Horseman, 3 Taunt. 
 241 ; Alderson v. Temple, 4 Burr. 
 2238; Round v, Bgde, 1 Cooke, 
 B. L. 114, 3rd ed. ; Devon v. Watts, 
 Doug. 86; Pulling v. Tucker, 4 
 B. & A. 382; Harman v. Fisher, 
 Cowp. 117. 
 
 (c) Poland v. Olyn, 2 D. & E. 
 310 ; Guthrie v. Crossley, 2 C. & P. 
 301. 
 
CH. XVn.] ■ TEUSTEES FOR PAYMENT OF DEBTS. 481 
 
 trusts for payment of debts may be divided, viz. : Trusts irre- 
 vocable and Trusts revocable. 
 
 1. The existence of a debt is always a sufficient consider a- Irrevocable 
 tion to support an assurance ; and therefore if A. be indebted 
 to B., and convey an estate to him by way of security, the 
 deed, though no money passed at the time, cannot be revoked, 
 but B. may insist on the benefit of it. And if the creditor be 
 not a party to the deed, yet if, by arrangement between him 
 and the debtor, an estate is vested in a trustee for securing 
 the debt, he can enforce the trust (a). Even where a debtor 
 entered into an arrangement with three of his creditors, and in 
 pursuance thereof, by a deed between himself of the first part, 
 the three creditors of the second part, and his other creditors of 
 the third part, conveyed all his real and personal estate to the 
 three creditors, in trust for themselves and the other creditors, 
 it was held that the intention was to make the creditors 
 cestuis que trust, and that the deed was irrevocable ; and no 
 distinction was taken between the three creditors and the 
 other creditors, although the latter apparently had not been 
 in communication with the debtor previous to the deed, and 
 had not executed it until some time afterwards (b). 
 
 3. On the other hand, if a debtor, without communication Revocable trusts. 
 with his creditors, and, indeed, only from motives of personal 
 convenience, as on going abroad (c), vest an estate in trustees 
 upon trust to pay his debts, such a deed confers no right upon 
 the creditors who are neither parties nor privies, and the 
 debtor may at any time, at his pleasure, revoke or vary the 
 trusts, or call for the re-transfer of the property (d). And if 
 two persons have different interests in the same estate, and 
 they, by arrangement between themselves, but without commu- 
 nication with any creditor, convey the property to trustees, 
 upon trust to pay the debts of either party ; here, though each 
 may enforce the trust as against the other, yet the creditor, as 
 he neither required the security, nor was an object of bounty, 
 
 [a) WildmffY.Ilichards,lColl.66l. {d) WalwyriY. Coutts, 3 8im.l4:; 
 
 {b) Mackinnon v. Stewart, 1 Sim. 3 Mer. 707 ; Smith v. Keating, 6 
 
 N. S. 76. Com. B. Ee. 136 ; Aeton v. Wood- 
 
 (c) Cornthwaite v. Frith, 4 De gate, 2 M. & K. 492 ; Browne v. 
 
 Gez & Sm. 552. Cavendish, 1 Jon. & Lat. 606. 
 
derdale. 
 
 482 TRUSTEES FOE PAYMENT OF DEBTS. [CH. XVII. 
 
 cannot compel the execution of the trust in his own favour (a). 
 And a fortiori, this is the case if the payment of the debt is 
 to be made only on the request of the settlor (6). But, of 
 course, the trust cannot be revoked by the settlor, so as to 
 defeat or prejudice what the trustees may have previously done 
 in the due execution of the trust (c). 
 Garrard v. Lau- In Garrard V. Lauderdale, the Duke of York, by indenture 
 between himself of the first part, and trustees of the second 
 part, and the creditors of the third part, conveyed certain 
 property to trustees upon trust for his creditors, and upon the 
 execution of the deed a circular to that effect was sent to each 
 of the creditors. Here there was ground for contending that, 
 as the creditors had been induced by the notice to forbear 
 suing the settlor, they had acquired a right to the execution 
 of the trust, but Sir L. ShadweU, observing that the receipt of 
 the circular was not admitted, and that, if received, . yet the 
 creditors had not refrained from suing, as they had proved 
 against the Duke'^ estate, decided that the creditors had no 
 equity to enforce the trust {d), and the decree, on appeal to Lord 
 Brougham, was af&rmed (e). The authority, however, of this 
 case has, on several occasions, been questioned (/) ; and Lord 
 St. Leonards on one occasion observed he should be sorry to have 
 it understood that a man may create a trust for creditors, 
 communicate it to them, and obtain from them the benefit 
 of their lying by until perhaps the legal right to sue was lost, 
 and then insist that the trust was wholly within his power (g). 
 There can be little doubt that upon the general principles of 
 equity the settlor, by giving notice to the trusteeSj and by 
 subsequent conduct, may confer on the creditors a right which 
 they did not originally possess (h). And indeed it has now been 
 
 (a) OibbsY. Glamis, 11 Sim. 584; Sm. 552; Stone y. Van Heythuysen, 
 
 Simmonds\. PaUes,23on.&Ija.tA89. Kay, 727. 
 
 (5) Hvans v. Bagwell, 2 Con. & (f) SeeActonY. WoodgatejZU. & 
 
 Laws. 612. K. 495; Kirwan v. Daniel, 5 Hare, 
 
 (e) Wilding v. Richards, 1 Coll. 499 ; iSimmonds v. Palles, 2 Jon. & 
 
 655, see 659 ; and see Kirwan v. Lat. 495, 504. 
 Daniel, 5 Hare, 493. {g) Browne v. Cavendish, 1 Jon. 
 
 (d) 3 Sim. 1. & Lat. 635 ; 7 Ir. Eq. Rep. 388. 
 
 (e) 2 Russ. & Myl. 451 ; and see (A) Perhaps the old case of Zang- 
 Cornthwaite v. Frith, 4 De Gex & ton v. Tracy, 2 Ch. Rep. 30, was 
 
CH. Xvn.] TRUSTEES FOE PAYMENT OF DEBTS. 483 
 
 decided that if property be assigned to a trustee, and he takes 
 possession of it, and communicates with certain of the creditors, 
 who express their satisfaction, the trust is irrevocable (a). 
 
 In one case, where property was vested in a trustee for ere- Wilding v. 
 ditors, and the trustee was a surety for some of the debts, it 
 was held that, though the trust was revocable as to the 
 general creditors, yet the trustee himself was not bound to 
 reconvey the estate until the suretyship was satisfied (6). 
 
 It does not clearly appear from the authorities what is the Nature of the 
 precise nature of a revocable trust of this kind. The instru- 
 ment is sometimes called a deed of agency, and if so, the 
 trust must be considered at an end at the death of the settlor, 
 and the property, so far as it has not been applied, must be 
 administered as part of the settlor's assets (c). It is perfectly 
 clear that the trust is not regarded as revocable only during 
 the life of the settlor, so as to give a vested interest to the 
 creditor after his death, for it has been held that the creditor 
 has no more equity to enforce the trust after the settlor's 
 death than in his hfetime (d). 
 
 The Courts at the present day consider the doctrine under Doctrine not 
 which these deeds have been held revocable to have been carried tended. 
 far enough, and have expressed a disinclination to extend it (e). 
 
 We now proceed to the duties of trustees for payment of Duties of trustees, 
 debts, and upon this subject we shall consider, 1, What debts 
 are to be paid ; 2, In what order as regards priority ; and, 3, 
 What interest is to be allowed. 
 
 1. What debts are within the scope of the trust. 
 
 If the trust be created by deed, then, unless a contrary inten- Detts to be paid 
 
 decided oa this principle, for it Eay & Johns. 18. 
 appears that Tracy, the trustee, (6) Wilding v. Richards, 1 CoU. 
 
 declared to the creditors that he 655 
 
 would pay the debts, and that some (c) Wilding v. Richards, 1 CoU. 
 
 of the debts were actually paid, 655. 
 
 under the deed. The creditors may (d) Garrard v. Lauderdale, 3 
 
 also have been privies though not Sim. 1. 
 
 parties to the execution of the trust, (e) Wilding v. Richards, 1 Coll. 
 
 for it is stated that the settlor eie- 659 ; Kirwan v. Daniel, 5 Hare, 
 
 cuted the deed to avoid prosecution 499 ; Simmonds v. Palles, 2 Jon. 
 
 against him by his creditors. & Lat. 495, 504 ; Brown v. Caven- 
 
 (a) HarlandY. Sinks, 15 Q,. B. dish, 1 Jon. & Lat. 635; Evans v. 
 
 Rep. 713 ; Nicholson v. Tutin, 2 Bagwell, 2 Con, & Laws. 616. 
 
 I I 2 
 
484 
 
 TEUSTEES FOE PAYMENT OF DEBTS. 
 
 lch. xvn. 
 
 are primS. facie 
 those at date of 
 deed or death of 
 testator. 
 
 Debts barred by 
 Statute of Limi- 
 tations. 
 
 Lord St. John v, 
 Boughton. 
 
 tion be expressed, the debts only at the date of the deed will be 
 intended (a); but if the provision be containedin a -will, the direc- 
 tion will include all debts at the testator's death ; unless he spe- 
 cially restrict his meaningto the debtsat the making of his will (6). 
 
 If a settlor convey all his real and personal property upon 
 trust to pay " all debts then owing by him, and which affect 
 the estates thereby conveyed ; " the trust, if the settlor have 
 no judgment debts at the time, will be extended to bond debts, 
 but not to simple contract debts (c). 
 
 A direction for payment of debts will not revive a debt barred 
 by the Statute of Limitations (d), though the trustee or exe- 
 cutor may have advertised for all creditors to come in and 
 prove their debts (e). But if the claim be not barred at the 
 date of the deed or the death of the testator, the statute will 
 not run afterwards (/) ; for it is not to be inferred that a man 
 abandons his debt because he does not enforce pa.yment at law 
 when he has a trustee to pay him (g). Besides, unless delayed 
 of necessity, the trustee ought to discharge the debt at once, 
 and the universal rule is, that the cestui que trust ought not to 
 suffer for the laches of the trustee (h). 
 
 By the 40th section of the late Statute of Limitations (i) 
 it is declared, that " no action, suit, or other proceeding 
 shall be brought to recover any sum of money charged 
 upon or payable out of any land at law or in equity, but 
 within twenty years next after a present right to receive the 
 same accrued to some person capable of giving a discharge 
 for or release of the same, unless, in the mean time, some 
 part thereof, or of the interest thereon, shall have been paid, 
 or some acknowledgment of the right thereof shall have been 
 given in writing, signed by the person by whom the same shall 
 
 (a) Purefoyy. Purefoy, 1 Vern. 28. 
 
 (J) Loddington v. Kime, 3 Lev. 
 433. 
 
 (c) Douglas v. Allen, 1 Con. & 
 Laws. 367 ; 2 Drur. & War. 213. 
 
 ((i) Burhe v. Jones, 2 V. & B. 275, 
 where all the cases are collected. 
 
 (e) Jones v. Scott, 1 E. & M. 
 255 ; 4 CI. & Fin. 382 ; overruling 
 Andrews v. Brown, Pr. Ch. 385. 
 
 (/) Hughes v. Wynne, 1 T. & 
 
 E. 307 ; Crallan v. Oulton, 3 Beav. 
 1 ; Hargreaves v. Michell, 6 Mad. 
 326 ; Executors of Fergus v. Oore, 
 
 1 Soh. & Lef. 107 ; and see Morse 
 V. Langham, cited Burke v. Jones, 
 
 2 V. & B. 286. 
 
 [g) Hughes v. Wynne, 1 T. & R. 
 309, per Cur. 
 
 {h) See Executors of Fergus v. 
 Gore, 1 Soh. & Lef. 110. 
 
 (t") 3 & 4 W. 4. 0. 27. 
 
CH. XVn.J TRUSTEES FOR PAYMENT OF DEBTS. 485 
 
 be payable, or his agent." Upon the construction of this clause 
 it was held, that where a testatrix had devised an estate to 
 trustees upon trust to sell and pay debts, but no part of the 
 produce of sale had been set apart for that purpose, the right 
 of the creditor was not within the exception of the 25th sec- 
 tion, but fell under the 40th section ; but inasmuch as the debt 
 had been acknowledged by the surviving trustee, that was 
 sufficient to take the case out of the statute {a). But the opi- 
 nion of the Vice- Chancellor that the case was not within the 
 25th section cannot, it is conceived, be supported. The right 
 of the creditor would subsist until adverse possession had run 
 against his trustee (6). 
 
 The rule that the creation of a trust keeps alive a debt not But not as re- 
 barred at the testator's death does not apply to a trust declared pereonalty. 
 of personal estate by will, for the personalty vests in the exe- 
 cutor upon trust for the creditors by act of law, so that the 
 words of the will are nugatory (c). 
 
 The terms of the trust will extend. to the repayment of a Debt contracted 
 
 ^ •' by infant for 
 
 sum of money borrowed by an infant for the purchase of necessaries. 
 necessaries (d) . 
 
 Shall nmortqaqee who has a covenant for payment of his Case of a mort- 
 
 ^ ^ _ . . gagee with a 
 
 debt be allowed to prove and receive a dividend upon the whole covenant for 
 amount of his debt pari passu with the other creditors, or shall 
 he prove only for the excess of the debt beyond the value of 
 the security, or what rule is to govern the case ? In bank- 
 ruptcy, the mortgagee proves only for the excess of the mort- 
 gage debt over the value of the security, so that he must first 
 dispose of the estate, (with the concurrence of the trustees to 
 pass the equity of redemption), and then prove for the differ- 
 ence. But in the administration of assets by Courts of equity, 
 a mortgagee is allowed to prove for his whole debt without 
 being put on terms as to his security (e). The trust deed usually 
 provides for the case of persons having specific liens, and 
 
 (o) Zord St. John v. Boughton, 499 ; Evans v. Tweedy, 1 Beav. 55. 
 9 Sim. 219. {d)MarlowY.Pitfield,\'S.W.5b^. 
 
 (5) See infra as to th.e Statutes of (e) See Greenwood v. Taylor, \ 
 
 Limitation. 1 E. & M. 185 ; Maion v. Bogg, 2 
 
 (c) Jones v. Scott, 1 R. & M. M. & C. 443 ; Borne v. Young, 4 T. 
 
 255; reversed, 4 CI. & Fin. 382; & C. 204 ; jS«»man v. iJj7ey, 9 Hare, 
 
 Freake v. Cranefeldt, 3 M. & C. App. xli. 
 
486 
 
 TEUSTEES FOE PAYMENT OP DEBTS. [CH. XVII. 
 
 Trust for credi- 
 tors Trho come in 
 within certain 
 time. 
 
 Trustee cannot 
 arbitrarily admit 
 a creditor who 
 has repudiated 
 the deed. 
 
 Discretion in 
 
 ingrafts the principle established in bankruptcy ; but if there 
 be no such clause, and if the deed provide that the creditor 
 shall release his debt and all securities for the same, the mort- 
 gagee, by executing the deed, binds himself to the other 
 creditors, notwithstandiag any private arrangement with the 
 debtor to the contrary, that he will not take advantage of his 
 specific lien, but will bring it into the common stock and prove 
 for his whole debt, and accept a dividend pari passu with the 
 rest {a). " It is established," said Lord Langdale, " by a series 
 of decisions, that a creditor cannot ostensibly accept a compo- 
 sition and sign the deed which expresses his acceptance of the 
 terms, and at the same time stipulate for, or secure to himself, 
 a peculiar and separate advantage which is not expressed upon 
 the deed " (&). " The moment," observed Lord Lyndhurst, " a 
 creditor releases his debt, which he does by executing a deed 
 of this kind, there is, of course, an end of any lien he may 
 have for it " (c). But though the word " release " be used in 
 the deed, it will not necessarily operate as an absolute and 
 unconditional release, if the whole contents of the instrument, 
 when taken together, show that such was not the intention (cZ). 
 
 If a trust be for payment of such creditors as shall come in 
 within a year, it seems a creditor who delays beyond the year 
 is not therefore precluded from taking advantage of the trust, 
 but the clause is regarded as directory only (e). 
 
 But a creditor who repudiates the deed by his acts, as by 
 suing the debtor contrary to the provisions of the deed, will 
 not be allowed afterwards (more particularly after a long lapse 
 of time) to retrace his steps and take the benefit of the deed ; 
 and though the trustee admit him to sign the deed, the other 
 creditors will not be bound by the act of the trustee (/). 
 
 A discretion is sometimes given to the trustees to admit or 
 
 (a) CulUngworth v. Lloyd, 2 Beav. 
 385; Buch v. Shippam, 1 Phil. 694; 
 14 Sim. 239. 
 
 (6) CulUngworth v. Lloyd, 2 Beav. 
 391. 
 
 (c) Buch v. Shippam, 1 Phil. 697. 
 
 {d) Squire v. Ford, 9 Hare, 47. 
 
 (e) Bunch v. Kent, 1 Vein. 260 ; 
 and see Collins v. JReece, 1 Coll. 675 ; 
 
 Jolly V. Norton, SEa^. 228; Maworth 
 V. Parher, 2 Kay & Johns. 163; 
 SpoUiswoode v. Stochdale, Coop. 102 ; 
 but see Emmet v. Bewhurst, 3 Mac. 
 & Gor. 587. 
 
 (/) Field Y. Bonoughmore, 1 Dru. 
 & War. 227 ; reversing the decision 
 of Lord Plunkett, 2 Dru. & "Walsh. 
 630. 
 
CH. XVII.j TRUSTEES FOE PAYMENT OP DEBTS. 487 
 
 exclude such creditors as they shall think proper. The Court trustees to admit 
 wiU endeavour, if possible, to withdraw the rights of the ere- "'^^ » """sc "ns. 
 ditors from the caprice of the trustees (a) ; but if the settle- 
 ment clearly give such a discretionary power, and the trustees are 
 willing to exercise it, and no fraud be found, the Court cannot 
 interfere to compel the admission of any particular creditor (b). 
 
 If the trustees have a power of enlarging the time and adver- EeKef in equity, 
 tise to that effect, but do not exercise the power, and so exclude 
 a person who desired to come in, but could not do so before 
 the day named in the deed, the creditor will be relieved in 
 equity (c). 
 
 If there be trustees for payment of debts and legacies, and Resumption by 
 
 _ trustees of pos- 
 
 subject thereto upon trust for A. for life with remainder over, session after 
 and the Court has taken an account of debts and legacies, and 
 declared A. entitled to the possession, who is put in possession 
 accordingly, it is not competent for the trustees afterwards to 
 make an admission of some further debt, and to resume the 
 possession in order to discharge it (d). 
 
 2. As to the order of payment. 
 
 Where the trust is created by will, the direction generally Creditors paid 
 is for payment of "debts and legacies." As regards the admi- 
 nistration of assets, creditors take precedence of legatees ; 
 but here, as both take under the will, and the testator has 
 made no distinction, it seems, upon strict principle, as was 
 formerly held, that creditors and legatees ought to be paid 
 pari passu (e). However, there can be little doubt, that the 
 testator, although he may not have expUcitly declared it, meant 
 the creditors to precede, and the Courts accordingly (rather 
 straining a point, that a man might not " sin in his grave ") 
 have now indisputably established that creditors shall have the 
 priority (/). 
 
 (a) See JSTunn v. Wihmore, 8 T. 482 ; Anon. 2 Vern. 133 ; Powell's 
 
 E. 521. case, Nels. 202; Wolestoncroft v. 
 
 (6) Wain v. Egmont, 3 M. & K. Long, 1 Ch. Ca. 32 ; and see Walker 
 
 445. V. Meager, 2 P. W. 552. 
 
 (c) Raworth v. Parker, 2 Kay & (/) Greaves v. Powell, 2 Vern. 
 
 Johns. 163. 248, 302, Raitliby's ed. ; Bradgate 
 
 {d) Underwood v. Satton, 5 Beav. v. Ridlington, Mose. 56 ; 1 Eq. Ca. 
 
 36. Ab. 141, pi. 3; Walker v. Meager, 
 
 (e) Hixon v. Wytham, 1 Ch. Ca. 2 P. W. 550 ; Martin v. Hooper, 
 
 248 ; Gosling v. Dorney, 1 Vern. Eep. t. Hardwicke, by Ridgw. 209 ; 
 
488 
 
 TEUSTEES FOE PAYMENT OF DEBTS. [CH. XVn. 
 
 All creditors to 
 be paid pari 
 jiassv,. 
 
 Specialty cre- 
 ditoi's. 
 
 Case of trustee 
 being also exe- 
 cutor. 
 
 As amongst the creditors themselves, the Court acts upon 
 the well-known principle that " equality is equity," and, there- 
 fore, whether the trust be created by deed (») or will (6), the 
 specialty debts in the absence of express directions to the 
 contrary will have no advantage over simple contract debts, 
 but all will be paid in rateable proportions ; and, of course, the 
 trustees will not be allowed to break in upon this rule by first 
 discharging their own debts (c). 
 
 It was formerly ruled, that where a testator charged his 
 freehold estate with debts, and the estate subject to the charge 
 descended to the heir, the specialty creditor had precedence, 
 for it was argued he had his remedy at law against the heir 
 independently of the will, and therefore ought not to be put 
 on a level with those taking under the wiU {d). The answer 
 is, that the specialty creditor has no lien upon the estate, but 
 can only recover the debt from the heir personally to the 
 extent of the assets descended. If the estate be subject to 
 the charge, the heir takes not beneficially but only as trustee, 
 aiid then there are no legal assets in consideration of equity, 
 and the bond creditor may be injoined from pursuing his legal 
 right ; and on. these grounds it has been decided that specialty 
 debts are not entitled to a preference (e). 
 
 It was also thought at one time, that if the estate charged 
 with the debts was to be administered by the executor, the 
 testator must have meant that the executor should, as in his 
 executorial capacity, observe the legal priorities (/) ; however, 
 there was no reason, in fact, why the characters of trustee and 
 
 Whitton v. Lloyd, 1 Ch. Ca. 275 ; 
 Foly's case, 2 Freem, 49 ; Kidney 
 V. Coussmaher, 12 Ves. 154, per Sir 
 W. G^rant ; Peter v. Bruen, cited 2 
 P. "W. 551 ; Lloyd v. Williams, 2 
 Atk. Hi, per Lord Hardwicke. 
 
 (a) Wolestoncroft v. Long, 1 Ch. 
 Ca. 32 ; Hamilton v. Houghton, 2 
 Bligh, 187, per Lord Eldon ; Child 
 v. Stephens, 1 Vern. 101. 
 
 (6) Wolestoncroft v. Long, 1 Ch. 
 Ca. 32 ; Anon. 2 Ch. Ca. 64 ; &c. 
 
 (e) Anon. 2 Ch. Ca. 54. 
 
 {d) FremouU v. Dedire, 1 P. "W. 
 
 429; Young v. Bennet, 2 Dick. 
 452 ; BUtch v. Wilder, 1 Atk. 420; 
 Allam Y. Heber, Str. 1270; -S. C. 
 W. Black, 22 ; and see Plunhet v. 
 Benson, 2 Atk. 290. 
 
 (e) Shiphard v. Lutwidge, 8 Ves. 
 26 ; Pope v. Gwyn, cited ib. 28, 
 note ; Bailey v. Ekins, 7 Ves. 319 ; 
 Batson v. Lindegreen, 2 B. C. C. 
 94 ; Hargrave v. Tindal, cited 
 N'ewton v. Bennet, 1 B. C. C. 136, 
 note. 
 
 (/) Girling v. Lee, 1 Vern. 63 ; 
 Cutterhach v. SmUh, Pr. Ch. 127 ; 
 
debts. 
 
 CH. XVn.] TRUSTEES FOR PAYMENT OF DEBTS. 489 
 
 executor should not be united in the same person without 
 confusion, and so it has since been determined (a). But if the 
 trust be expressly to pay the settlor's debts " according to 
 their priority, nature, and specialty," a bond-debt with interest 
 is payable before a simple contract debt (6). 
 
 3. As to allowance of interest. 
 
 Whether the trust be created by deed (c), or wUl (d), and though Interest not 
 the fund has been making interest (e), the trustees will not be p^ contract 
 justified in paying interest upon simple contract debts ; and a 
 fortiori, this is the case where interest is expressly directed as 
 to some particular debts (/). Where the trust was by deed, but 
 the creditors had not been made parties, Lord Eldon observed, 
 " The mere direction to pay a debt does not infer either 
 contract or trust to pay interest upon debts by simple contract. 
 As to contract, the creditors did not execute the deedj and 
 there was nothing to prevent their suing the debtor after the 
 execution, and no consideration was given to the debtor by 
 charging the land and discharging the person "(g). And Lord 
 Hardwicke said (though under the altered state of the law the 
 observation loses its force) it would be mischievous to hold that 
 the trust should make the simple contract debts carry interest ; 
 for if the trust were to change the nature of the debts and 
 burden the estate with interest, it would frighten people from 
 doing justice to creditors Qi). It was once suggested by Lord 
 
 Bichham v. Freeman, ib. 136 ; {d) Lloyd v. Williams, 2 Atk. 
 
 Masham v. Harding, Btmb. 339 ; 108 ; Stewart v. Noble, Vern. & 
 
 Foly's case, 2 Preem. 49. Soriv. 528 ; Dolman v. Pritman, 3 
 
 (a) Browse v. Abingdon, 1 Atk. Ch. He. 64 ; Nels. 136 ; Freem. 133 ; 
 
 482 ; Newton v. Bennet, 1 B. C. C. Bath v. Bradford, 2 Ves. 588, per 
 
 135; Silk v. Prime, ib. 138, note; Lord Hardwicke; and see Tait v. 
 
 S. C. 1 Dick. 384; Bewin-v. Oheley, Northwich, 4 Ves. 816. Bothomly 
 
 2 Atk. 50 ; Barker v. Boucher, 1 v. Fairfax, 1 P. W. 334, note ; 
 
 B. C. C. 140, note. Maxwell v. Wettenhall, 2 P. W. 26 
 
 (h) Passingham v. Selby, 2 Coll. ed. by Cox, are overruled. 
 
 405. (e) Shirley v. Ferrers, 1 B.C. C. 
 
 (c) HamiltonY. Houghton, 2 Bligh, 41 ; but see Pearce v. Slocombe, 3 
 
 169, see 186; Car v. Burlington, 1 T. & C. 84. 
 
 P. "W. 228, as corrected in Cox's ed. ; (/) Jenkins y. Perry, 3 T. & C. 
 
 Barwell v. Parker, 2 Ves. 364; 178. 
 
 Shirley v. Ferrers, 1 B. C. C. 41 ; {g) Hamilton v. Houghton, 2 
 
 and see Stewart v. Noble, Vern. Bligh, 186. 
 
 & Seriv. 536 ; Creuze v. Hunter, [h) See Barwell v. Parker, 2 
 
 2 Ves. jun. 165 ; & C. 4 B. C. C. 319. Ves. 364 ; Bath v. Bradford, ib. 58S. 
 
490 TRUSTEES FOR PAYMENT OF DEBTS. [CH. XVH. 
 
 Abinger that "if a man execute a trust of a term for the 
 benefit of his creditors, the deed makes them mortgagees if 
 they execute it, and so gives them a right of interest "{a). And 
 it was held in some old authorities, that even in a deed to 
 which the creditors were not parties, or in a trust created by 
 will for payment of debts, the creditors were to be regarded 
 as mortgagees and were entitled to interest (&) ; but the 
 doctrine in these cases has long since been overthrown, and it 
 is apprehended that even the distinction taken by the Chief 
 Baron cannot at the present day be supported (c). Again, it was 
 said by Lord Hardwicke that " if a man hy deed in his life creates 
 a trust for payment of his debts, annexes a schedule of some 
 debts, and creates a trust term for the payment, as that is in 
 the nature of a specialty, it will make these, though simple 
 contract debts, carry interest "{d). But this dictum also is not 
 in conformity with the law as now established, and cannot be 
 maintained (e). 
 Pearoe v. But where A. and B. assigned their joint property to C, D., 
 
 and E. upon trust, in the first place to pay ^e joint debts at 
 the expiration of a year from the date of the assignment, arid 
 then as to a moiety to pay the separate debts of A., and at the 
 end of a year sufficient assets were realised to have discharged 
 the joint debts, but the money, instead of being so applied, 
 was invested in the funds and the interest accumulated, it was 
 held, that as the fund applicable to the payment of the joint 
 debts had been making interest from the time the debts should 
 have been paid, the joint creditors, though on simple contract, 
 were entitled to interest at 4 percent, before the separate creditors 
 were paid their principal. The separate creditors would other- 
 wise try to impede the general settlement, that, in the mean 
 time, they might enjoy the interest from the joint creditors' 
 fund(/). 
 
 (a) Jenkins v. Perry, 3 T. & C. to interest from the date of the decree 
 
 183. out of any surplus assets after paying 
 
 (J) Maxwell v. Wettenhall, 2 P. all debts, and the interest of such as 
 
 "W. 27 ; Car v. Burlington, 1 P. W. by law carry interest. 
 
 229. [d) Barioell v. Parker, 2 Ves. 364. 
 
 (c) Barwell v. Parker, 2 Ves. 364. (e) Stone v. Van Heythuysen, Kay, 
 
 It must be borne in mind, however, 721 ; Clowes y. Waters, 16 Jur. 632. 
 
 that the 46th Order of August, 1841, (/) Pearce y. Slocomhe, 3 Y. & 
 
 givessimple contract creditors a right C. 84. 
 
CH. XVII.] TRUSTEES FOR PAYMENT OP DEBTS. 491 
 
 Of course the creditors may stipulate for payment of inter- Creditors may 
 
 stipvdate for 
 est, or the settlor, if so minded, may insert such a direc- interest. 
 
 tion (a). But a trust for payment of specialty and simple con- 
 tract debts and all interest thereof, will not amount to such a 
 direction, but the words will be taken to have reference to the 
 debts carrying interest of their own nature (&). 
 
 Specialty debts, though actually released by a creditor's deed. Specialty detts. 
 will carry interest up to the time of payment. It might be urged, 
 indeed, that as regards specialty debts the amount of the debt is 
 the principal and interest ; and therefore in a trustfor payment of 
 debts interest as well as principal must be taken into calcula- 
 tion to ascertaia what the debt is at the date of the deed or the 
 death of the testator; but that interest ought not to run 
 beyond the date of the trust deed or the death of the testator, 
 for that principal and interest together are then regarded as one 
 sum, not as a debt but an interest of a cestui que trust. And 
 some principle of this kind appears to have been acted upon 
 in the case of Car v. Burlington (c), where a person vested 
 estates in trustees upon trust to pay all such debts as he 
 should owe at his death, and the Court directed the Master to 
 calculate interest on such of the debts as carried interest up 
 to the death of the settlor ; but the Master was not to carry on 
 any interest on any security beyond the settlor's decease, but 
 in case there were assets to pay the simple contract debts 
 as well as the specialty debts, the question of ulterior interest 
 was reserved. At the present day, however, the rule is to 
 consider the specialty debt as subsisting up to the time of 
 payment, i. e. to calculate interest on the principal not only 
 up to the date of the deed or the death of the testator, but up 
 to the day of payment (d). 
 
 Bond creditors, it must be observed, will not be entitled to Bond creditors 
 receive more for principal and interest than the amount of the interest beyond 
 penalty (e). ^'^^ P^'^^y- 
 
 [a) See £ath v. Bradford, 2 Ves. Cox's ed. from Reg. Lib. 
 
 588; Barwell v. Parker, ib. 364; (d) Bateman v. Margerison, 16 
 
 Stewart v. Noble, Vern. & Scriv. Beav. 477. 
 
 536. (e) Hughes v. Wynne, 1 M. & K. 
 
 (J) TaitY. Nort'hwich,'iYes.U&. 20; Anon. 1 Salk. 154; Clowes v. 
 
 (c) IP. "W. 228, as corrected in Waters, 16 Jur. 632. 
 
CHAPTER XVIII. 
 
 THE DUTIES OF TRUSTEES OF CHARITIES. 
 
 Charities by 
 cliarter. 
 
 Visitor. 
 
 Jurisdiction of 
 the Court of 
 Chancery oTer 
 corporate bodies. 
 
 Charities are either estabKshed by charter, as eleemosynary 
 corporations, or are under the management of individual trustees. 
 
 Before entering upon the duties of trustees for charities, it 
 may be proper to introduce a few preliminary remarks upon 
 the subject of the Gowii's jurisdiction over charities established 
 by charter. 
 
 On the institution of such a charity a visitatorial jurisdiction 
 arises of common right to the founder, whether the king or a 
 private person, and his heirs, or to those whom the founder has 
 substituted in the place of himself and his heirs (a) ; and the 
 office of visitor is to hear and determine all differences of the 
 members of the society amongst themselves, and generally to 
 superintend the internal government of the body, and to see that 
 all rules and orders of the corporation are observed (6). The 
 visitor must take as his guide the statutes originally pro- 
 pounded by the founder (c) ; but so long as he does not exceed 
 his proper province, his decision is final, and cannot be ques- 
 tioned by way of appeal {d). 
 
 With this visitatorial power the Court of Chancery has 
 nothing to do : it is only as respects the administration of the 
 corporate property that equity assumes to itself any right of 
 
 (o) Eden V. Foster, 2 P. W. 326, 
 resolved ; Attorney- General v. 
 Gaunt, 3 Sw. 148. 
 
 (J) See Philips v. Bury, Skin. 
 478; Attorney-General Y. Crooh, 1 
 Keen, 126; Attorney-General v. 
 Archbishop of York, 2 R. & M. 
 468; In re Birmingham School, Grilb. 
 Eq. Rep. 180, 181. 
 
 (c) Green v. JRutherforth, 1 Ves. 
 
 469, per Sir J. Strange; id. 472, 
 per Lord Hardwioke. 
 
 {d) St. John's College, Cambridge, 
 V. Todington, 1 Burr. 200, per Lord 
 Mansfield; Attorney- General v. 
 Locke, 3 Atk. 165, per Lord Hard- 
 wioke; Attorney-General v. The 
 Master of Catherine Hall, Cam- 
 bridge, Jao. 392, per Lord Eldon. 
 
CH. XVm.l VISITATOEIAL POWER. 493 
 
 interference. " If," said Lord Commissioner Eyre, " the 
 governors established for the regulation of a charity are not- 
 those intrusted with the management of the revenue, the Court 
 has no jurisdiction: let the charity be ever so much abused, 
 as far as respects this Court the abuse is without a remedy; 
 but if those established as governors have also the manage- 
 ment of the revenue, the Court does assume a jurisdiction of 
 necessity so far as they are to be considered as trustees of that 
 revenue "(a). " There are two sorts of authorities," said Lord 
 Hardwicke, " one as to the management of the estate and 
 revenue, the other as to the management and government of 
 of the house. In the latter the governors are absolute, and 
 not controllable by the Court of Chancery; but so far as 
 relates to the estates of the charity, they are subject and 
 accountable to this Court "(&). 
 
 Upon the ground of this distinction between the visitatorial Informal eleo- 
 power and the management of the revenue, an information for 
 the removal of governors or other corporators, as having been 
 irregularly appointed, would be dismissed with costs (c) ; but Mal-administra- 
 
 tion. 
 
 wherever the administration of the property by the governors 
 can be shown to have a tendency to pervert the end of the 
 institution, the Court will immediately interpose, and put a 
 stop to such wrongful application (d). 
 
 (a) Attorney- General v. The 5 Sim. 578 ; Attorney- General v. 
 Governors of the Foundling Hos- Browne's Hospital, 17 Sim. 137. 
 
 2 Ves. jun. 47. But note, (e) Attorney-General v. Earl of 
 Chief Baron Richards once observed, Clarendon, 17 Ves. 491, see 498; 
 he had been of counsel in the Found- Whiston v. Dean 8f Chapter of So- 
 ling Hospital case, and he remem- Chester, 7 Hare, 532; Attorney- Ge- 
 bered some of the first men of the bar neral v. Dixie, 13 Ves. 519 ; Attor- 
 were not satisfied with the decision. ney- Generaly. Middleton, 2Ves. 327, 
 In re Chertsey Market, Q'Svioe, 212. see 330 ; Attorney-Generals. Dul- 
 (b) Attorney- General v. Lock, loich College, 4 Beav. 255 ; Attorney- 
 3 Atk. 165; and see upon this General v. Magdalen College, Oxford, 
 subject Ex parte Berkhampstead 10 Beav. 402 ; Attorney-Generals. 
 Free School, 2 V. & B. 138 ; The Corporation of Bedford, id. 505 ; In 
 Poor of Chelmsford v. Mildmay 
 Duke, 83; Attorney- General v, 
 Earl of Clarendon, 17 Ves. 499 
 Eden v. Foster, 2 P. W. 326 
 Attorney- General v. Dixie, 13 Ves, 
 5.33, 539; Attorney- General y. Cor 
 poration of Bedford, 2 Ves. 505 
 
 re Bedford Charity, 5 Sim. 578. 
 
 (d) See Attorney- General v. St. 
 Cross Hospital, 17 Beav. 435 ; At- 
 torney-Generals. The Governors of 
 the Foundling Hospital, 2 Ves. jun. 
 48; Attorney- General v. Earl of 
 Clarendon, 17 Ves. 499. 
 
494 
 
 VISITATOEIAL POWER. 
 
 [CH. xvni. 
 
 How property 
 newly giTen 
 affected by the 
 ■visitatorial 
 power. 
 
 Green ». Euther- 
 forth. 
 
 An estate newly bestowed upon an old corporation is not to 
 -be regarded in the same light as property with which the 
 charity was originally endowed. The visitatorial power is 
 forum domesticum — the private jurisdiction of the founder; 
 and the new gift will not be made subject to it, unless the will 
 of the donor be either actually expressed to that effect, or is to 
 be collected by necessary implication (a). If a legal or equi- 
 table interest be given to a body corporate, and no special 
 purpose be declared, the donor has plainly implied that the 
 estate shall be under the general statutes and rules of the 
 society, and be regulated in the same manner as the rest of 
 their property (h) : but if a particular and special trust be 
 annexed to the gift, that excludes the visitatorial power of the 
 original founder ; and the Court, viewing the corporation in the 
 light of an ordinary trustee, will determine aUthe same questions 
 as would have fallen under its jurisdiction had the adminis- 
 tration of the fund been intrusted to the hands of individuals. 
 
 Thus in Green v. Rutherforth (c) an advowson was devised to 
 St. John's College, Cambridge, upon trust, when the church 
 should become void, to present " the senior divine then feUow 
 of the College." A dispute arose as to the true interpretation 
 of the words ; and had the direction been contained in the 
 statutes of the College, the construction would have fallen 
 under the visitatorial province ; but as the property was a new 
 donation, it was held the question was determinable in the 
 forum of the Court of Chancery. " A private person," it was 
 said, " would have been compellable to execute the will, and, 
 considered as a trust, it made no difference who were the 
 trustees. Though here they were a collegiate body whose 
 founder had given a visitor to superintend his own bounty, yet, 
 as regarded one claiming under a separate benefactor, the Court 
 would look on them as trustees, and would compel them to 
 execute the intent under the direction of the Court [d). The 
 visitor, whose judgment must be founded on the statutes, could 
 
 (a) Green v. Rutherforth, 1 Ves. 
 472, per Lord Hardwicke. 
 
 (i) Id. 473, per eundem ; Hx 
 parte Inge, 2 R. & M. 596, per Lord 
 Brougham ; Attorney- General v. 
 
 Clare Sail, 3 Atk. 675, per Lord 
 Hardwicke. 
 
 (c) 1 Ves. 462. 
 
 (d) 1 Ves. 468, 473. 
 
CH. XVin.] TEUSTEES OP CHAEITIES. 495 
 
 not execute the trusts of the will, for that would be departing 
 from the statutes ; and the adhering to the statutes would be 
 adding further circumstances to the trust than the testator pre- 
 scribed, andmaking it the founder's will, and notthetesta-tor's "{a). 
 
 But even the visitatorial power may, under particular cir- Cases where the 
 cumstances and in a special manner, be exercised by the Lord power may be 
 Chancellor ; for the Crown may be visitor by the terms of the L^'ord^ncelbr 
 foundation, and if the heir of the founder cannot be dis- 
 covered (fo), or become lunatic (c), the visitatorial power, rather 
 than the corporation should not be visited at all, will result to 
 the Crown. In civil corporations the King is visitor through 
 the Court of Queen's Bench; for corporate bodies which 
 respect the public police of the country and the administration 
 of justice, are necessarily better regulated under the superin- 
 tendence of a court of law : but as regards eleemosynary corpo- 
 rations the King's visitatorial power has been committed to 
 the Lord Chancellor, as in matters of charity the more appro- 
 priate supervisor (d). And the mode of appHcation to the Lord 
 Chancellor in these cases is by petition to the Great Seal (e). 
 
 We proceed to the consideration of the duties of trustees of 
 charities. 
 
 It is of course imposed upon the trustees whether indi- Fund must be 
 
 . . 1 1 ■ f -, applied to the 
 
 viduals or a corporation, not to convert the charity iund to charity pre- 
 other uses than according to the intent of the founder or ^°" 
 donor; so long as those uses are capable of execution (/). Thus 
 if the gift be to find a preacher in Dale, it would be a breach of 
 trust to provide one in Sale ; or if it be to find a preacher, and 
 the trustees apply it to the poor or to some other purpose {g) ; 
 
 (a) 1 Ves. 469. [b] and (c) ; and Sx parte Inge, 
 (6) JEx parte Wrangham, 2 Ves. 2 R. & M. 594 ; lie Queen's College, 
 jun. 609; Attorney- General v. Camhridge, b'&.viss. &'^; Re Univer- 
 Earl of Clarendon, 17 Ves. 498, per sity College, Oxford, 2 Phil. 521. 
 Sir "W. Grant; Attorney-General {f )&&& Attorney -General y.Sher- 
 V. Blach, 11 Ves. 191 ; Case of home School, 18 Beav. 256. 
 Queen's College, Cambridge, Jao. 1. [g) Duke, 116; Attorney -Gene- 
 ve) Attorney- General v. Dixie, ral v. Newbury Corporation, C. P. 
 13 Ves. 519, see 533. Coop. Cases, 1837-38, 72 ; Attorney- 
 
 (d) King v. St. Catherine's Hall, General v. Goldsmiths' Company, 
 4 T. R. 233, see 244 ; and see Ex ib. 292 ; and see Wivelescom case, 
 parte Wrangham, 2 Ves. jun. 619. Duke, 94. 
 
 (e) See tte cases cited in notes 
 
496 
 
 TEUSTEES OF CHARITIES. 
 
 [cH. xvm. 
 
 Chapel for 
 school. 
 
 Chapel pulled 
 down. 
 
 Charity in aid of 
 rates. 
 
 or if the trust be for the poor of O., and the trustees extend it 
 to other parishes (a) ; or if the trust be to repair a chapel, and 
 the rents be mixed uj) with the poor-rate for parochial pur- 
 poses (6) ; or if a fund be raised for erecting an hospital, and 
 it be diverted to lighting, paving, and cleansing the town (c). 
 
 A chapel was granted to the trustees of a school for the use 
 and benefit of the said school, and though the inhabitants of 
 the hamlet had been long accustomed to attend divine service 
 in the chapel, it was held that, as the chapel was for the exclu- 
 sive benefit of the school, the trustees had no power to apply 
 the revenues of the charity towards enlarging the chapel for 
 the better accommodation of the inhabitants {d). 
 
 The trustees for maintaining a chapel had pulled down the 
 edifice, converted the burial-ground to profane purposes, 
 carried the bell to the market-place, put the pews in the parish 
 church, and employed the stones of the chapel for repairing a 
 bridge. Sir T. Plumer said, " It was an enormous breach of 
 trust, and such as could not have been expected in a Christian 
 country ; " and directed an inquiry what emoluments had come 
 to the hands of the trustees on account of the breach of trust, 
 and what would be the expense of restoring the chapel to the 
 state in which it stood at the time of its destruction (e). 
 
 A fund in aid and relief of " poor citizens who often were 
 grievously burdened by the imposts and taxes of the city '' 
 was held not to be applicable to the payment of rates and other 
 expenses of the city that would otherwise have been.raised by 
 public levies and impositions, nor to be distributable to such of 
 the poor as received parish relief, for that would be so much in 
 aid of the rate-payers ; but ought to have been administered 
 for the exclusive benefit of the poor, and should therefore have 
 been confined to such of the poor as were not supported by the 
 parish (/). 
 
 (a) Attorney- General v. Brand- 
 reth, 1 Y. & C. Gh. Re. 200. 
 
 (6) Attorney- General v. Vivian, 
 1 Russ. 226, see 23Y. 
 
 (c) Attorney- General v. Kell, 2 
 Beav. 575. 
 
 (d) Attorney-General v. Earl of 
 Mansfield, 2 Russ. 501. 
 
 (e) Ex parte Greenhouse, 1 Mad. 
 92 ; reversed on technical ground, 
 1 Bl. N. R. 17. 
 
 (/) Attorney- General v. Corpo- 
 ration of Exeter, 2 Russ. 45 ; S. C. 
 3 Russ. 395 ; and see Att - Gen- 
 V. Sovill, 1 PhU. 762 ; Att.-Gen. v. 
 Blizard, 21 Beav. 233. 
 
CH. XVm.] TRUSTEES OF CHARITIES. 497 
 
 If land or money be given for maintaining " the worship of ?'^?* ^°^, T'^°- 
 God," and nothing more he said, the Court will execute the worship of God." 
 trust in favour of the established form of religion. But if 
 it be clearly expressed upon the deed or will that the purpose 
 of the settlor is to promote the maintenance of dissenting 
 doctrines, the Court, provided such doctrines be not contrary 
 to law, will execute the intention (a). And where a fund is 
 raised for the purpose of founding a chapel (or indeed any 
 other charity), and the contributors are so numerous as to 
 prec .ude the possibility of their all concurring in any instru- 
 mf nt declaring the trust, and such a declaration of trust is 
 made by the persons in whom the property is vested at or 
 about the time when the sums have been raised, that decla- 
 ration may reasonably be taken prima facie as the true 
 exposition of the minds of the contributors (&). 
 
 Where an institution exists for the purpose of religious The trust ori- 
 worship, and it cannot be discovered from the instrument will be preserved. 
 declaring the trust what form or species of religious worship 
 was in the intention of the settlors, the Court will then in- 
 quire what has been the usage of the congregation; and if 
 such usage do not contravene public policy, will be guided by it 
 as evidence of the intention in the administration of the trust. 
 And by a recent Act, if the instrument of trust do not define 
 the religious doctrines, twenty-five years' usage immediately 
 preceding any suit is made conclusive evidence thereof (c). 
 But if the purpose of the settlors appear clearly upon the 
 instrument, the Court, in that ease, though the usage of the 
 congregation may have run in a different channel, cannot 
 change the nature of the original institution : it is not compe- 
 tent for the majority of the congregation, or for the managers 
 of the property, to say, " We have altered our opinions : the 
 chapel in future shall be for the benefit of persons of the same 
 persuasion as ourselves {d}." 
 
 (a) Attorney-GeneralY. Pearson, Eldon ; Foley v. Wontner, 2 Jao. 
 
 3 Mer. 409, per Lord Eldon ; see & Walk. 247, per eundem ; Craig- 
 
 8. a 7 Sim. 290. dallie v. Aihman, 1 Dow's P. G. 1 ; 
 
 (6) Attorney - General v. Clap- Milligan v. Mitchell, 3 M. & C. 72; 
 
 ham, 4 De Grex, M. & Gr. 626. Broom v. Summers, 11 Sim. 353 ; 
 
 (c) 7 & 8 Vict. c. 45, s. 2. Attorney- General v. Murdoch, 7 
 
 [d) S. C. 3 Mer. 400, per Lord Hare, 445 ; 1 De Gex, M. & G. 86 ; 
 
498 
 
 TRUSTEES OP CHARITIES. 
 
 [CH. XTin. 
 
 Appointment of 
 new trustees. 
 
 Minister of a 
 meetiDg-hoiise. 
 
 Minister may be 
 removable at 
 pleasure. 
 
 Original inten- 
 tion cannot be 
 defeated by bye- 
 laws. 
 
 If the deed of endowment neither provide for the succession 
 of trustees nor the election of the minister, an inquiry will be 
 directed, who, according to the nature of the establishment, 
 are entitled to propose trustees, and to elect the minister (a) ; 
 and if the election of the minister properly belong to the 
 congregation, the majority is for that purpose the congrega- 
 tion (6). The appointment of the minister cannot, in such a 
 case, belong to the heir of the surviving trustee, who may not 
 be of the same persuasion, but, it might happen, a Eoman 
 Catholic or Jew (c). 
 
 A minister in possession of a meeting-house is tenant at 
 will to the trustees, and his estate is determinable by demand 
 of possession without any previous notice (d). But this merely 
 tries the legal right without affecting the question whether in 
 equity the minister was properly deprived (e), and if the minister 
 be in possession, and preaching the doctrines that were 
 intended by the founders, it is the practice of a Court of 
 equity to continue him until the case can be heard, whether 
 he was duly elected or not (for the first point is to have the 
 service performed), and the Court will pay him his salary (/). 
 
 It is the policy of the Established Church by giving the 
 minister an estate for life in his office to render him in some 
 degree independent of the congregation; but if it be the 
 general usage amongst any particular class of dissenters to 
 appoint their ministers for limited periods, or to make them 
 removable at pleasure, though a Court of equity might not 
 struggle hard in support of such a plan, there is no principle 
 upon which the Court would not be bound to give it effect (g). 
 
 To every corporation there belongs of common right the 
 power of establishing bye-laws for the government of their own 
 
 Attorney- General v. Munro, 2 De 
 Gex & Sm. 122. 
 
 (o) Davis V. Jenkins, 3 V. & B. 
 151, see 169 ; and see Leslie v. 
 Birnie, 2 Kuss. 114. 
 
 (6) Davis Y. Jenkins, 3 V. & B. 
 155 ; and see Leslie v. Birnie, ubi 
 supra. 
 
 (c) Davis V. Jenhins, 3 V. & B. 
 154. 
 
 {d) Doe Y. Jones, 10 B. & Cr. 718; 
 Doe Y. M'Kaeg, 10 B. & Cr. 721 ; 
 and see Brown v. Dawson, 12 Ad. 
 & Ell. 624. 
 
 (e) See Doe v. Jones, 10 B. & Cr. 
 721. 
 
 (/) JFoley Y. Wontner, 2 Jao, & 
 "Walk. 247, per Lord Eldon. 
 
 {ff) Attorney- General v. Pearson, 
 3 Mer. 402, 403, per Lord Eldon. 
 
CH. XVni.] TRUSTEES OP CHARITIES. 499 
 
 body; but this privilege cannot authorise the enactment of 
 any rules or regulations that would tend to pervert or destroy 
 the directions of the original founder and the objects of the 
 charity (a). And so a clause in a deed investing the trustees, 
 or the major part of them, with the power of making orders 
 from time to time upon matters relating to a meeting-house 
 would not enable them to convert the meeting-house, when- 
 ever they thought proper, into a meeting-house of a different 
 description, and for teaching diff'erent doctrines from those 
 of the persons who founded it, and by whom it was to be at- 
 tended (b). 
 
 The charity funds cannot be diverted into a different channel Act of Parlia- 
 
 ,. „ /■T-.T Til- ment necessary 
 
 Without the authority or an act ot JParliament ; and this may for the purpose. 
 now be obtaiaed through the intervention of the Charity 
 Commissioners, who are empowered to approve, provisionally, 
 of a scheme varying from the origiual endowment and submit 
 it to Parliament (c). Until the act referred to, trustees, be- 
 fore applying to the legislature, were in the habit of procuring 
 the sanction of the Court of Chancery ; for if they took such 
 a step upon the mere suggestion of their own minds, and 
 failed in obtaining the contemplated act, they were not allowed 
 the costs and expenses incurred in the proceeding (d) ; but if 
 the application to Parliament was attended with success, the 
 trustees were then allowed their costs, though the sanction of 
 the Lord Chancellor had not been previously obtained ; for 
 the Court could not with propriety pronounce those measures 
 to be imprudent which the legislature itself had enacted as 
 prudent (e). 
 
 But the management of the trust may contravene the letter Letter may be 
 of the founder's will, and yet, on a favourable construction, be the spirit pre- 
 conformable to the real intention. served. 
 
 It was the opinion of Lord Eldon (/) and Sir T. Plumer (g), Free grammar 
 
 school. 
 
 (a) Sden v. Foster, 2 P. W. .327, (e) lb. per eundem. 
 
 resolved. (/) Attorney- General v. White- 
 
 (h) Attorney-General W.Pearson, ley, 11 Ves. 241; Attorney- Gene- 
 
 3 Mer. 411, ^er Lord Eldon. ral v. Earl of Mansfield, 2 Russ. 
 
 (c) 16 & 17 Vict. 0.137,88.54—60. 501. 
 
 (d) Attorney- General v. Earl of (jr) Attorney- General v. Dean of 
 Mansfield, 2 Russ. 519, per Lord Christehurch, Jao. 474. 
 
 Eldon. 
 
 K K 2 
 
500 TEUSTEES OF CHARITIES. [CH. XVni. 
 
 that if the wish of the founder were to establish a free 
 grammar school, the Chancellor, though he felt perfectly con- 
 vinced that a free grammar school, that is, a school for teaching 
 the learned languages, could be of little or no use, would yet 
 be bound to apply the revenue as the donor had directed, and 
 could not substitute a school for teaching English and writing 
 and arithmetic. " The duty of the Court," said Lord Eldon, 
 " is to enforce the trusts as they stand : the founder was the 
 judge how far his institution was likely to be useful to the 
 public " {a). But it has since been held by Lord Lyndhurst (6), 
 Sir John Leach (c). Lord Langdale {d), and Lord Cottenham («), 
 that the Court has jurisdiction to extend the application of the 
 charity fund to purposes beyond the literal intention, and that 
 writing and arithmetic may be well introduced into a scheme 
 for the establishment or better regulation of a free grammar 
 school. And this may of course be done in the case not of 
 a free grammar school but of a free school (/). 
 3 &4Vict. c. 77. Now by the 3 & 4 Vict. c. 77, s. 1, it is enacted that when- 
 ever any question may come under consideration, in any of 
 Her Majesty's Courts of equity, concerning the system of 
 education to be established in any grammar school, or the right 
 of admission into the same, it shall be lawful for the Court to 
 make such decrees or orders as to the said Court shall seem 
 expedient for extending the system of education to other useful 
 branches of literature and science, in addition to or (subject to 
 the provisions thereinafter contained) in lieu of the Greek and 
 Latin languages, or such other instruction as may be required 
 by the terms of the foundation, or the existing statutes. 
 
 By the 13th section the visitors of any school are enabled 
 to require from the master a return of the state thereof, 
 of the books used therein, and of such other particulars as 
 they may think proper ; and also, to order such examination of 
 
 (o) Attorney- General v. Earl of College, 2 Keen, 150; Attorney- 
 Mansfield, 2 Russ. 521. General v. Ladyman, C. P. Coop. 
 
 (J) Attorney- General v. Haher- Cases, 1837-38, 180. 
 
 dashers' Company, 3 Euss. 530, (e) Attorney- General v. Stam- 
 
 (c) Attorney- General v. Dixie, 2 ford, 1 Phil. 745. 
 
 M. & K. 342 ; Attorney- General y. (/) Attorney-Generals. Jachson, 
 
 Gascoigne, id. 652. 2 Eeen, 541. 
 
 {d) Attorney- General v. Caius 
 
CH. XVin.] TRUSTEES OF CHARITIES. 501 
 
 the scholars attending the same as may seem expedient. And 
 hy the 14th, 15th & 16th sections, the Court is empowered, 
 upon proper occasions, to enlarge the existing, or to create 
 new visitatorial powers, and to appoint, when necessary, a 
 provisional visitor. 
 
 By the 17th section it is enacted that it shall he lawful for 
 the Court of Chancery (upon application by petition under the 
 21st section), to empower the person or persons having powers 
 of visitation in respect of the discipline of any grammar school, 
 or who shall be specially appointed to exercise the same, 
 under the said act, and the governors, or either of them, 
 after such inquiries, and hy such mode of proceeding as the 
 Court may direct, to remove any master of any grammar 
 school who has been negligent in the discharge of his duties, 
 or who is unfit or incompetent to discharge them properly 
 or efficiently, either from immoral conduct, incapacity, age, 
 or from any other infirmity or cause whatsoever, and by a 
 subsequent section, provision is made for the ejectment of 
 the master by a summary process from the premises in his 
 occupation. 
 
 "Where trustees were directed to apply the rents "towards "Finding a 
 the necessary finding a master, and for the pains of such 
 master/' and the trustees applied part of the revenue towards 
 rebuilding and repairing the school-room and school-house, 
 it was held to be a good pursuance of the trust, because a 
 school-room and house were necessary, and if these were not 
 provided by the trustees, they must have been provided by the 
 master himself, and so it was in effect applied for the pains of 
 the master (a). 
 
 So a trust " for the relief of the poor " has been construed "Belief of poor." 
 to authorise an application of the funds to the building of a 
 schoolhouse, and the education of the poor of the parish (&). 
 
 So an estate had been given to trustees for the repair of a Eepairing and 
 church and chapel of ease thereto belonging, and, the parish 
 having taken down the chapel to erect a new one on a different 
 site, it was determined that the trustees had not exceeded the 
 
 (a) Attorney- Generals. Mayor of (h) Wilkinson v. Malin, 2 Tyr. 
 Stamford, 2 Sw. 592. 544, see 570. 
 
602 
 
 TRUSTEES OP CHARITIES. 
 
 [CH. xvm. 
 
 Augmentation 
 of salaries. 
 
 Reduction of 
 salaries. 
 
 Loans. 
 
 Retainer of the 
 charity fund. 
 
 Alienation of the 
 charity estate. 
 
 line of their duty in expending the accumulated rents upon the 
 rebmlcUng of the chapel ; but it was held the rents only, and 
 not the corpus of the estate, could be so applied ; and the 
 Court had great doubts whether any thing could be laid out 
 upon the fitting-wp of the chapel (a) , 
 
 And where the direction of the founder was that the master 
 of a school should receive 50i. a year, and the usher 30Z., and 
 the trustees had raised the salaries respectively to 80i!. and 
 60Z., as the wiU did not contain any prohibition against in- 
 creasing the salaries, and it could not be supposed that the 
 trustees were not under any circumstances to alter the amount, 
 the Court refused to compel the trustees to refund the augmen- 
 tations (6). 
 
 And, vice versa, if a fund be given, not for purposes of 
 individual benefit, but for the discharge of certain duties, as 
 for the support of a schoolmaster, and the l^fund increase to 
 such an extent as to yield more than a reasonable compensa- 
 tion for the duties to be performed, the Court will not allow 
 the surplus to be expended unnecessarily, but wUl order 
 it to be applied for the promotion of some other charitable 
 purpose (c). 
 
 Legacies had been left by several different testators (between 
 the years 1545 and 1666) for the purpose of being lent out ia 
 sums varying from 5i. to 300Z, without interest ; and Sir J. 
 Leach was of opinion, that, regard being had to the alteration 
 in the value of , money, it was not inconsistent with the inten- 
 tion of the testators to raise the loans to sums varying from 
 lOOL to 500?, {d). 
 
 It need scarcely be remarked that a trustee would be guilty 
 of a gross breach of trust, should he keep the charity fund in 
 his hands, and not apply it, as it becomes payable, to the 
 objects of the trust (e). 
 
 It is a general rule, that trustees of charities have no 
 
 (a) Attorney- General v. Foyster, 
 1 Anst, 116. 
 
 (6) Attorney-General v. Dean of 
 Christchurch, 2 Euss, 321, 
 
 (c) Attorney- General v. Master 
 of Brentford School, 1 M. & K, 376, 
 see 394, 
 
 {d) Attorney-General \. Mercers' 
 Company, 2 M. & K, 654 ; and see 
 Attorney- General v. Holland, 2 T, 
 & C. 683 ; Morden College case, cited 
 ib. 701, 702, 
 
 (e) Dnke, 116, 
 
CH. XVin.] TRUSTEES OF CHARITIES. 503 
 
 authority to make an absolute disposition of the charity estate : 
 they could not, for instance, part with lands to a purchaser, 
 and substitute instead the reservation of a rent (a). And as 
 the trustees may not aliene absolutely, so they may not 
 accomplish the same end indirectly by demising for long terms, 
 as for 999 years (6); or for terms of ordinary duration, with 
 covenants for perpetual renewal (c) ; or by granting reversionary 
 terms (d). 
 
 But there is no positive rule that in no instance shall an Where allowable, 
 absolute disposition be made, for then the Court itself could 
 not authorise such an act — a jurisdiction which, it is acknow- 
 ledged, has from time to time been exercised upon special 
 cases made. " I do not doubt,'' observed Sir J. Wigram, " the 
 existence of this power in the Court : the trustees have the 
 power to sell at law, they can convey the legal estate, but it is 
 only a Court of equity that can resell the property, and if that 
 Court should sanction a sale it would be bound to protect the 
 purchaser " (e). The true principle is, that an absolute dispo- 
 sition is then only to be considered a breach of trust when the 
 proceeding is inconsistent with a provident administration of 
 the estate for the benefit of the charity (/). And the transac- 
 tion will be strongly assumed to be improvident as against a 
 purchaser until he has established the contrary {g). A house 
 which had formerly produced a large income by being let in 
 apartments had afterwards fallen into a state of dilapidation 
 and become unproductive : the charity had no funds to rebuild, 
 but the materials and site were of considerable value. The 
 
 (o) Attorney- General v. Kerr, 2 (e) Attorney- General v. Newarh, 
 
 Beav. 420 ; Blachston v. Hemsworth 1 Hare, 400. 
 
 Hospital, Duke, 49; Attorney- Gene- (/) ^%6 Attorney-General v. War- 
 
 ral Y. Sretiingham, S Beav. 91; a.ni ren, 2 Sw. 302; S. C. Wils. 411; 
 
 see Attorney-GeneralY. Buller, 3a.o. Attorney- General v. Hungerford, 
 
 412; Attorney -General v. Magdalen 8 Bl. 437; S. C. 2 CI. & Fin. 357 ; 
 
 College, 18 Beav. 223. Attorney- General v. Kerr, 2 Beav. 
 
 (6) Attorney- General v. Green, 428 ; Attorney- General v. South Sea 
 
 6 Yes. 452; Attorney-General v. Company, 4 Beav. 453; Attorney- 
 
 Pargeter, 6 Beav. 150. General v. Newark, 1 Hare, 395 ; 
 
 (c) Lydiattv.Foae'h,'iYeTnAlO; Parhe's Charity, 12 Sim. 329 ; Be 
 Attorney- General Y. Brooke, ISYes. Suir Island Female Charity School, 
 326. 3 Jones&Lat. 171. 
 
 (d) See Attorney- General Y.Kerr, (g) Attorney- General v. Bret- 
 2 Beav. 420. tingham, 3 Beav, 91. 
 
504 
 
 TEUSTEES OF CHAEITIES. 
 
 [CH. xvin. 
 
 Recent diarity 
 acts. 
 
 Accumulations. 
 
 Loans of charity 
 money on mort- 
 gage. 
 
 Master having reported that it would be for the advantage of 
 the charity to dispose of the house, Sir W. Grant, on the 
 authority of a precedent which was produced to him, directed 
 a sale (a). 
 
 Now under the provisions of the recent acts the Commis- 
 sioners of Charities are empowered on application made to 
 them to authorise the grant by charity trustees of building, 
 repairing, improving, or other leases, and the worldng of 
 mines, and the sale or exchange of any part of the charity 
 property (&), and the trustees are restricted from any sale, 
 mortgage or beneficial leases, without the sanction of the Com- 
 missioners (c), and moneys arising from sales and exchanges 
 may be laid out with the consent of the Commissioners in the 
 purchase of other lands without a license in mortmain (d). 
 
 Where there are accumulations from a charity estate, the 
 Court, on application to it for directions, will not as a general 
 rule sanction an investment on land contrary to the spirit of 
 the mortmain act (e). But there is nothiag illegal in such an 
 investment, if accompanied with the formalities required by 
 the act, viz. an indenture sealed and delivered in the presence 
 of two credible witnesses, and inrolled within six calendar 
 months from the execution (/) ; and therefore should a highly 
 beneficial purchase offer itself, the trustees themselves would, 
 it is conceived, run no risk in so investing the accumula- 
 tions (g). Indeed, the Court itself has made such an order 
 where the purchase of the land was not the main object, but 
 incidental to a general scheme as for the enlargement of a 
 school Qi). 
 
 Trustees of a Charity may lend the trust fund upon a mort- 
 gage of real estate, though a legal condition is expressly 
 reserved, and though after default an equity of redemption 
 arises by the rules of equity. The Statute of Mortmain 
 
 (a) Anon, case, cited Attorney- 
 General v. Warren, 2 Sw. 300, 302. 
 
 (6) 16 & 17 Vict. c. 137, ss. 21,24, 
 26 ; 18 & 19 Vict. c. 124, s. 32, 39. 
 
 (e) 18 & 19 Viot. 0. 124, s. 29. 
 
 [d] 18 & 19 Viot. 0. 124, s. 35. 
 
 (e) Attorney- General v. Wilson, 
 2 Keen, 680. 
 
 (/) But see Attorney- General v. 
 Day, 1 Ves. 222. 
 
 [g) See Vaughan v. Farrer, 2 
 Ves. 188. 
 
 {h) Attorney-General v. Mans- 
 field, 14 Sim. 601 ; Sonnor's Trust, 
 V. C. Eindersley, May 3, 1853. 
 
CH. XVni.] LEASES OF CHAEITY LANDS. 505 
 
 (9 Geo. 3, c. 36), which avoids conveyances to a charity con- 
 taining any reservation or condition for the benefit of the 
 grantor, is held not to apply to such a case (a). But of course 
 care should be taken that the mortgage be by indenture 
 attested by two witnesses, and inrolled. The Court itself, its 
 attention being directed to the question, has authorised the 
 trustees of a charity to lend on mortgage (6). 
 
 Governors of charities cannot grant leases to or in trust for Lease to a 
 one of themselves, for no trustee can be a tenant to himself, 
 and the Court will charge him with an occupation rack-rent (c). 
 Where two trustees were expressly authorised by the will to 
 grant a lease to themselves, or either of them, with the consent 
 of the tenant for life, and one of them took a lease accordingly, 
 which was fair and proper, but it was found in effect that the 
 relative characters of trustee and lessee were inconsistent, and 
 led to inconveniences, the Court removed the trustee at the 
 instance of the cestms que trust, on the ground of the repugnant 
 characters of trustee and tenant ; and though the trustee 
 offered to surrender the lease, the Court held him to it, and 
 dismissed him from the trust (cZ). And trustees should be 
 cautious how they grant leases to their own relations, for that 
 circumstance is calculated to excite a suspicion, which, if con- 
 firmed by any other fact, it might require a strong case to 
 remove (e). So a lease should not contain any covenant for the 
 private advantage of the trustees : where a corporation directed 
 the insertion of a covenant that the lessee should grind at the 
 corporation mill, in a suit for the establishment of the charity Suit to a mill, 
 the corporation were, for this instance of misbehaviour, dis- 
 allowed their costs (/). 
 
 Where trustees have a power given to them in general terms ^^^^ °^' ^'^<^^- 
 
 ° rent. 
 
 (a) Doe d. Graham v. Hawkins, General v. JEarl of Clarendon, 17 
 
 2 ft, B. Rep. 212. Ves. 491, see 500. 
 
 (6) This was done by the M.R. in {d) Passingham v. Sherborne, 9 
 
 Att.-Gen. V. Gibson; Ex parte Beav. 424. 
 
 Lushing (on ; He Lady Prior's (e) Ferrdby v. Hobson, 2 Phill. 
 
 Charity, July 21, 1853. The mort- 261, per Lord Cottenham ; and see 
 
 gage was for 50,000?. upon an estate Ex parte Skinner, 2 Mer. 457. 
 
 in Northamptonshire. (/) Attorney- General v. Mayor of 
 
 (c) Attorney-General v. Dixie, Stamford, 2 Sw. 592, 593. 
 13 Ves. 619, see 534; Attorney- 
 
306 
 
 LEASES OF CHARITY LANDS. 
 
 [CH. xvra. 
 
 Adequate con- 
 sideration. 
 
 Leases at an 
 under-value. 
 
 "Eent not to be 
 raised." 
 
 to grant leases, it is said they may take fines or reserve rents 
 as, according to the circumstances of the case, may be most 
 beneficial to the charity (a). If the trust estate held on lease 
 increase in value from the outlay of the tenant, the trustee is 
 not called upon immediately to raise the tenant's rent, for such 
 a practice would obviously prevent any improvement of the 
 property (6). Nor if the value of the estate increase from the 
 rise of agricultural produce will the trustee be liable, because 
 he neglects for a few months to raise the rent ; but if he wil- 
 fully continues the old rent when clearly a much higher can be 
 obtained, he may be held responsible (c). 
 
 In granting leases of charity lands care must be taken that 
 the lease be for an adequate consideration, and, if this be not 
 observed, the Court will interfere and order the lease to be 
 cancelled, and with the lease will also cancel the covenants {d). 
 
 The lease may be annulled on the mere ground of under- 
 value (e) ; but it must be an under-value satisfactorily proved and 
 considerable in amount: it is not enough to show that a little 
 more might have been got for the estate than has been actually 
 obtained: stiU less is it sufficient to infer the under-letting 
 from the value of the property at some subsequent period (/). 
 
 Even where it was ordained at the creation of the trust, 
 that no lease should be made for above twenty-one years, 
 and the rent should not be raised, it was held the trustee 
 would not be justified in granting leases from time to time at 
 no more than the original reservation. Lord Cowper said,' 
 " That the rent should not be raised was a constitution just 
 and charitable for the encouragement of the tenant to improve 
 the estate, and he ought to find a benefit by it ; and the hospital 
 
 [a) Attorney- General v. Mayor of 
 Stamford, 2 Sw. 592. 
 
 (J) Ferraby v. Holson, 2 Phill, 
 258, per Lord Cottenham. 
 
 (c) See Ferraby v. Hohson, 2 
 PMU. 255. 
 
 {d) Attorney- General v. Morgan, 
 2 Kuss. 306. 
 
 (e) East V. Myal, 2 P. "W". 284;, 
 Attorney- General v. Lord Gower, 
 9 Mod. 224, see 229; Attorney- 
 General V. Magwood, 18 Ves. 315; 
 
 Attorney- General v. Dixie, 13 Ves. 
 519; PoorofYervelii. Sutton, Duke, 
 43 ; Eltham Parish v. Warreyn, 
 Duke, 67 ; Wright v. Newport Pond 
 School, Duke, 46 ; Rowe v. Almsmen 
 of Tavistock, Duke, 42 ; Crouch v. 
 Citizens of Worcester, Duke, 33 ; 
 Attorney- General v. Foord, 6 Beav. 
 288. 
 
 (/) Attorney- General v. Cross, 
 3 Mer. d4:\,per Sir W. Grant. 
 
CH. XVIII.] LEASES OF CHARITY LANDS. 507 
 
 also would find an advantage in having the rent well secured by 
 an estate of gi'eater value, and consequently paid ; but the rule 
 or constitution was not to be followed according to the 
 letter that no more rent was to be taken than what was 
 at first reserved, but as the times altered and the price of 
 provisions, &c. increased, so the, rent ought to be raised in 
 proportion " (a). 
 
 But, in considering the question of value it must be remem- Under-Taiue 
 bered that the case of a charity estate is one in whichj of all jg^^ to render 
 others, the security of the rent is the first point to be regarded, ^^^ If*^^ ™' 
 and therefore the inadequacy of the amount reserved is less a 
 badge of fraud in this than it would be in almost any other 
 instance (6). And Lord Eldon desired it might not be con- 
 sidered to be his opinion that a tenant who had got a lease of 
 charity lands at too low a rate with reference to the actual 
 value was therefore to be turned out, if it appeared he had 
 himself acted fairly and honestly. The only ground for so 
 dealing with him would be some evidence or presumption of 
 collusion or corruption of motive : if, for instance, the tenant 
 happened to be a relation of the trustee, that was a circum- 
 stance to create suspicion (c). 
 
 When leases are set aside for under-value and the Court Compensation for 
 awards a compensation to the charity for the loss which has 
 been sustained by the charity through the collusion of the 
 trustees and the tenant, the burden will faU upon the trustees 
 or the tenant according to the circumstances of the transac- 
 tion (d). 
 
 A lease of charity lands may also be invalidated on the tTnreasonaUe 
 
 Trt.T I ^ ijpjij extent of the 
 
 ground ot the unreasonable extent oi the term. 
 
 The duration of the lease should be such only as is con- 
 sistent with the fair and provident management of the estate (e). 
 
 (a) Watson Y. Sinsworth Hospi- v. Sutton, \A. 4:5; Attorney-General 
 tal, 2 Vern. 596 ; and see Lydiatt v. v. Mayor of Stamford, 2 Sw. 592, 
 Foach, Id. 410; Attorney- General per Cur.; Attorney- General v. 
 V. Master of Catherine Hall, Cam- Dixie, 13 Ves. 540; Rowe v. Alms- 
 bridge, Jac. 381. men of Tavistock, Duke, 42. 
 
 (J) Sx parte S7cinner,2M.ex.451, (e) See Attorney- General y. Owen, 
 ^er Lord Eldon. 10 Ves. 560; Attorney-General v. 
 (c) Ex parte Skinner, ZM-er. 4.51. Brooke, 18 Ves. 326; Attorney- 
 Id) See Duke, 116; PoorofYervel Generals. Griffith, 13 Ves. 575. 
 
508 LEASES OF CHAEITY LANDS. [CH. XVm. 
 
 It would, therefore, be a direct violation of duty to grant a 
 lease for one thousand years {a), not only on the ground befote 
 noticed that such a demise would in effect be an absolute 
 alienation, but also on the principle that no private proprietor 
 would choose to debar himself from profiting by the progressive 
 improvement of the property. Sir Thomas Plumer observed, 
 " It is impossible to deny that such a lease is a decisive breach 
 of trust. The compensation which the trustees receive may 
 be adequate at the date of the contract, but they are precluded 
 or one thousand years from any advantage of increased value. 
 It is true they are secured from diminution, and in some 
 instances to guard against fluctuation may be as much the 
 interest of one party as the other ; but that would be an 
 answer to all cases in which the trustees have made an aliena- 
 tion at a fixed rent. The progress of events and the deprecia- 
 tion of money have shown the improvidence of such agreements. 
 At the same time," continued his Honor, "it is just to say, 
 that these principles seem not to have been acted upon at so 
 early a period as 1670. There is no case produced in which 
 mere improvidence, inferred solely from the extent of the 
 term, was held sufficient to rescind the transaction. In many 
 cases in Duke's collection the Court acted on inadequacy of 
 value, in none on mere extent of term(&). Where the 
 alienation appeared at the time to be a provident administra- 
 tion, the prospective possibility that it might become inadequate 
 does not appear, at that period, to have had the effect which it 
 does at present " (c). 
 Husbandry Husbandry or farm leases should be granted for a term 
 
 certaia not exceeding twenty-one years (d). But neither is this 
 rule to be taken as absolutely inflexible ; but where the aliena- 
 
 (o) Attorney- General v. Green, (c) Attorney- General v. Warren, 
 
 6 Ves. 452 ; Attorney- General v. 2 Sw. 304. 
 
 Cross, 3 Mer. 540; Attorney- Gene- (d) SeeAttorney- General Y.Owen, 
 
 ral Y. Dixie, IS Yes. 531; Attorney- 10 Ves. 560; Attorney- General v. 
 
 General v. Brooke, 18 Ves. 326. BacMouse, 17 Ves. 291 ; Eawe y. 
 
 (b) But see Poor of Yervel v. Almsmen of Tavistock, Duke, 42 ; 
 Sutton, Duke, 43, resolution 2 ; Wright v. Newport Bond School, 
 Howe V. Almsmen of Tavistock, id. 46 ; Poor of Yervel v. Sutton, 
 id. 42 ; Wright v. Newport Pond id. 43, resolution 2 ; Attorney- 
 School, id. 46 ; Crouch v. Citizens General v. Pargeter, 6 Beav. 150. 
 of Worcester, id. 33. 
 
Cl-I. XVIII.] LEASES OF CHARITY LANDS. 509 
 
 tion is for any longer period, as for ninety-nine years, the 
 Court would put it upon those who are dealing for and with 
 the charity estate to show the reasonableness of such a trans- 
 action, for primd facie it is unreasonable. There is no 
 instance of a power in a marriage settlement to lease for 
 ninety-nine years, except with reference to very particular 
 circumstances : the ordinary husbandry lease is for twenty-one 
 years {a). 
 
 In Attorney -General v. Cross (h) the trustees had been in Leases detcr- 
 the habit of granting leases for ninety-nine years, determinable 
 on lives, in consideration of fines and the reservation of a small 
 rent, a mode of letting very general in the county where the 
 lands were situate, and one which it was proved had been 
 adopted by the founder himself. On a bill filed to set aside 
 such a lease. Sir W. Grant said, " It is very difficult to lay 
 down any abstract proposition as to the propriety or im- 
 propriety of leasing charity estates in the manner complained 
 of. Such a mode of letting, generally objectionable, may, 
 under particular circumstances, be the most beneficial that can 
 be adopted. With respect to a charity, indeed, the reason 
 against it is stronger than as to private estates, because the 
 purposes of the charity may be suffered to languish during the 
 intervals between the leases; but still even as to charity 
 estates it is impossible to lay down any general rule. Though 
 the expediency of letting charity estates in this manner may 
 be more or less questionable, according to the nature of the 
 charity and the circumstances and situation of the estate, I am 
 not aware of any principle or authority on which it can be held 
 that such a lease is on the very face of it a breach of trust. 
 The legislature has, both in enabling and disabling statutes, 
 considered leases for three lives as on a footing with leases for 
 twenty-one years absolute. So have the founders of charities, 
 who prohibited the letting on lease for more than three lives. 
 
 (fl) Attorney- General v. Owen, Attorney-General y. Lord Sotham, 
 
 10 Ves. 560, perlxmA. Eldon; and T. & E. 216; Attorney-General v. 
 
 see Attorney- General v. Griffith, Kerr, 2 Bea.Y. 4:21; Attorney- Gene- 
 
 13 Ves. 575; Attorney- General v. ral v. Sail, 16 Beav. 388. 
 
 Backhouse, 17 Ves. 291 ; Attorney- (J) 3 Mer. 524. 
 General v. Brooke, 18 Ves. 326 ; 
 
510 
 
 LEASES OF CHARITY LANDS. 
 
 [CH. xvni. 
 
 Leases for lives. 
 
 Building leases. 
 
 Founder's inten- 
 tion. 
 
 or twenty-one years. Supposing, however, that where charity 
 estates have been letten for twenty-one years it would be con- 
 sidered as improper to substitute a letting for lives, it does 
 not follow that we can impute abuse to a mere adherence to 
 the ancient and uniform mode of letting, especially when it is 
 a mode usual in the district in which the estates are situate. 
 In laying down prospective rules for the regulation of a charity, 
 it may be very fit to consider which mode is best calculated to 
 answer the particular purposes of such charity ; but to set 
 aside such a lease already existing'it is not enough to say that 
 the mode of letting is not the best that might be prescribed, 
 because on such a point there may be a great difference of 
 opinion among the most experienced : but you must show the 
 mode is so positively bad, that no persons meaning fairly to 
 discharge their trust would have resorted to it. This may be 
 said of a lease for a long term of years absolute at a stationary 
 rent, because no man of a reasonable degree of provi- 
 dence would so let his own estate ; but many landowners 
 do still let their estate upon leases for Hves, and formerly 
 the general usage in this county was to let in this manner." 
 And upon these grounds his Honor dismissed the bill, and 
 allowed the trustees their costs out of the charity estate. 
 
 And in a later case, where charity lands had for two hundred 
 years been let for lives upon a fine or foregift at a small 
 reserved rent. Lord Langdale said there was no principle that 
 a lease of a charitable estate for lives was, on the face of it, a 
 breach of trust; and as there appeared no other ground of 
 invalidating the leases, he refused to set them aside (a). 
 
 Building leases should be for a term not exceeding sixty, or 
 ninety, or ninety-nine years (6). If granted for a longer period, 
 it would be thrown upon the parties to show the reasonableness 
 of the prolonged term from the particular circumstances of the 
 case. 
 
 What has been said as to the proper duration of leases is of 
 course only applicable where the founder himself has not 
 
 (o) Attorney- General \. Crook, 1 
 Keen, 121, see 126. 
 
 (6) See Attorney-General\. Owen, 
 
 10 Ves. 560; Attorney- General v. 
 Backhouse, 17 Ves. 291 ; Attorney- 
 General v. Foord, 6 Beav. 290, 
 
CH. XVin.J LEASES OF CHAEITY LANDS. 611 
 
 otherwise given directions, for in all cases the will of the 
 settlor, where explicit, must he strictly followed ; as if the 
 terms of the endowment he that the charity estates shall he 
 let only for twenty- one years, the trustees, though satisfied 
 that leases of ninety-nine years would he more heneficial, 
 could not make such a deviation from the directions of the 
 trust without the sanction of the Court. It was said on 
 one occasion, with reference to such variations from the 
 founder's intention, that the Court itself could not give a good 
 title to the lessee, but that it required the authority of an Act 
 of Parliament (a). It is plain, however, that there is a wide 
 distinction between a deviation from the founder's intention as 
 to the objects of the charity, and a deviation from the directions 
 as to management, which were no doubt originally meant to be 
 governed by circumstances. 
 
 "When there has been no actual fraud, and the lessee or improvements 
 assignee of the lease has laid out money in the permanent ^ 
 improvement of the property, the Court will direct an inquiry 
 to what extent the charity estate has been benefited, and will 
 allow the holder of the lease the amount of the benefit 
 found {b). 
 
 Now, by the Charitable Trusts Amendment Act, 1855 (c), 18 & 19 Vict, 
 s. 29, trustees of charities are disabled from granting any 
 leases (except for a term not exceeding twenty-one years) 
 without the sanction of the Charity Commissioners. 
 
 (a) Attorney- General Y. Mayor of 2 Beav. 420 ; 8wan\. Swan, 8 Price, 
 
 Mochester, 2 Sim. 3i. 518; Attorney- General v. Baliol 
 
 (6) Attorney- General v. Day, College, 9 Mod. ill ; Savage r. Tay- 
 
 V. C. K. Bruce, March 9, 1847 ; and lor, Forr. 234; Shine y. Gough, 1 B. 
 
 see Attorney- General v. Green, 6 & B. 444. 
 
 Ves.452; Attorney - General y. Kerr, (c) 18 & 19 Vict. c. 124. 
 
CHAPTER XIX. 
 
 THE POWERS OP TRUSTEES. 
 
 The powers of trustees are either general or special; the 
 former, such as by construction of law are iucident to the office 
 of trustee ; the latter, such as are communicated by the settlor 
 himself by an express proviso in the iustrument creating the 
 trust. 
 
 SECTION I. 
 
 Powers of trus- 
 tees at law dis- 
 tinguislaed from 
 their pewers in 
 equity. 
 
 General rule as 
 to powers of 
 trustees in trusts 
 simple and 
 
 OE XBM GENEEAL POWEES OE TKTTSTEES. 
 
 In a court of law the trustee, as the absolute proprietor, 
 may of course exercise all such powers as the legal owner- 
 ship confers ; but in equity the cestui que trust is the absolute 
 owner, and the question we have to consider in this place 
 is, how far the trustee may deal with the estate without ren- 
 dering himself responsible in the forwm of a court of equity. 
 
 With reference to the simple trust, as the trustee is a mere 
 passive depositary, he can neither take any part of the profits, 
 nor, except in defence or protection of the estate, can exercise 
 any dominion or control over the corpus. 
 
 In the special trust the authority of the trustee is equally 
 limited, except so far as the execution of the trust itself may 
 invest him with a proprietary power. The duties thus pre- 
 scribed to him the trustee is bound strictly to pursue without 
 swerving to the right hand or to the left ; as if money be given 
 to be laid out in a purchase of lands, he woidd not be justified 
 in expending part on a purchase and applying the residue upon 
 repairs and improvements (a). 
 
 (a) Bostoch V. Blakeney, 2 B. C. C. 653. 
 
CH. XIX. S. 1.] GENERAL POWEES OF TRUSTEES. 513 
 
 But, wnder ^particular circumstances, the trustee is held Exceptions. 
 capable of exercising the discretionary powers of the hond fide 
 proprietor ; for the trust estate itself might otherwise be inju- 
 riously affected. The necessity of the moment may demand 
 an immediate decision, while the sanction of the parties who 
 are beneficially interested cannot be procured without great 
 inconvenience, as where the cestuis que trust are a numerous 
 class, or perhaps cannot be obtained at aU, as where the 
 cestuis que trust are under disability, or not yet in existence. 
 The alternative of instituting a suit for the mere purpose 
 of consulting the Court would always be attended with consi- 
 derable expense, and, it may be, an expense wholly dispro- 
 portioned to the importance of the occasion, and perhaps in 
 the mean time the opportunity might be lost. It is therefore 
 evidently in furtherance of the cestui que trust's own interest, 
 that, where the circumstances of the case require it, the 
 trustee should be at liberty to exercise a reasonable discre- 
 tionary power (a). 
 
 It is a general rule of equity, that what is compellable by Validity of an act 
 
 without suit. 
 
 suit, or would have been ordered by the Court, is equally valid 
 if done by the trustee without suit, i. e., without the sanction of 
 the Court (6). The difficulty with which the trustee has to 
 struggle is the danger of assuming that the Court, on appli- 
 cation to it, would view the matter in the same light iu which 
 he regards it himself. 
 
 A trustee, clothed with a trust to manage_real estates for the Repairs. 
 benefit of a person absolutely entitled, but^ incapable from 
 infancy or otherwise to give directions, may make repairs. 
 But he must not go beyond the necessity of the case, as by 
 ornamental improvements, or the expense vrill not be allowed (c). 
 Where the legal estate is vested in trustees in trust for one 
 person for life, with remainders over to others, it would have 
 
 (o) See Angell v. Dawson, 3 T. & Hutcheson v. Hammond, 3 Br. C. C. 
 
 C. 317. 145, per Buller, J. ; Terry v. Terry, 
 
 (6) Jjee V. Brown, 4 Ves. 369, Gilb. 11, per Lord Cowper ; Shaw y. 
 
 per Cur. ; JSarl of Bath v. Brad- Borrer, 1 Keen, 576, per Lord 
 
 ford, 2 Ves. 590, per Lord Hard- Langdale. 
 
 wieke ; Cooh v. Parsons, Pr, Cli. (c) Bridge v. Brown, 2 Y. & C. 
 
 185, per Cur. ; Inwood v. Twyne, Ch. Ca. 181. 
 2 Ed. 153, per Lord Northington; 
 
514 GENERAL POWEES OF TRUSTEES. [CH. XIX. S. 1. 
 
 been natural to suppose that the rights in equity as between 
 the tenant for life and the remaindermen would be the same 
 as those at law between a legal tenant for life and legal 
 remaindermen. It is, however, now clearly settled, that what- 
 ever may be the legal liability of a legal tenant for life in 
 j respect of permissive waste (a), the trustee cannot (where there 
 is no special clause of management) interfere with the posses- 
 sion of an equitable tenant for life who neglects to repair (6). 
 In other respects the rights in equity must, it is conceived, 
 be governed by those at law. Thus a legal tenant for Ufe 
 may cut timber for the purpose of repairs (c), though he may 
 not cut timber to sell it and apply the produce (d), nor to 
 repay himself outlay in repairs (e) ; and similarly the trustee 
 may, it is conceived, as against the remainderman, cut timber 
 for necessary repairs, if the tenant for life will consent to an 
 application of income towards repairs in making use of the 
 timber. The repairs by a tenant for life, however substantial 
 and lasting, being his own voluntary act, and not arising from 
 any obligation, he cannot claim any charge for them upon the 
 inheritance (/), nor will the Court at his instance direct lasting 
 improvements to be made (g) ; and though it was said by the 
 Court in one case that the rule might not be absolutely without 
 exception, as if there were a settled estate, and a fund directed 
 to be laid out in a purchase to the same uses, it might be 
 more beneficial to the remainderman that part of the trust 
 fund should be applied to prevent buildings on the settled 
 estates from going to destruction, than that the whole should 
 be laid out in the purchase of other lands (h), an extraordinary 
 case would be requisite to create such exception (i). 
 
 (o) Powys V. Blagrave, 4 De Gex, v. St. John, 5 De Gex & Sm. 
 
 M. & Gr. 458, and cases there cited 181. 
 
 by Lord Cranwortt ; Harnett v. (/) Hihhert v. Coohe, 1 S. & S. 
 
 Maitland, 16 M. & W. 257. The 552 ; Caldecott v. Brown, 2 Hare, 
 
 legal question must be considered 144 ; and see Bostoek v. Blakeney, 
 
 still " suhjudice." 2 B. C. C. 653. 
 
 (6) Powys V. Blagrave, Kay, 495 ; {g) Nairn v. Marjoribanks, 3 
 
 4 De Gex, M. & G. 448. Euss. 582. 
 
 (c) Co. Lit. 54 6. {h) Caldecott v. Brown, 2 Hare, 
 
 Id) Co. Lit. 53 h. 145, per Sir J. "Wigram. 
 
 (e) Gower v. Eyre, Coop. 156; (i) Dunne v. Dunne, 3 Sm. & 
 
 and see, Duke of Marlborough Gif. 22. See p. 28. 
 
CH. XIX. S. 1.] GENEEAL POWEES OF TEUSTEES. 515 
 
 Where an estate was devised to A. and his heirs upon trust Cutting timber. 
 to settle on B. for life, subject to impeachment of waste, 
 remainder to C. for life, sans impeachment of waste, remainder 
 to C.'s first and other sons in tail, and before any settlement 
 was executed the trustee, with the concurrence of B. and C, 
 cut down timber which showed symptoms of decay. Sir L. 
 Shadwell said " he considered the timber to have been cut by 
 the authority of the trustee who had a superintending control 
 over the estate ; that it was not a wrongful act ; and that the 
 effect of it must be the same as if it had been done with the 
 sanction of the Court " (a). 
 
 So trustees of a charity would, until the late Charity Acts, Alienation of 
 have been justified in aliening the estate where, under the ' ^ °^ 
 same circumstances, the Court on application would, from the 
 necessity of the case, have made an order to that efi'ect (b). 
 
 So conservators of public works and similar quasi trustees Trustees are 
 are authorised to apply the funds under their control in po^e a bill in '*^' 
 opposing a bill in Parliament, the effect of which if passed p^^J'^^ent pre- 
 
 , , , . judicial to eestnis 
 
 would be injurious to the interests confided to them. Thus que trust. 
 by an Act of Parliament it was provided that the banks of 
 the Ouse, in Norfolk, should be maintained by commissioners, 
 with power to levy rates upon the adjacent landowners, which 
 were to be applied " in making, doing, constructing, and 
 executing all such works, acts, matters, and things as by such 
 commissioners should, from time to time, be deemed necessary, 
 proper, or expedient, for putting the banks into, and main- 
 taining the same in, a permanent state of stability." The 
 Norfolk Estuary Company applied for an Act to reclaim from 
 the sea a tract of land near the mouth of the Ouse. The 
 commissioners thereupon held a meeting, and the majority 
 passed a resolution that proceedings should be taken for 
 watching, and if necessary, for opposing the BUI in Parlia- 
 ment, and that a rate of Qd. an acre should be levied for de- 
 fraying the expenses, and 150Z. in hand was paid to the 
 Chairman for the like purpose. Three of the landowners, 
 on behalf of themselves and the others, filed a bill against the 
 
 (a) Waldo V. Waldo, 7 Sim. 261. Sea Company, 4Beav. 458, ^er Lord 
 
 (b) Attorney- General v. South Langdale ; see ante. 
 
516 GENEEAL POWERS OF TEUSTEES. [CH. XIX. S. 1. 
 
 commissioners, alleging a pretence by the defendants that the 
 proposed scheme would be injurious to the banks of the Ouse, 
 but charging that, whether injurious or not, the funds ought 
 not to be applied in pursuance of the resolution, and praying 
 that the 150Z. might be repaid, and an injunction against the 
 application of any future funds in pursuance of the reso- 
 lution. The defendants demurred, and Lord Cottenham, after 
 referring to the pleadings, said, "I must assume that the 
 works are likely to be injurious. Now it is clear that if actual 
 injury was done, and proper measures had been taken by the 
 commissioners to prevent it, they would be entitled to be 
 allowed their expenses so incurred, for every trustee is entitled 
 to be allowed the reasonable and proper expenses incurred in 
 protecting the property committed to his care. But if they 
 have a right to protect the property from immediate and direct 
 injury, they must have the same right where the injury 
 threatened is indirect, but probable ;" and the demurrer was 
 allowed (a). 
 
 On the other hand, quasi trustees, such as those before 
 referred to, are not entitled to apply the funds of an existing 
 undertaking in or towards the expense of obtaining other or 
 larger parliamentary powers (b) 
 As to insurance. A trustee would, it is conceived, under special circumstances, 
 and in due course of management, be justified in insuring the 
 property (c) ; but where there is a tenant for life, he could not 
 be advised to do so out of the income without the tenant for 
 life's consent. And a mortgagee is not regarded as a trustee ; and 
 if, in the absence of any stipulation on the subject, he effects 
 an insurance, it is on his own account, and he cannot claim to 
 be entitled to the premiums under just allowances. It is the 
 same as if a lessor or lessee insured, in which case the other 
 would have no claim to the benefit of the policy (d). 
 
 (a) Bright v. North, 2 Phill. 216 ; 16 Sim. 225 ; Stevens v. South Devon 
 
 and see The Queen v. Norfolk Com- Railway Company, 13 Beav. 48. 
 
 missioners of Se'u>ers,\5Q,.'&.'Si.6i9. (c) jEx parte Andrews, 2 Rose, 
 
 (J) Attorney- Generals. Andrews, 412. 
 
 1 Mac. & Gor. 225 ; Attorney- Gene- (d) Dohson v. Land, 8 Hare, 216; 
 
 ral V. Guardians of Poor of South- and see Ex parte Andrews, 2 Rose, 
 
 ampton, 17 Sim. 6 ; Attorney- 410 ; Phillips v. Eastwood, LI. & 
 
 General v. Corporation of Norwich, Goold. t. Sugden, 289. 
 
CH. XIX. S. 1.] GENERAL POWERS OF TRUSTEES. 517 
 
 An executor may appropriate a legacy without the necessity Appropriation. 
 of a suit, where the appropriation is such as the Court itself 
 would have directed (a). 
 
 A trustee may expend sums of money for the protection and Maintenance. 
 safety, or for the maintenance and support, of a cestui que 
 trust who is incapable of taking care of himself, but the safer 
 course is to apply to the Court (&). 
 
 If a legacy be left to an iafant, and the Court, upon appli- Out of interest, 
 cation, would, from the inability of the parent to support his 
 child, order maintenance out of the interest, the trustee, should 
 he make advances for that purpose without suit, would be 
 allowed them in his account (c). In the case of Andrews v. 
 Partington (d), Lord Thurlow refused to indemnify the trustee ; 
 but the authority of that decision has been repeatedly denied, 
 and may be considered as overruled (e). And the maintenance 
 of each year need not be confined to the interest of that year, 
 but the trustee will be allowed in his accounts to set off the 
 gross amount of the maintenance against the gross amount of 
 the interest (/). 
 
 Where the amount of the legacy is inconsiderable, as lOOl., Out of principal, 
 the Court would, in the absence of other means, direct main- 
 tenance to the child out of the principal itself (g) : the executor, 
 therefore, who, under similar circumstances, but without the 
 authority of the Court, breaks in upon the capital, would not 
 be liable, on the cestui que trust's coming of age, to account for 
 the expenditure {h). However, where the legacy was not more 
 than 300Z., Sir W. Grant determined that the trustee had 
 
 (a) Hutcheson v. Hammond, 3 241 ; and see Cotham v. West, 1 
 
 B. C. C. 128, see 145, 148 ; and Beav. 381. 
 
 see Cooper v. Douglas, 2 B, C. C. (/) Carmiohael v. Wilson, 3 Moll. 
 
 231. 79. 
 
 (5) Duncombe v. Nelson, 9 Beav. [g) Ex parte Green, 1 J. & W. 
 
 211; and see Chester v. Rolfe, 4 De 253 ; Ex parte Chambers, 1 R. & M. 
 
 Gex, M. & G. 798, and cases there 577 ; Ex parte Swift, ib. 575 ; In 
 
 cited. re Mary England, id. 499 ; Harvey 
 
 (c) Sisson V. Shaw, 9 Ves. 285. v. Harvey, 2 P. W. 21 ; Ex parte 
 
 {d) 3 B. C. C. 60. Hays, 3 De Gex & Sm. 485. 
 
 (e) See Sisson v. Shaw, 9 Ves. (h) Barlow v. Grant, 1 Vern. 
 
 288 ; Mdberly v. Turton, 14 Ves. 255 ; Carmichael v. Wilson, 3 Moll. 
 
 499 ; Lee v. Brown, 4 Ves. 369 ; 79 ; Bridge v. Brown, 2 T. & C. 
 
 Ex parte Darlington, 1 B. & B. Ch. Ca. 181. 
 
518 GENERAL POWEES OF TRUSTEES. [CH. XIX. S. 1. 
 
 exceeded his duty, and said his impression was, that the rule 
 had been never to permit trustees of their own authority to 
 break in upon the capital (a) ; but the case of Barlow v. Grant, 
 which is clearly to the contrary, must have escaped his 
 Honor's recollection. In Swinnock v. Crisp (b), where the 
 legacy was 2501. to be divided amongst three children, the 
 executrix, who was the mother, was not allowed the sums 
 which she had paid out of the principal ; but the ground of the 
 decision was the notion, since overruled, that the executrix, 
 though she had married again, was under a legal obligation, as 
 mother, to provide a maintenance for her children (c). Where 
 the legacy is considerable, as lOOOZ. or the like, as the Court 
 itself would not order the application of part of the principal, 
 the trustee would not be justified in exceeding of his own 
 authority the amount of the interest (d). 
 Advancement j^ part of the capital may be sunk by a trustee without 
 
 out of capital. ^ r j J 
 
 the direction of the Court for the advancement of a child, 
 where the same sums if expended for maintenance would not 
 have been allowed (e). 
 
 In Smee v. Martin (/) a testator gave lOOZ. to A. B., "not to 
 be paid until he came of age, and in the meantime &l. per 
 annum to be allowed out of the testator's estate for his main- 
 tenance." The executrix, who was his mother, had expended 
 in binding him apprentice, fitting him out for India, and other 
 necessaries, more than lOOZ., and the Court decreed the pay- 
 ment of the legacy in full without any deduction for the 
 disbursements. " The mother," it was said, " ought by nature 
 to provide for the maintenance and education of her own son : 
 besides, it appeared plainly the intention of the testator that 
 the lOOZ. should not be touched until A. B. came of age, for 
 there was a yearly allowance in the meantime of 51., and it was 
 at her peril that she exceeded that." The case therefore does 
 not militate against the general rule, but was determined upon 
 
 [a] Walker v. Wetherell, 6 Ves. v. Austen, 1 Ves. jun. 247 ; S. C. 
 
 473. 3 B. C. C. 178. 
 
 (J) Preem. 78. (e) Swinnock v. Crisp, Freem. 
 
 (e) Billingsly v. Critchet, \ B. C. 78 ; and see Ex parte M'Key, 1 
 
 C. 268. B. & B. 405. 
 
 {d) Barlow v. Grant, 1 Vera. (/) Bunb. 136. 
 
 255, per Lord Guildford ; Davies 
 
CH. XIX. S. l.J GENERAL POWEES OF TEUSTEES. '519 
 
 the particular circumstances, that the executrix, as mother, was 
 herself liable for the maintenance of the child, (a position 
 not tenable at the present day), and that the expenditure of 
 part of the capital was against the clear intention of the 
 testator. 
 
 But a trustee cannot apply part of the principal towards the Advancement 
 advancement of the child where the legacy is subject to a limitation over, 
 limitation over in favour of a stranger, for in such a case the 
 Court itself could not make an order to that effect. 
 
 Thus in Lee v. Brown (a), where a testatrix gave lOOZ. to 
 trustees upon trust to apply the produce to the maintenance 
 and education of A. B., and when he should attain twenty-one 
 to transfer to him the capital, but in case he died under that 
 age the testatrix gave the legacy to his brother and sister 
 equally, Lord Alvanley said, " It certainly was not competent 
 under this trust to the executor, nor could he, if he had applied, 
 have obtained permission from this Court, to advance any part 
 of the capital of the legacy in putting the child out in the 
 world ; for if it had been such a case that the Court would have 
 authorised the act that was done, I desire to he understood that 
 it would he considered as properly done ; for the principle is now 
 established, that if an executor does without application what 
 the Court would have approved, he shall not be called to account, 
 and forced to undo that merely because it was done without 
 application " (6). 
 
 But where legacies were given to children payable at twenty- wiere cross- 
 one or marriage, with a limitation over on the death of any amongst the 
 child before attaining twenty-one or marriage, not in favour '^'^i^'iren. 
 of a stranger, hut for the benefit of such of the children as should 
 attain twenty-one or marry, a trustee, who had paid a premium 
 on the apprenticeship of a child, who died under twenty-one, 
 was allowed it by the Court (c). The case turned upon the 
 same principle as where a legacy is given to a class, all or some 
 of whom must take the fund absolutely, when, as all have an 
 equal chance of survivorship, the individuals of the class will 
 
 [a) 4 Ves. 362. for tlie benefit of the oMldren is 
 
 (J) Id. 369. not mentioned in tke report, but 
 
 (c) Franklin v. Green, 2 Vern. appears from Reg. Lib. 
 137. That the limitation over was 
 
520 
 
 GENERAL POWEES OF TRUSTEES. [CH. XIX. S. 1. 
 
 Debts barred by 
 the Statutes of 
 Limitations. 
 
 Power to release 
 or compound 
 debts. 
 
 be ordered maintenance even before their shares in the fund 
 have become actually vested (a). 
 
 An executor has never been held responsible for^ paying a 
 debt due and owing from the testator's estate, but the remedy 
 for which had been barred by the Statutes of Limitation (6). 
 
 A trustee, under circumstances, may release or compound a 
 debt. Thus, where the tenant of part of the trust estate owed- 
 335Z. for arrears of rent, and afterwards became insolvent, and the 
 trustee released the debt and gave a bonus of 201. on condition 
 that the tenant should give up the premises, which was done, 
 it was argued that the trustee, before he made the release, 
 should have consulted the cestuis que trust in esse for their 
 consent; and, in case of their obstinacy, should have applied 
 to the Court for directions ; and though it might be true that 
 the tenant was at the time insolvent, yet thereafter he might 
 have become solvent and able to pay the rent ; and as to the 
 gaining of possession, that was of no great value, as there was 
 a proviso in the lease for the landlord's re-entry in case of non- 
 payment of the rent ; but Lord Chancellor Talbot said, " The 
 tenant becoming insolvent, the testator's estate has not suffered 
 by this release, in regard if the arrears of rent had not been 
 released, the trustee could never have gotten them when the 
 tenant was unable to pay them ; and if the testator's estate 
 has not suffered on account of the release, there is no reason 
 it should gain thereby. The trustee seems to have done no- 
 thing but what was prudent. A vexatious tenant may put the 
 landlord to great trouble and delay by a wrongful detainer of 
 the possession, and by damaging the estate in the mean time, 
 and may force the landlord to ejectments, writs of error, and 
 bills in equity, by means of which he may lose not only his 
 accruing rent, but his costs of suit. Neither will I make 
 any difference between the 201. and the release of the arrears, 
 for both were but one entire consideration for the tenant's 
 quitting the possession ; and by the same reason that the 
 trustee has been allowed the one, he ought to be allowed the 
 
 (a) See Rop. Leg. oh. xx. s. 5 ; 
 Oreenwell v. Oreenwell, 5 Vesey, 
 194 ; Cavendish v. Mercer, cited ib. ; 
 
 Brandon v, Aston, 2 T. & C. Ch. 
 Ca. 30. 
 
 (5) Stahlschmidt v. Lett, 1 Sm. & 
 Gif. 415. 
 
CH. XIX. S. 1.] GENEEAL POWEKS OP TRUSTEES. 531 
 
 other "(a). But if a trustee release or compound a debt There must be a 
 without some sufficient ground in justification of his conduct, 
 he will clearly be answerable to the cestui que trust for the 
 amount of the devastavit (b). 
 
 The same principles may be applied to cases of constant Release of equity 
 
 . of redemption. 
 
 occurrence m practice. Thus trustees of an equity oi redemp- 
 tion of lands mortgaged for more than their value, may release • 
 the equity of redemption to the mortgagee, rather than be made 
 defendants to a foreclosure suit, the costs of which, so far as 
 incurred by themselves, will fall upon the trust estate. 
 
 Where trustees are mortgagees they are often requested to whether trustee 
 release part of the land from the security, in order to enable mortgagees can 
 
 '^ •' ' release part oi 
 
 the mortgagor to deal with it for his own convenience. Where the land in 
 the value of the land is not excessive as compared with the 
 debt, it would, of course, be a gross breach of trust to dete- 
 riorate the security. But suppose the value of the part to be 
 left in mortgage to be at least double the amount of the debt, 
 may the trustees release the residue ? It is presumed that 
 trustees can never justify the abandonment of any part of the 
 security on the mere ground of consulting the convenience of 
 the mortgagor. They must be prepared to show that the act was 
 calculated under the circumstances to promote the interests of 
 the cestuis que trust. If, for example, the mortgagor be ready 
 to pay off the mortgage on a transfer of the security, unless the 
 trustees will consent to release, and the existing mortgage, even 
 when confined to the narrower parcels, is a highly beneficial one 
 and the value still abundantly ample, it is conceived the trustees 
 would not incur responsibility in acceding to the arrangement. 
 
 A trustee may reimburse himself a sum of money bond fide 
 advanced by him for the benefit of the cestui que trust, or even 
 for his own protection in the execution of his office. 
 
 Thus, a trustee of lOOOZ. South Sea stock had mortgaged Ueimhnrsement 
 it to the South Sea Company, at the request of the cestui que aecount'^o/the 
 trust for 4000Z. ; some time after, the South Sea bubble burst 
 and the lOOOZ. stock fell to a mere nominal value. An act 
 
 trust. 
 
 (a) Blue V. Marshall, 3 P. W. (S) Jevon v. Bush, 1 Vern. 342 ; 
 
 381 ; and see Matcliffe v. Winch, Gorge v. Chansey, 1 Ch. Re. 125 ; 
 17 Beav. 216. Wiles v. Gresham, 5 De Gex, M. & 
 
 G. 770. 
 
522 GENEEAL POWERS OF TBUSTEES. [CH. XTX. S. 1. 
 
 haviag been passed by which it was provided that if any mort- 
 gagor to the company should pay lOl. per cent, by such a day 
 the debt should be extinguished, the trustee took upon himself 
 to pay the lOZ. per cent., the cestui que trust, who laboured 
 under the impression that a mortgagor was at liberty by for- 
 feiting his pledge to be quit of the debt, refusing to give his 
 consent. The trustee filed a bill against the cestui que trust 
 to recover the money which had been disbursed ; and Lord 
 Chancellor King, in deciding for the plaintiff, observed, " When 
 money is borrowed, it ought to be repaid, and though a pledge 
 was given for it, if that proves insufficient, the borrower ought 
 to be liable. But if in the present case there was only a 
 hazard, the trustee ought not to continue liable to such hazard: 
 on the contrary, as it is a rule that the cestui que trust ought 
 to save the trustee harmless, so, within the reason of that rule, 
 when the trustee has honestly and fairly, without any possi- 
 bility of being a gainer, laid down money by which the cestui 
 que trust is discharged from being liable for the whole money 
 lent, or from a plain and great hazard of being so, he ought to 
 be repaid " (a). 
 Power of trustees A trustee for payment of debts and legacies, and subject 
 admit a debt. thereto upon trust for A. for life with remainders over, has no 
 power, after the accounts have been taken by the Court and 
 A. declared entitled to the possession, to make an admission 
 binding upon A. of any further debt, and to resume the pos- 
 session for the purpose of discharging it (6). 
 Power to grant It has been held that a trustee of lands may grant a reason- 
 able lease. Thus, a testator had devised an estate to two 
 trustees in fee upon trust out of the yearly rents and profits 
 to pay two annuities of 60^ and lOZ. respectively, and subject 
 thereto upon trust for certain persons successively for hfe, 
 with remainder to their issue. The trustees granted a lease 
 of the lands for the term of ten years, and Sir John Leach 
 held that they had not exceeded their authority (c). • But it 
 
 (a) Balsh v. Hyham, 2 P. "W. 501 ; and see Bowes v. East Land. 
 
 463. Waterworhs^ Com. Jao. 324; Dro- 
 
 (h) Underwood v. Hatton, 5 Beav. han v. Drohan, 1 B. & B. 185 ; 
 
 36, Middleton v. JDodswell, 13 Ves. 
 
 (c) Naylor v. Arnitt, 1 R. & M. 268. 
 
CH. XIX. S. 1.] GENEKAL POWEES OF TRUSTEES. 523 
 
 must not be inferred from this case that a trustee is at liberty, 
 except under peculiar circumstances, to grant other than a 
 husbandry lease, which never exceeds twenty-one years (a) ; 
 and of course he cannot make even that demise where it is 
 a simple trust, and the cestui que trust is in possession, except 
 he do it with the cestui que trust's concurrence. And prima 
 facie a trustee for sale would not be justified in granting a 
 lease (6). .■^^g^^**-^^^^^ 
 
 A trustee has no power mero motu, in the absence of express Power of varying 
 authority, to vary the securities upon which the trust-fund 
 stands invested, assuming them to be proper (c). Indeed, 
 where he makes the investment ia the first instance himself, 
 he ought, in all cases where the settlor has not warranted a 
 different course, to invest in the 3 per cent. Consols ; and then, 
 as that fund is considered by the Court the most beneficial to 
 the trust, he would hardly be justified in making a change not 
 tending to ameliorate the estate. Should the trust authorise 
 an investment upon real or government securities without any 
 power of variation, and the trustee lend upon mortgage, of 
 course ' he cannot prevent the mortgagor from paying off the 
 money, and therefore he may sign a discharge for it, and 
 may then invest it upon another mortgage, or in the funds {d). 
 Where, however, the trustee was directed to invest upon 
 security, but real security was not mentioned, and he lent upon 
 a mortgage, the Court did not think it so clear that the trustee 
 could sign a receipt when the money was paid off as to compel 
 a purchaser to take a title which depended on that question (e). 
 The power of signing a receipt ia such cases depends on the 
 intention as collected from the instrument, and unless it contain 
 authority to lend on a mortgage no power of signing a receipt 
 when it is paid off is implied. 
 
 The powers assigned in the preceding pages to trustees Case of suit mstl- 
 must be taken subject to the qualification, that if a suit has made. 
 been instituted for the execution of the trust, and a decree 
 
 [a)^eQ Attorney-Generals. Owen, {d) Wood v. Harman, 5 Mad. 
 
 10 Ves. 560. 368 ; Loche v. Zomas, 5 De Gr. & 
 
 (5) Uvans v. Jackson, 8 Sim. 217. Sm. 326. 
 
 (e) See Angell v. Dawson, 3 T. & (e) Sanson v. Beverley, Vend. & 
 
 C. 316. P. 848, nth Ed". 
 
524 SPECIAL POWERS OF TRUSTEES. [CH. XIX. S. 2. 
 
 made, the powers of the trustees are thenceforth so far para- 
 lysed that the authority of the Court must sanction every 
 subsequent proceeding {a). 
 
 Thus the trustees cannot commence or defend any action 
 or suit or interfere in any other legal proceeding without first 
 consulting the Court as to the propriety of so doing (J). A 
 trustee for sale cannot sell(c). The committee of a lunatic 
 cannot make repairs (cZ). An executor cannot pay debts (g), 
 nor deal with the assets for the purpose of investment (/). 
 Case of suit and A suit in which a bill merely has been filed is to be distin- 
 
 no QfifjPGfi 
 
 guished from one in which a decree has been made^ for until 
 a decree the plaintiff may dismiss his bill at any moment and 
 should he do so, the progress of the trust may have been 
 arrested for no purpose (g). However, even in this case the 
 trustees cannot be advised to act without first consulting the 
 Court, and if by acting independently of the Court expenses 
 be incurred which might have been avoided had the trustees 
 applied to the Court they may be made to bear them per- 
 sonally {h). 
 
 SECTION 11. 
 
 THE SPECIAL POWBKS OF TKT7STEES. 
 
 Powers legal and UpoN this branch of our subject we shall consider, First, 
 
 equitable distin- ■ c 
 
 guished. The different kinds of powers ; Secondlyj The construction oi 
 
 powers ; Thirdly, The effect of disclaimer, assignment of the 
 estate, and survivorship among the trustees ; and. Fourthly, 
 The control of the Court over the exercise of powers. 
 
 I. Of the different kinds of powers. 
 
 In applying the doctrine of powers to the subject of trusts 
 
 (o) Mitchelson v. Piper, 8 Sim. (e) Mitchelson v. Piper, 8 Sim. 
 
 64 ; Shewen v. Vanderhorst, 2 R. & 64 ; and see Jackson v. Woolley, 12 
 
 M. 75 ; 8. C. affirmed, 1 B. & M. Sim. 13. 
 
 347. (/) Widdowson v. Buck, 3 Men ' 
 
 (6) See Jones v. Powell, 4 Beav. 494. 
 
 96. {g) Cafe v. Bent, 3 Hare, 249; 
 
 (e) Walker v. Smalwood, Amb. Neeves v. Burrage, 14 G. B. R. 504. 
 
 676; Annesley v. Ashurst, 3 P. W. (h) Attorney- General v. Clack, 1 
 
 282. Beav. 467 ; and see Cafe v. Bent, 
 
 {d) Anon, case, 10 Yes. 104. 3 Hare, 249. 
 
CH. XIX. S. 2.] SPECIAL POWERS OF TRUSTEES. 535 
 
 it may he useful to regard powers as either legal or equitable : 
 the former such as operate upon the legal estate, and so are 
 matter of cognisance to Courts of common law ; the latter, such 
 as affect the equitable interest only, and so fall exclusively 
 under the notice of Courts of equity. Thus, if lands be limited 
 to the use of A. for life, remainder to B. and his heirs, and a 
 power operating under the statute of uses be given to C, the 
 execution of the power works a conveyance of the legal estate : 
 but if lands be limited to the use of A. and his heirs upon 
 trust for B. for. life, remainder upon trust for C. and his heirs, 
 and a power not operating under the statute of uses be given 
 either to the trustee or to the cestui que trust, the execution 
 of such a power will have no effect at law, but will merely serve 
 to transfer the beneficial interest in equity, and may therefore 
 be designated by the name of an equitable power. 
 
 An equitable, the same as a legal power, may be either Equitable 
 annexed to the estate or be simply collateral ; but whether it annexed to the 
 shall be taken as the one or the other wiU depend on the ^'*f*f' "f ^^^^ 
 question, whether the donee of the power be possessed of the 
 equitable, that is, of the beneficial interest, or not. Thus, 
 where a testator devised to his sister and her heirs for ever, 
 with a direction to settle the property on such of the descend- 
 ants of the testator's mother as his sister should think fit, and, 
 the devisee having married, the question was raised whether 
 the execution of the power by her, as she was under coverture 
 at the time, was to be considered as valid, Lord Hardwicke 
 said, "It is objected that a. feme covert cannot execute a power, 
 and that there are no words in the will authorising her to do 
 so ; but this is a power without an interest, and is impro- 
 perly called a power, for, being a direction to a person who 
 has the fee,- it is rather a trust {a)." On the other hand, where 
 the legal estate was devised to trustees upon trust for an infant 
 feme covert for her sole and separate use during her life, and 
 upon trust to permit her by deed or writing executed in the 
 presence of three or more witnesses, notwithstanding her 
 coverture, to dispose of the estate as she should think fit, and 
 the testator died leaving the feme covert his heir at law, and 
 
 (o) Godolphin v. Qodolphin, 1 Ves. 21. 
 
526 SPECIAL POWEES OF TEUSTEES. [CH. XIX. S. 2. 
 
 she, during the continuance of the coverture and infancy, 
 exercised the power by will, Lord Hardwicke, upon the ques- 
 tion whether the power had been duly executed, observed, 
 " This is a power coupled with an interest, which is always 
 considered different from naked powers. It was admitted that 
 if this execution was to operate on the estate of the infant, it 
 might not be good : now this is clearly so, for she had the trust 
 in equity for life, with the trust of the inheritance in her in the 
 mean time, which would remain in herself, if undisposed of, 
 and descend to her heir ; so that this is directly a power over 
 her own inheritance, which cannot be executed by an infant "(a). 
 Bare powers, Again, powers, in the sense in which the term is commonly 
 
 coupled with a used, may be distributed into mere powers, and powers coupled 
 ''^'^^'' with a trust (b). The former are powers in the proper sense of 
 
 the word ; that is, not imperative, but purely discretionary ; 
 powers which neither the trustee can be compelled to execute, 
 nor, on failure of the trustee, can be executed vicariously by 
 the Court. The latter, on the other hand, are not arbitrary, 
 but imperative, have all the nature and substance of a trust, 
 and ought rather, as Lord Hardwicke observed, to be desig- 
 nated by the name of trusts (c). " It is perfectly clear,'' said 
 Lord Eldon, " that where there is a mere power, and that power 
 is not executed, the Court cannot execute it. It is equally 
 clear, that wherever a trust is created, and the execution of 
 the trust fails by the death of the trustee or by accident, this 
 Court will execute the trust. But there are not only a mere 
 trust and a mere power, but there is also known to this Court 
 a power which the party to whom it is given is entrusted and 
 required to execute ; and, with regard to that species of power, 
 tlie Court considers it as partaking so much of the nature 
 and qualities of a trust, that if the person who has the duty 
 imposed upon him does not discharge it, the Court will, to a 
 certain extent, discharge the duty in his room and place" {d). 
 
 (a) Hearle v. Greenhanh, 1 Ves. Hutchinson v. Hutchinson, 13 Ir. 
 
 298, see 306 ; and see Blithers case, Eq, Rep. 332. 
 
 Freem. 91 ; Penne v. Peacock, For. (c) Godolphin v. GodolpUn, 1 
 
 43. Ves. 23. 
 
 (6) See Gower v. Mainwaring, 2 (^^^ Brown v. Higgs, 8 Ves. 570. 
 Ves. 89; Cole v. Wade, 16 Ves. 43 ; 
 
CH. XIX. S. 2.] SPECIAL POWERS OF TRUSTEES. 527 
 
 Again, powers have been dealt with by the Court as either Strict powers, 
 
 „ . ~ ■■ . , 1 /. 1 *i"i powers 
 
 of a strict or ol a directory character : the lormer such as can directory. 
 only arise under the exact circumstances prescribed by the 
 settlement ; the latter, such as being merely monitory, may be 
 taken with a degree of latitude. Thus, where an advowson 
 was vested in trustees upon trust to elect and present a fit 
 person within six months from the incumbent's decease, it was 
 considered the clause was directory, and that the trustees 
 might equally elect and present, although that period had 
 elapsed (»). So where six trustees were empowered when 
 reduced to three to substitute others, and all died but one, it 
 was held competent to the sole survivor to fill up the number (6). 
 And where, in the case of twenty-five trustees, the direction 
 was, that when reduced to fifteen the survivors should nomi- 
 nate, it was determined by the Court that, although seven- 
 teen remained, the survivors were at liberty to exercise their 
 power, but that, when reduced to only fifteen, they were compel- 
 lable to do so (c). These were cases of charitable trusts, in which 
 it seems a greater latitude of construction is allowed. But in 
 another case, where the trusts were not charitable, estates were 
 devised to trustees upon trust to sell " with all convenient speed, 
 and within five [years," and it was held that these words were 
 directory only, and that the trustees could sell and make a 
 good title, although the five years had expired {d). 
 
 II. We proceed to consider the construction of powers. As 
 the powers of trustees are regulated by the doctrines applicable 
 to powers in general, we shall advert only to a few cases of 
 most frequent occurrence. 
 
 If a power be given to "A. and B. and their heirs," it is I'o'w'erto "A. 
 
 ^ ° and B., and their 
 
 perfectly clear that the words are not to be understood to this heirs." 
 extent, that, as the limitation of an estate in such terms would 
 so vest it in the grantees that they might convey it to a 
 stranger, and the survivor devise it, the power is to be 
 
 (a) Attorney -General v. Scott, 1 but see Foley v. Wontner, 2 Jao. & 
 
 Ves. 413, see 415. Walk. 245. 
 
 (6) Attorney- General v. Floyer, (c) Doe y. Hoe, 1 Anst. 86. 
 
 2 Vern. 748 ; and see Attorney- (d) Pearce v. Gardner, 10 Hare, 
 
 General v. Bishop of Lichfield, 5 287 ; aad see Cuff v. Sail, 1 Jur. 
 
 Ves. 825; Attorney- General v. N. S. 973. 
 Cuminy, 2 T. & C. Ch. Ca. 139; 
 
528 
 
 SPECIAL POWERS OF TRUSTEES. [CH. XIX. S. 2. 
 
 Chief Justice 
 Wilmot's opinion. 
 
 Townsend v. 
 Wilson. 
 
 construed as intended in like manner to be assignable and 
 devisable (a). 
 
 Upon the subject of such a power we have the following 
 pointed remarks of Lord Chief Justice Wilmot : " It is asked," 
 he said, " what must become of the power upon the death of 
 one of the trustees. It must be considered as a tenancy in 
 common. Had the words been ' their several and respective 
 heirs,' it would have been clear ; and in common parlance, and 
 according to the common apprehension of mankind, when an 
 estate is given to two men and their heirs, no one not illu- 
 mined with the legal nature of joint-tenancy could ever con- 
 ceive the estate was to go to the heirs of the survivor. It 
 is equivalent to saying. With consent of both while they live- 
 hut when one dies, that consent shall devolve upon his heir; 
 the heir of the dead trustee shall consent as well as the surviving 
 trustee. One may abuse the power; I will supply the loss of 
 one by his heir, and the loss of both by the heirs of both (6)." 
 
 In Townsend v. Wilson (c) a power of sale was given to three 
 trustees and their heirs ; and it was directed that the money to 
 arise from the sale should be paid into the hands of the 
 trustees, or the survivors or survivor of them, and the executors, 
 administrators, or assigns of such survivor, and there was a 
 power of appointment of new trustees, with a direction such 
 appointment should take place as often as any one or more of 
 the trustees should die, &c. One of the trustees died, and it 
 was determined by the Court of Queen's Bench, that the 
 survivors alone were incapable of exercising the power. 
 
 Lord Eldon expressed himself dissatisfied with this decision, 
 and asked, " Did the Court of Queen's Bench consider that 
 the two surviving trustees and the heir of the deceased trustee 
 were to act together? for it was one thing to say that the 
 survivors could not act until another was appointed; and a 
 different thing to say, the heir of the deceased trustee could 
 act in the meantime " {d). No reasons were given by the 
 
 (o) Cole V. Wade, 16 Yes. 46, per 
 Sir W. Grant. 
 
 (J) Mansell v. Vaughan, "Wilm. 
 60, 51. 
 
 (c) 1 B. & Aid. 608, 3 Mad. 261 ; 
 andsee CooTce v. Crawford, 13 Sim. 91. 
 
 (d) Hall V. Dewes, Jao. 193 ; and 
 see Jones v. Price, 11 Sim. 557. 
 
CH. XIX. S. 3.] CONSTRUCTION OF POWERS. 629 
 
 Court for their judgment, and it is difficult to collect on what 
 grounds it proceeded (a). 
 
 In Hewett v. Hewett (b), a testator devised his estate to four Hewett v. 
 persons to uses in strict settlement, with a power to the 
 tenants for life, when in actual possession, to cut such trees as 
 the four devisees to uses, or the survivors or survivor of them 
 (omitting the words " and the heirs of the survivor ") should 
 direct ; and all the trustees being dead, the question was 
 whether the power was gone. Lord Henley held, that upon the 
 construction of the wUI, the testator intended the power to 
 be co-extensive with the life estates, and that the trustees were 
 interposed, as supervisors only, to prevent destruction ; and 
 that the office of the trustees was not personal, but such as 
 might be executed by the Court. He, therefore, considered 
 the power as subsisting, and referred it to the Master to 
 inquire what timber was fit to be cut. In this view of the case 
 the Court did not regard the authority to the trustees as a 
 mere power, but as a trust. 
 
 It stni remains to be decided how powers, in the strict sense, 
 limited " to trustees and their heirs " are to be construed. 
 
 Though where a discretionary legal power is expressly limited Power to 
 to "A. and his assigns," the grantee or devisee of A., and even a his assigns." 
 claimant under him by operation of law as an heir or executor, 
 may exercise the power (c) ; yet in a trust, if an estate be vested 
 in a trustee upon trust that he, his heirs, executors, adminis- 
 trators or assigns shall seU, etc., the introduction of the word 
 assigns will not authorise the trustee to assign the estate to a 
 stranger (d), nor will the stranger be capable of exercising the 
 power (e). 
 
 But in a mortgage, with a power of sale limited to the Power given to a 
 mortgagee, his heirs, executors, administrators and assigns, 
 the intention is that the power should go along with and be 
 annexed to the security : and, therefore, if the mortgage be 
 assigned to a stranger, and the legal estate be conveyed to the- 
 stranger or to a trustee for him, the stranger alone or with the 
 
 (a) Sugd. Pow. 490, 6th Ed°. {d) The case oiHardwiehY.Mynd, 
 
 (J) 2 Eden, 332, Amb. 508. 1 Anst. 109, cannot in this respect 
 
 (e) Sow V. Whitfield, 1 Vent, be supported. 
 
 338, 339 ; 1 Freem. 476. (e) See pp. 266, 267, su^ra. 
 
 M U 
 
530 
 
 CONSTEUCTION OF POWEES. [CH. XIX. S. 2. 
 
 Power indicating 
 personal con- 
 fidence to "A. 
 and his exe- 
 cutors." 
 
 Power to "exe- 
 cutors," "trus- 
 tees." 
 
 concurrence of the trustee, can give a good legal and equitable 
 title {a) ; and even if a mortgage be made to A. and B. to secure 
 a joint advance, and the power of sale and signing receipts be 
 limited to A. and B., their heirs and assigns, it has been held 
 that as the power and the security were plainly meant to be 
 coupled together, and the security enures to the benefit of the 
 survivor, (the advance being a joint one,) the survivor may also 
 seU(6). 
 
 If a power indicating personal confidence be given to a 
 " trustee and his executors," and the executor of the trustee 
 die having appointed an executor, the latter executor, though 
 by law the executor not only of his immediate testator but also 
 of the trustee, wiU not, it has been thought, be so considered 
 for the purposes of the power (c). A matter of personal con- 
 fidence is not extended beyond the express words and clear 
 intention of the settlor ; and in this case, the settlor may have 
 meant the power to be exercised exclusively by the executors, 
 whom the trustee should himself name, and not by a person 
 who is executor of the trustee by operation of law only. 
 
 A power limited to " executors " or " sons in law " may be 
 exercised by the survivors so long as the plural number re- 
 mains {d) ; and if a power be limited to " trustees " we may 
 reasonably conclude it may be exercised by the surviving trus- 
 tees. And a power given to " executors " wUl, if annexed to 
 the executorship, be continued to the single survivor (e) ; and 
 so a power given to " trustees " will, as annexed to the office, 
 be exercisable by the survivor (/). But, of course, not by one 
 of the trustees in the lifetime of the other who has not effec- 
 tually disclaimed (g). And if a power be communicated to "the 
 trustees for the time being" of a will, it cannot be exercised 
 by a single trustee (h). 
 
 (a) Saloway v. Strawhridge, 1 
 Kay & Johns. 371. 
 
 (5) Hind v. Pooh, 1 Kay & Johns. 
 383. 
 
 (c) See Cole v. Wade, 16 Ves. 
 44 ; Stile v. Tomson, Dyer, 210 a ; 
 Perk. sect. 552; and see 1 Sug. Pow. 
 145, 6th Ed°. 
 
 {d) 1 Sug. Powers, 144, 6th Ed". 
 
 (e) 1 Sug. Powers, 144, 6th Ed°. 
 
 Houell V. Barnes, Cro. Car. 382 ; 
 Srassey v. Chalmers, '4 De Gex, M. 
 & G. 528, reversing the decision of 
 the Master of the Rolls, 16 Beav.231. 
 
 (/) Lane v. Debenham, 17 Jur. 
 1005. 
 
 (g) Lancashire v. Lancashire, 2 
 Phill. 664. 
 
 (h) Lancashire v. Lancashire, 2 
 Phill. 576 J 1 De G. & Sm. 288. 
 
CH. XrX. S. 2.] DISCLAIMEE. 531 
 
 A power to four trustees "and the survivors of them" Power to "Trus- 
 cannot, it seems, be executed by the last survivor (a); for vivors." 
 though a power to trustees may, in general, be held to survive, 
 an intention to the contrary may here be fairly inferred : the 
 settlor may be supposed to have said, " I repose a confidence 
 in any two of the trustees jointly, but in neither of them indi- 
 vidually." But if a power be limited to four trustees "and the To "Trustees 
 survivor of them," it may be argued, that on the death of one 
 the power may stiU be exercised by the survivors ; for there can 
 be no vaUd reason why a person who trusted the four jointly, 
 and each of them individually, should refuse to repose a con- 
 fidence in the survivors for the time being (6). However, it is 
 a question of intention upon the construction of the instrument, 
 and a priori reasoning cannot be relied upon without a decision. 
 
 In Trower v. Knightley (c) a testator devised an estate to trus- Trower v. 
 tees upon trust as to one moiety for A. for Ufe, remainder to 
 her children at twenty-one, and as to the other moiety for B. 
 for life, remainder to her children at twenty-one, and gave the 
 trustees a power of sale " during the continuance of the trust." 
 A. died, and her children attained twenty-one, and the ques- 
 tion was whether the trustees could, under the power, sell the 
 whole estate, the children of B. being infants. The Vice- 
 Chancellor held, that if the children of A. could call for a 
 present conveyance of their moiety it would have the effect of 
 depriving B. and her children of the benefit of the power of 
 sale, and also of the leasing power given to the trustees, for 
 that an undivided moiety could not advantageously be sold or 
 leased, and that the testator must have meant to continue the 
 powers of ownership to the trustees until there were owners 
 competent to deal with the whole estate. 
 
 But if a power be given to trustees to be exercised " during Power " during 
 the contiauance of the trust," it cannot be exercised after the of theVust*""^ 
 time when the trust ought to have been completed, though, from 
 
 (o) Hibhard v. Lamhe, Amb. 309. 97 ; in wMch case it seems to have 
 
 Note, further directions were declared been assumed that the receipt of the 
 
 necessary on the death of either of survivorswould have been a sufficient 
 
 the surviving executors. See Eaton discharge. 
 
 V. Smith, 2 Beav. 236. (c) 6 Mad. 134. 
 
 (5) See Crewe v. Dichen, 4 Ves. 
 
 M M 2 
 
532 
 
 DISCLAIMEE. 
 
 [CH. XIX. S. 2. 
 
 Effect of dis- 
 claiineT upon 
 powers. 
 
 the delay of the trustees, it happens that the trust has not in 
 fact been executed (a). 
 
 III. Of the effect of disclaimer, assignment, and survivorship 
 of the estate. 
 
 First. If a power be given to co-trustees, and one of them 
 disclaim, the power may be exercised by the continuing trustee 
 or trustees. 
 
 Jenkins observes, " If a testator devise that A. and B. shall 
 sell, and near the end of the will he names them executors, if 
 one refuses at common law (6), or dies, the other may sell, for 
 the power is annexed to the executorship "(c); and in the instance 
 of trustees, it may equally be argued that although given to 
 persons by name, the power is annexed to the trusteeship. 
 
 And of this opinion apparently was Lord Loughborough in 
 the case of Crewe v. Dicken (d) ; for a power of signing receipts 
 having been limited to three trustees by name, and one of 
 them being dead, his Lordship remarked, " If A. B. (one of 
 the survivors) had renounced," (that is, had disclaimed instead 
 of constructively accepting the trust by the execution of a 
 conveyance,) " the whole estate would have been in the con- 
 tinuing trustee exactly as if the two other trustees had died ia 
 the life of the testator ; " and it is evident from the context 
 that his Lordship meant to extend the observation to the power 
 of signing receipts. 
 
 In Hawkins v. Kemp (e), a purchaser at first objected that 
 the accepting trustees could not exercise the power, or not 
 without the appointment of a new trustee in the place of the 
 trustee who had disclaimed, but the point was afterwards 
 abandoned by the purchaser's counsel as untenable. 
 
 (o) Wood v. Wliite, 2 Keen, 664. 
 It was determined on appeal tkat the 
 trusts in this case were still in being, 
 4 M. & Cr. 460. 
 
 (5) That is, independently of 21 
 H. 8, 0. 4, which, upon refusal by 
 one executor, authorised a sale by 
 the co-executor. 
 
 (c) Jenk. 44. 
 
 (rf) 4 Ves. 97. 
 
 (e) 3 East. 410. " I have always 
 understood, said the late V. C. of 
 
 England, ever since the point was 
 decided in Sawhins v. Kemp, or 
 rather was, as the judges said in 
 that case, properly abandoned by 
 the defendant's counsel as not capa- 
 ble of being contended for, that 
 where two or more persons are 
 appointed trustees, and all of them, 
 except one, renounce, the trust may 
 be executed by that one," Cooke v. 
 Crawford, 13 Sim. 96. 
 
CH. XrX. S. 2.] ASSIGNMENT OF POWERS. 633 
 
 And Adams v. Tawnton (a) is a direct decision by Sir J. Leach Adams «. Tann- 
 to the same effect. A testator had devised his estates to A. *™" 
 and B. upon trust to sell and apply the proceeds amongst his 
 children, and declared that the receipts of the said A. and B. 
 should be sufficient discharges. A. renounced, and Sir J. Leach, 
 after having taken time to consult the authorities, said, " It 
 being now settled that a devise to A., B., and C. upon trust is 
 a- good devise to such of the three as accept the trust it follows 
 by necessary construction that by the receipts of the trustees 
 is to be intended the receipt of those who accept the trust " (&). 
 
 If the power be not given to the trustees by name, but to 
 the " trustees " or " executors ; " it is clear, a fortiori, that if 
 one disclaim the acting trustees or executors may exercise 
 the power (c). 
 
 Secondly. As to the effect of assignment of the estate, it is Effect of assign- 
 certain that the power is not appendant to the estate, so as to estate. 
 follow along with it in every transfer by the party, or devolution 
 by course of law {d). But where the estate is duly transferred to 
 persons regularly appointed trustees under a power in the set- 
 tlement creating the trust, the transferrees, of course, take the 
 estate and the office together, and can exercise the powers. 
 Where the settlement contains no such power, it seems that 
 the appointment of new trustees by the Court will not 
 commimicate special discretionary or arbitrary powers (e), 
 unless they be limited to the trustees for the time being (/), 
 or be otherwise in fair construction annexed to the office ig). 
 
 {a) 5 Mad. 435 ; and see Bayly v. (rf) Cole v. Wade, 16 Ves. 47, per 
 
 Cumming, 10 Ir. Eq. Ee. 410; Coohe Sir W. Grant; Crewe v. Dichen, 4 
 
 V. Crawford, 13 Sim. 96 ; Sands y. Yes.91 ; Ite]Surtfsi:sfate,lDie-WTj, 
 
 Nugee, append. No. viii. S. C. 8 319; Wilson v. Bennett, 5 De Grex 
 
 Sim. 130. & Sm. 475. Tlie case of Hardwick 
 
 (6) From Ms Honour's words, v. Mynd, 1 Anst. 109, is an anomaly, 
 
 "the receipts of tte trustees," it (e) Doyley v. Attorney-General, 
 
 might be thougiit the power had 2 Eq. Ca. Ah. 194 ; Fordyce v. 
 
 been given, not to A. and B. by Bridges, 2 PhiU. 497 ;«iViswman v. 
 
 name, but to "the trustees:" the Warner, 1 Sim. N. S. 457 ; and see 
 
 E. L. has been consulted, and it ap- Cole v. Wade, 16 Ves. 44, 47 ; 
 
 pears, as stated in the report, that the Sibbard v. Lambe, Amb. 309. 
 
 power was given to "the said A. &B." {/) Baxtley v. Bartley, 3 Drew. 
 
 (c) Worthington v. Evans, 1 S. & 384 ; Brassey v. Chalmers, 4 De 
 
 S. 165 ; Boyce v. Corbally, Rep. t. Gex, M. & G. 528. 
 
 Plunket, 102 ; and see Clarke v. (jr) Byam v. Byam, 19 Beav. 66. 
 Parker, 19 Ves. 1. 
 
534 
 
 ASSIGNMENT OF POWEKS. 
 
 [CH. XIX. S. 3. 
 
 Release with the 
 intention of dis- 
 claiming. 
 
 Whether the 
 power Trill re- 
 main in the 
 trustee after 
 alienation of the 
 estate. 
 
 Case of real and 
 personal estate 
 coupled together. 
 
 We have seen that if one trustee discla/im in the strict sense 
 of the word, the power will not be extinguished, but will sur- 
 vive to the co-trustee ; but, according to the old doctrine, if a 
 trustee instead of disclaiming had released the estate, that was 
 a virtual acceptance of the trust, and then the conveyance of 
 the retiring trustee did not pass the power into the hands of 
 the continuing trustee (a) ; but at the present day it seems a 
 release with the intention of disclaimer would have all the 
 operation of a formal and actual disclaimer (&). 
 
 Though an assignment of the estate wiU not carry the power 
 to the assignee, it does not foUow that the power will remain 
 in the assignor; for where it was the settlor's intention that 
 the estate and power should be coupled together, the trustee, 
 by severing the union through the alienation of the estate, 
 ceases to be the person intended to execute the power. Thus 
 if an estate be limited to A. and his heirs upon a trust to be 
 executed by A. and his heirs, and A., in his lifetime, conveys 
 away the estate, or devises it by his will. A., the alienor or his 
 heir, cannot now execute the power (c). The heir, indeed, is 
 no heir quatenus this estate ; for it was not allowed to 
 descend, but was devised away from the person who would have 
 been heir. 
 
 Upon a similar principle, in Cole v. Wade{d), where the 
 power was given to the trustees, and the heirs, executors, and • 
 administrators of the survivor, it was held, that on the death 
 of the survivor the power was extinguished. The circum- 
 stances were these: A testator gave the residue of his real and 
 personal estate to Euddle and Wade (whom he appointed his 
 executors), their executors, administrators, and assigns, and 
 directed his said trustees and executors, after making certain 
 payments thereout, to convey and dispose of the said residue 
 of his real and personal estate unto and amongst such of his 
 relations and kindred in such proportions, manner, and form, 
 as his said executors should think proper, his intention being 
 that everything relating to that disposition should be entirely 
 
 {a) Doyley v. Attorney-General, 
 2 Eq. Ca. Ab. 194 ; Crewe v. Dichen, 
 4 Yes. 97. 
 
 (5) Supra, p. 233. 
 
 (c) Wilson V. Bennett, 5 De Qex 
 & Sm. 475; and see Se BurWs 
 Estate, 1 Drew. 319. 
 
 {d) leVes. 27. 
 
CH. XIX. S. 2.] ASSIGNMENT OF POWERS. 535 
 
 in the discretion of the said trustees and executors, and the 
 heirs, executors, and administrators of the survivor of them; 
 and the testator directed his said trustees and executors and the 
 survivor of them, and, the heirs, executors, and administrators 
 of the survivor of them to mortgage or sell the said residue, or 
 such part thereof as they in their discretion should think 
 proper ; the testator meaning to leave it in the discretion of 
 his said trustees and executors to convey unto his relations the 
 said residue in such manner and form as his said trustees 
 should think proper : and, lastly, he directed that the said 
 Ruddle and Wade, or the survivor of them, or the heirs, executors, 
 or administrators of such survivor, should make the division 
 within fifteen years from the testator's decease. Wade, the 
 survivor, devised and bequeathed the real and personal estate 
 of the testator to William and Edward Bray, their heirs, exe- 
 cutors, administrators, and assigns upon the trusts of the will, 
 and named them his executors for that specific purpose only, 
 appointing his wife and another person executors as to his 
 own estates. The question was agitated, whether William and 
 Edward Bray could exercise the power of distribution among 
 the relations. Sir W. Grant said, " The original trustees and 
 executors were the same persons ; all the real and personal 
 estate was vested equally in them ; but the heirs and executors 
 of the surviving trustee might be different persons : yet all the 
 directions about the distribution of the residue proceed upon 
 the supposition that the same persons are to select the objects 
 and settle the proportions in which they are to take ; but if the 
 real estate is to go to one, and the personal estate to another, 
 the testator has left it entirely uncertain how the power is to 
 be executed. Whether the Messrs. Bray can in any sense be 
 the executors of Wade, with whose own property they are not 
 to intermeddle, it is not material to determine." His Honour, 
 therefore, decided, that the power had become extinguished. 
 
 But, of course, the estate and the power, though originally The Court may 
 intended to be in the same hands, may be vested in different severance of the 
 persons with the sanction of the Court, where the intentions pf^*,/™"" *^® 
 of the settlor cannot otherwise be conveniently effected. Thus 
 a testator gave a sum of money to be invested in the funds in 
 the names of the head of a college at Oxford, the junior bailiff 
 
powers. 
 
 536 suEvrvoESHip of powees. [ch. xrx. s. 3. 
 
 of the city, and the elder churchwarden of a parish, the divi- 
 dends to be applied to certain purposes as the trustees should 
 approve. The bailiff and churchwarden being annual of&cers, 
 the investment as directed by the will would have been accom- 
 panied with frequent transfers of the stock : the Court there- 
 fore ordered that the money should be invested in the names 
 of two new trustees jointly with the head of the college, but 
 that the objects of the charity should be nominated and 
 approved in the manner pointed out by the will (a). 
 SurviTorahip of Thirdly. As to survivorship. The survivorship of the estate 
 carries with it the survivorship of such powers as are annexed 
 to the trust. If a mere power be given to A., B., and C, and 
 one of them die, it is perfectly clear that the power cannot be 
 exercised by the survivors ; but if trustees have an equitable 
 power annexed to the trust, as if an estate be vested in three 
 trustees upon trust to sell, then as the power is coupled with 
 an interest, and the interest survives, the power also survives (6). 
 The principle that trust powers survive with the estate 
 appears to be as old as the time of Lord Coke, for he observes, 
 " If a man deviseth land to his executors to be sold, and maketh 
 two executors, and the one dieth, yet the survivor may sell the 
 land, because as the estate, so the trust shall survive ; and so 
 note the diversity between a bare trust and a trust coupled with 
 an interest " (c). At the present day a trust, that is, a power 
 imperative, whether a bare power, or a power coupled with an 
 interest, would equally be carried into execution in the forum 
 of a court of equity ; for the maxim now is. The trust or power 
 imperative is the estate. But in the time of Lord Coke had a 
 bare power been devised to A. and B. to sell an estate, as 
 for payment of debts, the authority was one which A. and B. 
 during their joint lives were compellable by subpoena in 
 Chancery to execute for the benefit of the creditors; but if 
 
 [a] Ex parte Blachlurne, 1 J. & 2 P. W. 108, 121, 124 ; Butler v. 
 
 W. 297; and see Hibhard v. Lamhe, Bray, Dyer, 189 b; By am v. By am, 
 
 Amb. 309. 19 Beav, 58 ; Jenk. 44; Co. Lit. 
 
 (6) Lane v. Dehenham, 17 Jur. 112 b, 113 a; Flanders v. Clarke, 
 
 1005 ; and see Gouldsb. 2, pi. 4 
 Peyton v. Bury, 2 P. W. 628 
 Mansell v. Vaughan, Wilm. 49 
 
 Eyre v. Countess of Shaftesbury, 181 b. 
 
 1 Ves. 9; Potter Y. Chapman, Amb. 
 100. 
 
 (c) Co. Lit. 113 a; and see ib. 
 
CH. XIX. S. 2.] STJEVIVORSHIP OF POWEES. 
 
 537 
 
 A. happened to die before the sale had been carried into effect, 
 
 the trust was extinguished, and the heir, who had always 
 
 retained a right to the intermediate rents and profits, was then 
 
 seised of the absolute and indefeasible inheritance. But in 
 
 case the testator had devised the estate to A. and B. to sell for 
 
 payment of debts, then, as the trust was not a mere power, but 
 
 a power coupled with an interest, it received a more liberal 
 
 construction, and as upon the death of A. the whole estate 
 
 passed by survivorship to B., the power, being annexed to the 
 
 estate, was considered as intended to survive with it (1). 
 
 A distinction may perhaps be thought to exist between cases Survivorship 
 
 where the language of the power is indefinite, as to the ^ given to tnie-'^ 
 
 tees by name. 
 
 (1) In. ezamining the cases of powers before tlie Statute of Uses, tlie 
 following points may he nsefally noticed. 1. A person seised of the legal 
 estate of lands could not, before the Statute of Wills, have devised 
 them, directly, and therefore he could not have gained his object indirectly 
 by means of a power : had a testator devised that A. and B. should sell his 
 estate, the authority was void. 2. But a use was devisable, and therefore, 
 if cestui que use had devised the lands to a stranger, though the legal estate 
 did not pass (the statute of Richard the Third, which made mention of 
 feoffments and grants, not extending to wUls), the devisee might still have 
 sued his subpoena in Chancery, and have compelled the feoffees to execute 
 a conveyance of the estate. 3. If cestui que use had devised that A. and B. 
 should sell, and A. and B. in pursuance of the authority had made a 
 feoffment or grant, this assurance seems to have operated retrospectively as 
 the assurance of the testator, and so, falling within the words of the statute 
 of Richard, served to pass even the legal estate. 4. And cestui que use 
 might have devised such an authority even to his feoffees, and the power 
 would have been construed in the same manner as if it had been devised to 
 a stranger : thus where a man enfeoffed A. and B. to his own use, and after- 
 wards devised that the said A. and B. should sell the estate and apply the 
 proceeds, &o., and A. and B. on the decease of the testator, enfeoffed C.and 
 D. to the like uses, it was ruled that A. and B. might still sell under the 
 power, although they had parted with the legal fee. 5. Until the sale was 
 effected, the feoffees were trustees for the testator's heir, and were bound to 
 account to him for the accruing rents and profits ; and if the power, which, 
 whether given to a stranger or to the feoffees, was construed as a naked 
 authority, became extinguished by any means, as by the death of the donees 
 of the power, the heir was as absolutely entitled to the use in fee, as if no 
 will had been made. 6. So long as the power subsisted, the person who 
 would suffer by the extinguishment of the power might have compelled the 
 donees, by filing a bUl in Chancery, to execute the power. 1. But if the 
 proceeds of the sale were to be distributed in pios usus, as no one could 
 plea a personal loss by the non-execution of the power, there was no one to 
 sue a suhpcena, and the donees of the power were left to the arbitrary 
 exercise of their own discretion. See case temp. H. 7, Treat, of Powers, 
 Appendix, No. 1. 
 
 Before statute of 
 uses a power 
 given by will 
 over the legal 
 estate was void. 
 Over the use was 
 good. 
 
 The execution 
 of the power over 
 the use passed 
 the legal estate. 
 
 The power might 
 he vested in the 
 feoffees. 
 
 Until the power 
 was executed the 
 feoffees were 
 trustees for the 
 heir. 
 
 The object of the 
 power could have 
 compelled the 
 execution. 
 
 If no specific 
 object of the 
 power, the exe- 
 cution was 
 optional. 
 
538 
 
 SUEVIVOESHIP OF POWERS. [CH. XIX. S. 2. 
 
 Powers not 
 annexed to the 
 trust. 
 
 Control of the 
 Court over arbi- 
 trary powers. 
 
 Pink V. De 
 
 Thuisey. 
 
 persons by whom it is to be exercised ; for example, where an 
 estate is vested in trustees and their heirs in trust, to sell, &c., 
 and those cases where the power is limited to persons by 
 name, as upon trust, that " the said A. and B." or that " the 
 said trustees, " (which is equivalent to naming them,) shall 
 sell ; but the Courts have never relied upon any distinction of 
 the kind, and it seems to be now decided that even where the 
 trust is reposed in the trustees by name, the survivor, who 
 takes the estate with a duty annexed to it, can execute the 
 trust (a). 
 
 But powers that are purely arbitrary, and independent of 
 the trust, and not intended in furtherance of the trust, must, 
 it is conceived, be construed strictly, and be governed by the 
 rules applicable to ordinary powers. If, for instance, the 
 trustees by name have a power of revoking the limitations, and 
 shifting the property into a different channel, this discretion 
 is evidently meant to be personal, and not to be annexed to 
 the estate. 
 
 IV. Of the control of the Court over the exercise of 
 powers. 
 
 Where a power is given to trustees to do, or not do, a 
 particular thing at their discretion, the Court has no jurisdic- 
 tion to control the trustees in the exercise of that discretion, 
 provided their conduct be bond fide, and their determination 
 is not influenced by improper motives (6). 
 
 Thus, in Pink v. De Thuisey (c) a testatrix gave lOOOZ. to A. 
 upon a condition precedent, but " left her executor at liberty 
 to give the said sum if he found the thing proper " though the 
 condition should not have been performed. A. died without 
 having fulfilled the condition or received the money, and his 
 
 (o) Zane v. Debenkam, V. C. 
 Wood, 17 Jur. 1005. 
 
 (6) Thomas v. Dering, 1 Keen, 
 729 ; Pinh v. De Thuisey, 2 Mad. 
 157 ; French v. Davidson, 3 Mad. 
 396 ; Sillibourne v. Newport, 1 Kay 
 & Johns. 602 ; Walher v. Walker, 
 5 Mad. 424; Banhes v. Le De- 
 spencer, 11 Sim. 527, per Sir L. 
 Shadwell; Attorney-General y. Go- 
 vernors of Harrow School, 2 Ves. 
 551 ; Cowley v. Hartstonge, 1 Dow. 
 
 378, per Lord Eldon; Potter v. 
 Chapman, Amb. 99, per Lord Hard- 
 wiolce ; Carr v. Bedford, 2 Ch. Ee. 
 146 ; Wain v. Earl of Egmont, 3 
 M. & K. 445 ; Livesey v. Sarding, 
 Taml. 460 ; Collins v. Vining, C. P. 
 Coop. Rep. 1837-38, 472; KeU- 
 wich V. Marker, 3 Mao. & GFor. 
 326, per Lord Truro; Lee T. Toung, 
 2 Y. & C. Ch. Ca. 532. 
 (c) 2 Mad. 157. 
 
CH. XIX. S. 2.] CONTEOL OF THE COURT OVEE POWERS. 539 
 
 personal represeDtatiTe filed a bill against the executor of the 
 testatrix to compel payment of the legacy. A. in his lifetime 
 had applied for the money, but the executor had not thought it 
 right to comply with the request. Sir T. Plumer, in dismissing 
 the bill, observed, " The executor says he did not think proper 
 to advance the legacy : is the Court to decide upon the pro- 
 priety of the executor's withholding the legacy ? That would 
 be assuming an authority confided by the wiU to the discretion 
 of the executor : it would be to make a wUl for the testatrix, 
 instead of expounding it." 
 
 Again, where a testator directed that so long as the produce Frencli v. David- 
 of certain estates should be consigned to the house of " D. 
 and Son," in which the testator held a moiety of the emolu- 
 ments, his executors, " unless circumstances should render it 
 unnecessary, inexpedient, and impracticable," should pay out 
 of the income of his residuary property, an annuity of 600L 
 to Messrs. French, and the executors declined to pay the 
 annuity. Sir J. Leach said, " The executors are to exercise 
 the authority, unless circumstances shall render it unnecessary, 
 inexpedient, and impracticable, by which must be meant shall 
 in their opinion render it unnecessary, inexpedient, and 
 impracticable. If they had distinctly stated in their answer 
 that they had not made the payment because, using their best 
 discretion upon the subject, they had come to a conclusion 
 that circumstances had rendered the payment unnecessary, 
 inexpedient, and impracticable, a court of equity could not 
 have controlled their judgment, unless it appeared that they 
 had acted maid fide. But their answer states many mixed 
 motives for their refusal to pay the annuity, and it is plain 
 that they have never simply addressed themselves to the 
 sound exercise of that discretion which the testator has 
 been pleased to place in them ; " and the Court declared in the 
 words of the will, that the annuity was to be paid so long as 
 the consignments were continued, unless in the judgment of 
 the executors, circumstances should render it unnecessary, 
 inexpedient, and impracticable (a). 
 
 In another case a testator devised an estate to three trustees Walker v. 
 
 Walker. 
 
 [a) French v. Davidson, 3 Mad. 396. 
 
540 CONTROL OP THE COURT OVER POWERS. [CH. XIX. S. 2. 
 
 upon trust, for A. for life, and in case the conduct and 
 behaviour of A. should, for not less a time than the space of 
 seven years, at the least, from the testator's decease, be and 
 continue to the entire satisfaction and approbation of the 
 trustees, agreeing and signifying their unanimous approbation 
 of such conduct, then the said testator gave the said estate to 
 A. ifi fee ; and at the expiration of seven years from the 
 testator's decease, A. filed a bill against the trustees praying 
 that they might signify their approbation of his conduct, and 
 convey the estate to him in fee, and one of the trustees stated 
 by his answer, that he had not such confidence in the conduct 
 and discretion of the plaintiff as to induce him to think that 
 it Would be proper or conformable with the intention of the 
 testator, to give the plaintiff absolute control over the estate. 
 Sir John Leach held, that where the discretion of trustees 
 was to be exercised upon matter of opinion and judgment, 
 as to which well-intentioned persons might differ, the Court 
 could not substitute the Master for the trustees ; and the 
 Court directed an inquiry, whether the conduct of the plaintiff 
 had for seven years from the testator's death been to the 
 entire satisfaction and approbation of the trustees; and 
 whether they had agreed and signified their unanimous appro- 
 bation (a). 
 Thomas v. So, where the trustees of a settlement had a power of sale 
 
 ^"°^' at the request and by the direction of the tenant for life, and 
 
 A., the tenant for life, entered into a contract for the sale of 
 the estate to B., and the trustees refused to concur in the 
 sale, and the purcha,ser filed a bill for specific performance 
 against the tenant for life and the trustees, the Court observed, 
 " The contract having been entered into, A. was himself bound 
 to perform it if he could, but he CQuld not perform it without 
 the concurrence of the trustees, and the trustees did not 
 concur " (fe). " With respect to the point which has been 
 raised whether A." can now be called upon to request or direct 
 the trustees to convey, I think that he ought not to be called 
 upon to do so, unless it shall appear that the trustees when. 
 
 (a) Walker v. Walker, 5 Mad. (J) Thomas v. Bering, 1 Keen, 
 
 424. 741. 
 
CH. XIX. S. 2.] CONTROL OF THE COUET OVER POWERS. 541 
 
 requested or directed ought to comply with the request ; and 
 without at present determining' this point, the strong incli- 
 nation of my opinion is, that the power of sale does give a 
 discretion to the trustees, in relation to all the matters comprised 
 in the terms of the power, and that this Court has no power or 
 jurisdiction to interfere with the discretion so vested in the 
 trustees " {a). And on a subsequent day the Master of the Bolls 
 observed, " I have before stated that I considered the contract 
 binding upon A. but not upon the trustees, and it appears to 
 me, upon the true construction of the settlement under which 
 the trustees hold the estate, that they have a discretion which 
 would entitle them to refuse to concur in a sale requested by 
 A., and that in the absence of any imputation upon them, this 
 Court ought not to interfere with that discretion " (&). 
 
 Again, where estates were vested in trustees upon trust to Wain v. Egmont. 
 sell, and pay the debts of the settlor, and the trustees were 
 authorised to treat with the creditors for the amount of their 
 debts, and to deliver to them debentures, and it was declared 
 that no creditor should be entitled to any benefit under the 
 deed until such debenture was given ; on a question whether 
 the Court could take upon itself to ascertain the debts, the 
 Master of the EoUs observed, " If the trustees were authorised 
 by this deed to refuse debentures at their discretion to any 
 lawful creditors, it is plain that this Court could never take 
 upon itself the exercise of such a discretion, nor grant power 
 to the Master to ascertain the parties entitled to the benefit of 
 this deed. The creditors must first submit their claims to 
 the investigation and allowance of the trustees, and if the 
 trustees refuse to enter into that investigation, the creditors 
 will then be justified in an application to the Court " (c). 
 
 In another case, a power was given to trustees with the con- Lee v. Young, 
 sent of the tenant for life to invest the trust monies in purchase 
 of freehold or copyhold estates, or leasehold for a term of not 
 less than 60 years : the tenant for life was desirous of having 
 the fund invested in a certain leasehold property, but one of 
 the trustees, for reasons which he stated, refused, and the 
 
 (a) lb. 743. (c) Wain v. Egmont, 3 Myl. & 
 
 (6) Thomas v. Dering, 1 Keen, Keen, 445 ; and see Drever v. 
 744. Mawdshy, 16 Sim. 511. 
 
642 
 
 CONTROL OF THE COURT OVER POWERS. [CH. XIX. S. 2. 
 
 Court held, without examining into the weight of the reasons 
 assigned, that as the trustee had not acted from corrupt 
 motives, he was not to be controlled (a). 
 Where trustees But where the trustees were " authorised and required," 
 do an act™ " '^th the consent and direction of the tenant for life, to invest 
 iQ leaseholds, the clause was held to be imperative upon the 
 tenant for life's demand, and the trustees were not allowed to 
 say that the leaseholds would impose personal liabilities upon 
 themselves, for by being pai-ties to the settlement they had 
 engaged to do it (6). 
 Power to trustees So, where a thing is to be done, but the mode of doiag it is 
 of doing an act. left to the discretion of trustees, and they are willing to act, 
 and there is no mala fides, the Court will not control their 
 discretion. 
 
 Thus, if a fund be applicable to the maintenance of children 
 at the discretion of trustees, the Court will not take upon 
 itself to regulate the maintenance, but will leave it in the 
 hands of the trustees (c). 
 
 Again, where a fund is bequeathed to executors or trustees 
 upon trust to distribute among the testator's relations, or 
 apply the fund to any other specific purpose in such manner 
 as the executors or trustees may think fit, the executors or 
 trustees, if wUling to execute the trust, will not, on a bill being 
 filed for carrying the trusts into execution, be deprived of their 
 discretionary power, but may propose a scheme before the 
 Master for the approbation of the Court {d). 
 
 So where the objects of the charity are from time to time 
 to be at the discretion of the trustees, as if annual sums be made 
 distributable either to private individuals or public institutions, 
 as the trustees may think fit, the Court will not even order a 
 scheme to be proposed, but will leave the trustees to the free 
 exercise of their power with liberty for all parties to apply («)• 
 
 (o) Zee v. Young, 2 T. & C. Ch. {d) Brunsden v. Woolredge, Amb. 
 
 Ca. 532. 507 ; Bennett v. Honeywood, id. 708 ; 
 
 (J) Beauelerh v. Ashburnham, 8 MahonY. Savage, 1 Sell. &Lef. Ill; 
 
 Beav. 322 ; Cadogan v. Earl of Supple v. Lowson, Amb. 729 ; &c. 
 
 Essex, 2 Drewry, 227. (e) Waldo v. Caley, 16 Ves. 206; 
 
 (e) Livesey v. Sarding, Taml. Horde v. Earl of Suffolk, 2 M. & K. 
 
 460; Collins Y. Vining, C. P. Coop. 59; axidiS66 PowerscourtY. Powers- 
 
 Eep. 1837-38, 472. court, 1 Moll. 616. 
 
CH. XIX. S. 2.] CONTROL OF THE COURT OVER POWERS. 543 
 
 So where trustees had a power of selecting a lad for edu- 
 cation from certain parishes, and if there were no suitable 
 candidate, then from any other parish, and the trustees upon 
 consideration rejected the candidate from the specified parish, 
 and selected a lad from another parish ; it was held that the 
 Court could not control the discretion. The trustees had 
 assigned no reasons for their choice, but that the Court said 
 was not necessary, and in many cases would not be proper {a). 
 
 But though the trustees invested with a discretionary 
 power are not bound to assign their reasons for the way ia 
 which they exercise it ; yet, if they do state their reasons, and 
 it thereby appears that the trustees were labouring under an 
 error, the Court will set aside the conclusion to which they 
 come upon false premises (b). 
 
 Of course there is sufficient ground for the interfei'ence Fraud, 
 of the Court, wherever the exercise of the discretion by the 
 trustees is infected with fraud (c), or misbehaviour (d), or they 
 decline to undertake the duty of exercising the discretion (e) ; 
 or generally where the discretion is mischievously and ruinously 
 exercised, as if a trustee be authorised to lay out money upon 
 government, or real, or personal security, and the trust-fund 
 is outstanding upon any hazardous security (/). And where the 
 trustees of a charity were empowered to lease for three lives or 
 thirty-one years, the Court expressed an opinion that the dis- 
 cretion might be controlled, if it appeared for the benefit of the 
 charity that such a power should not be acted upon (g). 
 
 Where proceedings had been taken for controlling the The Court will 
 
 (a) He Beloved Wilkes's Charity, 3 Mac. & Gord. 440 ; and see Byam 
 
 3 Mac. & Gor. 440. v. Byam, 19 Beav. 65. 
 
 (6) Be Beloved Wilkes's Charity, (e) Gude v. Worthington, 3 De 
 
 3 Mac. & Gor. 448 ; King v. Arch- Gex & Sm. 389. This was apparently 
 
 bishop of Canterbury, 15 East. 117. tlie ground on wHcli the case was 
 
 (c) lb. 552, per Lord Hardwicke ; decided, but the refusal of the trus- 
 Potter V. Chapman, Amb. 99, per tees to act does not sufficiently 
 eundem ; Bichardson v. Chapman, 7 appear on the report. And see Mor- 
 B. P. C. 318 ; French v. Davidson, timer v. Watts, 14 Beav. 622. 
 
 3 Mad. 402, per Sir J. Leach. [f) De Manneville v. Crompton, 
 
 (d) Maddison v. Andrew, 1 Ves. 1 V. & B. 359 ; and see Lee v. 
 59, per Lord Hardwicke ; Attorney- Young, 2 Y. & G. Ch. Ca. 532. 
 General v. Glegg, Amb. 585, per [g) Ex parte Berkhampstead Free 
 eundem ; Willis v. Childe, 13 Beav. School, 2 Y. & B. 138. 
 
 117 ; and see Be Wilkes's Charity 
 
544 
 
 CONTROL OF THE COURT OVER POWERS. [CH. XDC. S. 3. 
 
 exercise a sur- 
 Teillance where 
 the trustees are 
 before it. 
 
 After decree 
 Trustee cannot 
 exercise even a 
 special power 
 without the sanc- 
 tion of the Court. 
 
 discretion of the trustees, Lord Hardwicke said, " though he 
 could not contradict the intent of the donor, which was to leave 
 it in the discretion of the trustees, yet he would not dismiss 
 the information, but would still keep a hand over them" (a). 
 
 And generally where a suit has been instituted for the ad- 
 ministration of the trust, and a decree has been made, that 
 attracts the Court's jurisdiction, and the trustee cannot after- 
 wards exercise the power without the concurrent sanction of 
 the Court ; as if a trustee have a power of appointment of new 
 trustees, he is not excluded from the right of nominating the 
 person, but the Court must give its sanction to the choice (6). 
 Butif a decree has not been made, then, as the plaintiff may 
 dismiss his bill at any moment, the trustee must not assume 
 that a decree will be made, but must proceed with the due 
 execution of the trust (c). He cannot be advised, however, 
 to act without first consulting the Court." It was held in one 
 case, that the trustees had not exceeded their duty by appoint- 
 ing new trustees after the filing of the bill, as no extra costs 
 had been thereby occasioned {d) ; but in another case it was 
 said that the trustees ought, under the difficulties in which they 
 were placed, to have consulted the Court, and as instead of so 
 doing, they had acted independently and made an appointment 
 which, though they, entered into evidence, they could not 
 justify, and great extra costs had arisen out of their conduct, 
 the trustees were made to pay personally the extra costs 
 which had been occasioned (e). 
 
 (a) Attorney- Generaly. Governors (c) See Williams on Executors, 
 
 of Harrow School, 2 Ves. 551. 
 
 (6) Wehb V. Harl of Shaftesbury, 
 7 Ves. 480; v. Rolarts, 1 J. 
 
 6 "W. 251 ; Middleton y. Reay, 
 
 7 Hare, 106 ; Kennedy v. Turnhy, 
 6 Ir. Eq. Rep. 399. 
 
 891, 4th Ed°. 
 
 {d) Cafe V. Bent, 3 Haie, 245. 
 
 (e) Attorney -General v. Clack, 
 1 Beav. 467. 
 
CHAPTER XX. 
 
 OF ALLOWANCES TO TRUSTEES, 
 
 Now that we have discussed the duties of trustees, and the 
 extent of their powers, we may next enter upon a subject very 
 closely interwoven with the execution of the office, viz. : First, 
 The allowances to trustees for their time and trouble ; and 
 Secondly, The allowances to trustees for actual expenses. 
 
 SECTION I. 
 
 AILOWANCES FOR TIME AND TEOTTBIE. 
 
 It is an established rule in general, that a trustee shall have General rule, 
 no allowance for his trouble and loss of time ; one reason given 
 is, that on these pretences, if admitted, the trust estate might be 
 loaded, and rendered of little value, besides the great difficulty 
 there would be in settling and adjusting the quantum of such 
 allowance, especially as one man's time may be more valuable 
 than that of another. And there can be no hardship in this 
 respect upon the trustee, for it lies in his own option whether he 
 will accept the trust or not (a). But the true gi'ound is, that if 
 the trustee were allowed to perform the duties of the office, 
 and to claim compensation for his services, his interest would 
 be opposed to his duty; and, as a matter of prudence> the 
 
 (a) Robinson v. Pett, 3 P. W. re Ormsby, 1 B. & B, 189, per Lord 
 
 251, per Lord Talbot ; Gould v. Manners ; Charity Corp. v. Sutton, 
 
 Fleetwood, cited ib. note (A) ; Sow 2 Atk. 406, per Lord Hardwicke ; 
 
 V. Godfrey, Kep. t. Finch, 361 ; BOnithon v. Hochmore, 1 Vern. 
 
 Sroeksopp v. Barnes, 5 Mad. 90 ; 316, &o. 
 Ayliffe v. Murray, 2 Atk. 58; In 
 
 s s 
 
546 
 
 ALLOWANCES FOB TROUBLE. [CH. XX. S. 1. 
 
 Executors, mort- 
 gagees, receivers, 
 committees of 
 lunatics. 
 
 Trustees ofWest 
 India Estates. 
 
 Eate of commis- 
 sion in Jamaica. 
 
 possession of 
 West India 
 
 Court will not allow a trustee or executor to place himself in 
 such a situation (a). 
 
 And the rule applies not only to trustees in the strict and 
 proper sense of the word, but to all who are virtuallyinvested with 
 a fiduciary character, as executors and administrators (6), mort- 
 gagees (c), receivers {d), committees of lunatics' estates (e), &c. 
 
 But trustees for absentees of estates in the West Indies are 
 allowed a commission for their personal care in the manage- 
 ment and improvement of the property. However, if, instead 
 of remaining upon the island, they commit the management to 
 the hands of agents, the Court will reject the claim ; for it 
 would be a strange construction that one allowed a commission 
 on account of the proprietor's absence should insist upon his 
 reward when he had been absent himself (/). But a manager, 
 though he forfeits his commission during the period of his 
 absence, will be repaid the sums actually disbursed by him for 
 _the care of the estate by others, provided the payments he has 
 made be in themselves reasonable and proper (^). 
 
 The rate of commission in Jamaica has been regulated by 
 several acts of Assembly : it was originally lOl. per cent, upon 
 the receipts, then 8l. per cent., and since 6Z. per cent. [h). But 
 the intention of the Legislature was only that the rate should 
 not exceed 6Z, per cent., not that under particular circum- 
 stances it might not be a great deal less {i). 
 
 Mortgagees in possession of estates situate in Jamaica are 
 by the act referred to expressly prohibited from charging any 
 commission, except what they may have themselves paid by 
 way of commission to a factor (k), and even irrespectively of 
 
 (o) Kew V. Jones, Exch. Aug. 9, 
 1833, oited 9th Jarm. Free. 338, per 
 Lord Lyndhurst ; and see Burton v. 
 Woohey, 6 Mad. 368. 
 
 (6) Scattergood v. Harrison, Mos. 
 128; How V. Godfrey, Eep. t. Pinch, 
 361 ; Sheriff Y. Axe, 4 Russ. 33. 
 
 (c) BonithoH v. Hockmore, 1 Vern. 
 316; Langstaffe v. Fenwick, 10 Ves. 
 405 ; French v. Baron, 2 Atk. 120 ; 
 Carew v. Johnston, 2 Sch. & Lef, 
 301 ; Arnold v. Garner, 2 Phil. 231 ; 
 Mathison v. Clarhe, 3 Drewry, 3. 
 
 (c?) In re Ormsby, 1 B. & B. 
 189. 
 
 (e) Anon, case, 10 Ves, 103 ; Be 
 Walker, 2 PhiU. 630; Me ^ 
 brooke, ib. 631. 
 
 (/) Chambers v. Goldwin, 5 
 834 ; 9 Ves. 254, see 273. 
 
 (g) Forrest v. Elwes, 2 Mer. 
 
 {h) Chambers v. Goldwin, 9 
 267. 
 
 (j) See S. C. id. 257. 
 
 [k) See S. C, 5 Ves. 837 ; 9 
 268. 
 
 68. 
 Ves. 
 
 Ves. 
 
CH. XX. S. 1.] ALLOWANCES FOR TEOUBLE. 547 
 
 statutory prohibition, mortgagees in possession of West Indian 
 property are under the same disability of charging commission 
 as if the property were situate in this country (a). 
 
 An executor who has been appointed in the East Indies Executor in the 
 and administers in that country, and then returns to England, ^°' "^ ^^^' 
 will, if called upon in a court of equity to render an account, 
 be allowed a commission of five per cent, upon the receipts or 
 payments according to the practice of the Indian courts. The 
 appointment of an executor in the East Indies is considered 
 the appointment of an agent for the management of the estate. 
 Without such an allowance, where a person died in India 
 deprived of the presence of his relations, the effects of the 
 testator might often not be collected at all. Besides, the 
 executors in England could scarcely procure a person to under- 
 take the office at any cheaper rate (6). If an Indian executor 
 after collecting part of the assets comes over to this country 
 he will be allowed a commission on those assets only that, 
 were collected by himself in India, and not on the assets sub- 
 sequently collected by his agents and transmitted to this 
 country, for the courts here allow the commission because the 
 Indian courts allow it, and the Indian courts allow it on the 
 ground of residence in India (c). 
 
 An executor in India will only be allowed the commission where he haa a 
 where the testator himself has not left him a legacy for his ^jouWe 
 trouble (tQ; but if the amount of the legacy be an inadequate 
 compensation for the duties of the office, it seems the executor, 
 so as he signify his resolution in proper time, may renounce 
 
 [a] Leith v. Irvine, 1 M. & K. monies distributed or invested in 
 
 277. manner therein provided. 
 
 (5) Chetham v. Lord Audley, 4 " By Act Wo. II. of 1850 the pro- 
 
 Ves. 72 ; Matthews v. BagsTiaw, 14 visions of the ahove act, with certain 
 
 Beav. 123. To the latter case is restrictions, are extended to the pre- 
 
 appended the following note : — ■ sidencies of Madras and Bombay, but 
 
 "The custom of allowing a commis- the rate of commission to the public 
 
 sion to executors and administrators administrator is there to remain 6 per 
 
 in the presidency of Bengal has been cent, until altered to 3 per cent, by 
 
 abolished by Act No. TIL, of 1849, the governor and council in each of 
 
 of the governor-general in council. these presidencies." 
 By that act an administrator-general (e) Campbell -j. Campbell, 13 Sim. 
 
 has been appointed in place of the 168 ; and see 2 Y. & C. Ch. Ca. 607. 
 ecclesiastical registrar, with a re- {d) Freeman v. Fairlie, 3 Mer, 
 
 duced commission of 3 per cent, on 24. 
 
 N N 2 
 
548 
 
 ALLOWAKCES FOR TEOUBLE. 
 
 [CH. XX. S. 1. 
 
 Constructive 
 trustees. 
 
 Brown v. Be 
 Tastet. 
 
 the intended legacy, and take advantage of the commis- 
 sion (a). 
 
 A person who has carried on a business with another man's 
 money, and so is constructively a trustee, will, if compelled to 
 account for the profits, be sometimes allowed a compensation 
 for his skill and exertions in the management of the concern. 
 
 Thus, Brown and De Tastet were partners, and Brown died, 
 and De Tastet carried on the business with Brown's money. 
 A bill was filed by Brown's representative against De Tastet 
 for an account, and Lord Eldon said, " It could not be denied, 
 that if the business was such that on the death of the party 
 other persons were concerned in aiding it by the application 
 of their skill, theii- services, and their property, a great deal 
 would be included under the head of just allowances, which, 
 tiU the Master had thoroughly investigated the case, the Court 
 could not determine ; " and it was ordered, that upon the 
 reference to the Master, De Tastet should be at liberty to 
 submit any claims to just allowances for his management of 
 the business, the Master to certify upon what grounds he made 
 the allowances should the plaintiff require it, or upon what 
 grounds he refused to make the allowances if required by the 
 defendant (b). 
 Brown ». Litton. To this principle must be referred the early case of Brown 
 V. Litton, before Lord Harcourt (c). The captain of a ship, 
 who had 800 dollars on board which he intended to invest in 
 trade, died upon the voyage, and the mate, who succeeded to 
 the command of the vessel, took the 800 dollars, and traded 
 with them, and made great improvements. The executrix of 
 the captain filed a bill for an account, and Lord Keeper Har- 
 court said, " The defendant was like a trustee, and was clearly 
 liable to account for the profits. It resembled the case of two 
 joint traders, where one died, and the survivor carried on the 
 business, when the survivor should account for the profits he 
 made to the representative of the deceased partner." And the 
 Court observed, that " this country being an island, all imagi- 
 
 («) See id. 28. 
 
 (J) Brown v. De Tastet, Jao. 
 284; and see Sir Samuel Romilly's 
 
 argument in Crawshay v. Collins, 
 15 Yes. 225. 
 
 (e) 1 P. W. 140; S. C. 10 Mod. 20. 
 
CH. XX. S. 1.] ALLOWANCES FOR TROUBLE. 549 
 
 nable encouragement ought to be given to trade; and it was a 
 comfort to a man to know that if he should die on the passage, 
 ihe improvement of his effects should be for the advantage of 
 his family ; but that, to recompense the defendant for his care in 
 trading with the money, the Master should settle a proper 
 salary for the pains and trouble he had been at in the manage- 
 ment thereof." 
 
 But a person will not be allowed to charge any thing for Express trustee 
 !• j.j?ii !■ 11T1 lias no allowauoe 
 
 his management ot a trade or busmess, where he has been for management 
 
 clothed in express terms with the character of a trustee or "^ ^ *™'^®- 
 executor (a). 
 
 A solicitor or attorney who sustains the character of trustee Solicitors and 
 will not be permitted to charge for his time, trouble, or at- '' °™ ^ ' 
 tendance, but only for his actual disbursements (&) ; nor can 
 the charge be made by the firm of which the trustee is a 
 partner (c). " The principle," observed Lord Lyndhurst, " ap- 
 plies as strongly to the case of an attorney as to that of any 
 other person. If ah attorney who is an executor performs 
 business that is necessary to be transacted, he is not entitled 
 to be repaid for those duties ; for it would be placing his 
 interest at variance with the duties he has to discharge. It is 
 said, the bill may be taxed, and this would be a sufficient check ; 
 but I am of opinion that that would not be a sufficient check: 
 the estate has a right not only to the protection of the taxing 
 officer, but also to the vigilance and guardianship of the 
 executor or trustee in addition to the check of the taxing 
 officer. There may be cases where a trustee placed in the 
 situation of a solicitor might, if he were allowed to perform the 
 duties of a solicitor and to be paid for them, find it very often . 
 proper to institute and carry on legal proceedings, which he 
 would not do if he were to derive no emolument from them 
 iiimself; and if he were to employ another person. If a trustee, 
 
 (a) Stocken v. Dawson, 6 Beav. Sherwood, 3 Beav. 338 ; York v. 
 
 .371 ; Burden v. Burden, 1 V. & B. Brown, 1 Coll. 260 ; Bainbrigge v. 
 
 170 ; Brocksopp ^.Barnes, 5 Mad. 90. Blair, 8 Beav. 588 ; Stanes v. Parker, 
 
 ^66 Mar shall v. HoUoway, 2 Sw. 432. 9 Beav. 385 ; Broughton v. Brough- 
 
 (6) New V. Jones, Exoheq. Aug. ton, 5 De Gex, Mao. & Gror. 160 ; 
 
 9, 1833, 9 Jarm. Preo. 338 ; Moore Todd v. Wilson, 9 Beav. 486 ; Gom~ 
 
 V. Frowd, 3 M. & C. 46 ; Fraser v. ley v. Wood, 3 Jones & Lat. 678. 
 Palmer, 4 T. & C. 515 ; Jn re (e) Collins v. Carey, 2 Beav. 128. 
 
550 
 
 ALLOWANCES FOE TROUBLE. [CH. XX. S. 1. 
 
 who is a solicitor, acts as a solicitor, he is not entitled to 
 charge for his labour, but only for his costs out of pocket (a)." 
 Cradooks. Piper. But a Solicitor in the country defending a suit in Chancery as 
 executor through a town agent, will be allowed such proportion 
 of the agent's bill in respect of the defence as such agent is, 
 on his own account, entitled to receive (6). And in one case it 
 was held that the rule so stringently enforced in the admiais- 
 tration of a trust out of court, did not apply to the case of 
 several co-trustees, who, not by any act of their own, but at the 
 will of another, were made defendants to a suit, and that in 
 such a case if one of the trustees was a solicitor, and acted for 
 himself and his co-trustees, he ought to be allowed the full 
 costs, unless it could be shown that they had been, to any ex- 
 tent, increased through his own conduct (c). But this exception 
 stands by itself, and is not likely to be followed ; and accordingly, 
 ij where a solicitor, a single trustee, defended himself by his 
 partner, the claim to professional profits was disallowed (d). 
 
 If a cestui que trust settle accounts with a trustee, a soli- 
 citor, and execute a general release, and the accounts contain 
 items of charges for professional services, the cestui que trust, 
 if he had no legal advice, and was not expressly informed that 
 professional services might have been disallowed, may open 
 the accounts as regards the objectionable items (e) ; but if the 
 cestui que trust had independent legal assistance, he is bound 
 by the release (/). 
 
 The doctrine against professional charges by a trustee, a 
 solicitor, is so rigidly applied, that where a security has 
 been given for payment of such professional charges, it 
 may be set aside, even as against a purchaser for a valuable 
 consideration, if he had notice (g). 
 
 The rule against allowances to trustees is merely a general 
 one in the absence of express directions to the contrary ; for 
 there is no objection, if the settlor himself choose to compen- 
 
 SeUled accountl 
 
 Purchaser. 
 
 Allowance 
 directed by tlie 
 settlor. 
 
 (a) JVew V. Jones, 9 Jarm.Pree.338. 
 
 (6) Surge v. Brutton, 2 Hare, 373. 
 
 (c) Cradock v. Piper, 1 Mao. & 
 Gord. 664, 8. C. 1 HaU & T. 617. 
 
 {d) Lyon v. Baker, 5 De G-ex & Sm. 
 622 ; and see Lincoln v. Windsor, 9 
 Hare, 158; Broughton v. Brough- 
 
 ton, 5 De Gex, Mae. & Gor. 160; 
 2 Sm. c& Gif. 422. 
 
 (e) Todd V. Wilson, 9 Beav. 486. 
 
 (/) Stanes v. Parker, 9 'Bear. 385; 
 JRe Wyche, 11 Beav. 209. 
 
 [g) Gomley v. Wood, 3 Jones & 
 Lat. 678. 
 
CH. XX. S. 1.] ALLOWANCES FOE TEOUBLE. 551 
 
 sate the trustee for his services, either by the gift of a sum in 
 gross, or by the allowance of a salary (a). 
 
 Thus, in Wehb v. The Earl of Shaftesbury (b), an estate was Webbn. Shaftea- 
 devised to Arrowsmith and his heirs upon trust to set and ^^' 
 manage, and out of the rents and profits to pay aU rates and 
 taxes, charges of repairs, stewards', bailiffs', and gamekeepers' 
 salaries, and all other expenses, and the commission thereafter 
 mentioned, and subject thereunto upon certain trusts ; and the 
 testator directed that the trustee should retain for his trouble a 
 commission of 51. per cent, on the gross rental of the estates. 
 The trustee claimed to be reimbursed all his expenses over 
 and above his commission ; and Lord Eldon said, " he felt a 
 strong iaclination to hold that this commission of 51. per cent., 
 was the whole the trustee was to have, but the will did not say 
 so, and upon the will he must give him the other allowances." 
 
 And if a testator give an executor a salary for his trouble. Allowance does 
 the allowance will not cease on the institution of a suit; for institution of a 
 though the managemept be thenceforward under the direction ^"'*- 
 of the Court, the executor is still called upon to assist the 
 Court in the administration with his care and vigilance (c.) 
 
 Where the settlor has directed a remuneration, but has not Amount of 
 declared his mind as to the amownt, it will be referred to the expressed. 
 Master to settle the quantwm meruit according to the circum- 
 stances of the case (cQ. 
 
 The trustee may also contract for an allowance with his Contract for an 
 cestui que trust ; but bargains of this kind are very suspicious, the cestui que 
 and are watched by the Court with an eye of extreme jealousy. '''™*' 
 
 Two persons had been made executors and trustees, and Ayliffei;. 
 one of them refused to act unless the cestui que trust would 
 give them, besides their legacies, some consideration for their 
 trouble. This the cestui que trust refused for some time to do, 
 but at last consented to give lOOZ. to one, and 200L to the 
 other. Lord Hardwicke said, " With regard to the question, 
 whether upon general grounds a trustee may make an agree- 
 ment with his cestui que trust for an extraordinary allowance 
 
 {a) Rohinson v. Pett, 3 P. W. (c) Baher v. Martin, 8 Sim. 25. 
 
 250, per Sir J. Jekyll; Willis v. [d) Ellison v. Airey, 1 Ves. Ill, 
 
 Kibble, 1 Beav. 559. see 115 ; and see Willis v. Kibble, 1 
 
 (6) 7 Ves. 480. Beav. 659. 
 
653 ALLOWANCES FOE TROUBLE. [CH. XX. S. 1. 
 
 over and above what he is allowed by the terms of the trust, I 
 think there may be cases where the Court would establish 
 such agreements; but at the same time would be extremely 
 cautious and wary in doing it. In general the Court looks 
 upon trusts as honorary, and a burden upon the honour and 
 conscience of the person intrusted, and not undertaken upon 
 mercenary views ; and there is a strong reason, too, against 
 allowing any thing beyond the terms of the trust, because it 
 gives an undue advantage to a trustee to distress a cestui que 
 trust; and therefore this Court has always held a strict hand 
 over trustees in this particular. If a trustee comes in a fair 
 and open manner, and tells the cestui que trust that he will not 
 act in such a troublesome and burdensome office unless the 
 cestui que trust will give him a further compensation, and it is 
 contracted for between them, I wiU not say this Court will set 
 it aside, though there is no instance where they have confirmed 
 such a bargain. I consider the present case in this light : — 
 Two trustees are making an ill use of an authority they had 
 under the will to extort a reward from the cestui que trust. 
 If they had told him, ' Give us a further reward, or we will 
 renounce,' they had acted fairly, and something might be said 
 in favour of the contract ; but the personal estate was vested 
 in them before probate, and could not be got out of them 
 without an actual renunciation. The real estate was likewise 
 vested in them, and could not be taken out of them but by an 
 actual assignment ; and, sensible of these difficulties upon the 
 cestui que trust, the trustees and executors, in order to force 
 him into their terms, would not act. Consider the ill conse- 
 quences of such a case. Suppose it should be necessary that 
 a will should be immediately proved, as in the case of a 
 widow and children ; shaU. a trustee, in whom the testator re- 
 posed a trust and confidence, and depended upon his honour 
 and kindness, insist upon such hard terms as to have an 
 unreasonable reward before he will either prove the will or 
 act in the trust ? " And the trustees were refused the advan- 
 tage of their bargain (a). 
 Moore v. Frowd. Where a trust was created by deed, and it was doubtful 
 whether, as the instrument directed the payment of " all costs, 
 
 (o) Ayliffe V. Murray, 2 Atk. 58. 
 
CH. XX. S. 1.] ALLOWANCES FOR TEOUBLE. 555 
 
 Charges, and expenses which the trustees might sustain, 
 expend, or be put unto, the same to be reckoned as between 
 attorney and client," the trustees, who were soKcitors, had not 
 stipulated for the allowance of their professional charges, 
 besides their expenses out of pocket, Lord Cottenham said, 
 " The parties may by contract make a rule for themselves, and 
 agree that a trustee, being a soHcitor, shall have some benefit 
 beyond that which, without such contract, the law would have 
 allowed ; but in such a case the agreement must be distinct, 
 and in its terms explain to the client the effect of the arrange- 
 ment, and the more particularly when the solicitor for the 
 client, becomiag himself a trustee, has no interest personal 
 to himself adverse to that of the chent. It is not easy to 
 conceive how, consistently with the established rules respecting 
 contracts between solicitors and their clients, a solicitor could 
 maintain such a contract made with his cHent for his own 
 benefit, the client having no other professional adviser, and in 
 the absence of all evidence, and of any probability that he was 
 aware of his rights, or of the rule of law, or of the effect of the 
 contract (a)." And his Lordship disallowed the claim. 
 
 Even where the contract is not void ab initio, the conditions Terms of the 
 of it must be fulfilled to the letter, or the trustee is not entitled fuieued to the 
 to his reward. An executor, who had no legacy, and where ^^**®'^- 
 the execution of the trust was likely to be attended with 
 trouble, agreed with the residuary legatees, in consideration of 
 100 guineas, to act in the executorship. He died before the 
 execution of the trust was completed, and his executors brought 
 a bill to be allowed those 100 guineas out of the trust money 
 in their hands ; but the Court said aU bargains of this kind 
 ought to be discouraged, as tending to eat up the trust, and 
 here the executor had died before he had finished the affairs of 
 the trust ; and so the plaintiff's demand was disallowed (&). 
 
 A trustee dealiag, not with the eestm que trust, but with the Contract for an 
 Court, is of course at liberty, before accepting the trust, to the court, 
 stipulate for a reasonable remuneration (c). 
 
 (a) Moore v. Frowd, 3 M. & C. (c) Brochsopp v. Barnes, 5 Mad. 
 
 46, see 48. 90, per Sir J. Leacli; see Morison 
 
 (6) Oould V. Fleetwood, cited v. Morison, 4 M. & C. 215.- 
 Bobinson v. Bett, 3 P. W. 251, 
 note (A). 
 
554 
 
 ALLOWANCES FOR TROUBLE. 
 
 [CH. XX. S. 1. 
 
 Marshall v. 
 HoUoway. 
 
 Baintrigge v. 
 Blair. 
 
 In Marshall v. HoUoway {a). Croft, one of three trustees, had 
 declined to prove the will or enter upon the trusteeship, but 
 had executed no disclaimer of the estate, and, as the person 
 best acquainted with the testator's affairs, had been employed 
 by his co-trustees in the capacity of agent. The co-trustees 
 filed a bill for the administration of the trust, and prayed, 
 inter alia, that, in case the Court should be of opinion that 
 Croft ought to be discharged from the trust, then he might 
 convey the trust estates, and be allowed a compensation for his 
 time and trouble in the management of the testator's affiairs. 
 Lord Eldon decreed, that, " it being alleged by the co-trustees 
 that the nature and circumstances of the testator's estate 
 required the application of a great proportion of time, and that 
 they could not undertake to continue in the trust without the 
 aid and assistance of Croft, who was better acquainted there- 
 with than any other person, and that it would be for the benefit 
 of the estate that Croft should continue a trustee, and it being 
 alleged by Croft that due attention to the affairs of the testator 
 would require so much of his time and attention as would 
 be greatly prejudicial to his other pursuits, and therefore 
 he would not have undertaken to act therein, but under the 
 assurance. that an application would be made to the Court to 
 authorise the allowance of a reasonable compensation for his 
 labour and time, and that he could not continue to a,ct therein 
 without such reasonable allowance being made to him, it 
 should therefore be referred to the Master, to settle a reason- 
 able allowance to be made to Croft for his time, pains, and 
 trouble for the time past ; and if the Master should be of 
 opinion that Croft should be continued a trustee, then to settle 
 a reasonable allowance to be made to Croft for his services in 
 the time to come." 
 
 But if a trustee omit to contract with the Court before 
 entering upon his duties, he will have great difi&culty in ob- 
 taining compensation afterwards, and we may add that in no 
 case will the Court remunerate a trustee for his trouble by 
 permitting him to make professional charges where the settlor 
 has not so directed, but will compensate him for his trouble if 
 at all by a regular and fixed salary (6). Lord Langdale com- 
 
 (a) 2 Sw. 432. 
 
 (6) Bainhrigye v. Blair, 8 Beav. 588. 
 
CH. XX. S. 1.] ALLOWANCES FOE TROUBLE. 555 
 
 menting upon Marshall v. Holloway, observed, the trustee and 
 solicitor in that case was not allowed to charge his bill of 
 costs, or to charge for each particular item of business done, 
 but an enquiry was directed whether it would be proper, under 
 the peculiar circumstances, to give him some remuneration 
 or compensation for his loss of time and trouble. I may there- 
 fore safely say that this Court would not, even in a case when 
 it thought a deviation from the general rule advisable and 
 proper, make that deviation by allowing a gentleman acting 
 as solicitor for himself as trustee to make the usual profes- 
 sional charges against the trust fund. To do so would be 
 to place a party having a duty conflicting with his interest in 
 the position of having to make out his own biU against himself, 
 leaving any error which might occur to be settled and set right 
 at some future occasion. Assuming that all that was done 
 here was highly beneficial, and that a great benefit was acquired 
 to the estate by the exertion of the trustee, was he not bound 
 to do his utmost for the benefit of his trust ? In every case 
 a trustee might say I have had a great deal of trouble in these 
 matters, and have spent a considerable portion of my time and 
 trouble. Is that the rule ? I am not aware of the existence 
 of any such rule, nor has any authority been produced which 
 tends in the least to show that this is the way in which 
 trustees who have strictly performed their duty, and thereby 
 procured a benefit to the estate, are to be dealt with. It is 
 very different from the case where a trust being in the course 
 of execution, and many things remaining to be done which 
 can be done beneficially only by a particular trustee, who 
 cannot from his situation do it without grievous personal loss, 
 and that party comes to the Court and states that he is in 
 a situation and is willing to do these things, but that he 
 cannot consistently with his own interest proceed with such 
 duties, and gratuitously devote his time for the benefit of the 
 trust. In such a case it is competent for the Court, con- 
 sidering what is beneficial to the cestui que trust, and is calcu- 
 lated to promote their interest, to take the matter into considera- 
 tion, and to give proper remuneration to that person who alone 
 by his own exertion can produce that benefit (a). 
 
 (a) Bainhrigge v. Blair, 8 Beav. 595, 596. 
 
556 
 
 ALLOWANCES FOR TROUBLE. 
 
 [CH. XX. S. 1. 
 
 Employment of 
 
 Collector of 
 rents. 
 
 Bailiff. 
 
 Attorney. 
 
 Accountant. 
 
 During the continuance of the usury laws a mortgagee could 
 not, as a general rule, have bargained for a compensation 
 exceeding, together with the actual interest, the legal rate, for 
 an agreement of this kind would have tended to usury (a). 
 But after a long struggle certain special exceptions were 
 established in favour of mortgagees {not in ^possession) of West 
 Indian estates (&). 
 
 As a trustee will not be permitted to charge for his personal 
 care and loss of time, it is but just he should be allowed on 
 proper occasions to call in the assistance of agents at the 
 expense of the estate. 
 
 Thus a trustee or a mortgagee may, if the case require it, 
 appoint a collector of rents (c). 
 
 And as a man is not bound to be his own bailiff, if a trustee 
 or mortgagee employ a skilful person in that capacity, the 
 salary must be allowed (cZ) ; at least the Court will grant that 
 indulgence where the estate is at such a distan.ce from the 
 mortgagee's residence, that he must have appointed a baihff, 
 had the estate been his own (e). 
 
 An executor employed a person who had been his clerk to 
 transact some business for him relative to the testator's affairs, 
 and the Master insisted it was the executor's own duty, and 
 refused to allow the expense. But Lord Hardwicke said, 
 " he was clear, that if an executor paid an attorney for his 
 trouble and attendance in the management of the estate, he 
 ought to be repaid the sums he had so disbursed," and 
 ordered a reference to the Master to tax the items of the biU(/). 
 
 If the accounts be complicated, and the executor or trustee 
 take upon himself to adjust and settle them, although it may 
 occupy a great deal of his time and attention, the principle of 
 equity is that he cannot claim a compensation; but if he 
 choose to save his own trouble by the employment of an 
 
 [a) See Chambers v. Goldwin, 9 
 Yes. 271. 
 
 (J) See the Idstory of the struggle 
 detailed in Lord Brougham's judg- 
 ment in Leith v. Irvine, 2 M. & K. 
 277. 
 
 (c) JDavis V. Bendy, 3 Mad. 170 ; 
 Stewart v. Soare, 2 B. C. C. 663 ; 
 and see Wilkinson v. Wilkinson, 2 
 
 S. & S. 237; Be Westhroohe, 2 
 Phill. 631. 
 
 {d) JBonithon v. Hockmore, 1 Tern. 
 316 ; Chamhers v. Ooldwin, 9 Ves. 
 272, per Lord Eldon. 
 
 (e) Godfrey v. Watson, 3 Atk. 
 518, per Lord Hardwicke. 
 
 (/) Macnamara y. Jones, 2 Dick. 
 587. 
 
CH. XX. S. 2.] EXPENSES OF TEUSTEES. 557 
 
 accountant, lie is entitled to charge the trust estate 'with it 
 under the head of expenses {a). 
 
 The executor of a trader had employed an agent to collect Weiss v. Dill, 
 debts at a commission of 5 per cent. The Master had reduced 
 the commission to 2^ per cent. ; and, the executor upon that 
 ground taking an exception to the report, Sir J. Leach said, 
 " Executors, generally speaking, are not allowed to employ an 
 agent to perform those duties which by accepting the of&ce of 
 executors they have taken upon themselves ; but there may be 
 very special circumstances in which it may be thought fit to 
 allow them the expenses they have incurred in the employ- 
 ment of agents : I have some doubt whether in this case the 
 Master ought to have made any allowance, but with the allow- 
 ance of 2i per cent, the executor must be content (&)." 
 
 SECTION II. 
 
 ALLOWANCES 10 TEtTSTEES EOE EXPENSES. 
 
 Though a trustee is allowed nothing for his trouble, he is General rule, 
 allowed every thing for his expenses out of pocket {c). "It 
 flows," said Lord Eldon, " from the nature of the office, whether 
 expressed in the instrument or not, that the trust property 
 shall reimburse him all the charges and expenses incurred in 
 the execution of the trust (d)." 
 
 Thus a trustee will be entitled to be reimbursed his travel- Travelling 
 ling expenses (e), unless they be improperly incurred (/). expenses. 
 
 (a) 2few V. Jones, Exeh., Aug. (<?) Worrall -v. Marford, 8 Yes. 8; 
 9, 1833, cited 9 Jarm. Free. 338 ; and see Dawson v. Clarke, 18 Ves. 
 Henderson v. M'lver, 3 Mad. 275. 254 ; Attorney- General v. Mayor of 
 
 (b) Weiss v. Dill, 3 M. & K. 26 ; Norwich, 2 M. & C. 424. 
 
 and see Giles v. Dyson, 1 Stark. N. (e) JEx parte Lovegrove, 3 t). & 
 
 P.. C. 32; Hopleinson v. Roe, 1 Beav. C. 763 j and see Ex parte Elsee, 1 
 
 180 ; Day v. Croft, 2 Beav. 488. Mont. 1 ; Ex parte Bray, 1 Rose, 
 
 (c) How V. Godfrey, Eep. t. Finch, 144. These were cases of assignees 
 361 ; In re Ormsby, 1 B. & B. 190, who, by 6 G. 4, c. 16, s. 106, (the 
 per Lord Manners ; Hide v. Hay- Bankrupt Act then in force)) were 
 wood, 2 Atk. 126; Caffrey v. Darby, to have " all just allowances," hut 
 6 Ves. 497, per Sir W. Grant ; God- trustees are equally entitled to all 
 frey v. Watson, 3 Atk. 518, per just allowances virtute officii, 
 
 Lord Hardwicke ; Feoffees ofHerioVs (/) Malcolm v. 0' Callaghan, 3 M. 
 
 Hosp. v. Ross, 12 CI. & Fin. 512, & C. 52 ; and see Bridge v. Brown, 
 515, per Lord Cottenham. 2 T. & C. Ch. Ca. 181. 
 
558 
 
 EXPENSES OF TEUSTEES. 
 
 [CH, XX. S. 2. 
 
 Fees to coimsel. 
 
 Extra costs. 
 
 So a trustee may give fees to counsel, and shall have allow- 
 ance thereof (a). 
 
 And if a trustee be sued concerning the trust, and have his 
 costs paid him as between party and party, and the cestui que 
 trust afterwards file a bill for an account, the trustee will be 
 allowed his necessary costs in the former suit, and will not be 
 concluded by the amount of the taxation (&) ; but of course a 
 trustee will have no claim to reimbursement out of the trust 
 fund, where the legal proceedings were occasioned by his own 
 negligence in the first instance (c) ; or were improperly insti- 
 tuted by him (d) ; and a trustee will not be allowed, without 
 question, whatever sums by way of costs he may have paid his 
 solicitor, for the bill, as between trustee and cestv/i que trust, 
 though not submitted to a regular taxation (which is between 
 solicitor and client), will be moderated by the Court by a 
 deduction of such charges as may appear irregular and ex- 
 cessive (e) ; and the trustee will not be allowed interest on the 
 costs, though at the time he paid them he had no trust monies 
 in his hands (/). 
 Allowance for Even a specific remuneration given by the testator to his 
 
 remuneration for trustees for their Services in the trust is no reason for excluding 
 *"""" ®" them from the usual allowance for expenses. A testator 
 
 bequeathed to his acting trustees for the time being the yearly 
 sum of five guineas apiece for. the care and trouble they might 
 have in the execution of the trust. The testator's estates 
 consisted ia part of about fifty houses in London, thirty-four 
 of which were let to weekly tenants. The trustees employed a 
 person to collect the rents, and Sir John Leach said, " The 
 annuity was given to them as a recompense for the care and 
 trouble which would attend the due execution of the office ; 
 and if it was consistent with the due execution of the office to 
 
 Interest not 
 allowed. 
 
 (a) Gary, 14, 
 
 (6) Amand v. Bradhurne, 1 Ch. 
 Ca. 138 ; Mamsden v. Langley, 2 
 Vern. 636; and see Fearns v. Young, 
 10 Ves. 184. 
 
 (c) Caffrey v. Darly, 6 Vea. 497. 
 
 [d) Peers v. Ceeley, 15 Beav. 
 209. 
 
 (e) Johnson v. Telford, 3 Euss. 
 477. As to the right of the cestui 
 que trust to obtain a taxation as 
 against the solicitor, see JRe Dickson, 
 3 Jur. N. S. 29, and cases there 
 cited. 
 
 (/) Gordon v. Trail, 8 Price, 416. 
 
CH. XX. S. 2.] EXPENSES OP TRUSTEES. 559 
 
 employ a collector, they were entitled to the annuity. A pro- 
 vident owner might well employ a collector in such a case, and 
 the labour of such a collection could not be imposed on the 
 trustee " (a). 
 
 A regular account of the expenses should invariably be kept; Amount of 
 , but where this has not been done the Court has ordered a 
 reasonable allowance to be made in the gross, at the same time 
 taking care that the remissness and negligence of the trustee 
 in not having kept any account should not meet with any 
 encouragement. Thus in Hethersell v. Hales (b) the trustee 
 put in a general claim for 3500Z., apparently an average esti- 
 mate of the expenses he had incurred in the trust. " The 
 Court," says the reporter, " took some time to deliberate what 
 was fit to be allowed in a matter of this nature ; and having 
 considered that the trustee was a friend to the family, and 
 undertook the trust at their great importunity, and that he had 
 incurred the charge of surveying the whole estate, selling and 
 letting the same, looking after tenants, adjusting their accounts, 
 calling in their rents, returning monies to creditors, and 
 treating with them and stating their debts, and procuring and 
 agreeing with purchasers, and for law charges, and for keeping 
 servants and horses, and employing others in journeys to 
 London and elsewhere, and his care there lying from home a 
 long time, the Court was of opinion that the trustee might well 
 deserve the whole 2500Z., yet would not allow but 3000J., which 
 the trustee was to have." 
 
 As it is a rule that the cestui que trust ought to save the Extraordinary 
 trustee harmless from all damages relating to the trust, so " ^^' 
 within the reason of the rule, where the trustee has honestly 
 and fairly, without any possibility of being a gainer, laid down 
 money by which the cestui que trust is discharged from a loss, 
 or from a plain and great hazard of it, the trustee ought to be 
 repaid (c). 
 
 (a) Wilkinson v. Wilkinson, 2 S. General v. Mayor of Norwich, 2 M. 
 
 & S. 237 ; and see Webb v. Harl of & C. 424 ; Attorney - General v. 
 
 Shaftesbury, V Ves. 480 ; FoUntaine Pearson, 2 CoU. 581 ; Quarrell v. 
 
 V. Pellet, 1 Vesey, jun. 337. JBeckford, 1 Mad. 282 ; Sandon v. 
 
 (6) 2 Ch. Rep. 158. Hooper, 6 Beav. 246; BrigJit v. 
 
 (c) Balsh v. Hyham, 2 P. W. 455, North, 2 PhUl. 216, 
 per Lord King; and see Attorney- 
 
560 
 
 EXPENSES OP TEUSTEES. 
 
 [CH. XX. s. 2. 
 
 Expensea a lien 
 on the trust 
 estate. 
 
 Tictt V. Davson. 
 
 The expenses incurred by a trustee in the execution of his 
 office are treated by the Court as a charge or lien upon the 
 estate, and the cestid que trust or his assign cannot compel a 
 conveyance in equity without a previous satisfaction of all the 
 trustee's demands {a). 
 
 In Trott V. Dawson (b) Lord Macclesfield said, "Dawson, 
 the assignee of Archdale, cannot be in a better case than 
 Archdale under whom he claims. Wherefore, as Archdale 
 would not have had the assistance of a Court of Equity 
 without paying for the charge and trouble which Trott had 
 been at in relation to the trust, so, by parity of reason, the 
 defendant Dawson, as claiming under Archdale, must do the 
 same thing which it was incumbent upon Archdale to have 
 done." 
 
 The decision in this case was reversed in the House of 
 L ords ; and hence the inference has been drawn that a trustee 
 gives credit for the expenses, not to the estate, but to the person 
 of the cestui que trust, and that the assign is not liable for 
 the trustee's expenses incurred in the time of the assignor. 
 The case is reported much more at length in Brown (c), and 
 the circumstances were briefly these : — An eighth of the pro- 
 prietorship of the province of Carolina had been conveyed in 
 1684 to Amy in trust for four persons. The whole equitable 
 interest had become subsequently vested in John Archdale, 
 who settled it upon Dawson and his wife. Dawson filed a bill 
 against the co-heirs of Amy for a conveyance; and the question 
 betweeli the parties was, whether the expenses incurred by 
 Amy ought or not to be first paid and satisfied. On a reference 
 to the Master it was found that Amy had been active in the 
 trust from 1684 to 1697, and during that time had expended 
 various sums of money ; that the proprietors of the province 
 had ordered Amy one grant of 12,000 acres ; had created him 
 Landgrave, with a further grant of 48,000 acres ; and had also 
 presented him with one of the eight proprietorships, which had 
 fallen in by the' death of a proprietor without heirs. It was 
 entered on the books of the proprietors in 1698, that the grants 
 
 (a) See Sx parte James, 1 D. & 
 C. 272 ; mU V. Magan, 2 Moll. 460. 
 
 (J) 1 P. W. 780. 
 (c) 7 B. P. C. 266. 
 
CH. XX. S. 2.] EXPENSES OF TRUSTEES. 561 
 
 had been made to Amy for his services generally, and particu- 
 larly for his faithful discharge of the trust; that Amy had. 
 agreed to convey the estate on request to W. J., who was to 
 succeed him in the ofi&ce, and by whom subsequently the trust 
 was exclusively managed. It did not appear that the first two 
 grants had ever been perfected, or had become beneficial ; but 
 the grant of the proprietorship had been accepted and acted 
 upon. It was under these circumstances that Lord Macclesfield 
 directed a conveyance of the estate, subject to the payment of 
 Amy's expenses; but on appeal to the House of Lords the 
 decree below was reversed. The question therefore appears to 
 have been, not whether Amy's expenses, due from the assignor, 
 were to be regarded as a lien upon the estate, but whether the 
 grants made to Amy had not been accepted by him as a full 
 compensation. 
 
 But although the trustees themselves are creditors upon the Lien does not 
 
 . . /. T /» 1 1 J. jr J.1 ' XT 1 extend to the 
 
 trust fund tor the amount oi their expenses, the persons who trustees' agents. 
 are employed by them as solicitors, surveyors, &c., have no 
 such lien. And the law is so settled, notwithstanding an ex- 
 press declaration by the settlor that the trustee shall in the 
 first place pay the expenses of the trust, and though the trustees 
 themselves be charged to be insolvent. In every deed is 
 implied a direction to pay the costs and expenses, and expressio 
 eorum qucs tacite insunt nihil operatur. It would be a mis- 
 chievous principle to hold, that every person with whom the 
 trustees had incurred a just and fair demand might sue the 
 trustees, and come for an account of the whole administra- 
 tion (a). And, vice versa, the agents of the trustees are ac- 
 countable to their employers only, the trustees, and not to 
 the cestuAs que trust {h). But under the special provisions 
 of the Solicitors Act (c) the cestuis que trust may at the dis- 
 cretion of the Court obtain an order to tax the bOl of the 
 solicitor employed by the trustees {d), and generally the cestuis 
 
 (a) Worrall v. Sarford, 8 Ves. 4, 360, per Sir J. Leach ; and see Lang- 
 
 see 8 ; Hall v. Laver, 1 Hare, 571 ; ford v. Mahony ; 2 Conn. & Laws. 
 
 Feoffees of Heriofs Hospital v. 317 ; Loekwood v. Ahdy, 14 Sim. 
 
 Ross, 12 CI. & Fin. 507 ; Francis 441 ; Keane v. Mobarts, 4 Mad. 350. 
 
 V. Francis, 5 De Gex, Mao. & Gor. (c) 6 & 7 Vict. cap. 73. s. 39. 
 
 108. {d) As to the circumstances under 
 
 (J) Myler v. Fitzpatrich, 6 Mad. which the Court will direct taxation 
 
563 
 
 EXPENSES OF TRUSTEES. 
 
 [CH. XX. S. 2. 
 
 Trust of two 
 estates. 
 
 How expenses 
 recoverable 
 where no trust 
 estate. 
 
 que trust may proceed against the agents where they have not 
 confined themselves to the duties of agents, but by accepting 
 a delegation of the whole trust (a), or by fraudulently mixing 
 themselves up with a breach of trust (6), have themselves 
 become trustees by construction of law. 
 
 If a person be trustee of different estates for the same cestvis 
 que trust under the same investment, and he incur expenses 
 on account of one estate from which he has no funds, it is 
 presumed that he may apply to their discharge any money 
 which may have come to his hands from any other of the 
 estates. But he would not be justified in mixing up any claims 
 under one instrument of trust with those under another (c). 
 
 If the trust estate faU, it seems the trustee may then file a 
 bill against the cestui que trust on whose behalf and at whose 
 request he acted, to recover from him personally the amount 
 of the money expended (d). 
 Phene v. Giiian. In a late case it was held that a trustee who, in that cha- 
 racter, has incurred a legal liability, may call upon the cestui 
 que trust in equity to indemnify the trustee against the lia- 
 bility, even before an actual loss has accrued. Mr. GUlan 
 mortgaged a hundred shares in the Western District Banking 
 Company to Mr. Phene, to secure lOOOL The shares were 
 transferred in the books of the company into the name 
 of Mr. Phene. The lOOOL was afterwards paid off, and 
 Mr. Gillan required Mr. Phene to re-transfer the shares ; but 
 before this could be done a creditor of the company recovered 
 judgment against the public officer of the company, and notice 
 was given to Mr. Phene that unless he paid Si. 10s. per share 
 by a day named, execution would be levied upon him for the 
 full amount of the judgment. Upon that Mr. Phene filed a 
 bill against Mr. Gillan, praying the reimbursement of certain 
 
 at the instance of a cestui que trust 
 see Re Dickson 3 Jur. N. S. and 
 cases there referred to. 
 
 (or) Myler v. Fitzpatrick, 6 Mad. 
 360; and see Pollard v. Downes, 
 1 Eq. Ca. Ab. 6. 
 
 (6) See Fi/ler v. Fyler, 3 Beav, 
 550; Alleyne v. Darcy, 4 Ir. Ch. 
 lie. 199; Portlock v. Gardner, 1 
 
 Hare, 606 ; and Ex parte Woodin, 
 3 Mont. D. & D. 399; Attorney- 
 General V. Corporation of Leicester, 
 7 Beav. 176 ; Pannell v. Hurley, 2 
 CoU. 241 ; Bodenham v. Soshyns, 
 2 De Gex, Mao. & Gop. 903. 
 
 (c) Price v. Loaden, 21 Beav. 
 508. 
 
 {d) Balsh V. Hyham, 2 P. W. 453. 
 
CH. XX. S. 2.] EXPENSES OF TRUSTEES. 563 
 
 expenses, and an indemnity against the liability. The Court 
 observed, " The eflFect of the payment of the debt, combined 
 with the subsequent transactions was, in my opinion, to make 
 the plaintiff a mere trustee for the defendant, and I cannot 
 doubt but that a trustee, circumstanced as the plaintiff was, 
 has a right to be indemnified by his cestui que trust against 
 all liabilities which he may properly have incurred in that 
 character. His liability in this court is that of his cestui que 
 trust. I might take the analogous case of a trustee of lease- 
 hold property under covenants for the benefit of a cestui que 
 trust. It is quite clear, I apprehend-, that if such trustee were 
 obhged to pay money for the benefit of his cestui que trust, he 
 would have a right of indemnity over. It was contended, on 
 behalf of the defendant, that in the case of a trustee and cestui 
 que trust, the trustee cannot proceed in this court until he has 
 been actually damaged, although, if he had paid anything, he 
 might have come to be indemnified. I do not accede to that 
 proposition. If it was a subsisting liabiUty, the trustee is not 
 bound to be out of funds for a moment. In this case a 
 judgment was recovered against a public of&cer of the com- 
 pany. Prima facie, the plaintiff is liable as a shareholder, 
 and prima facie he has a right to be indemnified in the way 
 suggested " {a). 
 
 It wUl be observed that the claim to reimbursement from Claim of expenses 
 the cestui que trust has been admitted, where the trustee has jleTrmsper- 
 acted at the request or on behalf of the cestui que trust, he ^^'^y- 
 being competent ; but in the absence of such request, or of 
 an implied assent, or where the cestuis que trust are under dis- 
 ability as infants, the trustee can have no right against the 
 cestwis que trust on the ground of any personal obligation (b), 
 though the trustee would have the fullest lien upon the trust 
 fund, and no benefit from it would be allowed to the cestui 
 que trust until the trustees were properly indemnified. But 
 
 (o) Phene v. Oillan, 5 Hare, 3, cutor could seek for payment, and, 
 
 pp. 9, 13. of course, it could not be contended 
 
 (6) Thus in ColUnson v. Lister, that the plaintiffs (who were the 
 20 Beav. 368, where the advances cestuis que trust) were liable to re- 
 were not proper the M. R. said, " No pay the advances." 
 assets exist out of which the exe- 
 
 2 
 
564 
 
 EXPENSES OP TRUSTEES. 
 
 [CH. XX. S. .2. 
 
 Funds out of 
 "which expenses 
 payable. 
 
 Trust to pay 
 costs of*trust. 
 
 of course the trustee cannot claim this indemnity in respect of 
 an advance that was not properly made in the execution of the 
 trustee's duty. 
 
 Questions occasionally arise respecting the proper fund for 
 payment of expenses. In one case (a) Sir John Leach decided 
 that a provision made in a will for payment of debts and 
 funeral and testamentary expenses out of a particular fund, did 
 not malie that fund primarily liable for costs. But in a 
 subsequent case Lord Langdale, Master of the Eolls, 
 appears to have arrived at a different conclusion (6). Again, 
 a trust in a will of real and personal estate to pay out of 
 the personal estate the expenses of probate and " the execution 
 of the trusts of the will," does not authorise the trustee to 
 apply the fund in payment of any other expenses than what 
 would be payable by the executors in that character, and there- 
 fore does not authorise the application of the personal estate 
 in payment of the expenses incurred in the execution of trusts 
 declared of the testator's real estate (c). 
 
 (a) Brown v. Groombridge, 4 Mad. 
 495. 
 
 (fi) Wilson V. Heaton, 11 Beav. 
 492. 
 
 (c) Lord Brougham v. Lord Pou- 
 lett, 19 Beav. 119. 
 
CHAPTER XXI. 
 
 HOW A TRUSTEE MAY OBTAIN HIS DISCHARGE FROM 
 THE OFEICE. 
 
 We shall conclude the subject of the Office of Trustee by 
 considering in what manner he may divest himself of that 
 character. 
 
 The only modes by which he can accomplish this object How the trust 
 are the following : First, He may have the universal consent ^^shed'^ '" 
 of all the parties interested ; or. Secondly, He may retire by 
 virtue of a special power contained in the instrument creating 
 the trust ; or. Thirdly, He may obtain his release by applica- 
 tion to the Court. 
 
 I. As no cestui que trust who concurs in a breach of duty Trustee may 
 by the trustee can afterwards call him to account for the mis- sent of cestuis ' 
 chievous consequences of the act, it follows, that where all the ^"^^ *''™'" 
 cestuis que trust lend their joint sanction to the trustee's dis- 
 missal, they are precluded from ever visiting him with damages 
 on the ground of delegation of his office (a). 
 
 But the trustee must first satisfy himself that all the cestuis All must concur. 
 que trust are parties, for even in the case of a numerous body 
 of creditors the consent of the majority is no estoppel as 
 against the rest (6). 
 
 And the cestuis que trust who join must of course be sui juris, Cestuis que trust 
 not femes covert or infants, who have no legal capacity to con- ''°*«"*^'*"«- 
 sent. But a feme covert is considered to be sui juris as to 
 her separate estate where there is no restraint against anti- 
 cipation (c). 
 
 {a) Wilkinson v. Parry, 4 Russ. (5) See supra, 464, note (/). 
 
 276, per Sir J. Leach. (c) See infra, c. 25, s. 3. 
 
566 
 
 APPOINTMENT OF NEW TEUSTEES. 
 
 [CH. XXI. 
 
 Not in existence. If the parties interested in the trust fund be not all in 
 existence, as where the limitation of the property is to children 
 unborn, it is clear, that as the trustee cannot have the sanction 
 of all the parties interested, he cannot with safety be discharged 
 from the trust. 
 
 Trustee may 
 retire under a 
 power. 
 
 Usual form of 
 the power. 
 
 Additions sug- 
 
 II. A trustee may retire by virtue of a special power con- 
 tained in the original instrument. 
 
 The person who creates the trust may mould it in what- 
 ever form he pleases, and may therefore provide, that on the 
 occurrence of certain events and the fulfilment of certain con- 
 ditions, the original trustee may retire, and a new trustee be 
 substituted. 
 
 The form of power most commonly in use is, that in case 
 any trustee shall happen to die, or be abroad for twelve 
 calendar months, or be desirous of being discharged from, or 
 refuse, decline, or become incapable to act in the trusts, it 
 shall be lawful for the cestm que trust to whom the power may 
 be given, or, as the proviso is frequently worded, for the sur- 
 viving or continuing trustee, or the executors or administrators 
 of the survivor, by deed or writing, to nominate some other 
 person to be a trustee ; and the power then proceeds to 
 declare that the trust estate shall forthwith be vested jointly 
 in the persons who are in future to compose the body of 
 trustees ; and that the new or substituted trustee shall, either 
 before or after the trust estate shall have been so vested, be 
 capable of exercising all the same powers as if he had been 
 originally named. 
 
 As it has been made a question how far a trustee appointed 
 by the Court can exercise the discretionary powers of the ori- 
 ginal trustees, it would be proper to extend the common 
 form by adding, that the powers of the settlement shall be 
 exercised by " every trustee, whether appointed under the 
 present power, or by the Court of Chancery, or other com- 
 petent authority." It has also been found useful in practice) 
 where the power of appointment is given to the trustee, to 
 limit it to " the surviving, or continuing, or other trustee " (a). 
 
 (a) See Lord Camoys v. Best, 19 Beav. 414. 
 
CH. XXI.] APPOINTMENT OF NEW TBUSTEES. 567 
 
 The words commonly inserted, which expressly confer all Whether a new 
 powers on the new trustees before the estate has actually been s^oh until 
 conveyed, show that a doubt has been felt by the profession, ggj^tftohii^^ 
 whether in the absence of these words the powers could be 
 exercised until after conveyance, and the late Vice-Chancellor 
 of England, in a case where the words referred to did not 
 occur, but there was simply a power of nomination and no 
 direction for a conveyance, expressed his opinion to be that 
 the person to be appointed was not invested with the character 
 of trustee until he had both been nominated to the office by 
 the donee of the power, and the trust property had also been 
 duly conveyed or assigned {a). " The settlor meant," observed 
 the Vice-Chancellor, " that the person to be nominated should 
 be a trustee just as the others were. If he be nominated and 
 no conveyance executed, and all the others die, how is he to 
 execute any trust, for he has no estate " (fe). 
 
 However, in a more recent case before the present Master of Noble v. Mey- 
 the Eolls (c), A. and B. were appointed trustees of a settle- 
 ment, and after a lapse of 18 years A. disclaimed, and B. was 
 desirous of retiring, and the donee of the power nominated C. 
 in the place of A., and D. in the place of B., and B. professed 
 to assign the trust fund (consisting of a share of 3000Z. in the 
 hands of trustees of another settlement) to C. and D. who filed 
 their biU without their cestuis que trust to have the trust fund 
 paid to them. It was objected against the validity of the 
 appointment that A. had acted, and that consequently B. could 
 not alone pass the trust fund, and that therefore the appoint- 
 ment of trustees was incomplete. The Master of the Rolls, 
 however, held that, whether A. had acted or not, C. and D. 
 were duly appointed, and entitled to call for payment of the 
 trust fund. His Honor said in his judgment, "I am of 
 opiaion that the appointment of new trustees, and the convey- 
 ance of the trust property to them constitute two distinct and 
 separate matters, and that the second, the transfer, can only 
 take place where the first or the appointment is complete. Were 
 it not so, in some cases, probably in all, no valid appointment of 
 
 (a) Warburton v. Sandys, 14 Sim, (c) Noble v. Meymott, 14 Beav. 
 
 622. 471. 
 
 (5) lb. 631. 
 
568 APPOINTMENT OF NEW TRUSTEES. [CH. XXI. 
 
 new trustees could finally be made." And his Honor subse- 
 quently pointed out various difficulties which would arise from 
 holding that transfer of the trust fund was necessary to 
 perfect the appointment. The particular facts of the case at 
 the EoUs suggest the observation that the subject matter 
 settled was a mere equitable interest in a fund, incapable of 
 assignment strictly so to speak; but unquestionably the 
 doctrine of the late Vice-Chancellor of England must be con- 
 sidered as shaken ; and the views of the Master of the EoUs 
 seem to derive some support from the practice of the Court 
 allowing persons nominated trustees to present petitions for a 
 transfer of the trust fund, or a conveyance or vesting order of 
 the trust estate (a). Looking to the decision only of the Master 
 of the EoUs, it may be regarded as still an open question, 
 whether a newly appointed trustee ought not, before proceeding 
 to exercise a power of sale of real estate (the case before the 
 Vice-Chancellor of England), to procure a conveyance to him- 
 self, but according to the views of the Master of the EoUs this 
 would clearly be unnecessary. 
 Mode of vesting Should the trust estate consist of money in the funds, or 
 other property transferable in the books of any company, then 
 by one and the same deed the donee of the power may nomi- 
 nate the new trustee, and the old and new trustee may execute 
 a declaration of trust of the stock or other property intended 
 to be transferred, and after the execution of the trust the stock 
 may be transferred into their joint names accordingly (6). 
 If the trust estate consist of chattels real, or other chattels 
 personal not transferable in the books of any company, 
 the parties cannot effectuate their object but at the trouble 
 and expense of two deeds. By the first, the old trustee wUl 
 assign the chattel interest to A., and then A., by indorsement, 
 will reassign it to the old and new trustee as joint tenants (c). 
 If the trust estate be of a freehold nature, and by the terms 
 of the instrument of trust the whole legal estate is to be 
 vested in the trustees, there needs, in general, no other 
 
 (a) In re Law, 4 Beay. 609 ; see person to assign is not to be one of 
 
 In re Odell, Hayes Ir. Exoh. Rep. the trustees, as where the assignment 
 
 257. is by an executor or administrator of 
 
 (i) See Appendix No. IV. a surviving trustee, of course only 
 
 (c) See Appendix No. V. If the one deed is necessary. 
 
CH. XXI.] APPOINTMENT OF NEW TRUSTEES. 569 
 
 machinery than a simple conveyance under the Statute of 
 Uses ; for the old trustee may rejease the lands to the joint 
 use of himself and the new trustee, and the statute will operate 
 to transfer the possession (a). But in settlements which invest 
 the trustees with powers, the established form of the proviso 
 has introduced the necessity of resorting to the use of two 
 deeds. The language of the clause is, that " the trust estate 
 shall be conveyed in such manner that the same rpay be vested 
 in the old and new trustee to the uses, trusts, intents, and pur- 
 poses of the settlement." Now, the meaning obviously is, that, 
 as by the settlement an estate to preserve contingent remain- 
 ders, or, it may be, some other interest, was limited to the 
 trustees who are armed with the powers, should either of the 
 trustees die, &c., and a new trustee be appointed, such estate 
 pur autre vie, or other interest, should be transferred to the old 
 and new trustee jointly. But the practitioner, ex majori cau- 
 teld, has attached to the words the possible, however impro- 
 bable construction, that on the appointment of a new trustee 
 the whole settlement should be ro-opened, and that the fee- 
 simple should ah integro be conveyed to the old and new trustee 
 to all the same uses, &c. as were declared by the original deed. 
 For accomplishing this object it is necessary that two instru- 
 ments should be prepared. By the first (6), the new trustee will 
 be nominated by the donee of the power, the old uses of the 
 settlement will be absolutely revoked (the proviso, it is said, 
 implying an authority for that purpose), and the use wiU be 
 appointed to A. and his heirs, and the estate and interest 
 vested in the old trustee will be assured unto and to the use of 
 A. and his heirs, by way of conveyance. When this has been 
 effected by one deed, and A, has become seised, or is supposed 
 to have become seised, of the inheritance in fee-simple, he may 
 then, by lease and release, which may be indorsed on the former 
 release (c), reconvey the premises to the old and new trustee to 
 the uses, trusts, &c. of the settlement, in the same manner as if 
 the new trustee had been originally appointed. Thus, if the 
 real intention was, that on the appointment of a new trustee a 
 
 (a) See Append. No. VI. (c) See Appendix No. VIII. 
 
 (i) See Appendix No. VII. 
 
570 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 ,[CH. XXI. 
 
 Sharp V. Sharp. 
 
 seisin to serve the uses should be vested in the old and new 
 trustee jointly, then a power of revocation was implied, and 
 the direction has been compUed with. If the settlor had no 
 such intention, then there was no implied power of revoca- 
 tion, and the affected exercise of it is a nuUity, and the con- 
 veyance by the old trustee, and the reconveyance to the old 
 and new trustee has served only to pass the actual and vested 
 interest. 
 Trustee must see It must of course be carefully ascertained by the trustee 
 oontemplated''t,he ^^^^ ^^^ circumstances under which he retires from the trust 
 precise case. ^y,^ precisely those which the settlor contemplated in the 
 
 terms of the proviso; for if the case be not warranted by 
 the power, the trustee who resigns will be made responsible 
 for all the mischievous consequence^ just as if he had dele- 
 gated the of&ce. 
 
 It is somewhat surprising, considering the frequency of 
 this power, how few questions until lately arose upon its 
 construction. 
 
 In Sharp v. Sharp (a), heard in the Court of Queen's Bench 
 the terms in which the power was expressed were as foUows : 
 — " In case either of the trustees the said A. and B. shall 
 happen to die, or desire to be discharged from, or neglect, or 
 refuse, or become incapable to act in, the trusts, it shall be 
 lawful for the swrvivors or survivor of the trustees so acting 
 in the trusts, or the executors or administrators of the last 
 surviving trustee, by any writing, &c., to nominate a new 
 trustee." Neither of the trustees being willing to act in the 
 trust, they executed a conveyance to two other persons intended 
 to be new trustees ; and the question was raised, whether the 
 power of appointment had, under the circumstances, been 
 effectually exercised, and it was determined in the negative. 
 Lord Tenterden said, "By the word ' survivor' I understand 
 merely the trustee ' continuing to act ;' for it seems to have 
 been throughout the intention of the testator, that, in case of 
 the death or incapacity or refusal of some one of the trustees, 
 the remaining trustee who had been named by him, and who 
 had been the object of his confidence, should have the power 
 of associating with himself some other person in the execution 
 
 Meaning of the 
 word ' ' survi- 
 vor." 
 
 (a) 2 B. & A. 405. 
 
CH. XXI.] APPOINTMENT OP NEW TRUSTEES. 571 
 
 of the trust : but it would be giving a much larger construction 
 to these words than they fairly import if we were to say, that 
 the trustees, in the event of the whole class decUning to act, 
 might nominate such other persons as they might think fit to 
 perform their duties." Mr. Justice Bayley observed, "The 
 word 'either' is not uselessly introduced: it is in effect a 
 proviso that if either of the trustees named in the will should 
 refuse to act, still that the testator should have the benefit of 
 the judgment of the other, who would act in concurrence with 
 such other individual as he might nominate. The testator 
 may have had good reason for confining the power to the care 
 of one trustee, for he may have had special confidence in the 
 trustees named by himself, and so long as either of those persons 
 acted in the trust he might think his property safe. But if 
 we were to read these words as if they were ' both or either,' 
 the case would be different. If both the persons should decline 
 to act, testator might naturally object to their delegating their 
 trust to other persons, and might then have thought it better 
 that his property should be left to the care of a court of equity. 
 And I apprehend that under the words of this power the 
 testator meant by the word 'acting' to designate those who Meaning of the 
 had taken upon themselves to perform some of the trusts men- 
 tioned in the will, and that he did not contemplate one who 
 in limine refused to act. And it seems to me, that a person 
 who does so refuse cannot be considered as acting in any of 
 the trusts. Then the word ' survivor ' must mean the ' con- 
 tinuing ' trustee, as contradistinguished both from those who 
 might refuse to act and those who might be desirous to dis- 
 continue acting." 
 
 In this case hoth the trustees disclaimed; and it was decided "Refusing or 
 
 declining " in- 
 
 that, under such circumstances, they had no power to appomt eludes "disclaim- 
 
 others. But supposing one trustee disclaims, may not the ^"^' 
 
 continuing trustee appoint another, or do the words of the 
 
 power, "if any trustee shall refuse or decline" apply, not to 
 
 the case of a disclaimer, but only to a refusal after having 
 
 acted f Although the point decided in Sharp v. Sharp was 
 
 as stated above, yet from the language of the judges it appears, 
 
 that, had only one trustee disclaimed, the other might have 
 
 exercised the power ; and such it is presumed is clearly the 
 
572 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 [CH. XXI. 
 
 " Refusing'' or 
 "declining" 
 means also after 
 having acted. 
 
 Death of the 
 trustee in the 
 testator's life- 
 time. 
 
 rule when there is nothing to narrow the meaning of the words 
 " refusing or declining." There generally follows in the power 
 a direction that the estate " vested in the trustee so refusing 
 or declining" shall be transferred to the new trustee; and 
 hence it has been argued, that as no estate vests in a disclaim- 
 ing trustee, the power did not contemplate such a case. How- 
 ever, there seems to be but little weight in the argument ; for 
 when it is said that the words " if any trustee shall refuse or 
 decline" apply to disclaimer, it is not meant that they do 
 not also apply to a subsequent refusal. At aU events, 
 therefore, the direction for the transfer of the estate is not 
 nugatory {a). 
 
 It has sometimes been doubted whether the words " refusing " 
 or " declining" do not refer exclusively to disclaimer, and have 
 no application to the case of a trustee refusing after having 
 accepted the trust to act any longer in it. This proposition is 
 also untenable, as it excludes the application of the power to 
 the very case which was mainly contemplated. 
 
 In a late case a testator appointed three trustees with the 
 usual power of appointment of new trustees, and two trustees 
 having died in the testator's lifetime, the late Vice-Chancellor 
 of England adverting to the question whether the surviving 
 trustee could appoint new trustees, observed that " it was very 
 questionable at the least whether the survivor cotild appoint, 
 for it seemed to be clear that the case which the testator con- 
 templated was that of a vacancy in the trusteeship occasioned 
 by death, refusing to act &c., which was capable of being sup- 
 plied by a continuing or acting trustee which was not the case 
 that had happened" (6), and his honour in a subsequent case 
 decided to that effect (c) ; but this was a narrow construction of 
 the power, and it has since been ruled that a trustee who has 
 survived the testator may appoint new trustees in the place of 
 those who predeceased the testator (d). 
 
 (a) See In re Roche, 1 Conn. & 
 Laws. 306 ; Walsh v. Gladstone, 14 
 Sim. 2 ; Mitchell v. Nixon, 1 Ir. Eq. 
 Eep. 155 ; Crooh v. Ingoldshy, 2 Ir. 
 Eq. Kep. 375. 
 
 (5) Walsh V. Gladstone, 14 Sim. 2. 
 
 (c) Winter v. Rudge, 15 Sim. 
 596. 
 
 {d) Re Hadley, 5 De Gex & Sm. 
 67 ; and see Noble v. Meymott, 14 
 Beav. 477. 
 
CH. XXI.] APPOINTMENT OP NEW TRUSTEES. 673 
 
 In Morris v. Preston {a) the proviso was, that " in case of Morria v. Pres- 
 the death of any or either of the two trustees during the lives 
 of the husband and wife or the life of the survivor, the hus- 
 band and wife or the survivor should, with the consent of the 
 surviving co-trustee or co-trustees, nominate and appoint a new 
 trustee or trustees, and that upon such nomination or appoint- 
 ment the surviving co-trustee should convey and assign the 
 trust estates in such manner as that the surviving trustee and 
 trustees, and such person or persons so to be nominated and 
 appointed, should be jointly interested in the said trusts in the 
 same manner as such surviving trustee and the person so dying 
 would have been in case he were living." Both the trustees 
 died, and the wife, who survived her husband, executed an 
 appointment of two new trustees in the place of the deceased 
 trustees. A purchaser took the objection, that, as the proviso 
 clearly contemplated the case of one trustee surviving, an 
 appointment of new trustees after the decease of both the 
 original trustees was not warranted by the power. The pur- 
 chaser abandoned the objection at the hearing without argu- 
 ment — a circumstance much to be regretted, as a judgment 
 from Lord Eldon would have thrown great light upon the 
 subject. However, the case as it stands has been said by 
 the Lord Chancellor of Ireland to be of great authority, viz., 
 in favour of the validity of the appointment (&). 
 
 In another case, where two trustees had been appointed by Power to tenant 
 the settlement, and the power was, that "if either of the arurviring^ or con- 
 trustees should die, or reside beyond seas, or become incapable *™"™s trustee. 
 or unfit to act in the trusts, it should be lawful for the tenants 
 for life, together with the surviving or continuing or acting 
 trustee for the time being, to nominate a new trustee, and that 
 the trust estate should thereupon be vested in the newly appointed 
 trustee, jointly with the surviving or continuing trustee," upon 
 the trusts of the settlement; and one trustee died and the 
 other became bankrupt ; on the suggestion by counsel that 
 there was no surviving or continuing trustee, and therefore 
 the power was gone, the Lord Chancellor of Ireland observed, 
 " That happens in many cases without the power being 
 
 (a) 7 Ves. 547. (h) In re Roche, 1 Conn. & Laws. 308. 
 
574 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 LCH. XXI. 
 
 Bankrupt trus- 
 tee. 
 
 Trustee resident 
 abroad. 
 
 Two trustees 
 retiring, and 
 appointing a sin- 
 gle successor. 
 
 Single trustee 
 retiring, and 
 appointing two 
 to succeed. 
 
 affected. The construction is not so straitlaced as all 
 that " (a). 
 
 It was ruled in the same case, that a trustee who became 
 bankrupt was " unfit " within the words of the power. But if 
 the power be worded "in case the trustee shall become 
 incapable to act,'' without the addition of the words " or unfit," 
 a bankrupt trustee is not withiu the description, for by " in- 
 capable " is meant personal incapacity and not pecuniary 
 embarrassment (&). If a power of appointing new trustees be 
 given to a surviving trustee, and he goes abroad for permanent 
 residence, he may be removed from the office as not in a 
 situation to discharge the duties properly, but if not removed 
 he may execute the power of appointing a new trustee, though, 
 of course, he must do so in this as in every other case, with 
 impartiality as regards the interests of the cestuis que trust (c). 
 
 The Court held in one case that a trustee who went to reside 
 permanently abroad, came within the description of a trustee 
 " incapable to act " {d), but this seems scarcely in harmony with 
 correct principle, residence abroad being rather a question of 
 unfitness than incapacity, and it cannot be reconciled with 
 another decision (e). 
 
 If there be two trustees of a settlement, and both be anxious 
 to retire from the trust at one and the same time, they would 
 not be justified in putting the property under the control of a 
 single trustee appointed in their joint places (/). 
 
 And, vice versa, a single trustee should he wish to retire, 
 cannot, unless expressly authorised by the power, appoint 
 more than a single trustee in his place; for though, in the 
 substitution of more trustees than one, he would be charge- 
 able rather with too much than too little caution, yet, he ought 
 not to clog the estate with any imnecessary machinery. The 
 idea of the settlor may have been, that by increasing the 
 number of the trustees the vigilance of each, individually, 
 would be diminished. "A great number, "^observed Lord 
 
 (o) In re Roche, 1 Conn. & Laws. 
 306 ; 2 Drur. & War. 287. 
 
 (J) jBe Watts' s Settlement, 9 Hare, 
 106; Turner v. Maule, 15 Jur. 761. 
 
 (c) O'Reilly v. Alderson, 8 Hare, 
 101. 
 
 {d) Mennard v. Welford, 1 Sm. 
 & Gif. 426. 
 
 (e) Withington v. Withington, 
 16 Sim. 104. 
 
 (/) Hulme v. Hulme, 2 M. & K. 
 682. 
 
CH. XXI.1 APPOINTMENT OF NEW TRUSTEES. 575 
 
 Mansfield, in. a case where justices had appointed five over- 
 seers instead of four, "may not do business better than a 
 smaller, and it would be attended with more expense " (a). 
 
 In a late case, a testator appointed two trustees, and directed D'Almaine v. 
 " that if the trustees thereby appointed or to be appointed, as 
 thereinafter mentioned, should die, &c., it should be lawful for 
 the surviving or continuing trustee or trustees for the time 
 being, or the executors or administrators of the last surviving 
 or continuing trustee, to appoint one or mote person or persons 
 to be a trustee or trustees iu the room of the trustee or trustees 
 so dying, &c., and thereupon the trust estates should be vested 
 in the new trustee or trustees, jointly with the surviving or 
 continuing trustee or trustees, or solely, as occasion should 
 require." The surviving trustee appointed two trustees in 
 the room of the deceased trustee, and the Vice-Chancellor 
 expressed his opinion that such a case was immediately 
 contemplated by the proviso (6). 
 
 In another case, where the proviso was in the common form. Ex parte Davis, 
 and on the death of all three trustees the donee of the power 
 appointed four new trustees, the Court held that such appoint- 
 ment could not be supported. One of the four trustees so 
 appointed declined to act, but this circumstance did not vary 
 the legal question (c). 
 
 "Where however the Court itself is appointing new trustees Court does not 
 it does not at the present day, though doubts appear to have original number, 
 been formerly felt on the point (d), consider itself bound to fill 
 up only the precise number mentioned in the instrument of 
 trust. It has appointed three trustees where the testator origi- 
 nally appointed two only(e), two where the testator originally 
 appointed one (/), four where he originally appointed three (g). 
 
 In another case, there were originally two trustees only, and Meinertzhageni;. 
 the settlement declared that "in case the said A. B. and C. D. 
 or any of them or any new trustee or trustees to be appointed 
 under that provision, in their or either of their places should 
 depart this life, &c. it should be lawful (in the event therein 
 
 (a) Sex V. Lexdale, 1 Burr. 448. (rf) Bevey v. Peace, Taml. 78. 
 
 {h) D'Almaine v. Anderson, V. (e) Birch v. Cropper, 2 De Gex 
 
 C. Feb. 1, 1841, MS. & Sm. 255. 
 
 (c) Ex parte Davis, 2 Y. & C. Ch. (/) Plenty v. West, 16 Beav. 356. 
 
 Ca. 468 ; S. C. Z Mont. D. & De G. {g) lb. 
 304. 
 
 Davis. 
 
576 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 [CH. XXI. 
 
 Trustees should 
 be within the 
 jurisdiction. 
 
 mentioned) for the acting trustee or trustees for the time being, 
 or the last acting trustee or the executors or administrators of 
 the last acting trustee to nominate any person or persons to 
 supply the place of the trustee or trustees respectively so dying, 
 &c., and that immediately after such appointment the trust 
 estate, &c., should be conveyed, assigned, and transferred, so 
 and in such manner as the same might vest in such new 
 trustee or trustees jointly, with the surviving or continuing 
 trustee or trustees, or solely as the case might require, and in 
 his, her, or their executors, administrators, or assigns, upon 
 the trusts thereinbefore mentioned, and that every new trustee 
 should have and might exercise the same powers and privileges 
 whatsoever as if he had been appointed a trustee by those 
 presents, and as if his name had been inserted in those pre- 
 sents instead of the name of the trustee or trustees, in or to 
 whose place such new trustee or trustees respectively should 
 come or succeed ; " and a power of reimbursement was given 
 " to any one or more of the trustees," and also " to allow to 
 his and their co-trustee or co-trustees,'' the expenses which 
 he or they might incur ; and the two trustees retired, and three 
 trustees were appointed in their place, and Vice-ChanceUor 
 Knight Bruce observed, " Generally, it is true that there ought 
 to be an adherence to the original number of trustees where 
 new trustees are substituted. This is conformable to the pre- 
 sumed intention of the parties, where nothing to the contrary 
 appears, though in the abstract it may be difficult to suggest 
 much inconvenience from appointing three trustees to act id 
 the place of two who are dead. If, however, the instrument 
 is so worded as to authorise an appointment of three trustees 
 to succeed two, of course such an intention appearing must 
 have effect given to it," and his Honor, considering that the 
 instrument contained expressions which could not be inter- 
 preted consistently with_ the notion that two trustees only 
 could be substituted, held the appointment to be valid (a). 
 
 In general the new trustees should be persons amenable to 
 the jurisdiction of the Court, but where the personal property 
 of a lady was settled on her marriage with a foreigner, whose 
 
 (a) Meinertzhagen v. Davis, 1 Coll. 335. 
 
CH. XXI.] APPOINTMENT OF NEW TRUSTEES. 577 
 
 domicile was in America at the time of the marriage, the sub- 
 sequent appointment of three Americans to he trustees was 
 decided to be justifiable {a). But though the parties who have 
 a power of appointment may exercise it in this way, the Court 
 in substituting trustees by its own jurisdiction has refused to 
 appoint new trustees who are out of the jurisdiction (6). 
 
 Should one of two trustees be desirous of retiring, of course One of two trus- 
 
 . tees retiring, 
 
 he cannot do so without the substitution of another in his and appointment 
 place (c), and the power of appointment of new trustees would 
 not authorise the appointment of the continuing trustee as 
 sole administrator of the trust (d) ; for this would, in effect, 
 amount to a relinquishment of the trust without the appoint- 
 ment of any successor (e). 
 
 A surviving trustee cannot be advised, (though it has been Appointment of 
 
 ° ° one trustee in 
 
 sometimes done), to vest the trust estate in himself, and a new the place of 
 trustee appointed in the place of one of several deceased 
 trustees, but should refuse to part with the property unless 
 the original number of trustees be restored. StiU less could 
 the representative of the last surviving trustee be advised to 
 vest the property in a single new trustee nominated in the 
 place of one only of the deceased trustees. And where a 
 settlement appoints three trustees for sale, with a power of 
 appointment of new trustees in the usual form, and two die, 
 and the survivor retires in favour of a single new trustee 
 appointed in his place, it is conceived that as the original 
 settlement constituted three trustees to execute the trust, the 
 donee of the power ought not to have executed the power 
 partially, but to have restored the original number, and in such 
 a case a purchaser would object to the title on a sale by the 
 new trustee (/). The strongest ground for supporting the 
 sale would be, that probably many titles depend on the 
 validity of such an execution of the power. And in a similar 
 case where 43 years had elapsed since the exercise of the 
 power, the appointment was supported (g). 
 
 (a) Meinertzhagen v. Davis, 1 Coll. («) Attorney- General v. Pearson, 
 
 335. 3 Mer. 412, per Lord Eldon. 
 
 (6) Guibert's Trust, 16 Jur. 852. (/) See Earl of Lonsdale v. 
 
 (c) Adams v. Paynter, 1 Coll. 532. Beckett, 4 De Gex & Sm. 73. 
 
 \d) Wilkinson y. Parry, 4 Euss. {g) -Be Pool Bathursfs Estate, 
 
 272. 2 Sm. & Gif. 169 ; and see In re 
 
 Fagg's Trust, 19 L. J. 175. 
 
578 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 [CH. XXI. 
 
 Miller I'.Priddon. 
 
 A surviviDg 
 trustee appoint- 
 ing two trustees 
 in the place of 
 himself and the 
 deceased trustee. 
 
 Case of both 
 trustees wishing 
 to retire. 
 
 Lord Camoys v. 
 Best. 
 
 Power to acting 
 trustees. 
 
 If A. and B. be trustees, and A. dies, and then B. retires 
 and appoints C. a trustee in his own place, and afterwards 
 the donee of the power for the time being appoints C. and 
 D. in the place of A. and B. the two new trustees are properly- 
 appointed and can sign receipts; for either the original ap- 
 pointment of C. was good, and the subsequent appointment of 
 D. filled up the number, or the original appointment of C. was 
 invalid, and then the appointment of both C. and D. by the * 
 donee of the power was effectual (a). 
 
 It sometimes happens where the power of appointment of 
 new trustees is limited to the " surviving or continuing trustee,'' 
 that one trustee dies, and then the other wishing to retire pro- 
 poses to appoint two new trustees at the same time in the place 
 of himself and the deceased trustee. But the practice of the 
 profession is understood to be not to consider such an appoint- 
 ment valid within the words of the power. The surviving 
 trustee ought first to appoint a person in the room of the 
 deceased trustee, and then the person so substituted may, 
 as the continuing trustee, appoint a new trustee in the place 
 of the trustee desirous of retiring. 
 
 So if there be two trustees, and a power of appointing new 
 trustees be given to " the surviving or continuing trustees or 
 trustee, " they cannot both retire at the same time, but there 
 must be two separate appointments (6). 
 
 But where four trustees were appointed originally, and the 
 power was to the surviving or continuing or other trustee, to 
 appoint, it was held that the survivor of the four trustees 
 who desired himself to be discharged, could, by force of the 
 words " other trustee " appoint four new trustees in the place 
 of himself and the three others (c). 
 
 Where persons are nominated as trustees in a Will, and a 
 power of appointing new trustees is given to the " acting " 
 trustees, should all the trustees disclaim, the power of appoint- 
 ment is gone, and the hiatus in the trust can only be filled up 
 by the Court. It has, occasionally, been suggested that the 
 trustees, instead of disclaiming, should accept the trust to the 
 
 (a) Miller v. Priddon, 1 De Gex, 
 Mao. & Gor. 335. 
 
 [b) Stones v.Eowton, 17Beav.303. 
 
 (c) Lord Camoys v. 
 Beav. 414. 
 
 Best, 19 
 
CH. XXI.] APPOINTMENT OF NEW TRUSTEES. 379 
 
 extent of exercising the power only, and should, by virtue of it, 
 appoint new trustees ; but it is conceived that trustees who 
 availed themselves of the office for the purpose only of 
 introducing other parties into the trust would be rather 
 " refusing " than " acting " trustees, and the exercise of the 
 power, under such circumstances, would be fraudulent and 
 nugatory, and might involve the outgoing trustees in serious 
 liabilities. 
 
 "On a change of trustees it is not uncommonly proposed to Appointment of 
 appoint one of the cestuis que trust to that office, but such an o/near relatiT™ 
 arrangement is evidently irregular, as each cestui que trust has "^ "^^^^ i'^ ""^* 
 a right to insist that the administration of the property should 
 be confided to the care of some third person whose interest 
 would not tend to bias him from the line of his duty. Should 
 a bni be filed for the removal of the cestui que trust, and the 
 substitution of some indifferent person as trustee, the costs 
 would probably be thrown upon the parties who had improperly 
 filled up the trust (a). But it is presumed that this rule affects 
 the parties to the trust only, and that if a cestui que trust who 
 has been appointed trustee sell real estate under a power of 
 sale, he may sign a receipt, and that the purchaser is not bound 
 to look to the proper exercise of the discretion in such a case. 
 Cestuis que trust are not absolutely incapacitated from being 
 trustees, as the Court under special circumstances appoints a 
 cestui que trust a trustee (&). The question is merely one of 
 relative fitness. A fortiori, the circumstance of near relation- 
 ship to the cestui que trust creates no absolute disqualification 
 for the office of trustee, though the present Master of the Rolls 
 objects to appoint relatives to be trustees (c). 
 
 "Where estates of a different description, or held under a Of scTerbg a 
 different title, or limited upon different trusts, have been vested "^"^ ^^^ "^' 
 in the same trustees by the settlor, and there is a single power 
 of appointment of new trustees in the usual forin, it is conceived 
 there is no authority for afterwards dividing the trust by the 
 appointment of one set of new trustees to execute the trusts of 
 
 {a) See Passingham v. Sherborne, (c) Wilding v. Bolder, 21 Beav, 
 
 9 Beav. 424. 222. 
 
 (J) Ex parte Glutton, 17 Jur. 988. 
 
 p p 2 
 
580 
 
 APPOINTMENT OP NEW TETJSTEES. 
 
 [CH. XXI. 
 
 Directory 
 powers. 
 
 Tenant for life 
 disposing of his 
 life estate. 
 
 Trustee cannot 
 retire in favour 
 of another who 
 intends to com- 
 mit a breach of 
 trust. 
 
 the one estate, and a distinct set of new trustees to execute the 
 trusts of the other (a). 
 
 The proviso is sometimes of such a directory character as to 
 authorise the appointment of new trustees upon one event, 
 without the intention of confining the exercise of the power to 
 the occurrence of that event exclusively. Thus, where six 
 trustees were empowered, when reduced to three, to fill up the 
 number, and all died but one, it was held competent to the 
 survivor to execute the appointment (6). So, where the 
 original number of trustees was twenty-five, and they were 
 directed, when reduced to fifteen, to proceed to nominate others, 
 it was determined that, when seventeen remained, the survivors 
 might elect, but when reduced to only fifteen they were compell- 
 able to elect (c). It should be observed that these were cases 
 of charitable trusts, in which a degree of latitude is allowed. 
 
 If a tenant for life has a power of appointing new trustees and 
 sells his life interest, it seems the power is gone, for it is 
 unreasonable that he should nominate a trustee to the prejudice 
 of the person to whom he has aliened the beneficial interest. 
 If he has only mortgaged his life interest he may not he able 
 to appoint a trustee behind the back of the mortgagee, but 
 there can be no objection to such an exercise of the power, if it 
 be done with the consent of the mortgagee. 
 
 Advantage cannot be taken of the power for the purposes of 
 fraud; and therefore if a trustee refuse, when solicited, to 
 commit a breach of duty himself, but declare his willingness to 
 resign, in favour of some other person less scrupulous, the 
 Court, acting upon the principle of qui facit per alium facit per 
 se, would hold the trustee who retires responsible for the 
 misbehaviour of the trustee he has substituted {d). And upon 
 principle it would seem that a bond of indemnity given to the 
 retiring trustee would be a very doubtful security against 
 the consequences of the act ; for the bond itself if found to 
 
 (a) See Cole v. Wade, 16 Yes. 
 27 ; In re Anderson, 1 Lloyd & 
 Goold. 27. 
 
 (6) Attorney- General v. Floyer, 
 2 Vern. 748 ; and see Attorney- 
 General y. Bishop of Liclifield, 5 
 
 Ves. 825 ; but see Foley v. Wont- 
 ner, 2 Jao. & Walk. 245. 
 
 (c) Doe V. Soe, 1 Anst. 86. 
 
 {d) Norton y. Pritchard, Reg. 
 Lib. B. 1844, 771. 
 
CH. XXI.] APPOINTMENT OF NEW TRUSTEES. 581 
 
 have been infected with fraud could afford no just ground of 
 action {a). However, in a recent case, it was held by the Court 
 of Exchequer that the common law courts have no such cog- 
 nisance of breaches of trust as to treat a bond of indem- 
 nity against an act amounting in equity to a breach of trust as 
 necessarily containing any thing illegal (b). 
 
 If a new trustee be irregularly appointed, the old trustees may Result where a 
 
 new trustee is 
 
 exercise the powers given to them by the instrument of trust, inefifeotualiy 
 notwithstanding the mere ineffectual attempt (c). But if a *pp°^° ^ • 
 trustee retire upon the appointment of a new trustee, and from 
 want of the proper formalities being observed the appointment be 
 not legal, the old trustee cannot lie by for a long interval and then 
 exercise a power by mere concurrence in a deed, without 
 having Bond fide exercised his own judgment and discretion. In 
 Lancashire v. Lancashire (d) A. and B. were trustees of a will; 
 and in 1831 A. professed to appoint C. in the place of B., but 
 the appointment was invalid. In 1843 a deed of settlement 
 was prepared, by which, after reciting a doubt whether B. had 
 been discharged, and that in order to obviate such doubt, 
 B. had concurred in the propriety of the settlement; A., B., 
 and C, in pursuance of a power contained in the will, con- 
 veyed the trust estate upon certain trusts within the pur- 
 view of the power. B., who since 1831 had taken no part in 
 the trust, at first refused to execute the deed, but afterwards 
 complied upon an indemnity. Lord Cottenham held that the 
 concurrence of B. in the deed was not, under the circum- 
 stances, an execution of the power, for B. had withdrawn from 
 the trust in fact, and C. had not been duly substituted ; and 
 that the mere formal execution of a deed by B. with an indem- 
 nity, was not such an exercise of discretion as the will had 
 -contemplated. We may observe, that if B., on ascertaining 
 that the substitution of C. was nugatory, had actively resumed 
 his duties, and bond fide exercised the power, his Lordship's 
 decision would no doubt have been different. 
 
 If the administration of the trust be in the hands of the Lis pendens. 
 
 (a) See Step. Touch. 132, 371. 622 ; Miller v. Priddon, 1 De Gex, 
 
 (J) Warwick v. Richardson, 10 Hao. & Gor. 335. 
 
 Mees. & Wels. 284. [d) 2 PMU. 657 ; 1 De G. & Sm. 
 
 (e) Warhurton v. Sandys, 14 Sim. 288. 
 
682 APPOINTMENT OP NEW TRUSTEES. [CH. XXI. 
 
 Court, the donee of the power cannot exercise it without 
 having first obtained the Court's approbation of the person 
 proposed (a). However, if the old trustees do appoint without 
 the leave of the Court, the act is not to be considered as 
 altogether void in itself, but it puts the burden upon them 
 of proving, and that by the strictest evidence, that what was 
 done was perfectly right; and also saddles them with the 
 costs of that proof. If the act was not proper, of course the 
 appointment cannot stand (&). 
 HoTT the costs On the appointment of a new trustee under a power, the 
 
 costs fall properly on the corpus of the trust estate, for the 
 benefit enures not only to the tenant for life, but to all the 
 cestuis que trust. This rule may be deduced from the practice 
 of the Court, for on the appointment of new trusteed by the 
 Court, the costs are always thrown upon the estate. Where 
 there is no available fund the costs are often paid by the 
 tenant for life. 
 
 Bill to he dis- III. The trustee may, as a general rule, although the con- 
 
 trast, trary appears to have been at one time supposed, (c) get himself 
 
 discharged from the office by the substitution of a new trustee 
 in his place on application to the Court. A power of appoint- 
 ment of new trustees is very frequently omitted in settle- 
 ments, and were there no means by which a trustee could ever 
 denude himself of that character, it would operate as a great 
 discouragement to mankind to undertake so arduous a 
 task. 
 wTeran bl Where no new trustee can be found willing to act, the 
 
 f"^'^^- trustee's right to be discharged must depend upon the circum- 
 
 stances of the case. "It is a mistalce," observed Lord St. 
 Leonards, " to suppose that a trustee who is entitled to be dis- 
 charged is bound to show to the Court that another person is 
 ready to accept the office ; the Court will at once refer it to the 
 
 (a) Webh v. Earl of Shaftesbury, (J) Attorney -General v. Claek, 1 
 
 7 Ves. 480; Attorney- General v. Beav. 473, ^er Lord Langdale; and 
 
 Clack, 1 Beav. 467 ; Peatfield v. see Cafe v. Bent, 3 Hare, 249. 
 
 Benn, 17 Beav. 522, Middleton v. (c) Hamilton v. Fry, 2. MoU. 
 
 Reay, 7 Hare, 106; Kennedy v. 458. 
 Turnley, 6 Ir. Eq. Rep. 399. 
 
CH. XXI.] APPOINTMENT OF NEW TRT7STEES. 583 
 
 Master to appoint a new trustee. But if no one can' be found 
 who wUl accept the trust, the Court may find itself obliged to 
 keep the old trustee before the Court, but will take care to 
 protect him in the meantime " (a). This was said [in a case 
 where the trustee, from the conduct of the cestui que trust, 
 could claim to be discharged, but if a trustee wish to retire 
 from mere caprice, it is not clear that the Court can or will 
 discharge him, unless another trustee can be found in his 
 place (&). It is certain that the Court cannot divest him of the 
 estate before some one can be found to take it, and even as 
 to the office it is not unreasonable, that if a man once engages 
 to undertake it, he shall not afterwards retire from it without 
 any reason, and so leave the estate without a trustee. But 
 every trustee may, of course, escape from the Habilities of the 
 office by submittiug the administration of the trusts to the 
 jurisdiction of the Court (c). 
 
 The application to the Court to be discharged from the trust How application 
 should in general be made by bill or claim, in order to give the from the trust 
 Court an opportunity of examining into the merits of the '^°°''^ ''' '"^'^'• 
 case {d) ; but if a suit be already pending, the trustee may 
 then solicit his dismissal by petition or motion (e). It was 
 formerly not the custom of the Court to look through the 
 proceedings, but a reference was ordered to the Master (/). 
 Under the present practice the Court, except in cases of special 
 difficulty, usually appoints a trustee without a reference to 
 chambers. 
 
 The costs where the trustee retires from caprice or without Costs. 
 sufficient reason must be borne by himself (jf); but where he 
 retires from necessity, or on good and sufficient ground, they 
 will be thrown upon the trust estate Qi). 
 
 (a) Courtenay v. Courtenay, 3 (e) v. Osborne, 6 Ves. 455 ; 
 
 Jones & Lat. 533, per Lord St. . ^ v. iJoJarfs, 1 J. & W. 251. 
 
 Leonards; and see Forshaw ,v. (y) v. Osborne, uli supra. 
 
 Higginson, 20 Beav. 487. {g) Howard v. Rhodes, 1 Keen, 
 
 (5) Ardill v. Savage, 1 Ir. Eq. 581 ; Porter v. Watts, 16 Jur. 757 ; 
 
 Rep. 79. Hamilton v. Fry, 2 Moll. 458. 
 
 (c) See Forshaw v. Higginson, [h) Greenwood v. Waheford, 1 
 20. Beav. 485. Beav. 681 ; Forshaw v. Higginson, 
 
 (d) See Fx parte Anderson, 5 20 Beav. 486 ; Courtenay v. Courte- 
 Ves. 243 ; In re Fitzgerald, Lloyd nay, .3 Jones & Lat. 529. 
 &Goold,22; In re Anderson,U. 29. 
 
584 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 [CH. XXI. 
 
 General prin- 
 ciple. 
 
 Application by- 
 representative of 
 deceased trustee. 
 
 Complication of 
 the trust by the 
 acts of the tenant 
 for life. 
 
 " If," said Lord Langdale, " a trustee undertakes the per- 
 formance of a trust, he is not entitled, as against the estate he 
 has undertaken to protect, to exercise a mere caprice, and 
 without any assignable reason say that he wiU no longer 
 continue a trustee. On the other hand, if the trustee finds 
 the trust-estate involved in intricate and complicated questions, 
 which were not and could not have been in 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 circum- 
 stances were such as to make it fair for him to decline acting 
 longer upon his own responsibility " (a) ; and to the same 
 effect, the present Master of the Eolls observed, " It is quite 
 clear that any circumstances arising in the administration of 
 the trust, which have altered the nature of his duties, justify a 
 trustee in leaving it, and entitle him to receive his costs; but the 
 circumstances must be such as arise out of the administration 
 of the trustj and not those relating to himself individually " (6). 
 A distinction was taken by Lord Langdale between the case 
 where the same person who accepted the trust comes to be 
 relieved from it, in whom it would be caprice to relinquish the 
 trust without any sufficient reason, and the case where, on that 
 person's death, the trust devolves on his representative by 
 operation of law, and that representative applies to the Court (c). 
 In a case, where the settlement contained a power of appoiut- 
 ment of new trustees, and the tenant for life having incumbered 
 his life-estate with annuities and other charges, the original 
 trustees were desirous of relieving themselves from the 
 difficulties of their situation by retiring from the trust, and 
 the tenant for life who was the donee of the power could 
 not find any person to undertake the trust, the costs of the 
 suit which the trustees had instituted for their discharge were 
 thrown exclusively upon the fund of the tenant for life (d). 
 
 (o) Greenwood v. Wakeford, 1 
 Beav. 581. 
 
 (6) Forshaw v. Higginson, 20 
 Beav. 486. 
 
 (c) 1 Beav. 582 ; and see Aldridge 
 V. Westhroohe, 4 Beav. 212, 
 
 [d) Coventry v. Coventry, 1 Keen, 
 758. 
 
CHAPTER XXII. 
 
 IN WHAT THE ESTATE OF THE CESTUI aUE TRUST 
 PRIMARILY CONSISTS. 
 
 Having concluded the subject of the estate and office of the 
 trustee, it follows next that we investigate the nature and pro- 
 perties of the Estate of the cestvA que trust; and in the present 
 chapter we shall inquire in what the Estate of the cestui que 
 trust primarily consists, 1. In the simple trust ; and, 2, In 
 the special trust. 
 
 SECTION I. 
 
 OF THE CESTUI ftTJE TETJSl's ESTATE IN THE SIMPLE TEITST. 
 
 In the simple trust the equitable ownership is compounded 
 of the pernancy of the profits and the disposition of the estate 
 — the jus habendi and jus disponendi (a). 
 
 1. The equitable owner is entitled to the pernancy of the Cestui que trust 
 
 „ entitled to pos- 
 
 pronts. session of lands. 
 
 Thus in a trust of lands the cestui que trust may compel the 
 
 trustee to put him in possession of the estate (6) ; and if the 
 
 cestui que trust be ejected from the possession by the trustee, 
 
 the cestui que trust may compel the trustee to account not only 
 
 for the rents actually received, but for the amount reserved, 
 
 and which but for accidental deficiencies ought to have been 
 
 paid (c). At the same time it must be borne in mind that the 
 
 possession of the cestui que trust is regarded at law as the 
 
 (a) Smith v. Wheeler, 1 Mod. 17, Attorney- Oeneral v. Lord Gore, 
 per Pemberton, J. Id. 150, per Lord Hardwioke. 
 
 (J) Brown v. JTow, Barn. 354; (c) Kayey. Powel, lYea.jwiAOS. 
 
586 CESTUI QUE tbust's possession, [ch. xxn. s. 1. 
 
 possession of the trustee, to whom he is tenant at will, and in 
 whom the legal seisin stiU continues (a). But the tenancy of 
 the cestui que trust is not determined until the trustee has 
 demanded possession (6) . 
 
 Exceptions to the The rule which gives the cestm que trust the possession 
 is only applicable to the simple trust in the strict sense, for 
 where the cestui que trust is not exclusively interested, but 
 other parties have also a claim, it rests in the discretion of the 
 Court whether the actual possession shall remain with the 
 cestui que trust or the trustee, and if possession be given to 
 the cestui que trust, whether he shall not hold it under certain 
 conditions and restrictions. 
 
 Mate V. Bun- Thus, in Blake v. Bunbury (c), a testator devised all his real 
 
 estate to trustees in fee, upon trust to convey the same for a 
 term of 500 years (the trusts of which were to raise certain 
 annuities and sums in gross), and subject thereto to the use of 
 A. for life with remainders over. A. filed a bill, praying to be 
 let into possession. At the hearing of the cause a general 
 account was directed of the testator's estates and of the charges 
 upon them, and the plaintiff farther desired that he might be 
 let into immediate possession ; but Lord Thurlow said, " It is 
 impossible for me to let him into possession tiU I have the 
 accounts before me, and even tUl the trusts are executed, 
 unless, as he now offers, he pays into Court a sum sufficient to 
 answer all the purposes of the trust. The Court, perhaps, has 
 let tenant for life into possession, where it has seen that the 
 best way of performing the trusts would be by letting him into 
 possession, as where an annuity of lOOZ. a year is charged upon 
 an estate of 5000Z. a year ; but till the account is taken I do 
 not know but the purposes of the trust may take up the whoe 
 and if I was to do it now, perhaps I should only have to resume 
 the estate." The accounts were afterwards taken, and the 
 plaintiff was let into possession on giving security to the 
 amount of IG.OOGL to abide the order of the Court as to the 
 annuities and other incumbrances {d). 
 
 {a) Parker v. Carter, 4 Hare, (c) 1 Ves. jun. 194. See the case 
 
 400 ; Oarrard v. Tuch, 8 Com. more fully stated, lb. 514, 4 B. C. C. 
 
 Bench Re. 231; Melling v. Leah, 21. 
 1 Jur. N. S. 759. ' {d) 8. C. 4 B. C. C. 28. 
 
 (5) Doe V. Phillips, 10 ft. B. Rep. 
 130. 
 
CH. XXII. S. 1.] CESTUI QUE TRUSt'S POSSESSION. 587 
 
 In the case of Tidd v. Lister {a) a testator devised and Tidd v. Lister. 
 bequeathed all his real and personal estate to trustees upon 
 trust to pay his funeral expenses and debts, to keep the 
 buildings upon the estate insured against fire, to satisfy the 
 premiums upon two policies of insurance on the lives of his 
 two sons, to allow his said sons an annuity of sixty guineas 
 each, and subject thereto upon trust for his daughter for life, 
 with remainders over ; and the personal estate having sufficed 
 to discharge the funeral expenses, debts, and annuities, the 
 daughter, who was then a feme covert, filed a bill praying to be 
 let into possession upon securing the amount of the premiums 
 of the policies : but Sir J. Leach said, " It is perfectly plain 
 from the continuing nature of this trust, that the testator 
 intended the actual possession of the trust property should 
 remain with the trustees ; and it did appear to me a singular 
 proposition, that if a testator, who gives in the first instance a 
 beneficial interest for life only, thinks fit to place the direction 
 of the property in other hands, which is an obvious means of 
 securing the provident management of that property for the 
 advantage of those who are to take in succession, it should be 
 a principle in a court of equity to disappoint that intention, and 
 to deliver over the estate to the cestui que trust for life, unpro- 
 tected against that bias which he must naturally have to prefer 
 his own interest to the fair right of those who are to take 
 in remainder. Independently of the purpose of management 
 of the property, a testator may be considered in the case of a 
 female cestui que trust for life as having a further view to her 
 personal -protection in the case of her marriage. There may 
 be cases in which it may be plain from the expressions in the 
 will, that the testator did not intend the property should 
 remain under the personal management of the trustees. There 
 may be cases in which it may be plain from the nature of the 
 property, that the testator could not mean to exclude the cestui 
 que trust for life from the personal possession of the property, 
 as in the case of a family residence. There may be very special 
 cases in which this Court would deliver the possession of the 
 property to the cestui que trust for life, although the testator's 
 
 (a) 5 Mad. 429. 
 
Milford. 
 
 588 CESTUI QUE trust's possession. [CH. XXII. S. 1. 
 
 intention appeared to be that it should remain with the trustees ; 
 as, where the personal occupation of the trust property was 
 beneficial to the cestui que trust, there the Court, by taking 
 means to secure the due protection of the property for the 
 benefit of those in remainder, would in substance be performing 
 the trust according to the intention of the testator." And his 
 Honor refused the application. 
 Jentins v. In Jenkins v. Milford (a) A. granted certain annuities to B. 
 
 with powers of distress and entry, and demised an estate for 
 200 years to C. upon trust, to permit A. to receive the rents 
 until the annuities should be in arrear forty days, and, when 
 in arrear for that period, out of the rents, issues, and profits, 
 or by demising, assigning, or otherwise disposing of the term, 
 or by bringing actions against the tenants, or by such other 
 means as should seem meet, to raise the arrears of the annuities, 
 and to pay the surplus, if any, to the grantor. The annuities 
 fell in arrear, and the trustee gave notice to the tenants to pay 
 the rents to himself, and appointed a receiver, to whom the 
 rents were afterwards paid. A. discharged the arrears of the 
 annuities, and then applied to the trustee to deliver up the 
 possession, which was refused. The point was submitted to 
 the judgment of the Court, and Lord Eldon said, " If you look 
 to the powers of distress and entry, you will not find in either 
 of them that any thing is said respecting the grantor's being 
 permitted to receive the rents, or what is to be done with the 
 surplus. The first trust of the term is to permit the grantor to 
 receive the rents, but that is different from a trust allowing him 
 to continue in possession. Under this deed, though the trustee 
 has the legal estate, he has no right to the use of it, untU 
 default has been made in payment of the annuities for forty 
 days ; but then he becomes a trustee both for the grantor and 
 the grantee — for the latter to raise the arrears, and, to do that, 
 he is entitled to take the rents. If he takes more rents than 
 are suf&cient to satisfy the arrears, he is bound to pay the 
 surplus to the grantor ; if he receives enough for that purpose, 
 he is bound to permit and suffer the grantor of the annuities 
 to receive the remainder ; and it is a very different thing for 
 
 (a) IJ. & "W. 629. 
 
CH. XXn. S. 1.] CESTUI QUE TRUST'S POSSESSION. 589 
 
 the grantor to have that species of possession, and one which 
 cannot be disturbed without another ejectment being brought. 
 In this case, therefore, I must either appoint a receiver, or 
 compel the trustee so to authorise the grantor to receive the 
 rents and profits, that he shall have the full benefit of them, 
 short of obliging the trustee to bring an ejectment to remove 
 him. An undertaking on the part of the grantor to deliver up 
 possession when the annuities are in arrear for forty days is not • 
 suflScient, for the Court may not be able to carry that into 
 execution ; as, for instance, in the case of the grantor's going 
 out of the jurisdiction. If the grantor is made to receive the 
 rents in the name of the trustee, it will not signify what becomes 
 of the grantor, as the trustee may in that case receive them as 
 well as he." And on a subsequent day his Lordship observed, 
 " The grantor must receive the rents so as to preserve the pos- 
 session of the trustee under the term. The rents must be 
 received by him as the agent of the trustee, and the receipts 
 must be given in his name." And the order was that the 
 trustee should permit the grantor to receive the rents until the 
 further order of the Court ; but such rents were to be received 
 by the grantor in the name of the trustee, and the receipts for 
 the same were to be given accordingly ; and the grantor was to 
 be at liberty to use the name of the trustee in making and 
 supporting distresses for rent, the grantor indemnifying the 
 trustee from all costs and damages. 
 
 In Baylies v. Baylies {a) the testator devised his freehold, Baylies v. Bay- 
 copyhold, and leasehold estates to two trustees, upon trust, to 
 let and set the same, and receive the rents, issues, and pro- 
 fits thereof, and thereout to pay the expenses of renewals 
 and repairs, and other outgoings ; and subject thereto, to pay 
 the rents, issues, and profits to the testator's widow, for her life, 
 for her sole and separate use, without power of anticipation. 
 The trustees had improperly made an agreement for a lease, 
 and the widow filed a bill to have the lease set aside, and that 
 the plaintiff might be admitted tenant upon giving security 
 for repairs and renewals, &c. and for a receiver. The lease 
 
 (a) 1 Coll. 537 ; and see Denton v. Denton, 1 Beav. 388 ; Pugh v. 
 Vaughan, 12 Beav. 517. 
 
590 
 
 CESTUI QUE trust's POSSESSION. [CH. XXII. S. 1. 
 
 Cestui que trust 
 for her separate 
 iiae. 
 
 Cestui que trust 
 cannot recover 
 the poesession at 
 law. 
 
 was set aside, and the Court considered that the plaintiff, upon 
 giving security for the due performance of the objects of the 
 Will, ought not to be disturbed in the possession, and for that 
 purpose it was referred to the Master to appoint a receiver 
 without salary, and if the Master should approve of a person 
 proposed by the plaintiff, such person was to be appointed in 
 preference, and possession delivered to him, and the plaintiff 
 was to give security for the payment of the costs of renewals, 
 repairs, and other outgoings, until her death, or further order; 
 and the receiver was to give the plaintiff the option of being 
 tenant, reserving to the receiver a power of inspecting the 
 estate and condition of the property. 
 
 In another case, a feme covert was entitled to her separate 
 use for her life, and it was not thought incompatible with the 
 nature of such an estate that she should be put in possession, 
 though the claim was opposed by the trustees (a). 
 
 The cestui que trust's right to the possession is recognised, 
 we must remember, in a court of equity only ; for in a court of 
 law the cestui que trust is merely tenant at wiU (&). The 
 doctrines advanced by Lord Mansfield in the last century have 
 been long since overruled. It was maintained in his day, that 
 a cestui que trust, a plaintiff in ejectment, could not be non- 
 suited by a term outstanding in his trustee (c) ; and that a 
 trustee, a plaintiff in ejectment, could not recover against his 
 own cestui que trust (d)- It was even decided, that, where a 
 term had been created for securing an annuity, and subject 
 thereto upon trust to attend the inheritance, the tenant of the 
 freehold was entitled to recover the possession (provided he 
 claimed subject to the charge), notwithstanding the legal term 
 was outstanding in a trustee upon trusts that were still unsatis- 
 fied (e). Such at least were the doctrines in cases of clea/r 
 trusts : for where the equity was at aU doubtful, the rights 
 
 (a) Horner v. Wheelwright, 2 
 Jur. N. S. 367. 
 
 (i) Garrard v. Tuck, 8 Com. B. 
 Re. 231 ; Melting v. Leak, 1 Jur. N. 
 S. 759 ; and see Oeary v. Searcroft, 
 0. Bridge. 486-490; Bao. Us. 5; 
 Doey, Jones, 10 B. & Cr. 718 ; Doe 
 V. M'Kaeg, 10 B. & Cr. 721. 
 
 (e) Lade v. Halford, B. N. P. 
 110. The doctrine is said to have 
 originated with Mr. Justice Gundy. 
 
 {d) Armstrongs. Peirse, 3 Burr. 
 1901. 
 
 (e) Bristoto v. Pegge, 1 T. B. 
 758, note (a) ; overruled by Doe v. 
 Staple, 2 T. E. 684. 
 
CH. XXU. S. 1.] CESTUI QUE TRUSt's POSSESSION. 591 
 
 of the parties were even then referred to the proper tri- 
 bunal (a). 
 
 " Lord Mansfield," as was observed on one occasion by Lord 
 Eedesdale, "had on his mind prejudices derived from his 
 familiarity with the Scotch law, where law and equity are 
 administered in the same courts, and where the distinction 
 between them which subsists with us is not known, and there 
 are many things in his decisions which show that his mind had 
 received a tinge on that subject not quite consistent with the 
 constitution of England and Ireland in the administration of 
 justice" (6). 
 
 The law has accordingly since retired into its regular Doctrines of pre- 
 channel, and at the present day we may regard it as estab- ^®° ^' 
 lished : — First, that a cestui que trust cannot recover in eject- 
 ment (c), unless a surrender to him of the legal estate can be 
 reasonably presumed (d), (which of course cannot be where the 
 circumstance of the outstanding legal estate appears on the 
 declaration or special case (e),) and the cestui que trust has no 
 alternative but to bring his action in the name of the trustee, 
 who must be indemnified against the costs (/) : Secondly, that the 
 trustee, as the tenant of the legal estate, may recover in eject- 
 ment from his own cestui que trust (g) ; and the cestm que trust 
 has no defence to the action at law, but must have recourse to 
 an injunction in equity {h). 
 
 The title deeds of an estate form no part of the usufructuary Possession of the 
 enjoyment; and therefore if an estate be vested in trustees 
 upon strict settlement, and the deeds be delivered into their 
 
 ft 
 
 (a) Doe V. Pott, Doug. 695, per following pages; Roe v. Reade, 8 
 
 Lord Mansfield; GoodrightM. Wells, T. R. 122. 
 
 Id. 747, per eundem. (e) Qoodtitle v. Jones, 7 T R. 
 
 (6) Shannon v. Bradstreet, 1 Soh. 43 ; see Doe v. Staple, 2 T. R. 696 ; 
 
 & Lef. 66. Roe v. Reade, 8 T. R. 122. 
 
 (c) Doe V. Staple, ubi supra ; see (/) Annesley v. Simeon, 4 Mad. 
 Barnes v. Crow, 4. B. C. C. 10 & 390 ; and see Reade v. Sparkes, 
 11; Doe V. Syhourn, 7 T. R. 3 ; 1 Moll, 11; Jenkins v. 3fil/ord, 
 Qoodtitle v. Jones, 7 T. R. 45, and 1 J. & W. 635 ; Bx parte Little, 3 
 following pages; Doe v. Wroot, 6 Moll. 67. 
 
 East, 138. (g) See Roe v. Reade, 8 T. R. 
 
 (d) Doe V. Syhourn, 7 T. R. 2; 122, 123. 
 
 see Doe v. Staple, 2 T. R. 696, {h) Shine v. Oough, 1 B. & B. 
 
 Qoodtitle v. Jones, 7 T. R. 45, and 445. 
 
592 
 
 CESTUI QUE TEUST'S EIGHT TO VOTE. [CH. XXH. S. 1. 
 
 Privileges of 
 cestwi qybe trust. 
 
 Qualification of 
 cestui que trust 
 to be a juror. 
 
 As to right of 
 cestui que trust 
 to vote for a 
 coroner. 
 
 possession, they have a right to the custody of them for the 
 benefit of all parties interested (a). Should the tenant for life 
 obtain them from the trustees, and thereby be enabled to deal 
 with the estate as absolute owner, the trustees, if it appeared 
 they had acted fraudulently, or under such gross negligence as 
 amounted to constructive fraud, would be held personally 
 responsible for the consequences (6). In case the title deeds 
 had come originally into the hands of the equitable tenant for 
 life, it is conceived that the trustees, as the owners of the legal 
 freehold, could recover them in an action of trover, and it is at 
 least doubtful whether the tenant for life, if there were no special 
 circumstances, could obtain an injunction to restrain it (c). 
 
 Upon the principle that the cestui que trust is foro con- 
 scienticB entitled to the pernancy of the profits, he has been 
 invested by the express language of some statutes, and by the 
 equitable construction of others, with the various privileges 
 conferred by the legislature upon the legal tenants of real 
 estate. 
 
 By the 6th Geo. S, c. 50, s. 1, " Every man between the age 
 of 21 and 60, residing in any county in England, who shall 
 have in his own name or in trust for him within the same 
 county IQl. by the year, above reprises, in real estate, &c. &c.," 
 is quahfied to serve as a juror. 
 
 The election of a coroner is a right vested in the freeholders 
 of the county; and upon principle the privilege of voting, 
 must it is conceived have belonged originally to the legal 
 freeholder. However, by the 58th Geo. 3, c. 95, s. 2, it was 
 enacted that no person should be allowed to have any vote 
 for or by reason of any trust estate or mortgage unless such 
 trustee or mortgagee should be in actual possession or receipt 
 of the rents and profits, but that the cestui que trust or 
 mortgagor in possession should vote for the same estate. 
 It is somewhat singular that upon the repeal of the 58 Geo. 
 
 (a) See Suncombe v. Mayer, 8 
 Ves. 320. 
 
 (i) See Bvans v. Bicknell, 6 Ves. 
 174. 
 
 (c) See Denton v. Denton, 7 Beav. 
 388. Where the estates are legal. 
 
 the person in possession of the deeds, 
 whether tenant for life or remainder- 
 man, may hold them. The rule is, 
 who first takes, he keeps. Foster v. 
 CraU, 12 Com. Ben. Re. 136. 
 
CH. XXU. S. 1.] POSSESSION OF TRUST CHATTELS. 593 
 
 3 c. 95, ty the late Coroners Act (a), the provision re- 
 ferred to was not re-enacted, and although it is laid down 
 in a text book of high legal authority (6) that there can be no 
 doubt that at the common law an equitable estate of freehold 
 •confers the right "of voting, the position thus asserted is not 
 only opposed to principle hut to the express views of Lord 
 Chancellor Northington (c), and in the absence of any more 
 recent statutory enactment the right of voting is, it is con- 
 ceived, now vested in the trustee. 
 
 By the Game Act, 23 & 23 Car. 2. c. 25, s. 3, persons Eight of cestui 
 
 T ^■ll ^ r i- i iii,j7j que tnist to Bmrt 
 
 were disquaufied from sportmg unless they had lands „ndertlieold 
 
 and tenements &c., &c. of the clear value of lOOJ. per '^'^■ 
 
 annum ; and it was decided that a cestui que trust of lands 
 
 to that amount was within the intention of the act. Lord 
 
 Mansfield observing, that " the privilege was given to property, 
 
 and the cestui que trust was substantially the owner, and the 
 
 trustee only nominally" {d). By the provisions of the late 
 
 Game Act no qualification is now necessary (e). 
 
 By the 6th Vict. c. 18, s. 74, " no trustee of lands or tene- Right of cestui 
 
 ments shall in any case have a right to vote in any such at election fof^ 
 
 election (i. e., for a member of parliament) for or by reason of ^fembers of par- 
 
 ^ . -^ ' •' _ hament. 
 
 any trust estate therein, but the cestui que trust in actual 
 
 possession, or in the receipt of the rents and profits thereof, 
 though he may receive the same through the hands of the trustee, 
 shall and may vote for the same notwithstanding such trust" (/). 
 
 Hitherto we have spoken of the cestui que trust's right to Cestui que trusi's 
 the profits and privileges proceeding from lands. In trusts of chattels?" " 
 chattels personal, as where heirlooms are vested in a trustee 
 upon trust for the persons successively entitled under the limi- 
 tations of a strict settlement, the cestui que trust for the time 
 being is equally entitled to the use and possession of the 
 goods during the continuance of his interest ; and upon the 
 ground of this right the goods are not forfeited on the bank- 
 
 (o) 7 & 8 Vict. c. 92. Reference {d) Wetherell v. Hall, Cald. 230. 
 
 to this statute at p. 269 supra, has (e) 1 & 2 "W. 4. c. 32. 
 
 inadvertently been omitted. (/) See the statutory changes on 
 
 (J) Jervis on Coroners, by Welshy, this subject traced, pp. 270, 271, 
 
 2nd Ed. p. 24. supra. 
 
 (c) Burgess v. Wheate, 1 Ed. 251. 
 
 Q Q 
 
funds, 
 
 594 BECEIPT OF DIVIDENDS. [CH. XXn, S. 1. 
 
 ruptcy or insolvency of the tenant for life, though left in the 
 possession of the bankrupt or insolvent by permission of the 
 legal owner, for they are left with him according to the title (a). 
 
 Household goods. Where the chattels are mere household goods, it seems the 
 cestui que trust may use them in his own or in any other 
 person's house, and either alone or promiscuously with other 
 goods, or may let them out to hire (6) ; but, where the chattels 
 are heirlooms annexed to a house, and their continuance in the 
 mansion is evidently a constituent part of the trust, they cannot 
 be let to hire but together with the house itself (c). Of 
 course the use of the chattels by the tenant for life does 
 •not enable him to pawn them beyond the extent of his own 
 interest {d). 
 
 stock in tlie Where the trust fund consists of stock, the cestui que trust 
 
 is usually put in possession of the dividends by a power of 
 attorney from the trustee to the cestui que trust's bankers, with 
 a written authority from the trustee to the bankers to credit 
 the cestui que trust with the dividends as and when received, 
 by which arrangement the trustee is spared the trouble of 
 repeated personal attendances at the Bank of England, and 
 the entries in the books of the private bankers are sufficient 
 evidence of the receipt. In cases where the cestui que trust 
 is tenant for life, this course seems free from objection; but 
 where his interest is one which may determine in his life-time 
 some risk is incurred of the power of attorney and authority 
 being acted upon by the bankers after the determination of 
 the cestui que trust's estate ; and it is conceived that the 
 trustee would be liable to the other cestuis que trust for any 
 misappropriation thus taking place, though after his own 
 death. Of course the trustee will be careful to see that the 
 power of attorney extends only to the receipt of the divi- 
 dends, and not to the sale of the stock itself; otherwise, if the 
 bankers sell out the stock and the proceeds be misapplied, the 
 trustee will of course be answerable (e). 
 
 (a) See supra, p. 211. (d) Hoare v. Parker, 2 T. E. 
 
 (J) Marshall v. Blew, 2 Atk. 376. 
 
 217. (e) See Sadler v. Lee, 6 Beav. 
 
 (c) Cadogan v. Kennet, Cowp. 324, 
 432. 
 
Ca. XXn. S., l.J JUS DISPONENDI. 595 
 
 3. The cestui que trust has jus disponendi, that is, may call Oestai que trust's 
 upon the trustees to execute conveyances of the estate as the tifn'omrSi 
 cestui que trust directs (a). If the trustee refuse to comply, estate, 
 and the cestui que trust file a bill to compel him, the trustee 
 will be visited with the costs (b), unless there was some reason- 
 able ground for his refusal (c), or he acted bond fide under the 
 advice of counsel (ci), and the trustee will have to pay the costs, 
 though the cestui que trust, instead of filing a bill, might have 
 enforced a conveyance by the summary process of a petition (e). 
 But a trustee has a right to be satisfied by the fullest evidence 
 that the party requiring the conveyance is the exclusive cestuji 
 que trust (/). Of course a cestui que trust cannot call for the 
 conveyance of a larger legal estate than he has equitable : 
 thus a tenant in tail of the trust cannot call for a convey- 
 ance of the legal fee simple (g). And Lord Eldon was of 
 opinion that a cestui que trust could not require the trustee to 
 divest himself from time to time of difi'erent parcels of the 
 trust estate ; for the trustee had a right to say, " If you mean 
 to divest me of my trust, divest me of it altogether, and 
 then make your conveyances as you think proper " (h). And 
 a trustee, like a mortgagee, cannot be called upon to convey 
 the estate by any other words or description than that by 
 which the conveyance was made to himself (i). 
 
 (a) Payne v. Barker, Sir 0. have been mooted in the case and 
 
 Bridgm. Rep. 24. rtiled as reported, yet the question 
 
 (S) Jones V. Lewis, 1 Cox, 199; in the cause was a different one, viz., 
 
 Willis V. Siscox, 4 M. & Cr. 197 ; whether under the circumstances 
 
 Thorhy v. Teats, 1 Y. & C. Ch. Ca. the plaintiff was entitled to call for 
 
 438 ; Penfold v. Boucher, 4 Hare, a conveyance of the legal estate even 
 
 271; and see Campbell v. Some, to him, and " the heirs of his body.'' 
 
 1 Y. & C. Ch. Ca. 664. See note by Raithby, correcting the 
 
 (c) Ooodson V. Ellisson, 3 Euss. tezt from the Reg. Book. 
 
 583 ; Poole v. Pass, 1 Beav. 600. Qi) Ooodson v. Ellisson, 3 Russ. 
 
 (d) Angier v. Stannard, 3 M. & 594 ; and see Smith v. Snow, 3 
 K. 566 ; and see Bevey v. Thornton, Mad. 10. But if the cestuis que 
 9 Hare, 232 ; Field v. Donoughmore, trust of a fund as tenant for life and 
 1 Dru. & War. 234. remainderman assign part of the 
 
 (e) Watts V. Turner, 1 R. & M. fund for valuable consideration, it 
 634. is conceived that the trustee cannot 
 
 (/) Holford V. Phipps, 3 Beav. refuse to transfer that part to the 
 434. 
 
 {g) Saunders v. Neville, 2 Vern. (?) Ooodson v. Ellisson, uhisupra, 
 
 428. But though this point may 
 
 « Q 2 
 
596 
 
 CONVEYANCE BY TRUSTEES. 
 
 [CH. xxn. s. 1. 
 
 Trustee's 
 Teyance. 
 
 Trustee to bar 
 dower. 
 
 A series of equit- 
 able interests. 
 
 Trustees for 
 appointees. 
 
 In a conveyance by trustees the word " grant " used fre- 
 quently to be omitted, as supposed, though erroneously (a), 
 to contain a warranty; or the trustees were made "by way of 
 conveyance, and not by way of warranty," to " grant; " or the 
 conveyance was qualified by the insertion of the words 
 " according to their estate and interest as such trustees." All 
 doubt on the subject is now removed by the 4th section of the 
 8 & 9 Vict. c. 106, which enacts that the word "grant" 
 shall not imply any covenant in law except so far as the same 
 may, by force of any Act of Parliament, imply a covenant. 
 
 A trustee to bar dower is or is not called upon to join in a 
 conveyance, according to the circumstances of the case. The 
 rule is understood to be, that where a power of appointment is 
 exercised besides the common law conveyance, his joining is 
 dispensed with ; but where, no power being exercised, the fee 
 cannot be passed without his concurrence, he is made a party (6). 
 
 In general there are no intermediate steps of the equi- 
 table interest, so that if A. be trustee for B., who is trustee 
 for C, A. holds in trust for C, and must convey the estate 
 as C. directs (c). But if any special confidence or discretionary 
 power be reposed in B., which imposes the necessity of his 
 taking the legal estate, he may then call upon the original 
 trustee to execute a transfer to himself {d). 
 
 Where trustees hold a fund upon such trusts as a person 
 by an instrument to be executed in a particular manner may 
 appoint, they must be careful- in transferring it to the ap- 
 pointees to see that all the formalities attending the power 
 have been duly observed, for if the execution of it be not 
 regular, the trustees, except in those cases where courts of 
 equity aid a defective execution, will be personally liable for 
 the fund to the parties claiming in default of the power (e). 
 
 (a) Co. Litt. 384 a; the York- 
 shire Eegistry Acts, however, 6 
 Anne, o. 35, and 8 G. 2, o. 6, give 
 the force of covenants for title to 
 the words "grant, bargain, and sell." 
 
 (J) See 1 Sug. Pow. 245, et seg. 
 
 (c) Head^. Lord Teynham, 1 Cox, 
 57; andsee— V. JFa//bj-(i,4Russ.3'72. 
 
 {d) Wetherell v. Wilson, 1 Keen, 
 86 ; Cooper v. Thornton, 3 B. C. C. 
 
 96, 186 ; Woods v. Woods, 1 M. 
 & C. 409 ; Angier v. Stannard, 
 3 M. & K. 571 ; Onslow v. Wallis, 
 16 Sim. 483, 1 Mae. & Gor. 506; 
 
 • V. Walford, 4 Uuss. 372; Pool 
 
 v. Sharp, 1 Beav. 600. 
 
 (e) Hopkins v. Myall, 2 R. & M, 
 86; Cocker v. Quayle, 1 E.. & M. 
 535 ; Beid t. Thompson, 2 Ir. Ch, 
 Ee. 26. 
 
CH. XXII. S. S.j ESTATE IN THE SPECIAL TEXJST. 597 
 
 SECTION II. 
 
 OP THE CESTUI Q,1JE TEUST's ESTATE IN THE SPECIAL lETTST. 
 
 This may be said to be, The right to enforce in equity the 
 specific execution of the settlor's intention to the extent of that 
 cestui que trusts particular interest. The other parties entitled 
 may express a desire that the trust should be differently 
 administered ; but if such a divergence from the donor's will 
 would prejudice or injuriously affect the rights of any one 
 cestui que trust, that cestui que trust may compel the trustees 
 to adhere strictly and literally to the line of duty prescribed 
 to them (a). 
 
 If there be only one cestui que trust, or there be several cestuis Special trust may 
 
 • T /• • ■ • \ 1 -n ^^ converted into 
 
 que trust, and all of one mmd (m each case smjuns), the specific a simple trust. 
 execution may be stayed, and the special trust will then acquire 
 the character of a simple trust ; for whatever modifications of the 
 estate the settlor may have contemplated, through whatever 
 channel he may have originally intended his bounty to flow, 
 the cestuis que trust, as the persons to be eventually benefited, 
 are in equity, from the creation of the trust, and before 
 the trustees have acted in the execution of it, the absolute 
 beneficial proprietors. Thus if a fund be given to trustees 
 upon trust to accumulate until A. attains twenty-four, and then 
 to transfer the gross amount to him, A. on attaining twenty-one 
 may, as the party exclusively interested, call for the immediate 
 payment (b). So if a legacy be bequeathed to trustees upon 
 trust to purchase an annuity, the intended annuitant, if sui 
 juris, may claim the legacy (c). So if a fund be vested in 
 trustees in trust for the personal support, clothing, and main- 
 tenance of A., an adult, A. is exclusively entitled to the benefit 
 
 (a) See Deeth v. Sale, 2 Moll. Zukin, 5 Bea,Y. 14:7; Mocker. Hocke, 
 
 317. 9 Beav. 66. 
 
 (J) Josselyn v. Josselyn, 9 Sim. (c) Dawson v. Seam, 1 R. & M, 
 
 63 ; Saunders v. Vautier, 4 Beav. 606, and oases there cited. 
 115 ; Cr. & Ph. 240 ; see Curtis v. 
 
598 
 
 ESTATE IN THE SPECIAL TRUST. [CH, XXH. S. 2. 
 
 Pearson i). Lane. 
 
 Special trnst pro- 
 ceeds till counter- 
 
 of the fund, and if he take the benefit of the Insolvent Act it 
 passes to his assignees in insolvency (a). 
 
 In Pearson v. Lane (6), before Sir W. Grant, a convey- 
 ance had been made to trustees upon trust to sell, and with 
 the proceeds to purchase other lands to be settled on the 
 daughters of W. J. as tenants in common in tail, with remainder 
 to them in fee. The daughters levied a fine of the lands to be 
 sold to the uses and upon the trusts of their respective marriage 
 settlements. It was doubted whether the entail had been 
 effectually barred ; but Sir W. Grant said, " It is clear, if the 
 estate had been sold, and another estate purchased, the 
 daughters would have been tenants in tail, with immediate 
 remainders to themselves in fee. It is true in the lands to be 
 sold they had no interest, legal or equitable, expressly limited 
 to them : but the equitable interest in those lands must have 
 resided somewhere : the trustees themselves could not be the 
 beneficial owners ; and if they were mere trustees, there must 
 have been some cestuis que trust. In order to ascertain who 
 they are, a court of equity inquires for whose benefit the trust 
 was created, and determines that those who are the objects of 
 the trust have the interest in the thing which is the subject 
 of it. Where money is given to be laid out in land, which is 
 to be conveyed to A., though there is no gift of the money to 
 him, yet in equity it is his, and he may elect not to have it 
 laid out : so, on the other hand, where land is given upon trust 
 to sell, and pay the produce to A., though no interest in the 
 land is expressly given to him, in equity he is the owner, and 
 the trustee must convey as he shall direct : if there are also 
 other purposes for which it is to be sold, still he is entitled to 
 the surplus of the price, as the equitable owner subject to those 
 purposes ; and if he provides for them, he may keep the estate 
 unsold. The daughters electing to keep this estate, they 
 acquired the fee, and it was discharged of every trust to which 
 it had been subject." 
 
 But until the cestui que trust, or the joint cestuis que trust, 
 countermand the specific execution, the special trust will 
 
 (a) Younghusband v. Gishorne, 1 (i) 17 Ves. 101. 
 
 CoU. 400. 
 
CH. XXII. S. 3.] ESTATE IN THE SPECIAL TEUST. 699 
 
 proceed; as if lands be devised to trustees upon trust to mandedbytiie 
 sell, and pay the proceeds to A., the property will remain "' "' ^"' 
 personal estate in A, until he discharge the character impressed 
 upon it by electing to take it as land (a). 
 
 As an incident to the beneficial enjoyment of his interest by Accounts. 
 the cestui que trust, he has a right to caU upon the trustee for /if^*-^^ '^-^X 
 accurate information as to the state of the trust (&). Thus in 
 a trust for sale for payment of debts, the party entitled, subject 
 to the trust, may say to the trustee, what estates have you sold ? 
 what is the amount of the moneys raised? what debts have 
 been paid ? &c. (c). It is therefore the bounden duty of the 
 trustee to keep clear and distinct accounts of the property he 
 administers, and he exposes himself to great risks by the 
 omission (cQ. It is the first duty, observed Sir T. Plumer, of 
 an accounting party, whether an agent,' a trustee, a receiver, or 
 an executor (for in this respect they all stand in the same 
 situation) to be constantly ready with his accounts (e). 
 
 A legatee, who is a quasi cestui que trust, is entitled to have Legatee. 
 a satisfactory explanation of the state of the testator's assets, 
 and an inspection of the accounts, but not to require a copy of 
 the accounts at the expense of the estate (/). 
 
 When it is said that each cestui que trust may compel the Unla-wful trust. 
 specific performance of the trust to the extent of his own 
 interest, it is of course understood that the trust is of such a 
 lawful description, that the Court will not, on grounds of public 
 policy, refuse to recognise its existence (g). 
 
 (o) See Walter v. Maunde, 19 {d) Freeman v. Fairlie, 3 Mer. 
 
 "Ves. 429. 43, per Lord Eldon. 
 
 (J) Walker y. Symonds, 3 Sw. 58, (e) Pearse v. Green, 1 J. & "W. 
 
 per Lord Eldon ; Newton v. Askew, 140 ; and see Hardwieh v. Vernon, 
 
 11 Beav. 152; Gray v. Haig, 20 14 Ves. 510; White v. Lincoln, 8 
 
 Beav. 219; Burrows v. Walls, 5 Yes. 363; Turner v. Corney, 5 
 
 De Gex, M. & G. 253. Beav. 515. 
 
 (c) Clare y. Ormond, Jac. 120, {/) Ottley v. Gilby, 8 Beav. 602. 
 
 per Lord Eldon. {ff) See supra, ch. vi. 
 
CHAPTEK XXIII. 
 
 PROPERTIES OF THE CESTUI QUE TRUST'S ESTATE. 
 
 We shall next enter upon the properties of the cestui que- 
 trust's estate as affected by the acts of the cestui que trust, or 
 by operation of law. 
 
 SECTION I. 
 
 OF ASSIGNMENT. 
 
 An equitable interest may be assigned, though it be a mere 
 possibility (a), and either with or without the intervention of 
 the trustee (6) ; and the assignee of the cestui que trust may 
 call upon the trustee to convey to him, and on his refusal 
 may file a bill to compel a conveyance without making the 
 assignor a party (c). 
 Form of assign- Before the Statute of Frauds (c?), the transfer might have 
 been made by parol ; but now, by the ninth section of that 
 Act, all grants and assignments of any trust or confidence are 
 required to be in writing, signed by the party granting or assign- 
 ing the same, or else are declared utterly void. But though a 
 deed be not absolutely necessary, it is the practice, ex. majori 
 cauteld, to employ the same species of instrument, and adopt 
 the same form of words, in the transfer of an equitable as in 
 the conveyance of a legal estate. 
 
 (a) Courthope v. Heyman, Cart. (c) Ooodson v. Ellisson, 3 Russ. 
 
 25 ; Warmstrey v. Tanfield, 1 Ch. 583. 
 
 Re. 29 ; Goring v. Sichentaff, 1 Ch. {d) 29 Car. 2, c. 3. And By the- 
 
 Ca. 8 ; Cornhury v. Middleton, ib. 8th & 9th Vict. c. 106, s. 3, assign- 
 
 211,^er Judges Wyld and Rainsford; ments of chattel interests in land 
 
 Bm-gess v. Wheate, 1 Ed. 195, per other than copyhold are void at late 
 
 Sir T. Clarke ; 21 Yin. Ab. 516, pi. 1. unless made by deed. 
 
 (5) Philips v. JBrydges, 3 Ves. 
 127, 2><!r Lord Alvanley. 
 
 ment. 
 
ca. xxni. s. 1.] equitable entail. 601 
 
 The power of an equitable tenant in tail to dispose of the Disposition of an 
 equitable fee has been differently modified at different periods, 
 and some account of the fluctuation of the law in this respect 
 may serve to illustrate the general principles upon which trusts 
 have been administered. 
 
 At common law all inheritable estates were in fee simple, History of the 
 and it was the statute de donis (a) that first gave rise to entails 
 and expectant remainders. As this statute was long prior to 
 the introduction of uses, had equity followed the analogy of the 
 common law only, a trust limited to A. and the heirs of his 
 body, with remainder over, had been construed a fee simple 
 conditional, and the remainder had been void ; but the known 
 legal estates of the day, whether parcel of the common law or 
 ingrafted by statute, were copied without distinction into the 
 system of trusts, and, equitable entails indisputably existing, 
 the question in constant dispute was, by what process they 
 should be barred. 
 
 In legal entails the only modes of unfettering the estate 
 were by fine or recovery. A fine was by statutory enactment 
 conclusive on all privies, and therefore a cestui que trust, 
 though he had not the freehold, could nevertheless have barred 
 his issue, who were his privies in blood and estate. A reco- 
 very had no operation unless the tenant to the prcecipe was 
 seised of the legal freehold in possession, and as the cestui que 
 trust had merely a right, and not a freehold, it followed he 
 could not by recovery bar either his issue or the remainder- 
 men. There were certainly some doubts upon the law in this 
 particular ; but such was the conclusion drawn from the con- 
 flicting cases by Lord Chief Baron Gilbert. " If cestui que 
 use," he observes, " aliene by fine, that is good, and bars the 
 entry of the feoffees (6) after his death by the statute 4 H. 7 ; 
 but if he aliene by recovery, it does not bind the issue, 
 because he is not tenant to the prcecipe " (c). 
 
 The statute of H. 8. merged the me in the possession, and 
 
 (a) 13 E. 1, st. 1, c. 1. session had determined, tlie feoffees 
 
 [b) By 1 E. 3, e. 1, the cestui que might re-enter, and hold to the uses 
 use in possession, though for life in remainder. 
 
 only, had authority to pass the legal (c) Gilb. Uses, 32. 
 
 fee ; but when his right to the pos- 
 
602 EQUITABLE ENTAIL. [CH. XXIII. S. 1. 
 
 wHen the trust succeeded to the use, and " appeared in its 
 likeness," the effect of a fine and recovery was now to be 
 settled by the Court ab integro. It was agreed, as before, that a 
 fine, concluding aU 'privies, would defeat the claim of the 
 issue (a) ; but, the cestui que trust having no seisin of the free- 
 hold, it was long disputed what should be the operation of a 
 recovery. Lord Clarendon, assisted by Sir Harbottle Grim- 
 ston and Justice Windham, held, that the recovery of a cestui 
 que trust should bar and transfer the trust, as it should an 
 estate at law, if it were wpon consideration, but otherwise Justice 
 Windham doubted of it (&). But this was merely a resolution, 
 and the next year an opinion was expressed by Lord Keeper 
 Bridgman, that a recovery should not bar (c). The point after- 
 wards came before the Lord Keeper a second time (d), and it 
 was admitted a fine would bar the issue, though not the re- 
 mainder over, but whether anything would be barred by the 
 cestui que trusts recovery the Court doubted ; .for " if tenant in 
 tail at law suffered a recovery, legal exceptions might be taken 
 to it, but if a recovery might be suffered in equity, all those 
 exceptions would be taken away." It was contended in the 
 same case, that if cestui que trust's recovery was not allowed to 
 bar, there would result a perpetuity : but a perpetuity was 
 defined to be "where, if all who had interest joined, they could 
 not bar or pass the estate ; but if by the concurrence of all 
 having interest the estate might be barred, it was no per- 
 petuity ; " and as cestui que trust could certainly estop his issue 
 by fine, it was plain that with the concurrence of the remain- 
 derman the estate was disposable in fee. At length, Lord 
 Nottingham, the father of equity, decided, that a recovery 
 should bar the issue and all remainders over (e), " it being," he 
 said, " a general rule, that any legal conveyance or assurance 
 by a cestui que trust should have the same effect and operation 
 upon the trust as it should have had upon the estate at law in 
 case the trustees had executed their trust : otherwise trustees, 
 
 (n) Goodrich v. Brown, 1 Oh. Ca. (rf) Washhorn y, Downes, 1 Chi 
 
 49 ; Washhorn v. Downes, lb. 213. Ca. 213. 
 
 (J) Goodrich v. Brown, 1 Ch. Ca. (e) North v. Williams, 2 Ch. Ca. 
 
 49. 63 ; North v. Champernoon, lb. 78, 
 
 (c) Dighy v. Langworth, 1 Ch. 
 Ca. 68. 
 
CH. XXm. S. 1 J EQUITABLE ENTAIL, 603 
 
 by refusing or not being capable to execute their trust, might 
 hinder the tenant in tail of that liberty which the law gave 
 him to dispose of his estate, which would be manifestly incon- 
 venient, and tend to the introduction of perpetuities" (a). The 
 stream now flowed in an opposite direction, and it was held by 
 succeeding Chancellors, (and Lord Nottingham himself appears 
 to have countenanced the same doctrine (fc),) that cestui que trust 
 might bar his issue and the remainders over by miy convey- 
 ance, as by bargain and sale, or lease and release (c), or even 
 by agreement (cl), or will (e). As a trust was not within the 
 statute de donis, there could in strictness be no entail of it, 
 and therefore it was thought that equity, which regarded the 
 Statute of Westminster " as an ambitious act in favour of the 
 Lords against the King " (/), and viewed the trust as its own 
 creature, and to be governed according to conscience, might 
 allow the quasi tenant in tail of a trust to bar the issue and 
 remainders over by any expression of intention (1). At length 
 
 (a) NortJi V. Champernoon, 2 Ch.. (rf) See NorcUff^, Wordey, 1 Ch.. 
 
 Ca. 78. Ca. 236. 
 
 (J) See North v. Williams, 2 Ch. (e) Woolnough v. Woolnough, Pr. 
 
 Ca. 64 ; S. C.\ Vern. 14. Ch. 228 ; Turner v. Gwinn, 1 Vern. 
 
 (c) Carpenter v. Carpenter, 1 41. 
 
 Vera. 440 ; Beverley t. Beverley, (/) NorcKffT!. Worsley, 1 Ch. Ca. 
 
 2 Vern. 131; Bowater v. Elly,. lb. 236, j9«)- Lord Nottingham. 
 344 ; and see Legate v. Sewell, 1 
 P, W. 91. 
 
 (1) An estate pur autre vie is also not within the statute de donis, and 
 the quasi tenant in tail, if in possession, may at any time by a simple con- 
 veyance, dispose of the .absolute interest .as against the issue, and the 
 remainderman, and may even bind them in equity by his contract. But if 
 the quasi tenant in tail be in remainder after a prior estate under the same 
 settlement, he must have the consent of the tenant for life or other prece- 
 dent freeholder, otherwise. though he may bind his issue, he cannot destroy 
 the remainders. We may here observe that if lands ^wr autre vie be limited 
 to A. and the heirs of his body, with remainders over, the entirety of the 
 legal estate is vested in A. The issue and remaindermen stand in the 
 light of mere special occupants, that is, they have no title jure suo to any 
 present interest; but merely take the estate by devolution where the owner 
 has made no disposition. A limitation jjmj- autre vie has been commonly 
 referred to the nature of a fee conditional : but the principles of the two 
 estates are not to be confounded. The tenant of a fee conditional can only 
 aliene after issue born, but tenant pur autre vie may dispose absolutely as 
 above without reference to the fact of there being issue or not. See the 
 whole law upon this subject collected by Lord St. Leonards in Allen v. Allen, 
 1 Conn, and Laws. 427, 
 
604 
 
 EQtriTABLE ENTAIL. 
 
 [oh. xxin. s. 1. 
 
 Summary of tie 
 law lefore the 
 late Fines and 
 Beooveries Act. 
 
 Fines and Ee- 
 ooTeries Act. 
 
 Cautions in 
 assignment of 
 equitaMe 
 interests. 
 
 one consistent principle was established by Lord Hardwicke, 
 that as entails with expectant remainders had gained a footing 
 in trusts by analogy to the statute, a court of equity was bound 
 to follow the analogy throughout, and therefore a tenant in 
 tail of a trust ought not to be at liberty to bar his issue 
 and the remaindermen except by a conveyance which would 
 have barred them had the entail been of the legal estate. 
 
 The doctrines of equity, as finally settled upon this principle^ 
 may be summed up as follows : — 
 
 1. For a good equitable recovery there must have been an 
 equitable tenant to the prcecipe, that is, the owner of the first 
 equitable freehold must necessarily have concurred (a). 
 
 3. An eqwitable recovery was a bar to equitable only, and not 
 to legal remainders (&). 
 
 3. An equitable recovery was not vitiated by the circum- 
 stance that the equitable tenant to the prcscipe had also the 
 legal freehold (c). 
 
 4. An equitable remainder was well barred, though it was 
 vested in a person who had also the legal fee [d). 
 
 At the present day, by the operation of the Fines and 
 Recoveries Act(e), the equitable tenant in tail may dispose 
 of the equitable fee by the same modes of assurance, and 
 with the same formalities, as if he were tenant m tail of the 
 legal estate. 
 
 To proceed with the subject of assignment of equitable 
 interests — the purchaser, in the transfer of an equity, must, 
 for his security, never dispense with the two following pre- 
 cautions. First, he must make inquiries of t he truste e 
 whether the equity of the vendor has been subjected to any 
 'prior incumbrance ; for if the trustee be guilty of misrepre- 
 sentation, or even of mis-statement from forgetfulness, the pur- 
 
 (o) North V. Williams, 2 Cli. Ca. 
 64, per Lord Nottingham ; Highway 
 V. Banner, 1 B. C. C. 586; and see 
 Wyhham v. Wykham, 18 Ves. 418. 
 
 (6) Philips v. Bryiyes, 3 Ves. 
 128, per Lord Alvanley; Salvin v. 
 Thornton, Amb. 545; S. C, 1 B. 
 C. C. 73, note. 
 
 (c) Philips V. Brydges, 3 Ves. 
 
 126, per Lord Alvanley; Marwood 
 T, Turner, 3 P. TV. 171 ; Goodrich 
 V. Brown, 2 Ch. Ca. 49 ; «, C. Freem. 
 180. 
 
 [d) Philips V. Brydges, 3 Ves. 
 120; Bobinson v. Comyns, Eep. t. 
 Talb. 164; S. C. 1 Atk. 473. 
 
 (e) 3 & 4 Will. 4. 0. 74, 
 
CH. XXIII. S. 1.] NOTICE OF ASSIGNMENT. 
 
 605 
 
 chaser may charge him personally with the amount of the 
 consequent loss (a). Secondly, upon the execution of the 
 conveyance, the purchaser should give notice of his own equit- 
 able title to the trustee, hy which means he will gain prece- 
 dence of all prior incumbrancers who have not been equally 
 diligent, and will prevent his own postponement to subsequent 
 incumbrancers more diligent than himself; and of course the 
 trustee will be personally responsible, if, after such notice, he 
 part with the fund to any person not having a prior claim (&). 
 
 That a purchaser's notice will secure to him this advantage Priority o£ 
 of priority, has even in choses in action, been only recently priority T 
 settled. In Cooper v. Fynmore (c). Sir T. Plumer, Vice- ^lotioe. 
 Chancellor, decided that mere neglect to give notice would 
 not postpone an incumbrancer, but that such laches ought to 
 be shown as, in a Court of Equity, would amount to fraud ; 
 but in Dearie v. Hall{d), and Loveridge v. Cooper {e), nine 
 years after, his Honour, when Master of the EoUs, came to a 
 contrary conclusion, and delivered a very elaborate argument 
 that notice would gain priority. His Honour's judgments were 
 affirmed on appeal (/), and the doctrine has been recognised 
 in several subsequent ca^es {g). 
 
 The principles upon which Sir T. Plumer proceeded were The principle 
 these :— That " although the cestui que trust could not transfer °^^^^ doctrine, 
 the legal interest, which must remain with the executors, yet, 
 wherever it was intended to complete the transfer of a chose 
 in action, there was a mode of dealing which a Court of Equity 
 considered tantamount to possession, viz., notice given to the 
 legal depositary of the fund. By such notice the legal holder 
 was converted into a trustee for the new purchaser, and the 
 cestui que trust was deprived of the power of carrying the same 
 security repeatedly into the market. This precaution was 
 always taken by diligent incumbrancers, and if it was not 
 taken, there was neglect, and the solicitor who conducted the 
 
 {a) BurrowesY. Lock, 10 Ves.4'70. (e) 3 Russ. 30. 
 
 (J) Hodgson v. Hodgson, 2 Keen, (/) lb. 38, 48. 
 
 704; Moberts v. Lloyd, 2 Beav. 376; {g) Hutton v. Sandys, 1 Younge, 
 
 Andrews v. Bousfield, 10 Beav. 511. 602, see 607 ; Smith v. Smith, 2 Cr. 
 
 (c) 3 Eus3. 60. & Mees. 231 ; Foster v. Blackstone, 
 
 {d) lb. 1. 1 M. & K. 297, see 307. 
 
606 NOTICE OF ASSIGNMENT. [CH. XXm. S. 1. 
 
 business was responsible for that neglect. To give notice was a 
 matter of no difficulty ; and wherever persons treating for a 
 chose in action did not give notice to the trustee or executor, 
 they did ^not perfect their title, they did not do all that was 
 necessary to make the thing belong to them in preference to 
 all other persons, and they became responsible in some 
 respects for the easily foreseen consequences of their negli- 
 gence (a). It was objected qui prior est tempore potior est 
 jure ; but it could not be contended that priority in time 
 must decide where the legal estate was outstanding, for the 
 maxim as an equitable rule admitted of exceptions, and gave 
 way when the question did not lie between bare and equal 
 equities. If there appeared to be, in respect of any circum- 
 stance independent of priority of time, a better title in the 
 puisne purchaser to call for the legal estate than in the pur- 
 chaser who preceded him in date, the case ceased to be a 
 balance of equities, and the preference, which priority of time 
 might otherwise have given, was done away with and counter- 
 acted (&). What title had the prior incumbrancer to call on a 
 court of justice to interpose in his behalf, in order to obviate 
 the consequences of his own misconduct ? He had omitted to 
 perfect his security : a third party had innocently advanced his 
 money, and had perfected his security as far as the nature of 
 the subject permitted, and was that Court to interfere to post- 
 pone him to the other ? It was said notice did not form part 
 of the necessary conveyance of an equitable interest. If a 
 person meant to rely on the contract of the individual, there 
 was certainly no need of notice, for from the moment of the 
 contract he with whom the party was dealing was personally 
 bound ; but if it was meant to go farther, and attach a right 
 upon the thing itself which was the subject of the contract, it 
 tvas necessary to give notice; and if an individual who con- 
 tracted with another did not by giving notice to the trustee 
 divest the vendor or mortgagor of the possession, but permitted 
 him to remain the ostensible owner as before, he must take the 
 consequences which might ensue from such a mode of dealing" (c). 
 
 (a) 3 Kuss. 12 — 14. cellor Kindersley in iJice v. JRice, 2 
 
 (b) See observations of Vioe-Chan- Drewry, pp. 77, 78. 
 
 (c) 3 Ruas. 20—22. 
 
CH. XXni. S. 1.] NOTICE OF ASSIGNMENT. 607 
 
 In the case of choses in action these principles are now f^fj^"^^i\^=^ 
 
 clearly established, and the doctrine holds even against the personal estate. 
 
 assignees of a bankrupt or insolvent neglecting to give notice ; ^ 
 
 as, if A. be entitled to a chose in action and become an^ 
 
 insolvent, and then assign it to a purchaser for valuable con- a 
 
 sideration without notice of the insolvency, who serves notice ' 
 
 on the trustee, he thus gains a priority over the assignees, for 
 
 nothing vests in the assignees but what the insolvent would 
 
 have passed by an assignment, and if they neglect to complete 
 
 their title by notice they must be postponed in equity {a). 
 
 But between choses in action and real estate there is an Notice in respect 
 
 of real estate, 
 observable distinction. In personal estate the purchaser knows 
 
 the legal title is outstanding in a third person, and is therefore 
 
 bound to give notice of his incumbrance ; but in lands it often 
 
 happens that the vendor professes to have the legal ownership 
 
 in himself, whereas it afterwards appears it was really vested 
 
 in some stranger. If the purchaser be not cognisant of the 
 
 outstanding legal estate, he cannot give notice of his interest, 
 
 and therefore cannot be held to have forfeited his right by 
 
 having neglected a precaution that was impossible. On the 
 
 other hand, to hold that the doctrine of notice does not apply at 
 
 all to real estate, renders any dealings with equitable interests 
 
 therein extremely dangerous. Thus A. is entitled to an equitable 
 
 interest, of which the legal estate is in B. upon trusts requiring 
 
 B. to retain possession of the title-deeds, and not to part with 
 
 the legal estate. A. conveys his interest to C, who makes 
 
 no inquiries about incumbrances, and gives no notice to the 
 
 trustee; A. afterwards, fraudulently concealing the previous 
 
 assurance, conveys the same interest to D., who makes inquiries 
 
 of the trustee respecting incumbrances, and gives him notice 
 
 of his own charge. If, notwithstanding these precautions, D. 
 
 should be postponed to C, who had priority in point of time, 
 
 it is clear that no equitable interest can ever be purchased 
 
 with safety. In Jones v. Jones (6) the point was not involved Jones v. Jones. 
 
 in the decision, but the Vice -Chancellor of England assumed 
 
 that the principles of Dearie v. Hall, and Loveridge v. Cooper, 
 
 . (o) He Atkinson, 4 De Gex & Sm. (6) 8 Sim. pp. 642, 643. 
 
 548 ; 2 De Gex, Mao. & Gor. 140. 
 
608 
 
 NOTICE OF ASSIGNMENT. [CH. XXIH. S. 1. 
 
 Second inouni- 
 brancer giving 
 notice, but 
 making no 
 inquiries. 
 
 were inapplicable to real estate. In the subsequent case of 
 Wiltshire v. Babbits («), the Vice-Chancellor of England decided 
 in conformity with the opinion expressed by him in Jones v. 
 Jones; and the same view has since been adopted by other 
 Judges (&). The result is much to be lamented. 
 
 A second incumbrancer on personal estate who gives notice, 
 but makes no inquiries as to prior charges, is preferred to a 
 prior incumbrancer who neglected to give notice (c). This 
 result appears at first open to observation, for an assignment 
 of an equitable interest is perfectly valid, though without 
 notice, as against the assignor, and all persons claiming under 
 him who have no equity to postpone the first assignment. 
 It is unimpeachable unless a subsequent purchaser can set 
 it aside on the ground of fraud against himself; and if he 
 made no inquiry, and therefore was not defrauded, why 
 should he, labouring under the demerit of making no inquiry, 
 displace the person who had the natural priority. The 
 answer, however, which has been made by Sir James "Wigram 
 is as follows : (d) " If the puisne incumbrancer advances his 
 money bond fide without inquiry, it must be presumed he 
 would equally have advanced it after inquiry, the result of 
 which would have negatived the existence of any prior 
 incumbrance. The injury he sustains, and which gives him. 
 priority, is ' ex post facto.' If, after advancing his money, 
 he is informed that there is a prior incumbrance, he will 
 immediately use diligence to get in or secure his property. 
 If, on the other hand, he is not told when he gives the 
 notice that there is a previous incumbrancer, he is led to 
 suppose that his security is good, &c. The notice which, 
 when it is given, has the effect of inquiry, is, given either 
 at the time the money is advanced or afterwards, and 
 the only distinction between the two cases is a distinction 
 
 (a) 14 Sim. 76. 
 
 (6) Wilmoty. Pike, 5 Hare, 14; 
 Suffden v. Bignold, 2 Y. & C. Ch. Ca. 
 392 ; Rochard v. Fulton, 1 Ir. Eq. 
 Eep. 131 ; Lee v. Howlett, 2 Kay 
 & J. 531. As to railway shares, see 
 JDunster v. Olengal, 3 Ir. Ch. Re. 47. 
 
 (c) Foster v. Blachstone, 1 M. & 
 
 K. 297 ; Foster v. Cocherell, 9 Bligh, 
 N. S. 376 ; Timson v. MamshoUom, ■ 
 2Keaii,49; ani see Fttyy. Bridges, 
 2 Y. & C. Ch. Ca. 494 ; Warlurton 
 V. Hill, 1 Kay, 470. 
 
 {d) Meux V. Bell, 1 Hare, 86, 87; 
 and see Warlurton v. Hill, 1 Kay, 
 478. 
 
CH. XXIII. S. 1.] NOTICE OF ASSIGNMENT. 609 
 
 between a party who advances money at the time of talcing a 
 security, and a party who takes a security for an antecedent 
 debt, &c. The credit which the puisne incumbrancer gave 
 to the fund after the notice is as good a consideration as 
 that of any other creditor who takes a security for an ante- 
 cedent debt." The only portion of the Vice- Chancellor's 
 argument which seems open to question is the assumption that 
 notice is equivalent to inquiry. It could hardly be contended 
 that a trustee, upon merely receiving notice of an incum- 
 brance, is hoimd to reply that prior incumbrances have been 
 created. It would, however, be a proper act on his part so 
 to do, and almost a matter of course, should he (as is 
 usual) be requested to acknowledge the receipt of the notice. 
 In a large proportion of cases, therefore, the reasoning of 
 Vice - Chancellor Wigram would be strictly correct; but, how- 
 ever this may be, the point is now clearly concluded by 
 authority. 
 
 If notice be given to one of several co-trustees it is sufficient Notice to one of 
 
 several co- 
 
 as agamst all subsequent incumbrancers dm/ring the lifetime of trustees. 
 that trustee, for a prudent incumbrancer is called upon to make 
 inquiry of all the trustees, and if he did so in the supposed 
 case, he would have gome to a knowledge of the prior charge. 
 Thus, in Smith v. Smith (a), one Maberley, being indebted to 
 Smith, assigned to him, by way of security, his life-interest in 
 Captain funds under his marriage-settlement, and afterwards 
 became bankrupt. The assignee having mentioned his security 
 to one of the trustees before the bankruptcy occurred, the 
 question was, whether after such notice the fund was at the 
 time of the bankruptcy in the power and disposition of the 
 bankrupt, and it was determined in the negative. Lord Lynd- 
 hurst, in delivering the judgment of the Court, observed, " It 
 was argued that notice to one only of three trustees is insuf- 
 ficient — that it should have been given to each of them, and 
 that, this not having been done, the property remained in the 
 order and disposition of the bankrupt up to the time of his 
 bankruptcy; but we are of opinion that notice to one of the 
 
 (o) 2 Cr. & Mees. 231 ; and see Laws. 562 ; and see Wise v. Wise, 
 Ex parte Hennessey, 1 Conn. & 2 Jones & Lat. 412. 
 
610 NOTICE OF ASSIGNMENT. [CH. XXIII. S. 1. 
 
 three trustees was sufficient : no valid assignment could have 
 heen made by the bankrupt after the notice to the trustee : a 
 second assignee, in order to have obtained a priority over the 
 first, must have shown that he had exercised proper precaution 
 in taking the assignment ; that he had applied to the trustees 
 to know if any previous assignment had been made ; and unless 
 he applied for this purpose to each of the trustees, he would 
 not have exercised due caution, or done all that he ought to 
 have done. But if he applied to each of the trustees, he would 
 have been informed by one of them of the previous assignment 
 to Smith, and he must then have taken the property, if at all, 
 subject to the claim of Smith." 
 Death of the But if a prior incumbrancer content himself with giving 
 
 whom notLrwas iiotice to One of the trustees, and that trustee dies, and a second 
 giTen. incumbrancer gives notice of his own assignment, then, as the 
 
 first incumbrancer did not do his utmost to guard against the 
 fraud, and the second incumbrancer employed all the means 
 in his power of detecting the fraud, the loss will faU on the 
 person who had so far occasioned that he might have prevented 
 it (a). 
 Timson v. The case of Timsoii v. Bamsbottom (b) may be referred to 
 
 this principle. A testator appointed Bacon the elder, Timson, 
 Bamsbottom the elder, and Bamsbottom the younger, his 
 executors. In 1816 Bamsbottom the elder died. By indenture 
 dated in 1819, and made between Bacon the younger of the 
 one part, and Thomas Bacon (not the executor), Langford, and 
 Walford of the other part, Bacon the younger, who took an 
 interest under the will, assigned it to trustees upon trust for 
 securing the repayment to Bacon the elder of 50001. and 
 interest. In 1837 Bacon the elder died, without having com- 
 municated the charge to his co-executors. In 1828 a biU was 
 filed, and the testator's estate was brought into Court. By 
 indenture, dated in 1832, Bacon the younger assigned the 
 same interest to Corfield, who had no notice of the prior 
 incumbrance and made no inquiries, for securing to Corfield 
 the sum of lOOOL and interest. In 1833 a regular notice of 
 
 /' 
 
 F i;l 'i_j» - 
 
 (a) See Meuxx.BellfELsxa, 73; ^x (J) MS. ; <S. C. 2 Keen, 35. 
 parte Hmnesseij, lCoim.& Laws. 562. 
 
CH. XXin. S. l.J NOTICE OF ASSIGNMENT. 611 
 
 the assignment was sent by Corfield to the surviving exe- 
 cutors (a). Lord Langdale, in decreeing the priority of the 
 second incumbrancer, observed, " None of the cases cited at 
 the bar appear to me to be like the present — of a father and 
 son having a transaction of this sort between themselves, the 
 father being one of several executors — no allegation even that 
 the other executors were informed before the notice was received 
 from Corfield — no ground to presume that the transaction was 
 communicated to the other executors, each of whom had sepa- 
 rate authority to receive and pay on account of the estate, and 
 who, if they had no notice of the assignment, might have made 
 payment to the assignee without incurring any liability what- 
 ever on that account. I think, therefore, after, I admit, a good 
 deal of hesitation, that the knowledge of one of several executors 
 who were interested, and who does not appear to have com- 
 municated that knowledge to his corexecutor, is not suf&cient 
 to create a trust in which the assignee has done nothing but 
 accepted the assignment." A petition of appeal was presented, 
 and the pleadings were opened; but the Lord Chancellor 
 suggesting the necessity of some previous inquiries, the parties, 
 rather than be involved in further litigation, agreed upon a 
 compromise. 
 
 As an incumbrancer may, by giving notice to one trustee. Notice to all the 
 
 ,,,.,.,»,. , - .,, trustees, and all 
 
 complete ms title tor the time, and yet may afterwards by the dying, 
 death of the trustee be displaced, it becomes a question 
 whether, if notice be sent to all the trustees, and they all die, 
 a second incumbrancer, who gives notice to the succeeding 
 trustees, will not gain the priority. Notice properly given at 
 the time may be thought not to make an absolute title, but one 
 liable to be defeated by an alteration of circumstances (6) ; and 
 an incumbrancer would do well not only to give notice to all 
 the trustees in the first instance, but to watch as well as he can 
 the changes in the state of the trust, and to take care, by 
 repeating his notice, that there is never a set of trustees 
 
 (o) The Master of the KoUs in his to Eamshottom. 
 judgment states that notice was (J) See Meux v. Bell, Hare, 97 ; 
 
 given to Timson ; but his reasoning but see Etty v. Bridges, 2 T. «Sb C. 
 
 assumes, and I am informed the Ch. Ca. 493, 
 fact was, that notice was also given 
 
 E R 2 
 
613 
 
 NOTICE OF ASSIGNMENT. [CH. XXin. S. 1. 
 
 Time of giving 
 notice. 
 
 To whom notice 
 should be giren. 
 
 of whom there is not at least one who has notice of his 
 charge. 
 
 Notice of an equitable incumhrance ought to be given to the 
 trustees as early as possible, but if delayed for any length of 
 time, it will be equally efficacious, provided no notice of any 
 other charge has been served in the interval {a). Therefore, if 
 the owner of an equitable interest, but who has given no notice 
 to the trustees, contract for the sale of it, the purchaser cannot 
 object to the title on the ground of no notice having been 
 given, unless he can show some intermediate incumbrance; 
 but it is the vendor's duty, by pointing out who were the 
 trustees from time to time, to furnish full means to the pur- 
 chaser of inquiring whether or no any such charge has been 
 created (6). 
 
 The notice, written or unwritten (c), but better written, 
 may be given either to the trustees themselves or to their 
 solicitors (d) ; and where notice to one trustee would be suf- 
 ficient, it may be given to one who is not the acting trustee, 
 there being no such dictinction known to the law between an 
 acting and a passive trustee (e). It may even be communicated 
 to the trustee incidentally in the way of conversation ; for the 
 only point to be ascertained is whether the existence of the 
 charge has in fact come to the personal knowledge of the 
 trustee (/). Where the trust fund consists of a share in a 
 company, the notice may be sent to the secretary (g) ; but notice 
 to A., a director, and B., the actuary, has in one case been con- 
 sidered sufficient (ft) ; and in another notice to A., one of the 
 directors, and B., an auditor {i) ; and it was at one time held 
 that, as notice to a partner is notice to the partnership, if by the 
 
 (a) Meiix V. ^Bell, 1 Hare, 86, 
 per Sir J. Wigram. 
 
 (i) Hobson V. Sell, 2 Beav. 17. 
 
 (c) Smith V. Smith, 2 Cr. & |Mees. 
 231 ; Ex parte Carbis, 4 D. & C. 
 357, per Sir G. Eose -,8.0.1 Mont. 
 & Ayr. 695, note, per eundem. 
 
 (d) Foster v. Blachstone, 1 M. & 
 K. 297. 
 
 (e) Smith v. Smith, 2 Cr. & Mees. 
 233. 
 
 (/) Smith V. Smith, 2 Cr. & Mees. 
 231, see 233. 
 
 {g) Ex parte Stright, Mont. 502. 
 
 (/s) Ex parte Wathins, 1 Mont. & 
 Ayr. 689 ; 8. C. i Deae. & Chit. 87; 
 but see Ex parte Hennessey, 1 Conn. 
 & Laws. 559. 
 
 (i) Ex parte Waithman, 4 Deac. 
 & Chit. 412 ; but see Ex parte 
 Hennessey, 1 Conn. & Ijaws. 659. 
 
CH. XXIII. S. 1.] NOTICE OF ASSIGNMENT. 613 
 
 constitution of an assurance office the person insuring becomes 
 a partner, the assignment of a policy by him is ipso facto notice 
 of it to the society (a), but the point has since been ruled the 
 other way (&). Incidental mention of the charge to a clerk of the 
 company, though in the office of business, will not be con- 
 structive notice to the company itself (c). The notice served on 
 the trustee should set forth the entire amount of the assignee's 
 claim, for it has been held that the trustee is affected by notice 
 only of the amount stated upon the face of the memorandum 
 served, and not by notice of all the contents of the instrument 
 to which the memorandum refers {d). But notice of a charge 
 in general terms without expressing any amount in particular 
 will be sufficient (e). 
 
 "Where money has been paid into court by trustees, it would Case of the fund 
 
 /. • , •! teing in court. 
 
 seem that they remain trustees for the purposes oi notice until 
 the fund has been dealt with by the Court, and then the Court 
 becomes the trustee (/) ; and where the Court is trustee the step 
 equivalent to notice in the ordinary case is the obtaining of a 
 stop-order to restrain the transfer of the fund, and as between 
 two assignees the one who first gets a stop-order will have 
 priority (cf). It may be difficult, however, in many cases to 
 determine whether the sole trusteeship resides in the Court, 
 and the point is one which requires further decisions to eluci- 
 date it. If, therefore, the trust fund be in court, the following 
 course should be adopted. The intended assignee should 
 inquire at the Accountant- General's and Registrar's offices 
 whether any stop-order has been made, to restrain the 
 transfer of the fund, and also of the trustees, whether notice 
 has been given of any prior incumbrance ; and, on the comple- 
 
 (o) Duncan v. Cliamberlayne, 11 Chit. 354; S. C. 1 Mont. & Ayr. 
 
 Sim. 126 ; Hx parte Rose, 2 Mont. 693, note (a). 
 
 Deao. & De Gex, 131 ; and see Ex [d) Re BrigMs Trust, 21 Beav. 
 
 parte Cooper, ib. 1 ; Re Styan, lb. 430. 
 
 219; and 1 Pbil. 105. (e) See same case. 
 
 (6) Ex parte Hennessey, 1 Conn. (/) Warhurton v. Hill, 1 Kay, 
 
 & Laws. 559 ; Thompson v. Speirs, 477 ; Matthews v. Gabb, 15 Sim. 51. 
 
 13 Sim. 469 ; Martin v. Sedgwick, (j^) Greening v. Bechford, 5 Sim. 
 
 9 Beav. 333; and see Powles v. 195; Swayne v. Swayne, 11 Beav. 
 
 Page, 3 C. B. R. 16. 463. 
 
 (c) Ex parte Carbis, 4 Deao. & 
 
614 
 
 STOP-OEDER^DISTEINGAS. [CH. XXIII, S. 1. 
 
 Notice to trustee 
 where fund in 
 court, and 
 neither assignee 
 obtains a stop- 
 order, confers 
 priority. 
 
 Case where 
 there is no 
 trustee. 
 
 Purchaser with 
 notice. 
 
 tion of his own assignment, he should give notice to the trustees 
 personally, and obtain a stop-order himself, and leave it at 
 the Accountant- General's office to be entered. If the Ac- 
 countant-General's office is closed, the order should stiU be 
 entered at the Registrar's office (a). The inquiry at the Ac- 
 countant-General's or Registrar's offices is merely for the 
 purchaser's greater satisfaction, and makes no part of his own 
 title, for neither the Accountant- General nor the Registrar is 
 the trustee, but the Court is the trustee. The stop-order is 
 the effective step, and whether previous inquiry was or not 
 made at the Accountant-General's or Registrar's offices, is 
 immaterial (6). 
 
 Should an incumbrancer give notice to the trustees, but 
 neglect to obtain a stop-order, he will stUl take precedence of 
 a prior incumbrancer, who has neither obtained an order nor 
 given notice, or who had given notice to one only of several 
 trustees, and that trustee had died before the time of the 
 second incumbrance. It is true the second incumbrancer did 
 not adopt every precaution, but he resorted to one which the 
 prior incumbrancer neglected, to the detriment of the second 
 incumbrancer : while the first assignee either sent no notice, 
 or one which, by the death of the trustee before the time of the 
 second incumbrance, had become equivalent to no notice (c). 
 
 It may happen that at the time of the incumbrance there is 
 no representative of the trust on whom notice can be served, 
 as if A. be trustee of stock for B., and A. dies intestate, or his 
 executor declines to act. In such a case it has been held, that 
 an incumbrancer gains priority by taking all the precautions 
 that under the circumstances are practicable, as if he serve a 
 distringas on the Bank where the stock is standing {d). 
 
 Of course, a purchaser who gives notice, or obtains a stop- 
 
 (a) The petition for tlie stop-order 
 (viz., that the interest of the assignor 
 may not be paid out of court with- 
 out notice to the assignee) need not 
 he served on any of the other parties 
 to the suit, though the share of the 
 assignor has not been set apart to a 
 separate account. See General Order, 
 April 3, 1841, 2 Beav. xi. 
 
 (6) See TFarhurton v. Jlill, 1 Kay, 
 478. 
 
 (c) Timson v, Ramsbottom, MS. ; 
 S. C. 2 Keen, 35, pp. 49 and 50; 
 Matthews v. Oahh, 15 Sim. 61 ; 
 Srearcliffx, Dorrinr/ton, 4 De Gex 
 & Sm. 122. 
 
 (d) Etty v. Bridges, 2 Y. & C. 
 Ch. Ca. 48G. 
 
CH. XXIII. S. 2.] DEVISE OP A TEUST. 615 
 
 order, can gain no priority over an incumbrance of which he 
 has notice himself, at the time of his own purchase {a). 
 
 SECTION II. 
 
 OF TESIAMENIAET DISPOSITION. 
 
 An equitable interest is transmissible by devise (b), indeed How trust of 
 the use in the land was devisable before the statute of devised. 
 Henry VIII (c). 
 
 But after the Statute of Frauds the Courts held that a trust 
 or equitable interest could only be passed by a will, executed 
 and attested as required for the devise of the legal estate ; for 
 otherwise a door would have been opened to all the mischiefs 
 and inconveniences the Statute was intended to prevent {d). 
 Whether trusts are within the letter of the act, or equity 
 brought them under its operation by analogy, it is not easy to 
 determine (e) ; undoubtedly the word "lands" has often ex- 
 tended to include trusts (/), and, if so, there seems to be little 
 reason why trusts should not have fallen within the express 
 terms of the statute. 
 
 Copyholds, strictly speaking, are not at common law a devis- Trust of copy- 
 able interest. A surrender is made to the use of the will, and 
 the gift contained in the will operates as a declaration of the use. 
 The devisee does not come in by the will, but by the surrender 
 and the will taken together, as if the name had been inserted 
 in the surrender itself (g). Thus copyholds at law were out of 
 the Statute of Frauds, and might have been devised by a will 
 neither signed nor attested ; and, as equity foUowed the law 
 
 (o) Warburton v. Sill, 1 Kay, Adlington v. Cann, 3 Atk. 151, 
 
 470. per Lord Hardwioke; Burgess v. 
 
 (h) Cornhury v. Middleton, 1 Ch. WTieate, 1 Ed. 224, per Lord Mans- 
 
 Ca. 211, ^er Wyld, Just. ; Green- field. 
 
 hill V, QreenUll, 2 Tern. 680, per (e) See Burgess v. Wlieate, uhi 
 
 Lord Harcourt ; Cole t. Moore, Mo. szqjra ; Wagstuff v. Wagstaff, 2 P. 
 
 806, per Cur.; Philips v. Brydges, "W. 261, 
 
 3 Ves. 127, _pe)- Lord Alvanley. (/) See sup>ra, p. 593. 
 
 (c) See p. 537, note 1. [g) Hussey v. Grills, Amb." 300, 
 
 {d) Wagstaff v. Wagstaff, 2 P. per Lord Hardwioke. 
 W. 259, per Lord Macclesfield; 
 
616 
 
 DEVISE OF A TBUST. 
 
 [CH. xxin. s. 2. 
 
 Where no 
 custom to devise 
 the legal estate 
 of copyholds. 
 
 Of customary 
 freeholds. 
 
 ' the trust of a copyhold was devisable in the same manner (a). 
 " Where," said Lord Hardwicke, " the legal estate is in trustees, 
 the cestui que trust cannot, consequently, surrender, but the 
 lands shall notwithstanding pass by this devise according to the 
 general rule that equity follows the law ; for there {i. e. at law) 
 a copyhold will pass under the will without three witnesses, 
 or, where there are no witnesses at all ; and if this nicety is 
 not required in passing the legal estate, a fortiori, it is not in 
 passing the equitable, and therefore the cestui que trust may by 
 the same kind of iustrument dispose of the trust estate as if he 
 had the legal estate in them " {b). And the equitable interest 
 might always have been passed by will, though not preceded 
 by a surrender, which was required to pass the legal estate (c). 
 But, by 55 Geo. 3, c. 192, a surrender was dispensed with 
 even in respect of the legal estate. 
 
 As equitable interests in copyholds were regulated by 
 analogy to the custom affecting the legal estate, one might 
 have supposed, that where the legal estate could not have 
 been devised, the equitable estate in like manner must have 
 been left to descend. However, it was decided by the Courts 
 that notwithstanding the want of the custojn, the owner of the 
 equitable estate could always have passed it by will(d). Whether 
 the will to have this effect must have been executed according 
 to the Statute of Frauds, or whether any instrument sufficient 
 for declaring the uses on a surrender would have been enough 
 does not appear. 
 
 The doctrines laid down as to copyholds were not 
 extended to customary freeholds (1). The determination as 
 
 Copyholds and 
 customary free- 
 holds distin- 
 guished. 
 
 (a) Appleyard v. Wood, Sel. Ch. 
 Ca. 42 ; Wagstaff t. Wagstaff, 2 P. 
 "W. 258 ; Tuffnell v. Page, 2 Atk. 
 37 ; and see Attorney- General v. 
 Andrews, 1 Ves. 225 ; but see Anon, 
 case, cited Wagstaff y. Wagstaff, 2 
 P. W. 261. 
 
 (b) Tuffnell v. Page, 2 Atk. 38. 
 
 (c) Greenhill\. Greenhill, 2 Yern. 
 679 ; Tuffnell v. Page, 2 Atk. 37 ; 
 Gibson v. Sogers, Aiab. 93. 
 
 (d) Lewis v. Lane, 2 M. & K. 
 449 ; Wilson v. Dent, 3 Sim 385 ; 
 and see ante, pp. 45, 46, and p. 537, 
 note 1. 
 
 (1) A copyhold is where the freehold ia in the lord, and the copyholder's 
 estate passes by surrender. A customary freehold is where the tenure is 
 copyhold, but the freehold interest is in the tenant, and passes by deed. 
 Binghatn v. Woodgate, 1 E. & M. 32 ; ;S'. C. Taml. 183. * 
 
CH. XXIII. S. 8.] SEISIN OF A TRUST. *517 
 
 to copyholds was grounded on the circumstance that the 
 interest passed, not by the will, but by the surrender; but 
 customary freeholds are strictly and properly speaking de- 
 visable, the estate passing by the will. The legal estate of 
 customary freeholds was, therefore, not excepted from the 
 Statute of Frauds (a) ; and, of course, a devise of the equitable 
 interest must have been attended with the same formalities as 
 if it had been a devise of the legal (b). 
 
 Now, by the late Wills Act (c), as to wills made on or after Late wais Act. 
 the 1st day of January, 1838, every devise or bequest of 
 property, of whatever description, whether real or personal, 
 freehold or copyhold, legal or equitable, must be made by 
 a will in writing, signed by the testator and attested by two 
 witnesses. 
 
 SECTION III. 
 
 OF SEISIN AND BISSEISIN. 
 
 The term seisin is properly applicable to legal estates ; but Equitable seisin. 
 a court of equity regards actual receipt of the rents and profits 
 under the equitable title as equivalent to seisin at law, and has 
 often adjudicated upon the rights of parties with reference to 
 that circumstance. 
 
 Thus, in Casborne v. Scarf e {d), it was disputed, whether, Casbome v. 
 as curtesy did not attach at law without a seisin in fact, the ^°**- 
 husband could claim his curtesy out of the wife's equity of 
 redemption ; but Lord Hardwicke said, " It is objected there is 
 no seisin whatever of the legal estate in the wife in the con- 
 sideration of law. But that is not the present question : the 
 true question is, if there was such a seisin or possession of the 
 equitable estate in the wife, as in this Court is considered 
 equivalent to an actual seisin of a freehold estate at common 
 law; and I am of opinion there was. Actual possession, clothed 
 with the receipt of the rents and profits, is the highest instance 
 
 (a) JTusseij V. Grills, Amh. 299 ; (c) 7 Gul. 4 & 1 Yio. o. 26. 
 and see Doe v. Danvers, 7 East, 299. [d) 1 Atk. 603 ; Parker v. Carter, 
 
 (i) Hussey v. Grills, ubi supra ; 4 Hare, 413. 
 Wittan V. Lancaster, 3 Russ. 108. 
 
618 
 
 SEISIN OF A TRUST. 
 
 [CII. XXIII. S. 8. 
 
 Marquis of 
 Cholmondeley v. 
 Lord Clinton. 
 
 of an equitable seisin, both of which there were in this 
 case." 
 Possessiofratris. And SO it was held that there was possessio fratris of a trust, 
 in other words, that if a person inherited a trust and died 
 before actual seisin of the estate, it should descend to the brother 
 of the half blood, as heir to the father, in preference to the 
 sister of the whole blood ; but if there had been such a receipt 
 of the rents and profits as constituted equitable seisin, the 
 sister of the whole blood, as heir to the brother, would exclude 
 the brother of the half blood (a). 
 
 The doctrines of the Court upon the subject of equitable 
 disseisin cannot be better illustrated than by a statement of 
 the well-known case of The Marquis of Cholmondeley v. Lord 
 Clinton {b). The circumstances were briefly as follows : — 
 George, Earl of Orford, conveyed certain manors and here- 
 ditaments to the use of himself for life, remainder to the heirs 
 of his body, remainder as he should by deed or will appoint, 
 remainder to the right heirs of Samuel Eolle, with a power 
 reserved of revocation and new appointment. Some time after 
 the Earl executed a mortgage in fee, which operated in equity 
 as a revocation of the settlement pro tanto. In 1791 the Earl 
 died without issue and intestate, and upon his death the 
 ultimate remainder (which had been a vested interest in the 
 Earl himself, as the heir of Samuel Eolle at the date of the 
 deed,) should have descended to the right heir of the Earl, but, 
 the parties mistaking the law, the person who was heir of 
 Samuel Eolle at the death of the Earl was allowed to enter on 
 the premises, and continued in possession, subject to the 
 mortgage, up to the commencement of the suit. The bUl was 
 filed in 1812, by the assign of the right heir of the Earl against 
 the mortgagee, and the assign of the right heir of Samuel 
 Eolle, for redemption of the premises, and on account of the 
 profits. It was debated whether, as the legal estate was vested 
 in the mortgagee, and the heir of Samuel Eolle had held the 
 possession subject to a subsisting mortgage, the assign of the 
 Earl of Orford's heir, to whom the equity of redemption 
 
 (a) But aee now 3 & 4 Gul. 4, c. 
 106. 
 
 (J) 2 Mer. 171 ; 2 J. & W. 1. 
 
CH. XXin. S. 3.] SEISIN OF A TRUST. 619 
 
 belonged in point of right, had been disseised of his equitable 
 interest, and was now barred by the effect of time. Sir W. 
 Grant argued, that " although there might be what was deemed 
 a seisin of an equitable estate, there could be no disseisin, first, 
 because the disseisin must be of the entire estate, and not of a 
 limited and partial interest in it — the equitable ownership 
 could not possibly be the subject of disseisin ; and, secondly, 
 because a tortious act could never be the foundation of an 
 equitable title : that an equitable title might undoubtedly be 
 barred by length of time, but could not be shifted or trans- 
 ferred (a). It was admitted in the present case the equity of 
 redemption subsisted ; it must therefore belong to some oAe 
 and could only belong to the original cestui que trust {b). That 
 so long as the trust subsisted, so long it was impossible that 
 the cestuis qne trust could be barred. The cestuis que trust 
 could only be barred by barring and excluding the estate of 
 the trustee " (c). Sir W. Grant did not then decide the point, 
 but directed a case for the opinion of the Queen's Bench on a 
 question of law, and retained the bill till the judge's certificate 
 should be returned. 
 
 The cause was afterwards reheard on the equity reserved Heheard. 
 before Sir T. Plumer, who determined that the original cestui 
 que trust had been disseised, and was consequently barred {d). 
 " The grounds," he said, " upon which it is contended that the 
 holder of the rightful equity is not bound by laches and non- 
 claim are, that the tortious possessor does not claim to be the 
 owner of more than the equitable estate — 'the legal estate 
 remains unbarred : that there is no disseisin abatement or 
 intrusion of a trust — the possessor is only tenant at will, and 
 may be dispossessed at any time by the trustee of the legal 
 estate — he has therefore only a precarious and permissive 
 possession : that tortious possession can never be the founda- 
 tion of an equitable title " (e). But this reasoning proceeds on a 
 mistaken view of the manner in which, and the grounds upon 
 which, the bar from length of time operates. The question 
 respects the plaintiff's right to the remedy, not the defendant's 
 
 (o) See Sopkins v. Hopkins, 1 (c) 2 Mer. 361. 
 
 Atk. 590. , (d) 2 J. & W. 1. 
 
 (5) 2 Mer. 357—339. (e) lb. 153. 
 
6:20 SEISIN OF A TRUST. [cH. xxin. s. 3. 
 
 title to the estate. A tortious act can never be the foundation 
 of a legal any more than of an equitable title. The question is, 
 whether the plaintiff has prosecuted his title in due time. The 
 quiet and repose of the kingdom, the mischief arising from 
 stale demands, the laches and neglect of the rightful owner, 
 and all the other principles of public policy, take away the 
 remedy, notwithstanding the title veri domini, and the tortious 
 holding of the possessor (a). As to the argument that a title 
 in a Court of equity may be lost by laches, but cannot be trans- 
 ferred without the act of the party, the case is the same in this 
 respect both in equity and law. The title is changed in both 
 by the operation of a public law upon public principles without 
 regard to the original private right. If the negligent owner 
 has for ever forfeited by his laches his right to any remedy to 
 recover, he has in effect lost his title for ever. What, then, is 
 to become of the title, whether legal or equitable ? Is it to 
 become hcereditas jacens, belonging to no one ? Is it to devolve 
 on the crown, or to pass by escheat ? The plaintiff is barred 
 of his remedy : the defendant keeps possession without the 
 possibility of being ever disturbed by any one : the loss of the 
 former owner is necessarily his gain ; it is more — ^he gains a 
 positive title under the statute at law, and, by analogy, in 
 equity (6). If the mere existence of an old legal estate would 
 have the effect of preventing the bar attaching upon the 
 equitable estate, all the principles that have been established 
 respecting equitable estates and titles would be overturned. 
 According to this reasoning, whenever the legal estate is out- 
 standing, in an old term, for instance, to attend the inherit- 
 ance, the earliest equitable title must in all cases prevail : quiet 
 enjoyment for sixty, one hundred, or two hundred years or 
 more, would be no security, if the old term had existed longer: 
 it would always be open to inquiry in whom was vested the 
 equitable title which originally existed when the old term was 
 created (c)." 
 Appeal to the ^^ appeal to the House of Lords his Honour's decision was 
 
 House of Lords affirmed, and the principle on which it proceeded was approved. 
 
 (o) 2 J. & W. 153. (c) lb. 157. 
 
 (5) lb. 165, 156. 
 
CH. XXni. S. 4.] DOWEB AND CUETESY OF A TEUST. 631 
 
 Lord Eldon said, " The connection between the legal estate in 
 the term and the equities of the persons entitled to the inherit- 
 ance was by no means indissoluble;" and he instanced the case 
 of a second mortgagee, without notice of the incumbrance of 
 the first, getting in an outstanding term by which he shifted to 
 himself the equity that was previously in the first. " He could 
 not agree, and had never heard of such a rule as that adverse 
 jjossession, however long, would not avail against an equitable 
 estate : his opinion was, that adverse possession of an equity 
 of redemption for twenty years was a bar to another person 
 claiming the same equity of redemption, and worked the same 
 effect as abatement or intrusion with respect to legal estates, and 
 that for the quiet and peace of titles and the 'world ■ it ought to 
 have the same effect " (a). 
 
 SECTION IV. 
 
 OF DOWEE AKD CTJETEST. 
 
 A TBUST (fe), or equity of redemption (c), of freeholds, was until Dower and 
 the late act (cQ exempt from the lien of dower, but was and still trust ^ ° * 
 remains subject to the curtesy of the husband (e), unless the 
 husband be an alien (/). 
 
 An equitable interest in copyholds (as the late act does hot Freebench. 
 apply to them {g) ) is not subject to freebench (h). 
 
 In Banks v. S^itton (i), a case of doiver, Sir J. Jekj^ll took a Banks v. Sutton. 
 
 (a) 2 J. & W. 190, 191. (e) CJiaplm v. Chaplin, 3 P. W. 
 
 (6) Colt V, Colt, 1 Ch. Re. 254; 234, per Lord Talbot; Attorney- 
 
 BoUomley v. Lord Fairfax, Pr. CL. General v. Seoit, Rep. t. Talb. 139, 
 
 336; Attorney- General v. Scott, per eundem ; Watts y. Ball, 1 P. 
 
 Eep. t. Talb. 138 ; Chaplin v. Chap- W. 108 ; Sweetapple v. Bindon, 2 
 
 lin, '3 P. W. 229 ; Shepherd v. Shep- Vern. 536 ; Cunningham v. Moody, 
 
 herd. Id. 234, note (D) ; Curtis y- 1 Ves. 174; Cashorne v. Scarf e, 1 
 
 Curtis, 2 B. C. C. 630, per Lord Atk. 603 ; Bodson v. Hay, 3 B. C. 
 
 Alvanley ; Lady Badnor v. Bother- C. 405. • 
 
 ham, Pr. Ch. 65, per Lord Somers; (/) See Bumoncel v. Bumoncel, 
 
 Godwin V. Winsmore, 2 Atk. 525. 13 Ir. Eq. Eep. 92. 
 
 (c) Dixon V. Saville, 1 B. C. C. (ff) Smith v. Adams, 5 De Gex, 
 326; Beynolds v. Messing, cited Cas- Mao. & Gror. 712. 
 
 borne v. Scarfe, 1 Atk. 604 ; 2 J. & (h) Forder v. Wade, 4 B. C. C. 
 
 W. 194. 521. 
 
 (d) 3 & 4 "W. 4, c. 103. (i) 2 P. W. 700. 
 
622 DOWEK AND CURTESY OF A TRUST. [CH. XXID. S. 4. 
 
 distinction between trusts created by tbe husband himself, and 
 trusts originating from a stranger — that in the former case the 
 wife should not be dowable, for it might reasonably be supposed 
 the husband had intended to bar her dower, but in the latter 
 case there was no ground for such a presumption, and there- 
 fore the title to dower should attach. His Honour, however, 
 did not rest his decision upon this distinction {a), and in sub- 
 sequent cases the refinement has been rejected (6). 
 What seisin _ With respcct to curtesy, as at law the wife, to entitle her 
 
 curtesy. husband to curtesy, must have had seisin in deed of the free- 
 
 hold, the question arises whether in the instance of a trust 
 there must not have been such a seisin of the equitable estate 
 in the wife, as is considered equivalent to legal seisin, as actual 
 possession of the estate clothed with the receipt of the rents 
 and profits. It seems to be admitted that if the equitable 
 interest be in the possession of a stranger, adversely to the 
 right of the wife, there is no such seisin in deed as to entitle 
 the husband to his curtesy (c). But if money be articled or 
 directed by will to be laid out in a purchase of land to be 
 settled on a married woman in fee or in taU, the husband is 
 entitled to curtesy, though no rent or interest may have been 
 actually paid during the coverture {d). This proceeds on the 
 principle that the laches of the trustees shall not prejudice 
 the right of a third person, and, therefore, the claim to curtesy 
 arises in the same manner as if the trustees had actually laid 
 out the money on land and completed the settlement, and put 
 the parties in possession. 
 Parker v. Carter. However, it has been lately held, that in the case of an 
 ordinary trust any seisin of the wife, though she has not pos- 
 session or receipt of rents, is sufficient to entitle the husband 
 to curtesy. An estate had been vested in trustees upon trust 
 for Carter, during the joint lives of himself and Mary his wife, 
 and upon the death of either of them, and in default of 
 appointment upon trust for the children in fee. There were 
 
 (a) 2 p. "W. 715. (c) Parker v. Carter, 4 Hare, 
 
 (6) See Curtis v. Curtis, 2 B. 413. 
 
 C. 0. 630 ; D'Arcy v. Blahe, 2 Soh. [d) SweetappleY. Bindon, 2 Vem. 
 
 & Lef. 391 ; Godwin v. Winsinore, 536 ; Dodson v. Say, 3 B. C. C. 
 
 2 Atk. 526; Burgess v. Wheate, 405. 
 1 Ed. 197. 
 
CH. XXni. S. 4.] DOWEE AND CDETESY OF A TEUST. 633 
 
 two children, a son and a daughter Elizabeth, and the daughter 
 married Parker; Carter died in 1817, and on his decease the 
 widow, although she had no life estate, held possession of the 
 estate until her own death in 1839. Elizaheth Parker died in 
 1836, and the question was, whether Parker the husband was 
 tenant by the curtesy, although his wife had never been in 
 receipt of rents. The Vice-Chancellor ruled, that the posses- 
 sion of Carter was the possession of his trustee, and gave to 
 that trustee a seisin of the inheritance; that the death of 
 Carter did not interrupt that seisin, but the trustee was still 
 in actual possession, not by a new title then for the first time 
 accruing, but by continuance of the seisin acquired during 
 the coverture ; that the trustee was in such possession for the 
 benefit of the party lawfully entitled thereto, and that he con- 
 tinued in such possession until the entry of Mary, which might 
 be supposed to be a month or more after the death of her 
 husband, and that such interval, there being no adverse pos- 
 session, would entitle the husband to his curtesy (a). 
 
 If the trust be for the separate use of the wife, so that Curtesy wHere 
 her seisin would not entitle her husband to the possession or use. 
 profits, it was formerly doubted whether in this case curtesy 
 was not excluded. Lord Hardwicke was originally in favour 
 of the curtesy (6); but in a subsequent case (without any 
 allusion, however, to his former opinion,) he decided against 
 the claim of the husband (c). It has since been determined 
 that the husband is entitled {d). 
 
 It was observed by Sir John Leach that "At law the hus- Opinion of Sir 
 band could not be excluded from the enjoyment of property 
 given to or settled upon the wife, but in equity he might, and 
 that not only partially, as by a direction to pay the rents and 
 profits to the separate use of the wife during coverture, but 
 wholly by a direction that upon the death of the wife, the 
 inheritance should descend to the heir of the wife, and that the 
 husband should not be entitled to be tenant by the curtesy "(e); but 
 
 (a) Parker v. Carter, 4 Hare, 400; 715, 716 ; and see Bennet v. Davis, 
 
 see Cashorne v. Scarfe, 1 Atk. 2 P. W. 316. 
 
 606. {d) Morgan v. Morgan, 5 Mad. 
 
 (5) Soherts v. Bixwell, 1 Atk. 408 ; Follett v. Tyrer, 14 Sim. 125. 
 
 609. (e) Morgan v. Morgan, 5 Madd. 
 
 (c) Hearle v. Greenhanh, 3 Atk. 411. 
 
624 
 
 DOWER AND CURTESY OF A TRUST. [CH. XXUI. S. 4. 
 
 Distinction 
 between dower 
 and curtesy. 
 
 this doctrine may admit of question, as there appears no reason 
 why a person should be able to exempt an equitable any more 
 than a legal estate from the ordinary incidents of property. 
 A declaration, for instance, by a settlor, that a trust should 
 be inalienable or not available to creditors would be absolutely 
 void. In the case of Bennet v. Davis (a), which is cited by Sir 
 J. Leach for his position, the question discussed was not whether 
 curtesy attached on an equitable estate but whether any equitable 
 estate arose. A testator had devised lands " to his daughter, the 
 wife of Bennet, for her separate use, exclusive of her husband, 
 to hold the same to her and her heirs, and that her husband 
 should not be tenant by the curtesy, nor have the lands for 
 his life in case he survived, but that they should upon the 
 wife's death go to her heirs." It was contended that the wife 
 could not be a trustee for herself, and the husband could not 
 be a trustee for the wife, they both being but one person, and, 
 therefore, as there was no trustee the husband was entitled 
 to the estate beneficially. But the Court held clearly that the 
 husband was a trustee for the wife, and observed, " though the 
 husband might be tenant by the curtesy (viz., of the legal 
 estate), yet he should be but a trustee for the /leirs of the wife." 
 The remark certainly implies that on the death of the wife the 
 husband would not be tenant by the curtesy of the equitable 
 estate, but that question had not been adverted to at the bar, 
 and apparently, from the context, was not under the con- 
 sideration of the Court. Even assuming the remark to have 
 been made advisedly, the view of the Court may have been 
 that the curtesy of the husband was excluded on a ground now 
 overruled, viz., that the trust being not simply for the wife 
 and her heirs but during the coverture for the separate use 
 of the wife, and after her death for her heirs, there was not 
 a sufficient seisin as regarded the husband for the curtesy to 
 attach upon (6). 
 
 It must be acknowledged on all hands, that, as dower and 
 curtesy stand exactly on the same footing upon principle, 
 either the rejection of dower, or the admission of curtesy, was 
 
 (a) 2 P. "W. 316. Atk. 715, 716 ; Morgan v. Morgan, 
 
 (i) See Hearle v. Greenbank, 3 5 Mad. 408. 
 
CH. XXm. S. 4.] DOWEE AND CURTESY OF A TRUST. 623 
 
 an anomaly. Some high authorities, as Lord Talbot (a), Sir 
 T. Clarke (6), and Lord Loughborough (c), regarded curtesy as 
 the exception ; and the ground upon which they proceeded was 
 that as trusts followed the likeness of the use, and there was 
 no curtesy of the use, there could be none of the trust. On 
 the other hand. Sir J. Jekyll(cZ), Lord Hardwicke (e), Lord 
 Cowper(/), Lord Mansfield (gr), Lord Henley (/i), and Lord 
 Eedesdale (t), thought that consistency would be restored by 
 the admission of the title to dower; for, since the Statute of 
 Frauds, they argued the system of trusts had undergone con- 
 siderable alteration, and was conducted at present upon a 
 much more liberal footing : the rule now was, that, as between 
 the cestui que trust and the trustee and all claiming by or 
 under them, whoever would have a right against the legal 
 estate had a like right against the equitable. Thus either 
 argument had a fair show of reason to support it; but the 
 latter view was, no doubt, more in harmony with the system 
 of trusts as at present established. 
 
 "Why the Courts should have been induced to leave dower an Hoir curtesy 
 . , .. . , , came to be al- 
 
 exception, has been accounted tor, not more mgemously, than lowed and not 
 
 satisfactorily, by Lord Eedesdale: — "The Courts of equity," '^'"'^'■ 
 
 he said, "had assumed as a principle in acting upon trusts to 
 
 follow the laiv ; and, according to this principle, they ought in 
 
 all cases where rights attached on legal estates to have attached 
 
 the same rights upon trusts, and consequently to have given 
 
 dower of an equitable estate. It was found, however, that in 
 
 cases of dower, this principle, if pursued to the utmost, would 
 
 affect the titles to a large proportion of the estates in the 
 
 country; for that parties had been acting on the footing of 
 
 dower upon a contrary principle — that by the creation of a 
 
 trust the right of dower would be prevented from attaching. 
 
 (a) Chaplin v. Chaplin, 3 P. W. (e) Caaburne v. Cashurne, 2 J. & 
 
 234; Attorney- General v. Scott, "W. 200. 
 
 Rep. t. Talb. 139. (/) Watts v. Ball, 1 P. W. 109. 
 
 (J) Burgess v. Wheate, \ Ed, 196 \g) Burgess v. Wheate, 1 Ed. 
 
 —198. 224. 
 
 {c) Dixon v. Saville, 1 B. C. C. {h) lb. 249— 251. 
 
 327. \i) S'Arcy v. Blake, 2 Sch. & 
 
 {d) Banks v. Sutton, 2 P. W. Lef. 388. 
 713, 714. 
 
 t a 
 
626 DOWEE AND CUETESY OP A TEUST. [CH. XXHI. S. 4. 
 
 Many persons had purchased under this idea ; and the country 
 would have been thrown into the utmost confusion, if Courts of 
 equity had followed their general rule with respect to trusts in 
 cases of dower. But the same objection did not apply to 
 tenancy by the curtesy ; for no person would purchase an estate 
 subject to tenancy by the curtesy without the concurrence of 
 the person in whom that right was vested. Pending the cover- 
 ture, a woman could not aliene without her husband, and 
 therefore . nothing she could do would be understood by a 
 purchaser to affect his interest. But when the husband was 
 seised or entitled in his own right, he had full power of dis- 
 posing, except so far as dower miglit attach ; and the general 
 opinion having long been that dower was a mere legal right, 
 and that, as the existence of a trust estate previously created 
 prevented the right of dower from attaching at law, it would also 
 prevent the property from all claim of dower in equity, and many 
 titles depending on this opinion, it was found that it would be 
 mischievous, in this instance, to act on the general principle " (a). 
 I/ate Dower Act. Now, by a late Act (&), the widow is entitled to dower 
 in equity where the husband shall die beneficially entitled to 
 any interest (not conferring "a title to dower at law) which, 
 whether wholly equitable, or partly legal and partly equitable, 
 shall be an estate of inheritance in possession, or equal 
 to an estate of inheritance in possession, other than an estate 
 in joint tenancy (c). But in either case the wife will not be 
 entitled to dower out of any property absolutely disposed of 
 by the husband in his lifetime or by v/Ul(d). And by the 
 Act a widow is not entitled to dower out of any land, when in 
 the deed of conveyance thereof to her husband, or in any 
 deed executed by him, it shall be declared that his widow 
 shall not be entitled to dower (e) ; and the widow's right of 
 dower will also be barred by the husband's declaration of in- 
 tention contained in his will(/). The Act does not extend to 
 
 (a) D'Arcy t. Blake, 2 Sch. & j-ates prospectively only, and does 
 Lef. 388. not apply to a, declaration against 
 
 (b) 3 & 4 W. 4. c, 105. dower contained in a conveyance 
 
 (c) Sect. 2 ; and see Smith v. executed previously to the Act, See 
 Spencer, 2 Jur. N. S. 778. jvbSZe v. Fnj, 20 Beav. 598, and sect. 
 
 (d) Sect.' 4. 14 of Act. 
 
 (e) Sect. 6. This enactment ope- (/) Sect. 7. 
 
CH. XXm. S. 5.] FEME COVERT CESTUI QUE TEUST. 627 
 
 the dower of any widow married on or before the 1st day 
 of January, 1834, and does not affect copyholds (a). 
 
 SECTION V. 
 
 OF THE ESTATE OP A FEME COTEET CESTUT fttTE TKITST. 
 
 Under the above title we shall first advert shortly to the 
 effect of marriage upon property, held upon trust for a feme 
 covert simply, and not for her separate use ; treating, in order, 
 of pure personalty, chattels real, and real estate of freehold 
 or inheritance ; and we shall then proceed to consider the nature 
 of the wife's separate estate. 
 
 1. As respects pure personal estate, such as chattels personal, Pure personal 
 money, legacies, and choses in action not settled to the wife's settled to 
 separate use, the husband's power depends in cases of trust separate use. 
 just as in cases where the title of the wife is legal, upon the 
 fact of reduction into possession (h). If the wife's equitable 
 interest be possessory, and the trustee be willing to facilitate 
 the reduction into possession by payment, transfer, &c., to the 
 husband, the feme's rights are at an end. Nothing, however, 
 short of an actual reduction into possession will suffice ; and 
 in the absence of reduction by the husband during his life, the 
 equitable interest goes to the wife by survivorship. It follows 
 from what has been stated, that where the wife's interest 
 remains reversionary until after the husband's death, and the 
 wife survives, she necessarily takes by survivorship (c). And 
 a similar principle applies, where the interest of the wife may 
 be viewed as partly possessory and partly reversionary, — as 
 where the wife is entitled during her own life ; in which case, 
 the husband cannot bind the interest of the wife beyond the 
 duration of the coverture (d). So, even if the husband assign 
 the wife's reversionary interest, and it subsequently, during the 
 husband's lifetime, become possessory, the wife's right by sur- 
 
 (fl) Powdrell v. Jo7ies, 2 Sm. & (c) Purdew v. Jackson, 1 Russ. 1 ; 
 Gif. 407. Sonner v. Morton, 3 Russ. 65. 
 
 (6) Purdew v. Jackson, 1 Euss. (d) Stife v. Everitt, 1 M. & Cr. 
 45, 46: 37 ; Harley y. Harley, 10 Hare, 325. 
 
 s s 2 
 
fiSl8 
 
 GF THE ESTATE OF A FEME [CII. XXIII. S. 5. 
 
 Equity to a 
 settlement. 
 
 Feme may 
 assert her equity 
 to a settlement 
 actirely. 
 
 Right by 
 survivorship. 
 
 vivorsMp remains, unless reduction into possession be actually- 
 effected by the husband in his lifetime (a). 
 
 So far the analogy between interests legally vested in the feme, 
 and those which are held for her by a trustee, is perfect ; but 
 in the case of the equitable interest, the husband's rights are 
 further subject to the wife's equity to a settlement. This equity 
 appears to have had its origin (&) in cases where the trustee, 
 declining to pay, transfer, &c., the wife's possessory interest to 
 the husband, and the husband filing a bill against the trustee to 
 compel payment, transfer, &c., the Court held that those who 
 seek equity must do equity ; and declined to assist the husband 
 in obtaining the wife's equitable interest, except upon the 
 terms of some portion of it being settled for the benefit of the 
 wife and her issue (c). 
 
 But whatever may have been the source of this equity, it is 
 undoubtedly one which the wife has a right, according to the 
 now established practice of the Court, to assert actively, 
 either by bill {d), or, in the case of an already existing suit, 
 by petition (e), at any time before the husband has finally 
 reduced the equitable interest into possession. It is equally 
 clear that the equity is one which the wife has a right to 
 waive, by consenting in open court to the receipt of the equi- 
 table interest by the husband. 
 
 It must be remembered, that the wife's equity to a settle- 
 ment, and her right by survivorship, are two entirely distinct 
 things. The former arises only when the fund is ready for 
 reduction into possession and may be waived by the wife in 
 open court ; the latter, the wife cannot, by any act during 
 coverture, deprive herself of ; and the Court, as we have seen 
 elsewhere (/), treats as nugatory any act done by the husband, 
 or by his procurement, for the purpose of rendering the wife's 
 
 (a) JEUison v. Mwin, 13 Sim. 309 ; 
 Ashby V. Ashhj, 1 Coll. 553 ; Bald- 
 win v. Baldwin, 5 De Gex & Sm. 319. 
 
 (i) See Bosvil v. Brander, 1 P. 
 W. 458 ; Browne v. Mton, 3 P. "W". 
 202. 
 
 (e) As to the present practice of 
 the Court in settling the whole or 
 
 part, see pp. 369, 370, supra, and 
 eases there referred to. 
 
 {d) Lady JSlihank V. Montolieu, 
 5 Yesey, 737. 
 
 (e) Greedy v. Lavender, 13 Beav. 
 62; Scott V. SpasheU, 3 Mao. & 
 Gor. 699. 
 
 (/) Pages 371, 372, supra. 
 
CH. XXIII. S. 5.] COVERT CESTUI QUE TRUST. fi29 
 
 reversionary interest possessory, and thus diminishing her 
 rights by survivorship. 
 
 2 . The effect of marriage being, as a general rule, the same Equitable chat- 
 
 1 1 • ■ ^ 11 1 J. tels real of /emf 
 
 upon equitable as upon legal interests, it lollows that, as covert. 
 the husband, may assign the chattels real of the wife at law, 
 so he may assign her trust of a term in equity (a), though 
 it be merely a contingent interest (6) ; and, of course, without 
 the concurrence of either the wife or the trustee, and 
 without consideration. And this doctrine has not been inter- 
 fered with by the case of Purdew v. Jackson (c) ; for a 
 trust of chattels real is not a chose in action, but a present 
 interest — an estate in possession (d). If, however, the equit- 
 able interest in the chattel be such that it could not by possi- 
 bility vest in the wife during the coverture, then, inasmuch as 
 a legal interest of a similar kind could not be disposed of by the 
 husband, he cannot dispose of the equitable one (e). 
 
 Whether the doctrine regarding the wife's equity to a Whether wife 
 settlement extends to the equitable chattels real of the meutoutof 
 wife, has been much doubted. It was held in a late case, chattels real. 
 by Vice- Chancellor Wigram, as a result of the principles 
 laid down by Lord Cottenham, in Sturgis v. Champneys (/), 
 that even where the husband could dispose of the equitable 
 chattel, the wife was entitled to a provision out of the equi- 
 table interest as against the assignee of the husband, for 
 valuable consideration (^r). The opinion of the Vice-Chancellor 
 himself was the other way, but he considered himself bound 
 by the authority of the Chancellor in the case referred to. 
 
 (o) Motipe V. Atkinson, Bunb. per Lord Hardwicke ; Incledon v. 
 
 162 ; Mitford v. Mitford, 9 Yes. NoHhcote, 3 Atk. 435, per eundem ; 
 
 99, per Sir W. Grants Packer v. Clark v. Burgh, 2 Coll. 221. 
 
 Wyndham, Pr. Ch. 418, 419, per (J) Donne v. Hart, 2. R. & M. 
 
 Lord Cowper; Franco v. Franco, 360. 
 
 4 Ves. *528, per Lord Alvanley; (c) 1 Russ. 1. 
 
 Bullock y. Knight, 1 Ch. Ca. 266, {d) See Mitford v. Mitford, 9 
 
 per Lord Nottingliain ; Sanders v. Ves. 98, 99; Holland's case. Style, 
 
 Page, 3 Ch. Re. 223, per Cur. ; 21 ; Burgess v. Wheate, 1 Ed. 223, 
 
 Macaulay v. Philips, 4 Ves. 1 9, 224 ; Box v. Jackson, 1 Drury, 84. 
 
 per Lord Alvanley; Wikes^s case, (e) Dulerly v. Day, 16 Beav. 33. 
 
 Lane, 54, per Barons Snig and (/) 5M.&Cr.97;andseeJFortAa»j 
 
 Altham ; 8. C. Roll. Ab. 343 ; v. Pemherton, 1 De Gex & Sm. 644. 
 
 Jewson V. Moulson, 2 Atk, 421, {g) Hanson v. Keating, 4 Hare, 1. 
 
630 OP THE ESTATE OF A FEME [CH. XXHI. S. 5, 
 
 Result of '^^^ result of these decisions is very remarkable. Thus, a 
 
 decisions. mortgage by the husband of the wife's legal term bars her of 
 
 all right, except in the equity of redemption (a) ; while under 
 a similar mortgage of the equitable term, she would have an 
 equity to a settlement as against the mortgagee. Again, the 
 legal reversionary term of the wife, provided it be such as may 
 by possibility vest during the coverture, is capable of absolute 
 assignment by the husband ; and the wife has no right by 
 survivorship, such as exists in the case of her chose in action, 
 whereas as respects the assignment of a similar equitable 
 interest, there would be an equity to a settlement in the wife. 
 Supposing then the not improbable case to arise of an actual 
 assignment by the husband of the wife's equitable term, and 
 of his death before any question raised as to the rights of the 
 parties, the Court will have to decide, either that the wife's 
 equity to a settlement may be asserted after the husband's 
 death (an entirely new doctrine), or that the death of the hus- 
 band places the assignee in a better position than he was in so 
 long as the husband lived. The diificulties, indeed, of apply- 
 ing the doctrine of the wife's equity to the case of chattels 
 real, must, undoubtedly, prove considerable; but it can be 
 hardly expected, that the steps of which Lord Cottenham, 
 in StK/rgis v. Champneys, took the first, will now be retraced. 
 Effect of getting It is conceived that if the husband, or the assignee from him 
 
 in legal estate in »,-,.» , -j. i i i • i i- j.i 
 
 wife's equitable °^ *he wiie s equitable term, can procure an assignment oi the 
 *^™' legal estate from the trustee, the wife's equity to a settlement 
 
 is at an end ; but the point is untouched by authority. 
 Estate by eieg'it ^^ ^ judgment be acknowledged to A. in trust for a feme sole, 
 and she marries, and the conusee of the judgment sues an elegit, 
 and possession of the lands is delivered to him in trust for the 
 wife, the husband may assign the extended interest, as he might 
 have assigned the trust of a term certain (&); and the law is the 
 same where the feme is put in possession of lands by a decree 
 of the Court of Chancery until a certain sum be raised byway 
 of equitable elegit (c). But a mere judgment, recovered by the 
 
 (a) Sill V. Edmonds, 5 De Gex & 3 P. W. 201, per Lord King. But 
 
 Sm. 603 ; Clarh v. CooJe, 3 De Gei this was before the case of Purdew 
 
 & Sm. 333. y. Jachson, 1 Russ. 1. 
 
 (6) Lord Carteret v. Paschal, (c) 8. C. ib. 197. 
 
 in trust for a 
 feme coTcrt. 
 
CH. SXIII. S. 5.] COVEET CESTUI QUE TEUST. 631 
 
 wife before the coverture, is clearly a chose in action, and as 
 such cannot be disposed of by the husband, except by actual 
 reduction into possession (a). 
 
 And it has been held that a mortgage term in trust for the Mortgage term 
 wife (6), or a term in trustees for raising a portion for her(c), ftme^oTert* 
 may be assigned by the husband so as to carry the beneficial 
 interest. But in these cases a doubt arises whether the debt 
 or portion may not be held to be the principal thing ; and as 
 the doctrine that a chose in action of the wife is not dis- 
 posable by the husband is of far more recent date than the 
 decisions referred to, the question cannot be considered as 
 settled. The cases in which it has been held under the order and 
 disposition clause in bankruptcy, that the land draws with it the 
 debt, so as to exclude the operation of the clause, tend strongly 
 to support the old authorities, but are hardly decisive {d). 
 
 A second husband may assign the trust of a term limited to Equitable term 
 the separate use of a feme upon her first marriage, or during separate use. 
 her first coverture, unless it appear that it was the intention 
 to extend the separate use to a subsequent marriage (e). It was 
 held, indeed, by Lord Nottingham in Sir Edward Turner's 
 case if), that a term thus limited could not be disposed of by the 
 second husband ; but the decree, it is said, originated in mis- 
 take ((/) ; and was reversed in the House of Lords on appeal {h). 
 
 3. The case of the wife's equitable estate in lands of freehold Wife's equltaWe 
 or of inheritance, presents in the main the same general simi- S^freehoUor""^' 
 larity to that of her legal estate in like lands as has been i°iiwitance. 
 noticed in the case of chattels real. Thus the husband with- 
 out the wife can, in the case of the equitable as in that of the 
 
 {a) Fitzgeraldr.Fitzgerald, 8Com. (e) Tudor v. Samyne, 2 Vern. 
 
 B. E,. 611. 270; BaHon v. Briscoe, Jae. 603; 
 
 (J) Bates V. Bandy, 2 Atk. 207 
 Packer v. Wyndliam, Pr. Ch. 412 
 see 418. 
 
 (c) Walter v. Saunders, 1 Eq, 
 Ca. Ab. 58 ; Incledon v. Northcote 
 
 3 Atk. 430, see 435 ; and see Mitford 17 
 
 v. Mitford, 9 Ves. 99; Hore v 
 Becher, 12 Sim. 465. 
 
 {d) Jones v. Gibbons, 9 Vesey 
 407 ; and see Bees v. Keith, 11 Sim, 
 388 
 
 Knight v. Knight, 6 Sim. 121 ; 
 Benson v. Benson, ib. 126 ; and 
 see Howard v. Hooher, 2 Ch. Re. 
 81 ; Edmonds v. Bennington, cited 
 Carleton v. Earl of Dorset, 2 Vern. 
 
 (/) 1 Ch. Ca. 307. 
 
 {g) See Sanders v. Page, 3 Ch, 
 Re. 224 ; but see Pitt v. Hunt, X 
 Vern. 18. 
 
 (A) 1 Vera. 7. 
 
639 OF THE wife's [cH. XXIII. s. 5. 
 
 legal interest, convey an estate for the joint lives of himself 
 and his wife, or for his own life after issue born. So he and 
 his wife conjointly can, by deed acknowledged by the latter 
 under the Fines and Recoveries Act, dispose of the equitable 
 as of the legal interest, and bar an equitable entail as they 
 might a legal entail, by deed enrolled in Chancery. But 
 according to Lord Cottenham's decision in Sturgis v. Champ- 
 neys, the sole acts of the husband cannot affect the wife's 
 equity to a settlement ; and his power over the equitable 
 interest is, in this respect, less extensive than that which he 
 possesses over the legal. And it has been held, that the mere 
 circumstance of the existence of a jointure-term preceding 
 the estate of a, feme covert tenant in tail in possession subject 
 to the term, sufficiently renders the wife's estate equitable to 
 entitle her to a settlement on a bill filed by her (a). 
 
 The effect of the husband, or the husband's assignee, pro- 
 curing a conveyance of the legal estate so as to clothe his 
 equitable interest therewith, must be the same as in the case 
 of an equitable term of years adverted to above. 
 
 The wife's sepa- 4. We now proceed to the consideration of the wife's separate 
 estate. Where property is settled to the separate use of a feyne 
 covert, unquestionably it is competent to her, unless her power 
 of anticipation be restrained (&), and without the concurrence of 
 her trustees, unless the terms of the settlement require it (c), 
 to deal with the property directly and expressly, precisely in 
 the same manner as if she were a feme sole. 
 
 General rule. The general principle that governs the law of separate use 
 
 was laid down by Lord Thurlow, and has been recognised by 
 the highest authorities, viz., that " a feme covert, acting with 
 respect to her separate property, is competent to act in all 
 respects as if she were a feme sole " (d). 
 
 {a) Wortham v. Pemberton, I De anticipation was or not to be re- 
 
 Gex & Sm. 644. strained. See Ross's Trusts, 1 Sim. 
 
 (J) Tlie words " without power of N. S. 199 ; Scott v. Davis, 4 M. & 
 
 anticipation" are those most com- Cr. 89 ; Doolan v. Slake, 3 Ir. Chi 
 
 monly used to deprive a feme of the Ee. 349, and oases cited ib. 
 
 power of forestalling the income, but (c) Grighy v. Cox, 1 Ves. 518, 
 
 this phraseology need not necessarily per Lord Hardwicke: Bowling v. 
 
 be adopted, as it is a question of Maguire, Rep. t. Plunket, 19, per 
 
 intention upon the whole of the Lord Plunket, 
 
 instrument whether her power of (c?) Hulme v. Tenant, 1 B. C. C. 20. 
 
CH. xxni. s. 5.] 
 
 SEPARATE ESTATE. 
 
 r738 
 
 A feme, covert, therefore, as regards lier separate property, Bill. Answer. 
 sues separately by her next friend, and may obtain an order to " ■■ > ' ■ 
 answer separately (a), and if out of the jurisdiction be served 
 with process by leave of the Court (6), will be bound by a 
 submission in her bill (c), or answer (d), or by a contract for 
 sale (e), and her declarations may be read in evidence against 
 her (/), and she will be liable to an attachment for want of 
 answer where she answers separately (ji), and similarly for 
 disobeying the order of the Court in a suit to which she is a 
 party in respect of her separate estate (h), or her separate 
 property may be ordered to be sequestered (i). 
 
 The Courts have further determined, that if, without any General engage- 
 
 7., n J.I, J. j.r ments of a feme 
 
 direct or express reference to her separate property, a jeme covert in vritm<'. 
 
 covert bind herself by any written instrument, the implication 
 
 of law is, that she meant to charge her separate estate, for 
 
 except with reference to that the instrument was without 
 
 meaning and nugatory. Thus, if a feme covert execute a 
 
 bond(fc), even to her husband (Z), or join in a bond with 
 
 (a) Jackson v. Saworth, 1 Sim. 
 & St, 161. 
 
 (J) Copperthwaite v. Tuite, 13 Ir. 
 E^. Re. 68. 
 
 (e) Allen v. Papworth, 1 Ves. 
 163. 
 
 {d) Clerk v. Miller, 2 Atk. 379 ; 
 Baileyv. Jackson, C. P. Cooper'sRep. 
 1837-8, 495, Husband and wife put 
 in a joint answer, and the wife ad- 
 mitted certain indentures to be in 
 her possession and claimed the estates 
 to which the indentures related to 
 her separate use for her life. The 
 plaintiff moved for production, but 
 it was argued that the answer was 
 the husband's and could not be read 
 as an admission by the wife. How- 
 ever, the Court said though there 
 was some logical difficulty, there 
 was none in substance. That if the 
 wife claimed the benefit of the sepa- 
 rate use she must take it with its 
 disadvantages, and ordered the pro- 
 duction by the wife, and that the 
 husband should permit her to pro- 
 
 duce. Cowdery v. Way, V. 0. 
 Knight Bruce, 2d Nov. 1843 ; and 
 see Callow v. Howie, 1 De Gex & 
 Sm; 534 ; Darhishire v. Home, 3 
 De Gex, Mao. & Gor. 113. 
 
 (e) Davidson v. Gardner, Vend, 
 and Purch. 891, 11th ed. ; Stead v. 
 Nelson, 2 Beav. 248 ; and see Har- 
 ris V. Mott, 14 Beav. 169. 
 
 (/) Peacock v. Monk, 2 Ves. 193, 
 per Lord Hardwicke. 
 
 {g) Oraham v. Fitch, 2 De Gex 
 & Sm. 246; Taylor v. Taylor, 12 
 Beav. 271. 
 
 {h) Otway v. Wing, 12 Sim. 90. 
 
 (i) Keogh v. Cathcart, 11 Ir. Eq. 
 Rep. 280 ; and see cases cited ib. 
 
 (k) Lillia V. Airey, \ Ves. jun. 
 277; Norton v. Turvill, 2 P. W. 
 144 ; Peacock v. Monek, 2 Ves. 
 193, ^er Lord Loughborough; Tul- 
 let V. Armstrong, 4 Beav. 323, ^er 
 Lord Langdale. 
 
 {I) Heatley v. Thomas, 15 Ves. 
 596, 
 
634 
 
 OP THK WIFE S 
 
 [CH. XXIII, S. 5. 
 
 General engage- 
 ments not in 
 ■writing. 
 
 another even with her husband {a), or sign a promissory note (6), 
 or bill of exchange (c), or agree to take a leasehold house for 
 a term of years id), though she is not personally bound, yet 
 her separate estate is liable. So if she give a written retainer 
 to a solicitor, it entitles him to have his costs out of her sepa- 
 rate estate {e), though the circumstance that the solicitor of a 
 husband and wife has transacted busiaess relating to the 
 separate estate is not "per se " sufficient to make that estate 
 directly liable for the amount of his costs (/) ; and if she con- 
 tract for the purchase of an estate, she may enforce it against 
 the vendor, as it creates a valid obligation in respect of her 
 property (g). And it is immaterial whether the contract expressly 
 refer to the separate property, or whether the vendor Icnew or 
 not that purchaser was a married woman Qi). In one case a, feme 
 executed a bond before her marriage, and her property having 
 been settled upon her marriage to her separate use, the obligee 
 filed his bill against the husband and wife to have the debt 
 paid out of her separate estate, and the husband having 
 absconded, the Court made the order (i). 
 
 It has been stated that a feme covert makes her separate 
 property liable by the execution of any written instrument : to 
 that extent there can be no question ; but the principles upon 
 which the liability was held to attach were until recently 
 involved in much doubt. Thus it was considered by Lord 
 Loughborough (k), Sir J. Leach (l), and the late Vice- Chancellor 
 
 (a) Heathy v. Thomas, 15 Yes. 
 596 ; Stanford v. Marshall, 2 Atk. 
 68 ; Hulme v. Tenant, 1 B. C. C. 20. 
 
 (6) BuUpin V. Clarke, 17 Ves. 
 365; Field v. Sowle, 4 Kuss. 112; 
 Tullett V. Armstrong, 4 Beav. 323, 
 per Lord Langdale; Fitzgibhon v. 
 Blake, 3 Ir. Ch. Re. 328. 
 
 (c) Stuart V. Kirkwall, 3 Mad. 
 387; Coppin v. Gray, 1 T. & C. 
 Ch. Ca. 205 ; Tullett v. Armstrong, 
 4 Beav. 323, per Lord Langdale. 
 But where there is no separate use 
 a married woman cannot contract 
 under the Fiaes and Recoveries Act. 
 Crofts V. Middleton, 2 Eay & J. 
 194. 
 
 [d) Qaston r. Frankum, 2 De 
 
 Gex & Sm. 561 ; S. C. on appeal, 
 16 Jur. 507. 
 
 (e) Murray v. Barlee, 4 Sim. 
 82 ; 3 M. & K. 209. 
 
 (/) Callow V. Howie, 1 De Gex 
 & Sm. 521 ; and see Re Pugh, 17 
 Beav. 336. 
 
 {g) Bowling v. Maguire, Rep. t. 
 Plunket, 1 ; but see Chester v. Piatt, 
 Vend, and Puroh. 173, 13th edit. 
 
 (A) Bowling v. Maguire, Rep. t. 
 Hunket, 1. 
 
 (i) Biscoe r. Kennedy, cited 
 Hulme V. Tenant, 1 B. C. C. 17. 
 
 (k) See Bolton v. Williams, 2 
 Ves. jun. 142, 150, 156; Whistler 
 V. Newman, 4 Ves. 145. 
 
 {I) See Greatley v. Noble, 3 Mad. 
 
CH. XXm. S. 5.] SEPARATE ESTATE. 635 
 
 of England (a), that the separate estate of a. feme covert was not 
 subject to her general engagements, and that upon the notion 
 that a feme covert could not contract, hut that every dealing 
 in respect of her estate was in the nature either of an appoint- 
 ment or of a disposition (&). However, it is clear that a feme 
 covert can, in respect of her separate use, contract (c), and that 
 her written obligations are not to be viewed as appointments, 
 and do not operate merely by way of disposition. The prin- 
 ciples that govern the liability of a feme's separate property 
 have been very satisfactorily explained by Lord Brougham and 
 Lord Cottenham. 
 
 " The wife," said Lord Brougham," has a separate estate Lord BrougUm's 
 subject to her own control, and exempt from all other inter- principles wMcli 
 ference or authority ; if she cannot affect it, no one can, and the j^^J? *^f the 
 
 very object of the settlement which vests it in her exclusively /ewe's separate 
 
 estate. 
 is to enable her to deal with it as if she were discovert. At 
 
 first the Court seems to have supposed that nothing could 
 touch it but some real charge, as a mortgage, or an instrument 
 amounting to an execution of a power (where that view was 
 supported by the nature of the settlement), but afterwards her 
 intention was more regarded, and the Court only required to 
 be satisfied that she intended to deal with her separate property. 
 When she appeared to have done so, the Court held her to have 
 charged it, and made the trustees answer the demand thus 
 created against it. A good deal of the nicety that attends the 
 doctrine of powers thus came to be imported into this consider- 
 ation of the subject. If the wife did any act directly charging 
 the separate estate, no doubt could exist, just as an instrument 
 expressing to be in execution of a power was always of course 
 
 94 ; Stuart v. Kirkwall, ib. 389 ; (c) See Owens v. Dickenson, 1 
 
 Aguilar v. Aguihr, 5 Mad. 418 ; Cr. & Ph. 53 ; Bowling v. Maguire, 
 
 Field y. Sowle, 4: B,uas.lU; Chester Rep. f. Pluaket, 19; Master v. 
 
 V. I>lati, V. and P. 173, 13tli ed. Fuller, 4 B. C. C. 19 ; Stead v. 
 
 (a) Bee Murray Y. Barlee, 4: Sim. N^elson, 2 Bea.v. 245; WainwrigU 
 
 82 ; and see JDighy v. Irvine, 6 Ir. v. Sardisty, 2 Beav. 363 ; Bailey v. 
 
 Eq. Eep. 149. Jackson, C. P. Cooper's Kep. 1837-8, 
 
 (6) See Bolton v. Williams, 2 495; Francis v. Wigzell, 1 Mad. 
 
 Vea. jun. 150 ; Greatley v. JVbftfe, 261 ; Crosby v. Church, 3 Beav. 
 
 3 Mad. 94 ; Stuart v. Kirkvjall, ib. 489 ; Tullett v. Armstrong, 4 Beav. 
 
 389 ; Aguilar v. Aguilar, 5 Mad. 319. 
 418 ; Field Y. Sowle, 4 Buss. 114. 
 
G3G OF THE wife's [ch. XXUI. Sv'I); 
 
 considered as made in execution of it ; but so if by any 
 reference to the estate it could be gathered that such was her 
 intent, the same conclusion followed. Thus if she only executed 
 a bond, or made a note, or accepted a bill, because those acts 
 would have been nugatory if done by a feme covert without 
 any reference to her separate estate, it was held that she. must 
 be intended to have designed a charge on that estate, since in 
 no other way could the instruments thus made by her have any 
 validity or operation, in the same manner as an instrument 
 which can mean nothing if it means not to execute a power, 
 has been held to be made in execution of that power, though 
 no direct reference is made to the power. But doubts have 
 been, in one or two instances, expressed as to the effect of'any 
 dealing, whereby a general engagement only is raised, that is, 
 where she becomes indebted without executing any written in- 
 strument at all (a). I own I can perceive no reasojifor drawing 
 any such distinction. If in respect of her separate estate the 
 wife is in equity taken as a feme sole, and can charge it by 
 instruments absolutely void at law, can there be any reason for 
 holding that her liabiUtj^ or, more properly, her power of 
 affecting the separate estate, shall only be exercised by a 
 written instrument ? Are we entitled to' invent a rule to add 
 a new chapter to the Statute of Frauds, and to require writing 
 where that Act requires none ? Is there any equity reaching 
 written dealings with the property, which extends not also to 
 dealing in other ways, as by sale and delivery of goods ? Shall 
 necessary supplies for her maintenance not touch the estate, 
 and yet money furnished to squander away at play be a charge 
 on it, if fortified by a scrap of writing ? No such distinction 
 can be taken upon any conceivable principle " (6). 
 LordCottenliam's "^ Writing," said Lord Cottenham, "is operative upon a 
 view of the prin- feme's separate estate, not by way of the execution of a power, 
 
 ciples regulating *' ^ ' j j ^ ^ r > 
 
 the liability of although that has been an expression sometimes used, but, as 
 
 the separate 
 estate. 
 
 (o) It maybe observed that the appear to have conceived that any dis- 
 
 late V. C. of England while ex- tinction existed between a written 
 
 pressing his opinion upon the hear- and un\\Titten obligation ; see 4 Sim, 
 
 ing below, that the general engage- 94. 
 
 ments of the feme covert did not (i) Murray v. Barlee, 3 M. & K. 
 
 affect the separate estate, does not 223. 
 
CH. XXIU. S. 5.] SEPAKATE ESTATE. 637 
 
 I appreliend, very inaccurately used in cases where the Court 
 has' enforced the contracts of married women against their 
 separate estate. It cannot be an execution of the power, 
 because it iieither refers to the power, nor to the subject- 
 matter of the power, nor, indeed, in many of the cases has 
 there been any power existing at all. Besides, as it was 
 ai'gued in the case of Murray v. Barlee, if a married woman 
 enters into several agreements of this sort, and all the parties 
 come to have satisfaction out of her separate estate, they are 
 paid pari passu; whereas, if the instruments took effect as 
 appointments under a power, they would rank according to 
 the priorities of their dates. It is quite clear, therefore, that 
 there is nothing in such a transaction which has any resem- 
 blance to the execution of a power ; what it is, it is not easy 
 to define. It has sometimes been treated as a disposing of 
 the particular estate ; but the contract is silent as to the 
 separate estate, for a promissory note is merely a contract 
 to pay, not saying out of what it is to be paid, or by what 
 means it is to be paid; and it is not correct, according to 
 legal principles, to say that a contract to pay is to be con- 
 strued into a contract to pay out of a particular property, 
 so as to constitute a lien on that property. Equity lays hold 
 of the separate property, but not by virtue of anything 
 expressed in the contract, and it is not very consistent with 
 correct principles to add to the contract that which the party 
 has not thought fit to introduce into it. The view taken of 
 the matter by Lord Thurlow, in Hulme v. Tenant, 1 B. C. C. 
 16, is more correct. According to that view, the separate 
 property of a married woman being a creature of eqiuty, it 
 follows that if she has a power to deal with it, she has the 
 other power incident to property in general, namely, the power 
 of contracting debts to be paid out of it ; and in as much as 
 her creditors have not the means at law of compelling payment 
 of those debts, a court of equity takes upon itself to give effect 
 to them, not as personal liabilities, but by laying hold of the 
 separate property as the only means by which they can be 
 satisfied. I observe that in Clinton v. Willes, 1 Sug. Pow. 
 208, n.. Sir Thomas Plumer suggested a doubt whether 
 it was necessary that the feme's engagements should be 
 
638 
 
 OF THE WIFE S 
 
 [CH. xxin. S. 5. 
 
 Eesult of judg- 
 ments of Lord 
 Gotteiiham and 
 Lord Brougham, 
 
 ObBervations of 
 T. C. Kinders- 
 ley respecting 
 /erne's verbal 
 engagements. 
 
 secured by writing: it certainly seems strange that there 
 should be any difference between a contract ia writing, when 
 no statute requires it to be in writing, and a verbal promise 
 to pay. It is an artificial distinction not recognised in any 
 other case. On that point, however, I give no opinion at 
 present " {a). 
 
 The judgments of Lord Cottenham and Lord Brougham in 
 the cases last referred to must be held to have clearly estab- 
 lished that the dealings of the feme covert with her separate 
 estate do not operate by way of appointment or disposition, 
 and if this be so, it is difficult to see on what ground any 
 valid distiuction can be sustained between verbal and written 
 engagements, the point which was left undecided by Lord 
 Cottenham. If a written promise to pay, as a promissory 
 note, referring neither to the instrument of trust nor to the 
 property, be held to bind the separate estate, upon what 
 ground can a verbal assumpsit be distinguished ? So long as 
 it could be maintained that the dealing of the married woman 
 operated by way of disposition of the separate estate, there 
 seemed room for contending that the disposition, as being an 
 assignment of a trust, must have been in writing (6) ; but 
 so soon as it is admitted that the general engagement in 
 writing binds, it seems impossible to resist the conclusion that 
 a verbal general engagement must bind likewise. When it is 
 attempted to imply a promise from mere acts of the feme, 
 which may be construed as intended to bind either her hus- 
 band or herself, there seems room for a distinction, but an 
 express verbal promise and an express written promise to pay 
 must, it is conceived, stand on the same footing. The ques- 
 tion, however, is one which stUl requires further elucidation 
 by decision, and in a late case we find Vice- Chancellor Kin- 
 dersley expressing himself in the following guarded language : 
 
 "It has not yet, indeed, been made the subject of positive 
 decision, that the principle embraces a feme's verbal engage- 
 ments or cases of common assumpsit. Considering, however, 
 the opinions expressed and the reason of the thing, I think 
 
 (a) Owens v. Dickenson^ 1 Cr. & 
 Ph. 53. 
 
 (5) See page 600 suprd,. 
 
CII. XXm. S. 5.] SEPAEATE ESTATE. 689 
 
 it very probable that when that question arises for decision 
 
 it will be decided in the affirmative (a)." 
 
 It may be suggested that there is still another distinction, viz. Whether sepa- 
 
 1 <^o ^ rate estate can be 
 
 that, allowing the general engagements of the wife, whether made liable ty 
 
 written or unwritten, to bind her separate estate, yet, supposing in clear oontra- 
 
 the doctrine of these cases to be founded on the intention f ^tio" *<> tl^e in- 
 
 tention. 
 
 to charge the settled property as implied by the circumstance 
 
 that otherwise the act would be nugatory, the same principle 
 
 will not apply where it was clearly not the intention of the 
 
 feme to create any charge, but, if any exist, it arises upon an 
 
 assumpsit in law, wholly disconnected from the actual intention. 
 
 In accordance with this view it was held that where a feme 
 
 covert granted an annuity which was void for want of a 
 
 proper memorial, the annuitant had no remedy against the 
 
 separate estate for the repayment of the purchase-money, as 
 
 no implication of an assumpsit could be raised against her (b). 
 
 So where a feme covert misapplied some trust-money, and 
 
 had she heena, feme so fe would have been liable for the amount, 
 
 the Court thought the cestui que trust could not charge the 
 
 separate estate, in the total absence of the /erne's intention to 
 
 make her property liable (c). However, there appears to be 
 
 but a thin partition between the general engagements of a feme 
 
 not in writing, and an assumpsit raised in law upon facts done 
 
 alio intuitu ; and considering that recent decisions have rather 
 
 regarded the feme covert as in all respects a feme sole to the 
 
 extent of her separate estate, it may not be safe to rely upon 
 
 cases which have evidently proceeded upon principles that have 
 
 since been abandoned. 
 
 Where a feme covert was privy to a breach of trust affecting Breach of trust 
 
 by a fetiie covert, 
 the fund of which she was tenant for life to her separate use, 
 
 it was decided by Lord Loughborough that she could proceed 
 
 against the trustee, and compel the replacement of the 
 
 (a) Vaughan v. Vanderstegen, 2 low, the point was not argued, and 
 Drew. 183 ; and see Newcomen v. Lord' Loughborougli, on the rehear- 
 Hassard, 4 Ir. Ch. Re. 274, ing, thought he had no jurisdiction 
 
 (6) Jones v. Harris, 9 Ves. 486 
 Aguilar v. Aguilar, 5 Mad. 414 
 Solfon v. Williams, 4 B. C. C. 297 
 
 to decide it. 
 
 (e) Oreatley v. Nolle, 3 Mad. 79; 
 and see Nantes v. Corroch, 9 Yes. 
 
 S. C, 2 Ves. jun. 138; hut in the 182; Stuart v. Kirkwall, 3 Mad, 
 latter case, when hefore Ijord Thur- 387. 
 
640 OF THE wife's [CH. XXIII. s. 6, 
 
 fund (a). It would seem difficult to support this decision, even 
 
 on the assumption that the wife's dealings operated hy way of 
 
 disposition. And in a case before Lord Langdale, where a 
 
 married woman had concurred actively in dealings with the 
 
 trust fund, amounting to a breach of trust, and she subsequently 
 
 to her husband's decease filed a bill to have the trust fund 
 
 replaced, his Lordship treated the acts of the feme as an actual 
 
 disposition of the fund to the extent of her separate estate 
 
 therein, and made the separate estate available in partial 
 
 exoneration of the trustee's liability (6). 
 
 View of Lord St. In a subsequent case before Lord St. Leonards, in Ireland, his 
 
 reference to Lordship expressed himself thus : " I hope that the Court may 
 
 by/eS^^oLr r* f^el itself at liberty to treat a woman entitled for her separate 
 
 having a sepa- ygg i^ possession as sui juris, so as to bind her interest where 
 
 rate estate. 
 
 she prevails upon her trustees to commit a breach of trust." 
 But his Lordship in the same case in which the separate use of 
 the feme covert was to arise upon a contingency, viz., the 
 insolvency of the husband, which had not yet occurred, held 
 that the feme covert could not by any act bind her interest (c). 
 Nature of the Supposing a person entitled to establish his claim against 
 
 separate estate, the Separate estate, the limits of his remedy appear to be 
 these. He cannot file a bill against the feme covert as the sole 
 defendant and personally liable. " There is no case," said Sir 
 T. Plumer, "in which this Court has made a personal decree 
 against a feme covert. She may pledge her separate property 
 and make it answerable for her engagements ; but where her 
 trustees are not made parties to a bill and no particular fund 
 is sought to be charged, but only a personal decree against her, 
 the bill cannot be sustained " {d). But the party aggrieved may 
 file a bill against her and her trustees, (and the death of the 
 husband, which puts an end to the separate use, either after 
 the filing of the bill (e), or even before it (/), will not defeat the 
 
 (a) Wiistler v. Newman, 4 Ves. v. Wells, 9 Hare, pp. 772, 7T3. 
 129; see observations ofLordBldon (c) MaraY. Manning, 2 Jones & 
 
 on this case; Parhes v. White, 11 Lat. 311. 
 Ves. 223. (rf) Francis v. Wigzell, 1 Mad. 262. 
 
 (6) Croshy v. Church, 3 Beav. 485; (e) Field v. Sowle, 4 Kuss. 112. 
 
 and see Brewer v. Swirles, 2 Sm. & {/j Heatley v. Thomas, 15 Ves. 
 
 Giff. 219 ; and tlie observations of 596 ; but see Kenge v. Belavall, 
 
 L. J. (then V. C.) Turner in Hughes 1 Yern. 326. 
 
CH. XXin. S. 5.] SEPAEATE ESTATE. 641 
 
 suit,) and may pray payment of his demand out of all personal 
 estate in the hands of the trustees to which she is entitled 
 absolutely, (including arrears of rents,) and also out of the 
 accruing interest or rents, if there be no clause against antici- 
 pation, until the claim and costs have been satisfied (a). 
 " Determined cases," said Lord Thurlow, " seem to go thus 
 far, that the general engagement of the wife shall operate 
 upon her personal property, shall apply to the rents and 
 profits of her real estate, and that her trustees shall be 
 obliged to apply personal estate, and rents and profits when 
 they arise, to the satisfaction of such general engagement; 
 but this Court has not used any direct process against the 
 separate estate of the wife, and the manner of coming at the 
 separate property of the wife has been by decree to bind the 
 trustees as to personal estate in their hands, or rents and 
 profits, according to the exigency of justice or of the engage- 
 ment of the wife, to be carried into execution." His lordship 
 then adds, " I know of no case where the general engagement 
 of the wife has been carried to the extent of decreeing that 
 the trustees of her real estate shall make conveyance of that 
 real estate, and by sale, mortgage, or otherwise, raise the 
 money to satisfy that general engagement on the part of the 
 wife " (6). But it is conceived that if in any case the instru- 
 ment were so specially worded as to place the corpus also at 
 the disposal of the feme covert as entitled to it for her separate 
 use, the engagements of the wife would, upon principle, bind 
 the whole interest settled to the separate use, whether corpus 
 or income. 
 If there be a clause against anticipation, the Court directs ^'*^»'? ?" p"**'" 
 
 of anticipation. 
 
 payment out of the /erne's separate estate, except that part of 
 which she has no power of anticipation (c). But where there 
 is a restraint upon anticipation the engagements of the 
 
 (o) Hulme v. Tenant, 1 B. C. C. 492, 493, 497 ; Stuart v. Kirkwall, 
 
 20 ; Standford v. Marshall, 2 Atk. 3 Mad. 38Y. 
 
 68 ; Murray v. "Barlee, 4 Sim. 82 ; (J) Hulme v. Tenant, 1 B. C. C. 
 
 3 M. & K. 209 ; Field v. Sowle, 4 20, 21 ; and see Broughton v. James, 
 
 Euss. 112; Nantes v. Corroch, 9 1 Coll. 26. 
 Ves. 182 ; Bullpin v. Clarke, 17 (c) Mxtrray y. Barlee, 4 Sim. 95. 
 
 Ves, 365; Jones v. Harris, 9 Vcs. 
 
 T I 
 
642 
 
 OF THE WIFE S 
 
 [CH. XXIII. S. 3. 
 
 Stock settled to 
 the separate use, 
 
 Creditor suit 
 after deatli of 
 ftmt covert. 
 
 Power of disposi- 
 tion ty will of 
 separate estate. 
 
 Separate estate 
 undisposed of 
 survives to the 
 hushand. 
 
 Arrears of sepa- 
 rate estate. 
 
 wife will operate upon any arrears of the separate use that 
 may have already accrued (a). 
 
 In one case the Court refused to hold the bank annuities 
 of a feme covert liable, as stock could not in the case of a 
 person sui juris be taken in execution (b) ; but now that 
 stock is available to the creditor (c), the distinction 'may be 
 considered as gone. 
 
 After the death of the fe^ne covert the creditor may file a 
 bill for payment of his debt out of her sepai*ate estate (tZ), 
 and where there are other creditors, specialties and simple 
 contract debts will be paid pari passu, as the separate pro- 
 perty is considered equitable assets (e). 
 
 A feme covert has, as incident to her separate estate, a 
 power to dispose of it, and of all accumulations .therefrom, by 
 testamentary instrument in the natflre of a will (/). And if a 
 feme leave a will and make bequests, the usual course of 
 administration will be observed. Thus the undisposed of 
 estate will be first applied, then, general legacies, and, if there 
 still be a deficiency, the specific legacies {g). 
 
 If a feme having personal estate settled to her separate use 
 die without disposing of it, the husband will be entitled to it; 
 as to so much thereof as may consist of cash, furnitm-e, or 
 other personal chattels in his marital right, and as to so much 
 as may consist of " choses in action," upon taking out adminis- 
 tration to his wife (h). 
 
 If the husband receive the wife's separate income, though 
 there was a clause against anticipation (i), and the wife sur- 
 vives, it is clear that she or her personal representative 
 cannot claim against his estate more than one year's arrears, 
 but it is still sub judice whether the wife or her representative 
 
 (o) Fitzgihhon v. Blake, 3 Ir. Ch, 
 Re. 328. 
 
 (i) Nantes v. Corrock, 9 Ves. 
 182. 
 
 (c) 1 & 2 v., c. 110, s. 11. 
 
 (d) See Owens v. Dickenson, 1 
 Cr. & Phil. 48 ; Gregory v. Lockyer, 
 6 Mad. 90. 
 
 (e) Anon. 18 Ves. 258 ; Owens 
 V. Dickenson, 1 Cr. & Ph. 53, per 
 Lord Cottenham. 
 
 (/) Fettiplace v. Gorges, 1 Vesey, 
 jun. 46 ; Sumplierey v. Ricliards, 2 
 Jur. N. S. 432. 
 
 {g) Norton v. Tarvill, 2 P. W. 
 144. 
 
 (A) Molony v. Kennedy, 10 Sim. 
 254; Birdy. Peagt'um, 13 Com. B. 
 R. 639 ; Johnstone v. Lumh, 15 Sim. 
 308 ; Drury v. Scott, 4 T. & C. 264. 
 
 (i) Hotcley v. Unicin, 2 Kay & 
 J. 138. 
 
CH. XXIII. s. 5.] 
 
 SEPAKATE ESTATE. 
 
 643 
 
 can claim even so much. Lord Macclesfield (a), Lord Talbot (&), 
 Lord Loughborough (c), Sir W. Grant (d), and Lord Chancellor 
 Brady (e) held that the wife or her representative could claim 
 nothing. On the other hand, in the judgment of Sir T. 
 Sewell(/), Lord Camden (gf), Lord King(/i), Lord Hard- 
 wicke (i),' Lord Eldon (fc), Sir J. Leach (i), Sir J. Stuart (m), 
 and Lord St. Leonards (re), the husband's estate is liable to 
 an account for one year. The more commonly received 
 opinion in the profession is thought to be that an account 
 for one year should be given (o). 
 
 The principle upon which the relief is thus limited is that 
 the Court presumes the acquiescence of the wife in the hus- 
 band's receipt de anno in annum. If therefore the wife did 
 not in fact consent to the husband's receipt, but remonstrated 
 and required that the separate income should be paid to her- 
 self, which was promised, the Court will carry back the account 
 of the arrears to the time of the wife's assertion of her claim (p). 
 But the Court requires very clear evidence that the demand 
 was seriously pressed by the wife, and will not charge the 
 
 (o) Powell V. Hanhey, 2 P. W. 
 82. 
 
 (J) Fowler v. Fowler, 3 P. W. 
 353. (N.B. A case of pin-money.) 
 
 (c) Squire v. Dean, 4 B. C, C. 
 325 ; Smith v. Camelford, 2 Ves. 
 jun. 716. 
 
 {d) Dalbiac y. Dalbiac, 16 Ves. 
 126. 
 
 (e) Arthur v. Arthur, 11 Ir. Eq. 
 Ee. 511. 
 
 (/) Burdon v. Burdon, 2 Mad. 
 286, note. 
 
 (g) Vo. p. 287, note. 
 ( (A) Countess of Warwick v. Ed- 
 ■toards, 1 Eq. Ca. Ab. 170. In 
 Thomas v. Bennet, 2 P. W. 341, 
 Ms Lordship probably held only that 
 ten years' arrears could not be given. 
 
 (»') Townshend v. Windham, 2 Vea. 
 sen. 7 ; Peacock v. Monk, 2 Ves. 
 sen. 190 ; Aston t. Aston, 1 Vea. 
 sen. 267. 
 
 {k) Parkes v. TFhite, 11 Ves. 225 ; 
 Brodie y, Barry, 2 Ves. & B, 36. 
 
 (l) Thrupp V. Harman, 3 M. & 
 K. 513. 
 
 (m) Lea y. Grundy, 1 Jur. N. S, 
 953. 
 
 (n) Property as administered, by 
 D. P., p. 169. 
 
 (o) In Howard v. JDighy, 2 CI. & 
 Pin. 643, 665, Lord Brougham 
 thought that in separate use, as dis- 
 tinguished from pin-money, the wife 
 or her representatives could recover 
 the whole arrears, but this is clearly 
 untenable ; see Arthur y. Arthur, 
 11 Ir. Eq. Kep. 513. In the same 
 case the V. C. of England, when the 
 cause was before him, hesitated 
 whether the general rule gave an 
 account for a year or none at all; 
 see Dighy y. Howard, 4 Sim. 601. 
 
 (p) Ridout y. Lewis, 1 Atk. 269 ; 
 Moore v. Moore, 2 Atk. 272 ; see 
 Moore y. Earl of Scarborough, 2 Eq. 
 Ca. Ab. 156 ; Parker v. Brooke, 9 
 Ves. 683. 
 
 T T 2 
 
644 
 
 OF THE WIFE S 
 
 [cH. xxni. S. 5. 
 
 Case aifeme 
 covert being Htm 
 compos. 
 
 Howard t. 
 Dighy. 
 
 Special con- 
 sideration of 
 separate use in 
 reference to 
 real estate. 
 
 husband's estate from any idle complaints against his receipt 
 which the wife may have occasionally made (a). 
 
 As the Court proceeds upon the notion of the wife's acquies- 
 cence, the question arises where she is non com/poi, and so 
 incapable of waiving her right, whether the husband's estate 
 shall not be liable for the entire arrears ; and it would seem 
 that in such a case the husband's estate must account for 
 the whole, but that the husband's estate will be entitled 
 to an allowance for payments made for the wife's benefit, 
 and which ought properly to have fallen on her separate 
 estate (&). 
 
 In Howard v. Dighy (c) a woman's inn-money was distin- 
 guished from ordinary separate use, and it was held as to 'pin- 
 money that the wife's representatives {d) could make no claim 
 to any arrears. The ground upon which the House proceeded 
 was that pin-money was for the personal use and ornament of 
 the wife, and the husband had a right to see the fund properly 
 applied, and that if the husband himself found the necessaries 
 for which the pin-money was intended, the wife or her repre- 
 sentative could have no claim against the husband's estate 
 when the requirements for her personal use and ornament had 
 ceased (e). Lord St. Leonards has justly questioned these 
 principles (/), and it remains to be seen whether Howard 
 V. Dighy will be followed, except under exactly similar circum- 
 stances. 
 
 In the foregoing discussion of the " separate use," no dis- 
 tinction has been taken between real and personal estate. It 
 must be observed, however, that in the case of realty it was 
 formerly held that the feme covert could not by virtue of 
 
 [a) Thrupp v. Sarman, 3 M. & 
 K. 512. 
 
 (5) Attorney- General-^. Parnther, 
 3 B. C. C. 441, 4 B. C. C. 409; 
 Howard y. Dighj, 2 CI. & FIb. 671, 
 673, 
 
 (c) 2 Ca. & Fin. 634 ; 4 Sim. 588. 
 
 (d) Lord Brougham considered 
 that the wife herseK might in her 
 lifetime have recovered one year's 
 arrears ; see 2 CI. & Fin. 613, 653, 
 659. 
 
 (e) Pin-money, said Lord Hard- 
 wicke, shall not he allowed for more 
 than one year, not merely on a sup- 
 posal of her having given the arrears 
 to her hushand, but on this; that 
 having lived with the hushand she 
 is supposed to have received satis- 
 faction that way ; Aston v. Aston, 
 1 Ves. sen. 267 ; and see Fowler v. 
 FowUr, 3 P. W. 355. 
 
 (/) Law of Property as adminis- 
 tered, by D. P., p. 162, 
 
CH. XXIII. S. 5,] SEPARATE ESTATE. 645 
 
 the separate use, if there were no express power, dispose 
 of the freehold, at least not for any larger interest than 
 during the coverture (a), for between real and personal 
 estate it was said there was this distinction, that on the death 
 of the feme in her husband's lifetime, the absolute interest in 
 the personal estate would devolve on the husband, but the 
 inheritance of the real estate would descend upon the heir, 
 who was not to be disinherited but in some formal mode. 
 However, the favour shown anciently to the heir, has in later 
 times been disregarded : and it is presumed that at the present 
 day, if lands be conveyed to a trustee and his heirs upon 
 trust as to the fee simple for a feme covert " for her separate 
 use," she may deal with the fee as if she were a feme sole (b). 
 It is simply a question of intention. . A married woman may 
 have limited to her a power of disposition over a fee simple 
 estate, and if the separate use be so worded as to show that 
 the separate use was meant to extend not only to her life- 
 interest but to the fee, she ought upon principle to be able 
 to deal with the absolute property by virtue of the separate 
 use, whether by Act inter vivos, or by testamentary instrument, 
 as fully as she might in the case of personal estate. It 
 cannot however be said that the question is free from 
 doubt. In a late case in Ireland (c). Sir T. B. C. Smith, 
 Master of the EoUs, appears to have considered the free- 
 hold interests of the wife extending beyond her own life 
 settled to her separate use as forming a special exception; 
 and where freehold and copyhold premises were devised to a 
 feme covert for her separate use, and the wife entered into 
 a contract for sale and died, having devised the property to her 
 husband, who filed a bill against the purchaser for specific 
 performance, the Court considered the question of the 
 wife's power to devise the estate as being too doubtful to 
 
 (a) Churchill v. Dibben,. 2 Lord 245 ; Wainwright v. Sardisty, lb. 
 
 Kenyon's Eep. 2d part, 68, p. 84 ; 363 ; Crosby v. Church, 3 Beav. 
 
 case cited ia Peacock v. Monk, 2 485; BaggettY. Meux, 1 Coll. 138. 
 
 Ves. 192 ; and see 2 Eop. Husb. and IPhill. 627; seep. 628; Majors. 
 
 Wife, 182, 2d ed; 1 Sand, on Uses, Lansley, 2 R. & M. 355. 
 
 346, 4th ed. (c) Newcomen v. Hassard, 4 Ir. 
 
 (6) See Stead v. Nelson, 2 Beay. Ch. Eep. 274. 
 
646 
 
 JDDGMENTS AGAINST CESTUI QUE TEUST. [CH. XXUI. S. 6. 
 
 compel the defendant to take the title in the absence of the 
 
 heir (a). 
 
 No acknowledg- It has been decided that where a feme is dealing with pro- 
 
 ^Te*of s'ep'Se P^^ty hj virtue of her separate use, the deed need not be 
 
 use in real estate acknowledged bv her under the Fines and Eecoveries Act (b). 
 needed. 
 
 Writs of execu- 
 tion at common 
 law. 
 
 Levari facias 
 from the crown 
 distinguished 
 from the ordi- 
 nary levan 
 facias. 
 
 SECTION VI. 
 
 OF JTJIGMENTS AGAINST THE CESITTI dVE TETTST. 
 
 Before entering upon this topic, it may be useful to 
 notice briefly how legal interests stand affected by judg- 
 ments. 
 
 At common law the plaintiff in the action had only two writs 
 of execution open to him against the property of the defendant: 
 the fieri facias, to levy the debt de bonis et catallis ; and the 
 levari facias, to levy it de terris et catallis (c). The execution 
 under the latter writ affected no interest in land of a higher 
 description than a mere chattel interest, which last the 
 sheriff might seU in like manner as a personal chattel, and 
 affected not the possession of the lands (d), but merely enabled 
 the sheriff, besides taking the chattels, to levy the debt 
 from the present profits, as from the rents payable by the 
 tenants (e), and the emblements (/), that is, the corn and other 
 crops at the time growing on the lands (g). If the sheriff, 
 when he made his return, had not levied the fuU amount of 
 the debt, a new levari facias might have issued, to be executed 
 by the sheriff in like manner (h) (1). 
 
 (a) Harris v. MoU, 14 Beav. 169. 
 
 (J) Newcomen v. Hassard, 4 Ir. 
 Ch. Eep. 268. 
 
 (c) Finch's Law, 471. 
 
 {d) Id. 471; Sir E. Coke's case, 
 Godb. 290. 
 
 (e) Finch's Law, 472; Davy y. 
 Pepys, Plowd. 441. 
 
 (/) 4 Com. Ab. 118. 
 
 [g) HarherVs case, 3 Re. lib; 
 2 Inst. 394; 2 Bac. Ab. Execu- 
 tion (C) 4, note (5). 
 
 {h) F. N. B. 265. 
 
 (1) There was also another species of levari facias, of which the plaintiff 
 might under particular circumstances, have indirectly availed himself. In 
 case the defendant was outlawed in the action, the sheriff, on the issuing of 
 the capias utlcgatum, took an inquisition of the lands of the debtor, and 
 extended their value, and made hia return to the Exchequer. A levari 
 
en. xxiir. s. G.] judgments against cestui que trust. 647 
 
 In order to provide for the creditor a more effectual remedy, Statute of West- 
 the Statute of "Westminster (a) introduced the writ of elegit, 
 and enacted, that when debt was recovered or knowledged, or 
 damages awarded, the suitor should at his choice (6) have a 
 writ oi fieri facias (c) from the debtor's lands and chattels, or 
 that the sheriff should deliver to him all the chattels of the 
 debtor, except his oxen and beasts of the plough, and one-half 
 of his land, until the debt should be levied upon a reasonable price 
 or extent. 
 
 It was by virtue of this statute that judgment creditors were 
 first enabled to sue execution of one moiety of the debtor's 
 lands, whether vested in him at the time of the judgment or 
 subsequently acquired. 
 
 Chattel interests in lands were, even before the Statute of From what time 
 Frauds, not bound until after execution awarded. And since jn i^nd boiand; 
 the statute, according to the better opinion, they have, as 
 falling within sect. 16, been bound only from the delivery of 
 the writ to the sheriff; and it would seem that, by the 19 & 20 
 Vict. c. 97, s. 1, the protection conferred by the Statute of 
 Frauds has, in favour of persons bond fide and for value 
 acquiring a title without notice, been extended to the time of 
 actual seizure (d). 
 
 (a) 13 Ed. 1, St. 1, c. 18. (d) The word "goods" used in 
 
 (i) Whence the term elegit. the latter Act is the same as that 
 
 (e) In these words the legislature used in the Statute of Frauds. The 
 
 meant to include the two writs of only doubt would seem to be whether 
 
 Jieri facias and levari facias. 2 the words actual seizure can be held 
 
 In?t. 395. to apply to a chattel real. 
 
 facias from the crown then followed, commanding the sheriff to levy the 
 extended value de exitihus, from the issues of the lands, till the plaintiff 
 should be satisfied his debt. These issues were defined to be the "rents 
 and revenues of the land, corn in the grange, and all moveables, except 
 horse, harness, and household stuff." 13 Ed. 1, c. 39, st. 1 ; 2 Inst. 453. 
 The sheriff might have agisted or mown the grass. Britten v. Cole, 5 
 Mod. 118, per Lord Holt. But if at the date of the inquisition, the agist- 
 ment was already let, the money agreed to be paid was a sum in gross, and 
 was not subject to the levari facias. S. C. 1 Raym. 307, per eundem. 
 The cattle of a stranger, if levant and couchant on the land, were seizable 
 under the writ, as included in the word " issues." S. C. lb. 305. The 
 lands were boimd by the levari facias from the date of the writ, so that any 
 subsequent disposition, though it served to pass the freehold and possession, 
 yet did not interrupt the king's title to the profits. lb. 307, per Lord 
 Holt, 
 
648 
 
 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXIH. S. 6. 
 
 Fieri facias as 
 regards trusts. 
 
 Trusts not tound 
 by it before exe- 
 cution sued out. 
 
 Nor where the 
 legal estate is 
 not liable. 
 
 We now come to the inquiry, what is the effect of judgments 
 upon interests in equity ? 
 
 First, with respect to the fieri facias, it is clear that under the 
 system of Mses no relief could have been granted; for the creditor, 
 coming in by operation of law, did not possess that privity of 
 estate which could alone confer upon him the right to sue a 
 subpcena. During the earlier period of trusts the same technical 
 notions prevailed ; but Lord Nottingham introduced a more 
 liberal principle, and established, what is now law, that a 
 creditor who was prevented from executing the legal process 
 by the interposition of a trust, might come into Chancery, and 
 prosecute an' equitable fieri facias (a). 
 
 But, as the analogy to law must be strictly pursued, the 
 trust of a chattel cannot be attached in equity until the writ of 
 execution has been actually sued out ; for tOl that time there 
 is no lien upon the debtor's effects, which is the very ground of 
 the application (6). 
 
 And as equity only follows, and does not enlarge the law, 
 the judgment creditor has no title to relief where the chattel 
 of which the trust has been created, is not in itself amenable 
 to any legal process. An opinion, indeed, is subjoined to the 
 case of Horn v. Horn in Ambler (c), that a trust of stock might, 
 before the. late Act, have been taken by a judgment creditor in 
 equitable execution ; and Taylor v. Jones (d), before Sir "W. 
 Fortescue, M. E., was even a decision to the same effect ; but 
 such a doctrine, inasmuch as stock could not have been 
 reached at law, was clearly contrary to all principle, and after- 
 wards incurred the express disapprobation of Lord Thurlow (e). 
 Lord Manners (/), Sir W. Mac-Mahon (g), Sir Archibald Mac- 
 
 (a) Pit V. Hunt, 2 Ch. Ca. 73 ; 
 Gore V. Bowser, 3 Sm. & Gif. 1 ; 
 Anon, case, cited Batch v. Wastall, 
 1 P. W. 445; and see Scott v. 
 Scholey, 8 East, 485; Sstwick v. 
 Caillaud, 5 T. R. 420. Kirkby \. 
 Dillon,C. P. Cooper'sRep. 1837—38, 
 504 ; Simpson v. Taylor, 7 Ir. Eq. 
 Rep. 182; Bennett v. Powell, 3 
 Drew. 326 ; Gore v. Bowser, 3 Sm. 
 & Giff. 1. 
 
 (5) Angell v. Draper, 1 Tern. 
 399 ; Shirley v. Watts, 3 Atk. 200. 
 
 (c) Amb. 79. 
 
 {d) 2 Atk. 600 ; and see a note 
 of 8. C. in Grogan v. Coohe, 2 B. 
 & B. 233. 
 
 (e) Dundas v. Dutens, 2 Cox, 
 240. 
 
 (/) Grogan v. Coolce, 2 B. & B. 
 233. 
 
 {g) Plasket v. Dillon, 1 Hog. 328. 
 
CH. XXin. S. 6.] JUDGMENTS AGAINST- CESTUI QUE TRUST. 649 
 
 clonald (a), and Lord Eldon (b) ; Lord Thurlow observing, that 
 the opinion in Horn v. Horn was so anomalous and unfounded, 
 that forty such would not satisfy his mind (c). Now, however, 
 by the late act for extending the remedies of creditors (1 & 2 
 Vict. c. 110, s. 14), a judgment debtor's interest in stock, 
 whether legal or equitable, is rendered available for the payment 
 of debts (d). 
 
 The judgment creditor is of course entitled to the same Equity of re- 
 relief (subject to such restrictions as we have mentioned) 
 against the equity of redemption of a chattel (e). 
 
 As regards the levari facias, a court of equity would, it is Levm-ifadas. 
 presumed, as in the instance of ^b fieri facias, assist in the exe- 
 cution of it where obstructed by the interposition of a trust ; 
 but the writ being a lien at law, not upon the lands, but 
 only on the present profits of the lands, a court of equity 
 could not go farther and affect either the. freehold or the 
 
 The elegit owing its origin to a statute, a doubt may suggest Whether equity 
 itself in limine, whether, when the legislature has passed an 'd^JlXf&^Xosj. 
 enactment against the legal estate, a court of equity can, con- 
 sistently with its general principles, apply by analogy the same 
 provision to the case of a trust. A legal estate, for example, 
 was by act of parliament made forfeitable without inquest for 
 treason, and, as the statute enumerated " uses," it was con- 
 .tended, and seems to be established, that trusts have also 
 under that expression become forfeitable to the Crown ; but it 
 was never pretended that, had " uses " not been inserted in the 
 act, a court of equity could have subjected trusts to forfeiture 
 by any inherent jurisdiction of its own. It must be remarked, 
 however, that the act which originated the elegit was, like the 
 statute de donis, prior to the introduction of the use; and as 
 equity, by analogy to the Statute of "Westminster, has admitted 
 entails and remainders of trusts, why may it not, by analogy to 
 
 (a) Caillaud v. Estwich, 2 Anat. (e) King v. Marissal, 3 Atk. 
 
 384. 192; Shirley v. Watts, lb. 200; 
 
 (J) Rider v. Rider, 10 Ves. 368. Burdon v. Kennedy, lb. 739 ; and 
 
 (c) Orogan v. Coohe, 2 B. & B. see King v. Be la Motte, Forr, 
 
 233. 162. 
 
 {d) See pp. 669, 670, mfrd. 
 
650 
 
 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXIII. S. 6. 
 
 Trust formerly 
 not subject to 
 elegit. 
 
 Judgment 
 creditor may re- 
 deem a mortgage 
 
 Davidson v, 
 Foley. 
 
 another act of the same statute, allow equitable interests to be 
 affected by judgments {a) ? 
 
 It would seem that in Lord Keeper Bridgman's time a trust 
 was not subject to an elegit (6). But the authority of that 
 distinguished lawyer has not been followed in succeeding 
 times. 
 
 It was long ago established that a judgment creditor 
 
 might redeem a mortgage in fee (c), and it is now equally 
 
 or sue an rfefl'* of settled that he may prosecute his elegit against any other 
 a trust. ... 
 
 equitable interest (a). 
 
 Davidson t. Foley (e), and Flasket v. Dillon (/), were cases 
 of a legal elegit, but may be usefully noticed to prevent mis- 
 apprehension. In the former case, Lord Foley had devised an 
 estate to trustees for a term of ninety-nine years upon certain 
 trusts, and subject thereto, to Thomas Foley for life, with 
 remainders over. His Lordship had also devised other estates 
 to trustees for a term of one hundred and one years, and 
 subject thereto, to Thomas Foley for life, &c., as before 
 Judgments were entered up against Thomas Foley, and the 
 trusts of the terms having been satisfied, and the beneficial 
 interest resulting to the tenant for life, the creditors sued out 
 elegits, and filed a bill praying to have the terms declared 
 attendant on the inheritance, and that the trustees might be 
 restrained from setting up the terms at law. The warrants of 
 attorney on which the judgments were grounded were after- 
 
 (a) See Myall v. RoUe, 1 Atk. 
 184. 
 
 (6) See Pratt v, Colt, Preem. 
 139. 
 
 (c) Greswold v. Marsham, 2 Ch. 
 Ca. 170; Crisp v. Heath, 7 Yin. 
 Ab. 52 ; (Tke former case has been 
 compared witb Eeg. Lib., A. 1685, 
 f. 399, and the report appears sub- 
 stantially correct: the latter case 
 has not been found.) Plucknett v. 
 Kirke, 1 Vern. 411 ; Eeg. Lib. 1686, 
 B. fol. 181, 184, see infra; Sharpe 
 V. Earl of Scarhorough, 4 Tes. 538, 
 and the oases cited lb. 541 ; Stile- 
 man, V. Ashdown, 2 Atk. 477; 
 Fothergillv. Kendrick, 2 Vern. 234 ; 
 and see Steele v. Philips, 1 Beat. 
 
 188 ; Fm-th v. Buke of Norfolk, i 
 Mad. 503 ; King v. -De la Motte, 
 Forr. 162 ; and see Freeman v. Tay- 
 lor, 3 Keb. 307. 
 
 , {d) Forth V. Duke of Norfolk, 
 4 Mad. 504, per Sir J. Leach ; Serj. 
 Hill's opinion, lb. 506, note (a); 
 Fosters. Blaekstone, 1 M. & K. 311, 
 per Sir J. Leach ; and see Lodge t. 
 Lyseley, 4 Sim. 70 ; Kirkhy v. 
 Dillon, C. P. Cooper's Rep. 1837—38, 
 504 ; Neate v. Duke of Marlborough, 
 9 Sim. 60, 3 M. & Or. 407 ; Adams v. 
 Paynter, 1 Coll. 530. 
 
 (6) 2 B. C. C. 203; 3 B. C. C. 
 598. 
 
 (/) 1 Hog. 324. 
 
CH. XXIII. S. 6.] JUDGMENTS AGAINST CESTUI QUE TEUST. G51 
 
 « 
 
 wards discovered to be void ; but Lord Thurlow, in dismissing 
 the bill, observed, " All he could gather from the cases was 
 that where the Court could see there was a good judgment 
 it would not stop without aiding that title by what was called 
 an equitable elegit, but he could not carry it higher than 
 that. The mquitas sequens legem must be such as to assure 
 the Court the case was such as it could be followed by a legal 
 execution ; but where it appeared the judgment could not be 
 followed by a legal elegit, the Court could not follow it by an 
 equitaile elegit." 
 
 In Flasket v. Dillon, Lord Dillon, the tenant for life, had Plastet v. Dillon, 
 demised an estate to trustees forninety -nine years, if he should 
 so long live, upon trust, after discharging certain incumbrances, 
 to pay to himself for life an annuity of 5000Z., and, subject 
 thereto, upon certain trusts for his creditors. A judgment was 
 afterwards entered up against him, and an elegit sued out, but 
 as there was no beneficial interest upon which the elegit could 
 operate at law, the judgment creditor filed- a bill to attach the 
 rent-charge of 5,000Z. a-year in equity. Sir William Mac- 
 Mahon said, " The rule of law is, that the freehold property of 
 the debtor shall be liable to the demands of his judgment 
 creditors. Lord Dillon insists that the magical operation of 
 a voluntary deed shall clear it from all incumbrances. If the 
 statute of uses had executed the trusts of this deed. Lord 
 Dillon's interest would have been extendible, and the inter- 
 position of a trust cannot exempt it in this Court " (a). His 
 Honour's decision in favour of the judgment creditor was 
 affirmed on appeal by Lord Manners, and afterwards, on a 
 further appeal, by the House of Lords {b). 
 
 These then were cases of a judgment creditor having a legal Tunstall v. 
 elegit, and seeking to remove an impediment to the legal exe- ^™pp^^- 
 cation of it ; but in Tunstall v. Trajppes (c) the elegit was, 
 strictly and properly speaking, equitable. By an indenture of 
 1811, Trappes appointed an estate to the use that Davis should 
 receive an annuity, and, subject thereto, to the use of Withy 
 and his heirs, upon trust in the first place to secure the 
 
 (o) 1 Hog. 328. (e) 3 Sim. 286 ; and see Lewis 
 
 (6) 2 Bl. N. R. 239. v. Lord Zouche, 2 Sim. 388. 
 
652 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXUI. S. 6. 
 
 annuity, and then in trust for Trappes. In 1813 a judgment 
 was entered up against Trappes by Sir Henry Lawson. In 
 the beginning of the year 1814, Trappes proposed to one 
 Cranmer, that Cranmer should pay off Davis's annuity, and 
 several incumbrances which were prior to it, and take a mort- 
 gage of the property for securing the advances he should thus 
 make. On the 1st July, 1814, Cranmer paid off Davis's 
 annuity, and took a conveyance of the legal estate from Withy 
 to himself in fee, by way of security for the monies advanced 
 and to be advanced. He afterwards paid off several charges 
 prior to the annuity, and took assignments of the terms by 
 which they were secured in the names of trustees. It was 
 proved that Cranmer had notice of the judgment some time 
 between the first and eleventh days of July, 1814, and with 
 such notice had continued to make advances to a very con- 
 siderable amount. The question was, whether Cranmer was 
 bound by the judgment, and if bound at all, then to what 
 extent. The Vice-Chancellor decided that Cranmer was enti- 
 tled to priority over the judgment creditor in respect of the 
 sums paid by him for procuring the assignments of the prior 
 charges, and for redeeming the annuity, those incumbrances 
 having been created, prior to the time when Cranmer had notice 
 of the judgment; but that his claim in respect of the monies 
 advanced by him subsequently to that period should be post- 
 poned to the judgment. In other words, the trust estate was 
 bound by the judgment in the hands of a purchaser with notice, 
 where he could not protect himself under the assignment of a 
 prior charge. 
 
 The right of an elegit creditor upon an equitable interest 
 has also since been assumed in the case of Neate v. Dulte of 
 Marlborough (a). 
 Doctrine as laid The present doctrines of the Court have been well expressed 
 Leach. ^ "^ ' by Sir J. Leach. "A judgment creditor," he said, "has at 
 law by the Statute of Frauds execution against the equitable 
 freehold estate of the debtor in the liands of his ti'ustee (6), 
 provided the debtor has the whole beneficial interest; but if 
 
 {a) 9 Sim. 60; 3 M. & C. 407; (J) As to the operation of the 
 
 and see Bennett x. Powell, 3 Drewry, Statute of Frauds, see infra, p. 664. 
 236. 
 
CH. XXm. S. 6.] JUDGMENTS AGAINST CESTUI QUE TEUST. 653 
 
 he lias left a partial interest only m his equitable freehold 
 estate, the judgment creditor has no execution at law, though 
 he may come into a court of equity, and claim there the same 
 satisfaction out of the beneficial interest, as he would be enti- 
 tled to at law if it were legal. Every voluntary assignee of 
 this equitable interest of the debtor wiU be in the same 
 situation, with respect to the claim of the judgment creditor, 
 as the debtor himself was. Every assignee for valuable con- 
 sideration will hold the equitable interest discharged of 
 the claim of the judgment creditor, unless he has notice of 
 it" (a). 
 
 An estate given by A. to trustees upon trust to convert into land to be can- 
 personaltj for the benefit of B. has iu equity all the properties lomltyMttomd 
 of personalty, and under the old law therefore a judgment ir » Judgment, 
 against the person to whom the proceeds of the sale were 
 directed to be paid conferred no lien upon the proceeds. 
 
 Thus in Foster v. Blackstone (b) estates were conveyed by Foster v. Black- 
 the Duke of Marlborough to trustees in fee upon trust, if the 
 said trustees should in their discretion think proper, but not 
 otherwise, to raise any sum of money for satisfaction of any 
 debts due and owing from his son the Marquis of Blandford, 
 which the trustees should consider advisable to be paid ; and 
 to pay the surplus, if any, of such monies as should be raised 
 iu the lifetime of the Duke unto the Duke, and the surplus of 
 such as should be raised after his decease unto the Marquis of 
 Blandford ; and, subject to the trusts aforesaid, the trustees 
 were to stand seised of the said hereditaments in trust for the 
 said Duke for his life, and after his decease in trust for the 
 Marqiiis in fee. After the death of the Duke the trustees 
 converted the whole of the estate into personalty; and a 
 creditor, whose judgment had been entered up against the 
 Marquis of Blandford, sought to attach the trust monies in 
 the hands of the trustees, aS bound by the judgment. Sir 
 J. Leach said, "The creditor insists, that by force of his 
 judgment he has a lien upon the monies produced by the sale 
 of the trust estates ; and if the interest of the Marquis were 
 
 (a) Forth v. Duke of Norfolk, 4 (5) 1 M. & K. 297 ; and see Browne 
 Mad. 504. v. Cavendish, 1 Jones & Lat. 633, 
 
654 
 
 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXni. S. G, 
 
 Judgment 
 againat vendor 
 after contract to 
 sell. 
 
 Serjeant Hill's 
 opinion. 
 
 a vested interest in land, the creditor would be entitled ; but 
 the creditor had no legal lien upon the trust estates, but a 
 possible equitable lien depending upon a contingency. The 
 trustees had a full authority to sell, and to convert the realty 
 into personalty. If any part had been unsold by the trustees, 
 it would have remained land, and the judgment would have 
 attached upon it ; but it was all sold by the trustees, and the 
 contingency which would have entitled the judgment creditor 
 never took effect." 
 
 Whether the same principle applied where a judgment was 
 entered up against a person after he had contracted to sell was 
 much doubted. 
 
 Upon this subject we have the following opinion of Mr. 
 Serj. Hill: — H. A. S., seised in fee of an estate, subject to his 
 mother's jointure and to younger children's portions, con- 
 tracted for the sale of the property in lots to different pur- 
 chasers. After the date of the contracts, H. A. S. executed a 
 conveyance to trustees, upon trust to convey to the different 
 purchasers, and to invest part of the purchase money in the 
 funds as an indemnity against the jointure and portions, and 
 to pay the residue to himself. Subsequently to the deed of trust 
 H. A. S. acknowledged a judgment. Mr. Serj. Hill was con- 
 sulted on the part of the trustees, whether they would be safe 
 in paying the money to H. A. S., as against the judgment of 
 which they had notice, and also as against judgments, if any, of 
 which they had no notice. The opinion was as follows : " As 
 to the judgment of which the trustees had notice, though, to 
 many purposes, the estate agreed to be sold is from the time 
 of the contract the estate of the purchaser ; yet I think the 
 vendor is not before payment of the money to be considered 
 a mere trustee, for the estate continues his at laiv, and even in 
 equity he has a right to detain it until payment of the purchase 
 money; and, therefore, the judgment creditor hath a right to 
 so much of the 'purchase money as is sufficient to satisfy the 
 judgment; and the trustees having notice of his right ought 
 to pay it, if the money is in their hands. As to the judg- 
 ments, if any, of which the trustees have no notice, I thmk 
 a court of equity will not make them pay the money over 
 again, if they apply it according to the deed of trust, because 
 
CH. XXm. S. 6.] JUDGJIENTS AGAINST CESTUI QUE TRUST. 655 
 
 I think equity in the case of a judgment creditor, and a 
 bond fide purchaser or a trustee without notice, will not 
 interpose on either side, but will leave the law to take its 
 course " (a). 
 
 And Sir J. Leach appears to have concurred in this opinion, Sir J. Leach's 
 that the vendor's interest after the contract is bound by a 
 judgment ; for in Forth v. The Dulce of Norfolk (6), where a 
 person had mortgaged an estate in fee, and then contracted to 
 sell, and afterwards, before the conveyance, acknowledged a 
 judgment. Sir J. Leach said, "An assignee for valuable 
 consideration is discharged of the claim of the judgment 
 creditor, unless he had notice of it before the consideration 
 paid. If A., before the actual conveyance to him, had received 
 notice of the judgment, then, being a purchaser of an equitable 
 interest in a freehold estate from the debtor, and not having 
 paid his purchase-money, he would have been equally affected 
 with the judgment as the debtor himself; and if he had after- 
 wards paid the whole purchase-money to the debtor, he would 
 have still remained liable to the judgment creditor." 
 
 But in a subsequent case Sir L. Shadwell said, " he should Di^um of Sir L. 
 
 • • 1-111 in- 11 Shadwell. 
 
 not have given the opmion which the learnea berjeant had 
 done, for it appeared to him that from the time H. A. S. entered 
 into binding contracts to sell the lands, he not having judg- 
 ments against him at that time, the purchasers had a right to 
 file a bill against him, and have the legal estate conveyed "( c). 
 And it may be argued that if the vendor die after the contract, 
 but before the conveyance, the purchase-money would go to 
 the executor (d) ; and that if the contract work a notional 
 conversion of the land into money in respect of the vendor's 
 representatives, the same consequence ought to follow in respect 
 of the vendor's judgment creditors. 
 
 The case where A. conveys to trustees upon trust to sell for Whether in case 
 
 ... „ . . 1 "-^ conveyance 
 
 a Lmited purpose, as payment of mcumbrances, and to pay the upon trust to 
 
 (a) Cited Forth v. Duke of Nor- pear whether the judgments were 
 
 folk, 4 Mad. 506, note {a). entered up before the actual sale or 
 
 (6) 4 Mad. 503. the decree for sale. 
 
 (c) Lodge v. Lysehy, 4 Sim. 75 ; {cl) See Farrat v. Winterton, 5 
 
 and see Craddoch v. Piper, 14 Sim. Beav. 1 and Curr'e v. Bowyer, ib. 6, 
 
 310, where, however, it does not ap- note. 
 
656 
 
 JUDGMENTS AGAINST CESTDI QUE TEUST. [CH. XXHI. S. 6. 
 
 sell or mortgage, 
 with power of 
 sale, surplus 
 proceeds are 
 bound by a 
 judgment. 
 
 Altered state of 
 law under 1 & 2 
 Vict. c. 110, 
 s. 13. 
 
 surplus to himself, and where, before sale, a judgment is 
 entered up against A., presents stiU more difficulty than that 
 last discussed ; as does also the case of a mortgage by A. with 
 power of sale to the mortgagee and of a judgment entered up 
 before sale. It is of course clear that in either case the power 
 of giving receipts binds as against the judgment creditor, so 
 that a purchaser from the trustee or mortgagee is not con- 
 cerned to see that the judgments are satisfied (a); but this still 
 leaves open the question whether the judgment was, under the 
 old law, a lien or charge on the proceeds in the hands of the 
 mortgagee or trustee, a point, however, which is now unkn- 
 portant, save so far as it bears upon the present state of the 
 law. 
 
 How far the principles discussed in Foster v. Blackstone and 
 the other cases referred to are applicable to the altered state 
 of the law under the 1 & 2 Vict. c. 110, has not yet been 
 settled. As between the purchaser and the judgment cre- 
 ditor, the power of the trustee or mortgagee to give receipts 
 remains, it is conceived, the same. But the large words of 
 section 13 of the .1 & 2 Vict. c. 110, wlU, doubtless, in many 
 cases, confer an equitable charge where, under the old law, the 
 judgment would not have created a lien. Thus, where A. was 
 entitled to an annuity secured by a covenant and an assign- 
 ment of leaseholds in trust tp sell, it was held that A.'s interest 
 under the deed might, under the Act, be made available for 
 payment of a judgment debt due from her (6). So where a 
 testator gave real estate to trustees upon trust to levy and 
 raise, during the life of A., an annuity of 400Z., and directed 
 the annuity to be held upon trust for the support, clothuig, 
 and maintenance of A., the Court, having previously decided 
 that the trust was one for the benefit of A. generally (c), held 
 that a judgment creditor of A. was entitled to a charge on the 
 annuity under the Act {cl). Again, where a person covenanted to 
 l)ay A. 5000J., and that the sum should be a charge on certain 
 
 (a) Lodge v. Lyseley, 4 Sim. 75 ; (c) Younr/huaband v. Gishorne, 1 
 
 Alexanders. Crosbie, 6 Ir. Eq. Eep. Coll. 400. 
 513. [d] S. C. 1 De Gex & Sm. 209. 
 
 (6) Harris v. Davison, 15 Sim. 
 128. 
 
CH. XXm. S. 6.] JUDGJEENTS AGAINST CESTUI QUE TRUST. 657 
 
 land, it was held that a judgment creditor of A. was entitled 
 to a charge on the land in respect of A.'s interest therein (a). 
 Again, where a mortgage with power of sale was executed, and 
 before sale a judgment was entered up against the mortgagor, 
 who was subsequently discharged under the Insolvent Act, 
 and after such discharge the mortgagee sold imder the power 
 of sale, it was held that the judgment creditor was entitled to 
 the surplus proceeds of sale (6). 
 
 It is clear therefore that, in the actual state of the law and practical restdt 
 decisions, a vendor or mortgagee holding surplus proceeds of i^P^sent state 
 sale in his hands could not properly be advised to pay them 
 to the settlor or mortgagor without the discharge or con- 
 cm-rence of the judgment creditor. Neither could a purchaser, 
 where, as in the case before Serjeant Hill, judgments have 
 been entered up against the vendor subsequently to the con- 
 tract, safely complete without the discharge or concurrence of 
 the judgment creditor. If, however, the owner of an estate 
 contract to sell, and then judgments are entered up against 
 him, it is clear that the judgments, though they may attach at 
 law upon the land, yet cannot affect it in equity, and therefore, 
 if the purchase-money can be properly applied, the purchaser 
 may compel the creditor to release the judgment, and if the legal 
 estate at the time of the judgment was not in the vendor but in 
 a trustee for him, the judgment cannot affect the land either at 
 law or in equity, though it may affect the purchase-money ; and 
 should there be any intervening incumbrances between the 
 contract and the judgment which would exhaust the whole 
 purchase -money, it is conceived that the purchaser might 
 safely pay off the intervening incumbrances, and take the legal 
 estate from the trustee. The judgment creditors in such a 
 case, would have no legal Uen, and the purchase-money has 
 been properly apphed. 
 
 The question, how far, under the old law, the Uen of the Howmuclioftlie 
 judgment creditor against the trust estate extended, was one ^^'^** may.te 
 
 (a) Russell v. M'Culloch, \ Kay paid off, the judgment against him- 
 
 & John. 313 ; and see Clare-v. Wood, ceases to hind the land. 
 
 4 Hare, 81. But hy 18 & 19 Tict. (6) Robinson v. Hedger, 13 Jur. 
 
 c. 15, s. 11, when the mortgagee is 846 ; and 14 Jur. 784. 
 
658 
 
 JUDGMENTS AGAINST CESTUI QUE TEUST. [CH. XXHI. S. 6. 
 
 taken in execu- 
 tion. 
 
 On what grounds 
 a judgment cre- 
 ditor may apply 
 to a court of 
 equity. 
 
 Bxecution of a 
 moiety only of 
 a trust estate. 
 
 of considerable difficulty, and the authorities could only be 
 reconciled by the aid of a somewhat subtle distinction. 
 
 A judgment creditor might have come into a court of equity 
 upon two grounds. First, upon a legal title, where he either 
 sought to remove an impediment to the execution of his legal 
 elegit, or, after the death of the conusor, sued for payment of 
 his debt out of the conusor's personal assets, and, if they 
 should be insufficient, then by sale (a) of the real estate : or, 
 secondly, upon an equitable elegit, on the ground that he had 
 no legal Uen, and therefore could have no legal process (b). 
 
 As the extent of relief ought in both these cases to be the 
 same, and the Court never attempted to take a difference, the 
 authorities determined upon either head may be relied upon 
 as applicable to the other. The result of the cases upon this 
 principle, notwithstanding an early authority to the contrary (c), 
 
 (a) An elegit would at law give 
 the possession of the lands till the 
 satisfaction of the debt, but equity 
 assumes the jurisdiction of facilita- 
 ting the remedy by a sale. See 
 Barnwell v. Sarnwell, 3 Ridg. 61 ; . 
 O'Fallon v. Dillon, 2 Sch. & Lef. 
 19; COorman v. Comyn, ib. 139; 
 Stileman v. Ashdown, 2 Atk. 610 ; 
 but see Bedford v. Leigh, 2 Dick. 
 709 ; Neate v. Duhe of Marlborough, 
 3 M. & C. 417. 
 
 (6) These grounds of suit still sub- 
 sist, in addition to that conferred by 
 the 13th section of the 1 & 2 Vict, 
 c. 110, giving the judgment creditor 
 a charge in equity. 
 
 (c) Compton v. Compton, cited in 
 Stileman v. Ashdown, Amb. 15, 
 The case as stated in the Registrar's 
 Book, was this : Richard confessed 
 a judgment, and died intestate. 
 Henry, his son and heir, filed a biU 
 against the administratrix of his 
 father and the persons entitled to 
 the benefit of the judgment, praying 
 that the debt might be discharged 
 out of his father's personal estate to 
 the relief of the lands. Henry died, 
 and the suit was revived by Hoby, 
 his son and heir, and at the hear- 
 ing it was decreed, somewhat un- 
 
 accountably, that the plaintiff ahovli. 
 pay the j udgment. Upon this Pigott, 
 the party interested in the judgment, 
 filed a cross-biU against the plaintiff 
 in the former suit to have the decree 
 carried into execution, and the Comt 
 on the hearing made the order as 
 before. Against this decree the 
 plaintifi' Hoby appealed, and Lord 
 Keeper Hareourt then directed that 
 the personal estate of Richard should 
 be applied in the first instance, and 
 that Hoby should not be personally 
 charged with the judgment debt, 
 but shoidd make good the same so 
 far only as any rents and profits of 
 the real estate of Richard had come 
 to his hands ; but in case such per- 
 sonal estate, rents, and profits should 
 fall short of the judgment, then the 
 deficiency should be made good "by 
 sale of the whole real assets of 
 Richard liable to the judgment." 
 (Reg. Lib. A. 1711, f. 134.) The 
 authority of this case cannot how- 
 ever have much weight, for, as was 
 observed by Lord Hardwicke (Stile- 
 man Vi Ashdown, Amb, 17), the 
 point whether the whole or a moiety 
 should be sold appears not to have 
 been discussed. 
 
CH. xxrn. s. 6.] judgments against cesttji que teust., 669 
 
 was that a judgment creditor could sue an equitable elegit of a 
 moiety only of a trust estate (a). 
 
 The grounds of the doctrine were thus delivered by Lord 
 Hardwicke in the leading case of Stileman v. Ashdown (&) : 
 " The judgment affects the land," said his Lordship, " as it is 
 bound by the judgment. Equity follows the law in this case, 
 and as the plaintiff can extend only a moiety there, he shall 
 have no more here. Suppose it was the case of a bond creditor ; 
 he might have an action of debt against the heir, and judgment 
 against him upon assets descended, and this he is entitled to at 
 common law, for it is the debt of the heir, and the action is in 
 the dehet and detinet ; but if a judgment was obtained against 
 the ancestor, a scire, facias could not be brought against the 
 heir at common law, because the heir was not bound. Before 
 the Statute of Westminster, there was no remedy against the 
 ancestor in his lifetime upon a judgment on his land ; and it is 
 that statute which subjects one moiety thereof to the judgment. 
 In what right then is the scire facias brought against the heir 
 or purchaser ? Why, only as terre-tenant (c), and by virtue of 
 the statute. I thought of the objection myself, that a bond 
 creditor would be in a better situation than a judgment 
 creditor ; and so he is, for as soon as the bond debt is turned 
 
 (o) Stileman v. Ashdown, 2 Atk. B..1750, f. 427.); Sarnwelly. JBarn- 
 
 477, 608; Howe v. Sant, Dick. 150 well, 3 Ridg. P. C. 24; O'Dowda 
 
 (as corrected from Reg. Lib., the v. O'Bowda, 2 Moll. 483; Anon. 
 
 case was as follows : — Rowe, the case, ib, ; O' Gorman v. Comyn, 2 
 
 conusee of a judgment confessed by Soh. and Lef. 137 ; Burroughs v. 
 
 one Dingle, deceased, filed a biU. Elton, 11 Ves. 33; Williamson v. 
 
 against Bant, the executor of Dingle Parh, 2 Moll. 484 ; Armstrong v. 
 
 and who was also in possession of Walker, ib. In O' Fallon v. Dillon 
 
 Dingle's real estate by the double 2 Sch. and Lef. 13, the sale of the 
 
 title of grantee in Dingle's lifetime estate was not confined to a moiety ; 
 
 and general devisee in his will, pray- but there the creditor had entered 
 
 ing payment of the judgment out up two judgments the same term, 
 
 of the real and personal estate of the and then as both judgments were of 
 
 testator, and that the grant to Bant the same date, the creditor might at 
 
 in Dingle^s lifetime might be de- few, have taken both moieties in exe- 
 
 clared void, as against the judg- oution. See Attorney- General, v. 
 
 ment, for want of consideration. Andrew, Hard. 23. 
 
 The personal estate proved insuffi- (J) 2 Atk. 608. 
 
 eient, and thereupon the Court (c) See Sarbert's ease, 3 Re. 12 
 
 ordered a sale of one moiety of the b ; Bowyer v. Rivitt, Sir W. Jones, 
 
 real estate comprised in the grant. 87 ; Dyer, 271, a pi. 25. 
 
 tr TJ 2 
 
660 JUDGMENTS AGAINST CESTUI QUE TEUST. [CH. XXm. S. 6. 
 
 into a judgment, it is extinct against the ancestor, and the 
 creditor cannot, in the lifetime of the ancestor, bring any action 
 upon the bond : can he then bring any action against the heir 
 after it is entirely extinct (a) ? But still he obtains a great 
 advantage by a judgment, as it gives him an opportunity of 
 binding the land immediately, and likewise gives him a 
 preference over all other bond creditors; and therefore the 
 creditor prefers this real advantage to a precarious one of 
 assets descending upon the heir after the death of the ancestor. 
 If this is the case at law, what is there in equity to better his 
 case ? "Why, nothing more than to accelerate the payment by 
 directing a sale of the moiety, and not let the judgment creditor 
 wait till he has been paid out of the rents and profits ; but 
 equity cannot change the rights of parties." 
 
 An equity of redemption was, however, governed by a very 
 different rule. 
 Execution of tie If A., seised of an estate, mortgaged it to B. in fee, and then 
 
 wtoleofan equity *? t ■ -i /~i • 
 
 of redemption. coniessed a judgment to C, it was clear C. had a lien ■which. 
 entitled him to redeem B. But should he redeem a whole or a 
 moiety ? So far as the judgment creditor had any claim of 
 his own, a moiety only ; but as B. could not be compelled to 
 part with the smallest fraction of the estate until he had been 
 satisfied his whole debt, C. was under the necessity of redeeming 
 the entirety. Again, when C. had taken a transfer of the 
 security, it followed, that as mortgagee with a judgment against 
 the mortgagor he had a right to tack, and no one could redeem 
 any part of the estate out of his hands until payment, not only 
 of the original mortgage debt, but also of the judgment. 
 Thus it arose from a kind of necessity, and not from any 
 wanton violation of principle, that in the instance of an equity 
 of redemption the judgment creditor was paid by a sale of the 
 whole estate (b). 
 
 (a) Sir A. Hart, aUuding to this waU, 3 Ridg. P. C. 24, and O'Gor- 
 
 point, said, " The Courts have got man v. Comyn, 2 Sch. & Lef. 13", 
 
 rid of Stileman v. Ashdown, as though the judgments were ^recciicd 
 
 savouring too much of technicality." hy bonds, a sale of only a moiety was 
 
 Leahy v. Dancer, 1 MoU. 319. directed. 
 
 But Criape v. Blahe, 1 Ch. Ca. 23, (6) Sfonehewer v. Thompson, 2 
 
 had decided that the bond was ex- Atk. 440 ; Sish v. Hopkins, Blunt's 
 
 tinguished by the judgment, and Amb. 793. 
 accordingly in Sarnwall v. Barn- 
 
CH. XXHI. S. 6.] JUDGMENTS AGAINST CESTUI QUE TEUST. 661 
 
 Thus in Stileman v. Ashdown (a), Lord Hardwicke, at the 
 same time that he gave the judgment creditor a moiety only 
 of the trust estate, ordered a sale of the whole of the lands in 
 mortgage (b). So, where there were several incumbrancers by 
 judgment upon an equity of redemption, and the Court de- 
 creed a sale, the first judgment creditor was not confined to a 
 moiety of the estate, but the common decree was, that the 
 incumbrancers should be paid their full demands out of the 
 proceeds of the sale, according to their priority (c) (1). 
 
 There is one species of interest which, though bordering Case of a trust 
 closely upon the nature of an equity of redemption, yet ought gage. 
 perhaps to be distinguished from it. In Tunstall v. Trappes (d), 
 before cited, Trappes, iu 1811, appointed an estate to the use 
 that Davis might receive an annuity, and, subject thereto, to 
 the use of Withy in fee upon trust, in case the annuity should 
 be in arrear for six months, to sell the premises, and out of 
 the proceeds to purchase an annuity of the same amount for 
 Davis, and pay the surplus, after discharging the existing 
 incumbrances, to Trappes; provided, that in case Trappes 
 should be desirous of repurchasing the annuity, and should 
 pay the price to Davis, then the annuity should cease, and 
 Withy, the trustee, should reconvey. In 1813 Trappes con- 
 fessed a judgment, and the question was, whether it should 
 affect the whole or only a moiety of the estate ; and Sir L. 
 Shadwell, on the ground that a judgment creditor might 
 redeem the entirety of lands in mortgage, held that the lien 
 should extend to the whole. Now, there appears to be this 
 distiQction between an equity of redemption and the case just 
 mentioned. In the former, the whole interest is in the 
 mortgagee by non-fulfilment of the condition ; and if the 
 
 (a) 2 Atk. 477. (c) Sharpe v. Earl of Scarborough, 
 
 (6) Sir A. Hart, not observing the 4 Ves. 538 ; the cases cited ib. 541 ; 
 
 ground ofthedistinction, has charged and see Berrington v. Evans, 3 Y. 
 
 Lord Hardwicke with inconsistency, & C. 384. 
 
 Leahy v. Dancer, 1 Moll. 322. {d) 3 Sim. 286, see 300. 
 
 (1) It has been ruled, upon a similar principle, that, where freeholds 
 and copyholds are blended in one mortgage, the equity of redemption of the 
 whole is liable as assets to a bond creditor, though copyholds, by themselves 
 are not assets. Acton v. Peirce, 2 Vern. 480. 
 
662 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXin. S. 6. 
 
 judgment creditor redeem the mortgagee, and then the mort- 
 gagor come to be relieved against the forfeiture, the Court 
 will impose terms upon the mortgagor, and oblige him to 
 discharge every lien upon the estate before he can be permitted 
 to redeem the smallest part. But in Timstall v. Tra^ppes the 
 whole interest was never in the annuitant either at law or in 
 equity. The legal estate was limited to a third person in fee, 
 and the equitable interest to the extent of securing the annuity- 
 only was in trust for the annuitant, but as to all the residue 
 was in trust for the grantor. There was nothing to be re- 
 deemed, but merely a trust to be executed. The judgment 
 creditor might take an assignment of the annuity, but he had 
 no right to tack the judgment : the grantor could call for a 
 reconveyance from the trustee on payment of the price agreed 
 upon for the annuity, and the Court could impose no terms, 
 for no favour was asked. 
 Whether elegit Is the judgment creditor, when he comes into equity for a 
 
 sued out. sale of the estate, either in the lifetime of the conusor, or 
 
 after his death, obliged, before the jurisdiction of the Court 
 can attach, to sue out an actual elegit ? If the judgment be 
 a legal lien, and the creditor seek to remove some impediment 
 to the legal execution of it, it is clear he must first lay a foun- 
 dation for the interference of equity by suing out an elegit at 
 law (a) ; and the same rule is now established even where the 
 judgment is merely an equitable lien{b); but the elegit need 
 not be returned (c) ; and where the trust estates were in three 
 counties an elegit in one only was held sufficient {d). 
 Fi. fa. sufficient When, however, the interest sought to be affected is an 
 able chattel real, equitable chattel real, it is sufficient to sue out a writ of fieri 
 
 (a) See Dillon v. Flasket, 2 Bligh, c. 110, an eleffit is not necessary, and 
 N. R. 239; Neate y. Duke of Marl- the decree will be for sale. See 
 borough, 3 M. & C. 407 ; Mitford on Carlon v. Farlar, 8 Beav. 525 ; 
 Plead. 126, itli edit. Footner v. Sturgis, 6 De &. & Sm. 
 
 (b) Matey. Duke of Marlborough, 736; Smith v. Surst, I CoU. 705; 
 9 Sim. 60 ; 3 M. & C. 407 ; but see 10 Hare, 30, 
 
 Tunstall v. Trappes, 3 Sim. 286; (c) Dillon v. Plaskett, 2 BKgh, 
 
 Rolleston v. Morton, 1 Conn. & N. S, 239 ; and see Campbell v. 
 
 Laws. 257. But wbere the creditor Ferrall, Rep. t. Plunket, 388. 
 
 sues upon the equitable charge ere- {d) Dillon v. Plaskett, 2 Bl. N. S. 
 
 ated by sect. 13 of the 1 & 2 Vict. 239. 
 
CH. XXni. S. 6.] JUDGMENTS AGAINST CESTUI QUE TEUST. 663 
 
 facias {a). And when the assistance of the Court is sought in 
 favour of a County Court judgment against an equitable chattel 
 real, it is suf&cient to pursue the analogous step of placing 
 a writ of execution in the hands of the high bailiff, pursuant 
 to the County Court Act (&). 
 
 Again, it seems that a judgment creditor may redeem a mort- Kedemption of a 
 gage without suing out an elegit ; for inasmuch as the Court finds 
 the creditor in a condition to acquire a power over the estate 
 by suing out the writ, it does what it does in all similar cases, 
 it gives to the party the right to come in and redeem other 
 incumbrancers upon the property (c). 
 
 And so whether the judgment be legal or equitable, if the Bill of judgment 
 creditor file his biU after the death of the conusor for satisfaction death of conusor. 
 of his claim out of the personal assets, and, in case of their de- 
 ficiency, by a sale of the real estate (d), it has been held that an 
 actual elegit is 7iot an essential requisite. The observations of 
 Lord Fitzgibbon upon this point appear worthy of attention : 
 " An objection," he said, " has been made at the bar, that the 
 creditor's bUl ought not to be entertained, because he did not 
 revive the judgmerits and sue out elegits; and it has been asserted, 
 that until the judgment has been revived against the heir and 
 terre-tenants of the conusee, and an elegit has been sued forth, a 
 Court of equity will not entertain a bill against the heir and 
 executor to levy the debt. The equity upon which bills of 
 this nature have been entertained, is founded on the Statute of 
 Westminster, and has been adopted no less for the ease of the 
 creditor in levying his debt with expedition, than in mercy 
 to the representatives of the debtor, by relieving his estate 
 from the ruinous expense of an extent at law, and of the 
 suits which might arise in consequence of it. It is notorious 
 to every man of the profession, that if a scire facias to revive 
 a judgment against the heir and terre-tenants of the conusor 
 is put into the hands of a solicitor versed in the science of 
 
 (a) Gore v. Bowser, 3 Sm. & Giff. {d) Barnwall v. Barnwall, 3 
 
 1 ; Smith v. Hurst, 10 Hare, 30. Ridg. P. C. 24 ; Neate v. Duhe of 
 
 (6) Bennett v. Powell, 3 Drewry, Marlborough, 3 M. & C. 416, per 
 
 326. Lord Cotteaham. 
 
 (c) Neate v. Duke of Marlborough, 
 3 M. & C. 416,jjerLord Cottenliam. 
 
664 
 
 JUDGMENTS AGAINST, CESTDI QUE TEUST. [CH. XXIH. S. 6. 
 
 Execution of a 
 trust estate by 
 elegit at law, 
 under Statute of 
 Frauds. 
 
 Construction of 
 the statute. 
 
 accumulating costs, lie will be enabled to charge the estate 
 with costs equal to the debt, if it be not considerable. If the 
 terre-tenants are charged unequally with payment of the debt, 
 it lays a ground for fresh suits between them for contribution, 
 and if the creditor levies the debt by extending the real estate 
 of the debtor when there is a personal fund applicable to the 
 payment of it, this lays a ground for a suit also by the heir 
 against the executor to have the personal estate applied to 
 reimburse him ; and therefore it is that Courts of equity have 
 in this country, certainly for more than a century, entertained 
 bills in the first instance after the death of the conusor for 
 an account of his real and personal estate, and of the sum 
 due for principal, interest, and costs on the foot of the 
 judgment" (a). 
 
 Thus much concerning the judgment creditor's equitable 
 remedy against a trust. We proceed now to the provision in 
 the Statute of Frauds (6), which enabled a judgment creditor 
 in certain cases to sue a writ of execution against an equitable 
 estate at laiv. 
 
 The 10th section enacted, that " it should be lawful for the 
 sheriff, or other officer, to whom any writ or precept should be 
 directed at the suit of any person upon any judgment statute 
 or recognisance, to deliver execution unto the party in that 
 behalf suing of all such lands and hereditaments as any other 
 person or persons might be in any manner of wise seised or 
 possessed in trust for the party against whom execution was so 
 sued, like as the sheriff or other officer might or ought to have 
 done, if the said party against whom execution should be so 
 sued had been seised of such lands and hereditaments of such 
 estate as they were seised of in trust for bim at the time of 
 the said execution sued." 
 
 Upon the construction of this enactment the following 
 points were resolved : — 
 
 1. As the statute spoke only of lands, &c., of which other 
 persons were seised (c) in trust for the debtor, it did not extend 
 
 (a) Barnwall v. Barnwall, 3 
 Eidg. P. C. 61. 
 (6) 29 Car. 2, c. 3. 
 (c) In the first part of the clause 
 
 are the words " seised or possessed," 
 but afterwards, in two places, there 
 occurs the word " seised" only. 
 
CH. XXHI. S. 6.] JUDGMENTS AGAINST CESTUI QUE TEUST. 665 
 
 to trusts of chattels real of which the legal proprietor was said 
 not to be seised, but possessed (a). 
 
 2. An equity of redemption was not within the terms of the 
 act (6). 
 
 3. A bare and simple trust only was intended — not one of a 
 complicated nature, where the interests of other parties are 
 mixed up with the debtor's title (c). 
 
 4. From the concluding words, " like as the sheriff might 
 have done, if the cestui que trust had been seised of the estate 
 whereof other persons be seised in trust for him at the time of 
 the execution sued," if, after the judgment was entered up, 
 but before actual execution, the estate had been disposed of to 
 a purchaser, so that when execution was sued there was no 
 trust for the debtor in esse, in that case the words of the statute 
 had failed to provide a remedy, and the judgment creditor 
 could not be put in possession (d). 
 
 The question was much discussed whether in that case, wiether equit- 
 though the judgment creditor could not prosecute a legal execu- ^j^ ha/whCTe^no 
 tion, he might not subiectthe purchaser, if affected with notice, '^§^^ ^'^?,* °^,* 
 
 ' o J i. ' ! tr^gt under tlie 
 
 to an equitable elegit (e). It was said, that as there was no statute, 
 execution at law and equity followed the law, the creditor was 
 without redress ; but in this argument the principle that equity 
 follows the law seems to be wrongly applied. A judgment binds 
 a legal estate, and, as equity follows the law, a judgment is 
 therefore in equity a lien upon the trust. The Statute of Frauds 
 introduced an additional remedy by enabling the judgment 
 creditor, in certain cases, to take legal execution of a trust. 
 But afl&rmative statutes do not abridge the common law (/), and 
 therefore the creation of a legal remedy in certain cases provided 
 for by the act cannot preclude the judgment creditor from 
 
 (a) jLyster v. Dolland, 3 B. C. C. 96 ; Forth v. JDuke of Norfolk,, 4 
 
 478 ; S. C.l Ves. jun. 431 ; Scott Mad. 504, per Sir J. Leaoh. 
 V. Scholey, 8 East, 467 ; Metcalf v. {d) Hunt v. Coles, Com. 226 ; 
 
 Scholey, 2 B. & P. 461. Harris v. Pugh, 4 Bing. 335. 
 
 (6) Lyster v. Bolland, Scott v. (e) See 2 Vend, and Purch. 386. 
 
 Metcalf V. Scholey, ubi 10th ed. ; Coote on Mortg. p. 71 ; 
 
 supra ; Burdon v. Kennedy, 3 Atk. 2 Powel, Mortg. 620. 
 
 739. (/) Attorney-General-^. Andrew, 
 
 (c) Doe V. Greenhill, 4 B. & Hard. 27 ; 2 Inst. 472. 
 Aid. 684; Harris v. Booher, 4 Bing. 
 
666 JUDGMENTS AGAINST CESTUI QUE TEUST. [CH. XXin. S. 6. 
 
 prosecuting his eqmtshle elegit in other cases for which the statute 
 has made no provision. The enactment was clearly meant to be 
 remedial, but the doctrine contended for would impress on it a 
 restrictive character, and convert it into a disabling statute. 
 Lord St. Leonards observes, " The difficulty in the way of the 
 relief would be, that no instance of it can be found after the 
 most diligent search." The reason probably is, that judgments 
 have only in modern times been held to bind equitable interests 
 at all : the doctrine was certainly not established before the 
 Statute of Frauds. But the system of trusts has from that 
 period downwards been gradually maturing, and the principles 
 which governed uses, and were thence transferred into trusts, 
 have since not indeed been abandoned, but received a much 
 more enlarged and liberal application. Now that judgments 
 are acknowledged to be liens upon equitable interests, the 
 consequence must necessarily follow, that a purchaser must be 
 bound by notice of a judgment, as he would be bound by notice 
 of any other equitable incumbrance. 
 1 & 2 V. c. 110. By the late Act for extending the remedies of creditors {a), 
 it is enacted — 1. By sect. 11, That execution at law may 
 be had under an elegit of the whole lands freehold and 
 copyhold, of which the debtor was seised or possessed at law 
 or in equity, or over which he had a disposing power (&), at or 
 subsequently to the entering up of the judgment. 2. By sect. 13, 
 That in equity a judgment shall operate as a charge upon the 
 whole of the lands freehold and copyhold of which the debtor 
 was seised or possessed at law or in equity, or over which he had 
 a disposing power, at or subsequently to the entering up of the 
 judgment, with a proviso that the creditor shall not sue until 
 the expiration of a year from the date of the judgment (c), and 
 that the protection in equity of purchasers for valuable con- 
 sideration without notice shall not be disturbed. 3. By sect. 
 
 (a) 1 & 2 V. 0. 110. tlement by means of the 27 Eliz. c. 
 
 (6) A trust for the separate use of 4, a disposing power within the Act 
 
 a married woman is not an estate of Vict. ; Beavan v. Earl of Oxford, 
 
 over which she has a disposing 2 Jur. N.S. 121. 
 power within the meaning of the (c) See Smith v. Hurst, 1 Coll. 
 
 Act ; Dighy v. Irvine, 6 Ir. Eq. 705, and S. C. 10 Hare, 43 ; Mac- 
 
 E,ep. 149. Neither is the power of kinnon v. Stewart, 1 Sim. N. S. 76, 
 
 the settlor to defeat a voluntary set- p. 91. 
 
CH. XXm. S. 6.] JUDGMENTS AGAINST CESTUI QUE TEUST. 
 
 667 
 
 18, That decrees and orders of Courts of Equity, rules of Courts 
 of Common Law, &c., whereby any sum of money, or any 
 costs, charges, or expenses shall be payable to any person, 
 shall have the effect of judgments (a). But, 4. By sect. 19, 
 That no judgments, decrees, or orders, shall affect real estate 
 by virtue of the act, unless and until they have been regis- 
 tered with the senior master of the Court of Common Pleas. 
 
 It is observable upon these clauses, that an equitable estate, -^^^^J^^ °° ^^^ 
 whether of freehold or copyhold tenure, and whether of free- 
 hold or leasehold interest, and without any restriction to the 
 time of execution sued, as in the 10th section of the Statute 
 of Frauds, was subjected by the Act to execution at law 
 by writ of elegit (s. 11), and to quasi execution in equity 
 by way of charge (s. 18). In the latter case purchasers without 
 notice were expressly protected (s. 13), but in the former case 
 not : a purchaser, therefore, even of an equitable interest, after 
 the commencement of the Act, was required by this statute to 
 search the registry at the Common Pleas for judgments entered 
 up against the vendor ; and that whether before or subsequently 
 to the Act, for the time of entering up the judgments was 
 immaterial, provided they had been registered. It may be 
 thought anomalous and inconsistent that a purchaser should 
 not be protected at law by want of notice, while he was in 
 equity ; but the intention of the legislature probably was, in 
 giving a remedy both at law and in equity, not to disturb the 
 ■principles upon which the respective Courts acted ; and there- 
 fore if the trust was a plain one, and so amenable to a legal 
 elegit, the judgment creditor might take the lands in execution 
 even against a purchaser without notice ; but if the trust was 
 so complicated as to oblige him to apply to a Court of equity, 
 and treat the judgment as a charge, the Court by the Act was 
 not to disregard its established rules, but, as in all other cases, 
 was to protect a purchaser without notice. 
 
 (o) A decree for an account merely 11 Ad. & EU. 175; DoeY. Amey, 
 
 is not within the section; Chad- 8M. feW. 565; though, as respects 
 
 vjick V. Holt, 2 Jur. N. S. 918. costs, the case is different ; Jones y. 
 
 Neither is a rule of a Court of Com- Williams, 8 M. & W. 349 ; JDoe v. 
 
 mon Law which does not specify the Barrett, 10 Q,. B. Rep. 565. 
 sum to be paid ; Jones v. Williams, 
 
668 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXm. S. 6. 
 
 2&3T.C. 11. Afterwards another statute was passed (2 & 3 V. c. 11), hy 
 
 which it was enacted, — 1. By section 2, that no judgment what- 
 soever should affect any lands, tenements, or hereditaments as 
 to purchasers, mortgagees, or creditors, unless previously regis- 
 tered at the Common Pleas, according to the provisions of 
 the act 1 & 2 V.c. 110. 2. By section 4, that all judgments, 
 decrees, rules, and orders, registered, or to he registered, at 
 the Common Pleas according to the provisions of the Act 1 & 2 
 V. c. 110, should, at the expiration of five years, be nuU and 
 void against lands, tenements, and hereditaments, as to 
 purchasers, mortgagees, or creditors {a), unless they should have 
 again been registered in the Common Pleas within five years 
 before the right, title, estate, or interest of such purchasers, 
 mortgagees, or creditors accrued (&). 3. By section 5, that 
 as against purchasers and mortgagees without notice, no judg- 
 ment, decree, or order, should have a greater effect than a 
 judgment would have had against such purchaser or mortgagee 
 before the passing of 1 & 2 V. c. 110. By virtue of these 
 clauses the execution that might under the former statute 
 have been taken out at law against an equitable interest in 
 the hands of a purchaser without notice was, in common with 
 every other advantage given by the former statute against such 
 purchaser, recalled (c), and a purchaser was not required to 
 carry his search back beyond the period of five years. 
 Old law still A singular result of the 5th section is, that in the occasional, 
 
 case of purchase though rarely occurring cases of a purchase or mortgage 
 notlf!'^'^^'""'^ without notice of a previously registered judgment, the old 
 law, as it existed before the 1 & 2 Vict. c. 110, must be 
 resorted to for guidance. It is therefore impossible to treat 
 the old law respecting judgments as obsolete. 
 3 & 4 T. u. 82. This Act, however, still left open the question whether by 
 analogy to the cases under the Eegistry Acts a purchaser, 
 mortgagee, or creditor, if he had actual notice of an unregistered 
 
 (a) These words mean purchasers, priority over B. ; Seavan v. Lord 
 
 &o., becoming such, after the omis- Oxford, 1 Jur. N. S. 1121 ; and see 
 
 sion tore-register, so that, if A. & B, Simpson v. Morley, 1 Kay & J. 71. 
 be respectively first and second judg- (6) And see 18 & 19 Vict. o. 15, 
 
 ment creditors who both duly regis- s. 6. 
 
 ter, A. does not, by subsequently (c) Westbrook v. Blythe, 3 Ell. & 
 
 omitting to re-register, lose his Bl. 737. 
 
CH. XXm. S. 6.J JTTDGMENTS AGAINST CESTUI QUE TRUST. 669 
 
 judgment, was not bound by it ; and a subsequent Act, 8 & 4 
 V. c. 82, was passed to obviate tbis objection. It was thereby 
 enacted, by the second section, that no judgment, decree, order, 
 or rule should, hy virtue of the said Act (1 & 2 V. c. 110), affect 
 any lands at law or in equity as to purchasers, mortgagees, 
 or creditors, until registration (a) under the said Act at the 
 Common Pleas, any notice of such judgment, decree, order, or 
 rule to any such purchaser, mortgagee, or creditor, in any\vise 
 notwithstanding. 
 
 It being, however, doubted whether this Act protected a 18 & 19 V. c 15. 
 purchaser, mortgagee, or creditor from the effect of notice as 
 to any remedy against him which the judgment creditor had 
 before, independently of the 1 & 2 V. c. 110, or whether its 
 effect was not limited to protection against the additional 
 remedy given to the judgment creditor by that Act (6), it was 
 in order to obviate this inconvenience, enacted generally, by 
 the 18 & 19 V. c. 15, s. 4, that no judgment, decree, &c., 
 which might be registered under the 1 & 2 Vict. c. 110, should 
 affect any lands, &c. at law or in equity, as to purchasers, 
 mortgagees, or creditors, unless and until the memorandum, 
 &c. should have been left with the proper officer, any notice of 
 any such judgment, decree, &c., to any such purchaser, mort- 
 gagee, or creditor, in any wise notwithstanding. 
 
 It has been held under the Acts extending the remedies of Constmction of 
 
 1 • 1 T 1 ■ n ■ 1 ^'^® Acts. 
 
 the judgment creditor, that as to equitable interests they are to 
 receive the same construction as the Statute of Frauds, and 
 consequently that simple trusts only can be taken in execution 
 at law (c). 
 
 The 14th section of the 1 & 2 Vict, introducing a new Consideration of 
 species of execution against stock and shares in public funds Order provisions 
 and public companies, deserves a separate consideration. By °^^^^q^ & 2 t. 
 that section it was enacted that if any person against whom 
 
 (a) The framer of this Act appears notice. This doubt is now set at 
 
 either to have overlooked, or to have rest hy sect. 5 of the 18 & 19 Vict, 
 
 been ignorant of the intermediate Act e. 15. 
 
 of 2 & 3 Vict. c. 11, and to have left (J) See Beere v. Head, 3 Jo. & 
 
 it doubtful whether re-registration Lat. 340. 
 
 ■within five years was necessary to (c) Dighy v. Irvine, 6 Ir. Eq. 
 
 exclude the title of a purchaser with Rep. 149. 
 
670 
 
 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXIH. S. 6, 
 
 By whom 
 charging order 
 should be made. 
 
 Charging order 
 ■will be made at 
 law -without 
 deciding the 
 quavMmi of 
 interest charged. 
 
 any judgment (a) should have been entered up in any of Her 
 Majesty's superior courts at Westminster, should have any 
 Government stock, funds, or annuities, or any stock or shares 
 of or in any company in England, standing in his name 
 in his own right, or in the name of any person in trust for 
 him (6), it should be lawful for the Judge of one of the superior 
 courts, on the application of any judgment creditor, to order 
 that such stock, dc, should stand charged with the payment 
 of the amount for which judgment should have been recovered, 
 and such order should entitle the judgment creditor to all such 
 remedies as he would have been entitled to if such charges 
 had been made in his favour by the judgment debtor, pro- 
 vided that no proceedings should be taken to have the benefit 
 of such charge until after the expiration of sis calendar 
 months from the date of such order ; and by the next follow- 
 ing section of the Act it is provided that the order of the Judge 
 shall be ex parte in the first instance, and on notice to the 
 Bank or company shall operate as a distringas, and that no 
 disposition of the judgment debtor in the mean time shall be 
 valid as against the judgment creditor. 
 
 The leading points decided and discussed with reference to 
 this new species of execution will be shortly adverted to. 
 
 1. In the ordinary case of a judgment at law, the application 
 for the charging order must be made to one of the Common 
 Law Judges, even though the stock to be charged be standing 
 in the name of the Accountant-General of the Court of Chan- 
 cery (c). But where a charging order is to be made in fur- 
 therance of a decree of the Court of Chancery, it wiU properly 
 be made by a Judge of the Court of Chancery {d). 
 
 3. Where stock or funds are vested in trustees, and a judg- 
 ment debtor appears to be interested therein, the charging 
 order will be made at law, so as to affect the interest of the 
 judgment debtor, whatever it may be, leaving it to the trustees, 
 
 [a] Extended to Decrees, &o., by 
 sect. 18. 
 
 (i) By the 3 & 4 Viet. c. 82, s. 1, 
 the property intended to be em- 
 braced by this section is further 
 defined. 
 
 (c) Hulkes V. Day, 10 Sim. 41. 
 
 [d) Stanley v. Bond, 7 Beav. 386 ; 
 Westhy V. TFestby, 5 De G. & Sm. 
 516. 
 
CH. XXni. S. 6.1 JUDGMENTS AGAINST CESTUI QUE TRUST. 671 
 
 if the precise amount of the debtor's interest is not sufficiently 
 defined, to say they will not act except under the direction of 
 the Court of Chancery (a). 
 
 3. Where a chareins order is made upon the partial interest Bank or public 
 
 _ . company bound 
 
 of a cestui que trust in stock or shares, the Bank or public to pay to trustee, 
 company whose stock or shares are affected by the charging charging order^ 
 order, is not concerned with questions arising between the on interest of 
 
 ' . . cestm. que trust. 
 
 judgment creditor and other persons interested in the trust 
 fund, but is bound, in like manner as before the charging 
 order, to pay the dividends to the trustees (6). 
 
 4. The proviso at the end of the 14th section, forbidding Proviso at the 
 proceedings until after six calendar months, applies only to does not foi-bid 
 proceedings for enforcing immediate payment of the debt by i™*interest*of'' 
 realising the security, and does not prevent the judgment ere- judgment 
 
 creditor. 
 
 ditor from taking steps to prevent the security given him by 
 the statute from being in the mean time defeated or diminished. 
 Thus, where the funds are standing in the name of the Ac- 
 countant-General, the judgment creditor may, within the six 
 months, apply for a stop order to restrain the debtor from 
 receiving dividends accruing within the six months (c). 
 
 5. The question as to the precise effect of the charge As to effect of 
 obtained under a charging order, in reference to the claims of jj^reference'to^ 
 
 other incumbrancers on the trust fund, has been the subject °^'^^^ incum- 
 brances. 
 of much difference of opinion. In a late case, where stock 
 
 was vested in trustees, and A., having a beneficial interest 
 therein, charged that interest in favour of B., and subse- 
 quently C. recovered judgment against A., obtained a charging 
 order on A.'s interest, and, before any notice given by B., gave 
 notice to the trustees of his having obtained the charging 
 order, it was held by three Judges of the Court of Queen's 
 Benchj Lord Campbell, C.J., Wightman & Crompton, JJ., 
 (Erie, J., dissentiente), that C, the judgment creditor, was 
 entitled to priority over B. (d). This decision has been much 
 criticised. It is opposed to the analogous decisions on the 
 
 (a) Fowler Y. Churchill, 11 M. & Qoi.3'12; and see Bristedr.Wilkins, 
 
 W. 57. 3 Hare, 235. 
 
 (J) Churchillv. Bank of England, {d) Watts y. Porter, 3 'Ell & Bh 
 
 11 M. & W. 323. 743. 
 
 (c) Watts V. Jefferyes, 3 Mao. & 
 
era 
 
 JUDGMENTS AGAINST CESTUI QUE TRUST. [CH. XXHI. S. 6. 
 
 Case of lands 
 lying in a 
 register county. 
 
 Judgment 
 postponed to 
 subsequent 
 purchase or 
 mortgage without 
 notice, unless 
 registered hoth 
 in County 
 Register and 
 at the Common 
 Fleas. 
 
 Case where 
 subsequent 
 purchaser or 
 mortgagee 
 has notice. 
 
 11th and 13th sections of the Act (a), and it may safely be 
 said, in the words of high legal authority, that the opinion of 
 the single Judge seems to be the correct one (6). 
 
 The law as to priority of judgments in the case of lands 
 lying in a register county is, by the combined effects of the 
 County Eegistry Acts and of the Acts of the Queen before 
 referred to, in a singular position. 
 
 It is clearly settled that the County Eegister Acts are stOl 
 in force, and consequently that, in order to give priority to a 
 judgment creditor over a subsequent purchaser or mortgagee 
 without notice, his judgment must be registered both in the 
 County Eegister and in the Common Pleas, before the com- 
 pletion of the purchase or mortgage (c). And as between two 
 judgraent creditors, having no notice of each other's claim, 
 the one who first completes .his registry in both the County 
 Eegistry and the Common Pleas, obtains precedence (d). 
 
 Where the subsequent purchaser or mortgagee has notice of 
 a prior judgment, the question will be, whether the' judgment 
 was registered at the Common Pleas before the completion of 
 the purchase or mortgage, since, as we have before seen, 
 unless so registered it cannot bind, notwithstanding the notice. 
 But if duly registered in the Common ^Pleas, then, according 
 to the old decisions, notice to the purchaser or mortgagee 
 will, in equity, though not at law, supply the want of regis- 
 tration in the county (e). 
 
 It is difficult, however, to reconcile the expressions with 
 reference to this subject contained in a late judgment of the 
 present Lord Chancellor (when Vice Chancellor) with the 
 older cases (/). 
 
 (a) WTiitzvorthy. Gaugain, 3 Hare, 
 416, 1 Phil. 728 ; Beavan v. Earl of 
 Oxford, 2 Jur. N. S. 121. 
 
 (6) Vead. and Pur., 13tli edit. p. 
 430, note (I). 
 
 (c) Westbrook v. JBlythe, 3 Ell. & 
 Bl. 737. 
 
 (d) Hughes v. Lurrdey, 4 Ell. & 
 Bl. 274. 
 
 (e) Tunstall v. Trappes, 3 Sim. 
 301 ; Bavis v. Earl of Strathmore, 
 16 Yes. 427. 
 
 (/) Johnson v. Holdsworth, 1 Sim. 
 N. S. 106. 
 
OH. XXni. S. 7.] EXTENTS AGAINST CESTUI QUE TRUST. 673 
 
 SECTION VII. 
 
 OE EXTENTS FBOM THE CKOWN. 
 
 A trust, -whetlier of a term or of a freehold, is liable to an Extent binds a 
 extent from the crown (a) ; and this not by the effect of any ™^ " 
 legislative enactment, but per cursum scaccarii at common 
 law (6). The words of the writ issued to the sheriff are to hold 
 inquest of the lands whereof the debtor, not seisitus fuit, but 
 habuit vel seisitus fuit, and a person may be said to have lands, 
 when by subpoena in Chancery he may exercise any dominion 
 over them (c). 
 
 At common law the extent of- the Crown did not authorise Sale of the lands 
 a sale of the lands, but only the perception of the rents and 
 profits, until the amount of the debt was levied [d) ; this defect 
 was supplied partially by a statute of Elizabeth (e), and 
 more effectually by the 25 G. 3, c. 35. It is by the 
 latter statute enacted, that "it shall be lawful for His Ma- 
 jesty's Court of Exchequer, and the same Court is thereby 
 authorised, on the application of His Majesty's Attorney- 
 General (J) in a summary way by motion {g) to the same Court, 
 to order that the right, title, estate, and interest of any debtor to 
 His Majesty, his heirs and successors, and the right, title, 
 estate, and interest of the heirs and assigns of such debtor, 
 which have been or shall be extended under and by virtue of 
 any extent or diem clausit extremum, shall be sold as the Court 
 shall direct, and the conveyance shall be made by His Majesty's 
 Eemembrancer in the said Court of Exchequer or his deputy, 
 
 (a) King v. Lamhe, M'Clel. 422, (c) See Sir E. Coke's case, Godb. 
 
 per Sir W. Alexander; Chirion's 294. 
 
 case, Dyer, 160 a; S. C. cited Sir {d) Sex v. Blunt, 2 Y. & J. 122, 
 
 J3. Coke's case, Godb. 293 ; the per Baroa HuUock. 
 cases cited Id. 294; Id. 298 ; Bah- (e) 13 Eliz. c. 4. 
 
 ington's case, cited Id. 299 ; King v. (/) See Bex ,v. Bulketey, 1 Y. & 
 
 iSmiW, Vend. & Puicb. Append. No. J. 256. 
 
 XV. lltli ed., per Ch. Baron Mao- {g) See Bex r. Blunt, 2 Y. & J. 
 
 donald. 120. 
 
 (6) Attorney- General y. Sands, 
 Hard. 495, per Lord Hale. 
 
 X X 
 
g74 FOEFEITUKE OF A TKUST. [CU. XXXU. S. 8- 
 
 under the direction of the said Coui-t, by a deed of bai-gain and 
 
 sale to be inrolled in the said Coui-t." 
 Equity of re- By the effect of this enactment, a tnist or equity of redemp- 
 
 demption. ^^^ ^^^ ^^ ^ Crown debtor may now be sold upon summai7 
 
 application to the Court of Exchequer by motion. 
 
 SECTION YIII. 
 
 OF POETEITTTEE. 
 
 Trust Dot forfeit- A trust of lands is not forfeitable at common law for 
 kwfolatSer. attainder either of treason or felony (6); for forfeiture works 
 ojily upon tenure, and a trust is holclen of nobody. The 
 ground of the forfeiture is, that all estates are upon con- 
 dition of duty and fideUty to the lord, and upon breach of 
 allegiance they return to the king, from whom they originally 
 proceeded (c). 
 
 26 H. 8 c. 13. The exemption of the use from forfeiture was remedied in 
 
 the case of treason, by the 26 H. 8. c. 13, s. 5, whereby it was 
 enacted, that "every offender convicted of high ti-eason by 
 presentment, confession, or process of outlawry, according to 
 the due course and custom of the common laws of the realm, 
 should forfeit to the King all such lands, &c. which such 
 offender should have of any estate of inheritance in use or 
 possession." 
 
 27 H. s. The following year was passed the 'Zl H. 8. by which uses 
 
 were abolished, and, as the trust which gTew up in the place 
 of the use was held to be an interest sui generis, and not within 
 reach of the statutes directed against uses, the legislature was 
 again called upon to interpose some speci;d enactment to 
 remedy the defect. 
 33 H. 8, c. 20. The 33 H. 8. c. 20, s. 2, declai-ed, that "if any person or 
 persons should be attainted of high ti'eason by the course of 
 the common laws or statutes of the realm, every such attainder 
 
 (a) King v. Be la Motte, Forr. Hard. 495, ^jcr Lord Hale ; 1 Hale's 
 162. P. C. 247 ; Jenk. 190. 
 
 (J) Attorney- General v. Sands, (c) Gilb. on Uses, 38, 
 
CH. XXIII. S. 8.] FORFEITURE OP A TRUST. 
 
 675 
 
 by the common law (a) should be of as good strength, value, 
 force, and effect, as if it had been done by authority of par- 
 liament ; and that the King's Majesty, his heirs and successors, 
 should have as much benefit and advantage by such attainder, 
 as well of uses, rights, entries, conditions, as possessions, rever- 
 sions, remainders, and all other things, as if it had been done 
 and declared by authority of Parliament, and should be deemed 
 and adjudged in actual and real possession of the lands, tene- 
 ments, hereditaments, uses, goods, chattels, and all other 
 things of the offenders so attainted, which his highness ought 
 lawfully to have, and which they, so being attainted, ought or 
 might lawfully lose and forfeit, if the attainder had been done 
 by authority of Parliament, without any office or inquisition to 
 be found of the same." 
 
 Notwithstanding this statute, it was held in King v. Dae- y^^ ^ ^^^_ 
 combe (&), and is said to have been also resolved in Abington's ^ombe. 
 case, that the trust of a freehold was not forfeited upon attainder 
 of treason ; and it has been remarked, that this doctrine " may 
 be thought to be founded on reason, because it is not pre- 
 tended that the statute of 26 H. 8 can embrace trusts which 
 have succeeded to uses, and it does not appear to have been 
 the intention of the 33 H. 8 to create a forfeiture of any 
 equitable estates which has sprung up since the former act. 
 The statute had other objects (c)." 
 
 To understand the scope of the enactment it must be ob- construction of 
 served, — 1. That previously to the 33 H. 8 it was only in the ^^ ^- ^• 
 case of a person attainted by act of parliament, and then by a 
 special proviso, that the King was put in immediate possession 
 of the offender's lands, for in attainders by ordinary course of 
 law, whether by common law or under a statute, the king was 
 not in possession until office found. 2. That the 26 H. 8 
 had extended the forfeiture to lands in use or possession, 
 but not to rights, entries, or conditions; and now that the 27 
 H. 8 had passed, the 26 H. 8 was not even applicable to uses, 
 or, as they were henceforth to be called, trusts. 3. That the 
 
 {a) This includes the general (J) Cro. Jac. 512. 
 statutes of the realm, as opposed (c) Gilb. on Uses, by Lord St. 
 
 to a special act attainting a parti- Leonards, 78, note 9 ; and see £ur- 
 cular individual. c/ess, v. Wlieaie, 1 Ed. 221. 
 
 X y 2 
 
670 FORFEITUEE OF A TRUST. [cii. XXIII. S. 8, 
 
 26 H. 8 had embraced attainders by presentment, confession, 
 verdict, or process of outlawry, but had omitted other cases, 
 as where the offender stood mute. The intention of the legis- 
 lature then, in passing the 33 H. 8, was, as resolved in Dowtie's 
 case (a), — 1. To vest the actual possession in the King by the 
 attainder without office ; 2. To extend the forfeiture to rights, 
 entries, conditions, &c., which had hitherto not been affected by 
 attainder ; and, 3. To apply the statutory provisions to all 
 cases of attainder, including those which the 26 H. 8 had 
 accidentally omitted. 
 
 Assuming the act to have had a remedial scope, can it be 
 supposed, that, when " rights, entries, and conditions," were, 
 for the first time, made forfeitable by virtue of this enactment, 
 the word " uses," which occupies the first place in the series, 
 should have been inserted as mere surplusage, remembering 
 that uses, by having been turned into possessions by the 
 
 27 H. 8, had escaped the forfeiture imposed upon them by the 
 26 H. 8 ? The insertion of the word " uses " can be no argu- 
 ment that " trusts " were not intended, for at that day " uses " 
 and " trusts " were not as now contradistinguished, but were 
 employed indifferently, as terms perfectly synonymous. 
 
 In support of this reasoning may be cited the opinions ex- 
 pressed by Baron Turner and Lord Hale, in the well-con- 
 sidered case of Attorney-General v. Sands (&). And Lord Hale 
 afterwards recurs to the subject in his Pleas of the Crown (c), 
 and argues the point there with considerable strength of 
 reasoning : — " By the statute of 27 H. 8.," he says, " all uses 
 were drowned in the land ; but there have succeeded certain 
 equitable interests called trusts, which differ not in sub- 
 stance from uses ; nay, by that very statute they come 
 under the same name, viz., uses or trusts. By the statute 
 33 H. 8, there is a special clause that the person attainted 
 shall forfeit all ' uses ;' and what other uses there could be at 
 the making of the statute 33 H. 8, but only trusts such as 
 are now in practice and retained in Chancery, I know not. 
 It was agreed in the Earl of Somerset's case, and so resolved 
 
 (a) 3 Ee. 9, b. (c) 1 P. C. 248. 
 
 (6) Hard. 495; S. C. Nels. 131; 
 8. C. Freem. 130. 
 
CH. XXIII. S. 8.] FORFEITURE OF A TRUST. 677 
 
 in Abington's case, that a trust of a freehold was not forfeited 
 by attainder of treason. But how this resolution in AUngtons 
 case can stand with the statute of 33 H. 8, I see not ; for 
 certainly the uses there mentioned could be no other than 
 trusts; and therefore the equity or trust itself, in cases of 
 attainder of treason, seems forfeited by the statute, though 
 possibly the land itself be not in the King (a)." 
 
 Equities of redemption appear to be forfeitable for attainder Whether equities 
 of treason under the 33 H. 8 (6) ; for the statute has enumer- sutject to for- 
 ated conditions, and the interest of the mortgagor is a condition '^""'^^• 
 which, though broken at law, is saved whole to him in a court 
 of equity. 
 
 A trust in favour of an alien is forfeitable to the Crown Trust in favour 
 without statute on the principle of public policy ; for at law an 
 alien has no capacity to purchase lands, lest the realm should 
 be impoverished, if the revenues might be transported into 
 foreign countries, and put in subjection under a foreign 
 prince (c) ; and if an alien were allowed to receive the rents 
 and profits of lands in equity, the mischief would be the same. 
 However, the legal estate is not forfeited, but the King 
 must prosecute his right by subpoena in the Court of Chan- 
 cery {d) : and this he may do without any office found or 
 inquisition taken (e). 
 
 Trusts of chattels, whether real or personal, were always Trusts of 
 deemed forfeitable to the Crown (/) ; and if a term be in trust 
 for the wife of the felon, but not for her separate use, it seems 
 the trust shall be affected by the forfeiture of the husband (g). 
 But in these cases the forfeiture reaches not to the chattel 
 
 {a) In Attorney -General Y. Sands [d] Attorney- General v. Sands, 
 
 it was laid down, according to Nel- Hard. 495, per Lord Hale, 
 
 son's report (p. 131), that tlie estate (e) Burgess v. Wheate, 1 Ed. 187, 
 
 was executed in the Eing by force per Sir T. Clarke. 
 
 of the statute ; but, according to (/) Wikes's case, Lane, 54, agreed; 
 
 JFreeman (p. 130), that the estate King v. Daccomhe, Cro. Jao. 512 ; 
 
 was to be executed in the King by Jenk. 190, case 92 ; Attorney- Gene- 
 
 a court of equity. Id. qu. ral v. Sands, Hard. 405 ; Pawlett 
 
 {b) Anon, case, cited Meeve v. y. Attorney -General, 'R.aidi.'^&l, per 
 
 Attorney- General, 2 Atk. 223. Lord Hale ; Sir J. Back's case cited 
 
 (c) See Holland's case, Styl. 21 ; Holland's case, Al. 16. 
 
 Collingwood v. Pace, 0. Bridg. {g) Wikes's case. Lane, 54, per 
 
 431. Barons Snig and Altham, 
 
678 
 
 ESCHEAT. 
 
 [CH. xxin. S. 9. 
 
 Of forfeiture by 
 equitable tenant 
 for life. 
 
 itself, but merely entitles the King to sue a subpoena in 
 equity (a). 
 
 At law a tenant for life may, by certain tortious acts, as by 
 a feoffment of the fee-simple, forfeit his estate to the remainder- 
 man (6) ; but if an equitable tenant for life affect to dispose of 
 the equitable fee, no forfeiture is incurred, for nothing passes 
 beyond the grantor's actual interest (c). 
 
 SECTION IX. 
 
 Trust not sub- 
 ject to escheat. 
 
 Wheate. 
 
 OF ESCHEAT. 
 
 A trust in fee of lands is not subject to escheat (d). This 
 was determined in the great case of Burgess v. Wheate (e), 
 before Lord Northington, assisted by Lord Mansfield and Sir 
 T. Clarke. The arguments of these eminent judges, too long for 
 insertion in this place, are replete with learning, and will amply 
 repay a very careful perusal : it must be mentioned, however, 
 that Sir T. Clarke and Lord Mansfield, while they pursued 
 different lines of reasoning, carried their principles to too 
 great an excess. Sir Thomas Clarke contended that trusts 
 must be governed strictly by uses, and, therefore, as no escheat 
 in equity was of a use, there could be none of a trust. But 
 this position is too large ; for trusts do not follow absolutely 
 the law of uses : for then no curtesy would be of a trust, the 
 judgment creditor would have no lien, and equitable interests 
 would not be assets. Lord Mansfield, on the other hand' 
 advanced the doctrine, that, as lands escheat at law, so trusts 
 must escheat in equity ; that trusts, since the statute of H. 8, 
 are not regulated by uses, but the maxim is, " Equity follows 
 law," — " The trust is the estate." But to this it must be 
 answered, that a trust has always been recognised as a thing 
 
 (a) Holland's case, Al. 14 ; Sir 
 J. Dack's case as cited by EoUe, 
 J. Id, 16; Attorney ■■ General v. 
 Sands, Hard. 495, per Lord Hale ; 
 and see Kildare v. Eustace, 2 Ch. 
 Ca. 188; S. C. 1 Vern. 405, 419, 
 423, 428, 437. 
 
 (b) See Co. Lit. 251 a. 
 
 (c) Lethieullier v. Tracy, 3 Atk, 
 728, 730; Lady Whetstone, v. Bury, 
 2 P. W. 146. 
 
 {d) Attorney-General v. Sands, 
 Hard. 488 ; and see 1 Harg. Jurid. 
 Exero. 383. 
 
 (e) 1 Ed. 176 ; S. C. 1 W. Black, 
 123, 
 
CH. XXIII. S. 9.] ESCHEAT. 679 
 
 mi generis, not as identical with the legal fee : it binds not, 
 for instance, a purchaser for valuable consideration without 
 notice. The intermediate opinions of Lord Northington are 
 to be regarded as those most in accordance with the general 
 system: trusts, he thought, were to be administered on the 
 footing of uses ; but not, as Sir Thomas Clarke maintained, 
 to the exclusion of the improvements adopted subsequently 
 to the statute of H. 8 : he agreed with Lord Mansfield, that 
 trusts imitated the legal possession ; but he added the quali- 
 fication, as betiveeii the privies to the trust only, and not as 
 respected strangers. "Equity," he said, "follows the law; and, 
 as hetween the cestui que trust and those claiming by, from, 
 and under him, it is equity that he should be considered as 
 formally possessed of that estate of which he is and appears 
 substantial owner. It is true this Court has considered trusts, 
 as betiveen the trustee, cestui que trust, and those claiming 
 tinder them, as imitating the possession ; but it would be a bold 
 stride, and, in my opinion, a dangerous conclusion, to say, 
 therefore, this Court has considered the creation of a trust as 
 a mere nullity, and the estate in all respects the same as if it 
 still continued in the seisin of the creator of the trust or the 
 person entitled to it. My objection to the claim of the lord 
 is, that it is for the execution of a trust that does not exist. 
 Where there is a trust, it should be considered in this Court as 
 the real estate between the cestui que trust, and the trustee, and 
 all claiming by or under them ; and the trustee should take no 
 beneficial interest that the cestui que trust can enjoy ; but, for 
 my own part, I know no instance where this Court ever per- 
 mitted the creation of a trust to affect the right of a third (a)." 
 
 The determination in Burgess v. Wheate has been followed 
 in more recent cases (&), and the principles there laid down 
 have been held by the present Master of the Eolls to apply 
 to the case of a mortgage in fee, and the subsequent death of 
 the mortgagor intestate, his Honor deciding that in such case 
 the equity of redemption does not escheat to the Crown, but 
 belongs to the mortgagee, subject to the debts (c). 
 
 {a) 1 Ed. 250. 3 De G. & Sm, 394 ; Coxy. Parker, 
 
 (b) Taylor v. Haygarth, 14 Sim. 22 Beav. 168. 
 16 ; Davall v, Hew Miver Company, (c) 5eafev.'S'?/mo»rfs,16Beav.406. 
 
680 
 
 DESCENT OF A TEXJST. [CH. XXm, S. 10. 
 
 SECTION X. 
 
 Seisin ex parte 
 matemA. 
 
 THE DESCENT OP THE TBUST. 
 
 A trust is governed by the same rules of descent as the 
 legal estate is on which the trust is ingrafted, and that whether 
 the legal estate descends according to the course of common 
 law, or is subject to a lex loci. 
 
 If one seised of land ex parte maternd convey to a person 
 upon trust, and no trust is expressed, the resulting interest is 
 part of the original estate, and will descend in the maternal 
 line, and, failing the heirs on the part of the mother, will rather 
 absolutely determine, than pass into the paternal line (a). 
 But if one seised ex parte matenia devise to A. and his hens 
 upon trust for a person for life, and then in trust to convey to 
 the testator's heir at law, this breaks the descent, and the 
 heir ex parte paternd is entitled to the equitable remainder (6). 
 
 If the land be subject to gavelkind, borough English, or 
 other custom, the equitable interest will follow the same course 
 of inheritance (c). 
 
 And a trust of copyholds as well as of freeholds is governed by 
 the descent of the legal estate {d). 
 Possessio fratris. The analogy to law is so strictly preserved, that if the last 
 cestui que trust had no seisin of the equitable estate corre- 
 sponding to possessio fratris at law, the trust will descend 
 to the brother of the half blood, not to the sister of the whole 
 blood (e). But, by the late Act, the half blood is now capable 
 of inheriting estates, whether legal or equitable (/). 
 Proceeds from If a Settlement contain a power of sale, with a trust to 
 
 Gavelkind. 
 
 Copyholds. 
 
 (a) Burgess v. Wheate, 1 Ed. 177, 
 see 186, 216, 256; Langleyy. Sneycl, 
 1 Sim. & Stu. 45. 
 
 (J) Davis V. Kirh, 2 Kay & John. 
 391. 
 
 (c) Fawcett v. Zowther, 2 Ves. 
 304, per Lord Hardwicke ; Banks v. 
 Sutton, 2 P. W. 713, per Sir J. 
 Jekyll ; Jones v. Eeashic, 22 Vin. 
 Ah. 185. pi. 7. 
 
 {cl) Trash v. Wood, 4 M. & Cr. 
 324. 
 
 (e) Banks v. Sutton, 2 P. W. 
 713, per Sir J. JekyU ; Cowper v. 
 Earl Cowper, lb, 736, per eundem ; 
 Cunningliam v. Moody, 1 Ves. 174 ; 
 Co. Lit. 14 b ; and see the oases 
 cited Cashorne v. Searfe, 1 Atk. 604. 
 
 (/) 3 & 4 "W. 4, c. 106, s. 9. 
 
CH. XXIII. S. 11.] A TETJST AS ASSETS. 681 
 
 reinvest the proceeds in a purchase to the same uses, and the sale of gavel- 
 lands be sold, but the proceeds be not reinvested, though the 
 bulk of the estate sold was of gavelkind tenure, yet if one of 
 the uses be to A. and his heirs, the proceeds of the sale will 
 descend to the heirs of A. at common law, and not to the heirs 
 by the custom of gavelkind (a). 
 
 And if gavelkind lands be limited to a person's heirs as Limitation to 
 purchasers the common law heii'S and not the customary heirs chaseix ^"'^" 
 are entitled ; as where a testator directed trustees to stand 
 seised of gavelkind lands for the separate use of A. for life, 
 and so as her husband should not intermeddle therewith, and 
 after her death upon trust to convey to the heirs of her body for 
 ever. Lord Hardwicke held that the trust was executory, 
 and that the Court must therefore look to the intention, which 
 was to give a life-estate to A., and the remainder to the heirs 
 as purchasers ; for, as the husband was not to intermeddle 
 therewith, his curtesy was to be excluded, which would not be 
 the case if A. were tenant in tail. A conveyance of the legal 
 estate was therefore directed to the eldest son and the heirs of 
 his body, with remainder to the second son, and the heirs of 
 his body, &c. " Not," added Lord Hardwicke, " according 
 to the custom of gavelldnd, because it must go according to 
 the rule of common law, being not a trust executed, but 
 executory " (&). 
 
 SECTION XI. 
 
 OF ASSETS. 
 
 The trust of a chattel was always accounted assets in Trusts of chat- 
 equity (c). tels are assets. 
 
 But whether the trust of a freehold should be assets in the Trust of a free- 
 hands of the heir for payment of debts by specialty was for a ^°^^' 
 long time vexata qucestio. On the one hand it was argued. 
 
 (a) Hougham v. Sandys, 2 Sim. (c) Attorney- General v. Sands, 
 
 95, see 153. Freem. 131 ; Barthrop v. West, 
 
 (6) Roherts v. Dixwell, 1 Atk, 2 Ch. Re. 62 ; Duhe of Norfolk's 
 
 607 ; and see Thorp v. Owen, 2 Sm. case, 3 Ch. Ca. 10. 
 & Giff. 90. 
 
683 
 
 A TRUST AS ASSETS. 
 
 [CH. xxrn. s. 11. 
 
 that the trust ought to follow the use, and that the use was not 
 liable to a bond creditor ; on the other hand it was said, that 
 the trust since the Statute of Uses had been conducted by the 
 Courts on more liberal principles, and, as the legal fee was 
 available to the discharge of specialty debts at law, so a Court 
 of equity ought to adopt the same rule in the administration 
 of trusts. 
 
 Bennet v. Box. It was determined by Lord Hale, Chief Justice Hyde, and 
 
 Justice Windham, in the case of Bennet v. Box, that a trust in 
 fee should not be assets (a) ; and Lord Keeper Bridgman after- 
 wards felt himself bound by the authority of this decision in 
 respect of a trust (b), though he doubted somewhat as to an 
 equity of redemption (c) ; and so the law as to a trust was laid 
 down by Lord Hale in Attorney-General v. Sands (d). 
 
 Grey v. Coiriie. The question was renewed before Lord Nottingham in the 
 case of Gi'ey v. Colvile (e). John Colvile gave a bond to Lady 
 Grey for 1500?., and died intestate. The obligor in his life- 
 time had purchased lands in the names of himself and Wise, 
 to hold to them for their lives, remainder to Sir John and his 
 heirs, and other lands in the names of Morris and Saunders in 
 trust for Sir John in fee. Lady Grey brought an action at law 
 against the heir, who (the case occurring prior to the Statute 
 of Frauds) pleaded riens per descent in prasenti, but only the 
 reversion of the lands expectant on the decease of Wise. 
 Lady Grey then filed a bill in Chancery to have the trust 
 estates declared assets in equity, and Lord Nottingham, acting 
 on the broad rule of analogy to law, decreed the debt to be 
 paid. The case was afterwards reheard before Lord Guild- 
 ford, and is reported by Vernon under the title of Creed v. 
 
 (o) 1 Ch. Ca. 12. 
 
 (6) PraU v. Colt, 1 Ch. Ca. 128 ; 
 S. C. Freem. 139. 
 
 (c) Trevor v. Perryor, 1 Ch. Ca. 
 148. 
 
 {d) Hard. 490 ; S. C. Freem. 
 131; S. C. Nels. 134. 
 
 (e) 2 Ch. Ee. 143. This case 
 has been the most unfortunately 
 reported of any perhaps in the hooks. 
 In p. 143, for ''the defendant's 
 
 wife," read " the defendant Wise ;" 
 and a few lines after, for " wife," 
 read "Wise." In page 144, for 
 " Colvile and his wife," read " Col- 
 vile and Wise ;" for " of one lease," 
 read " of one Leke," and correct the 
 passage thus: "The said Josiaalso 
 insists, that the premises are incum- 
 bered by a former judgment of one 
 Leke for 800Z., and that the plain- 
 tiff's creditors, and other the ore- 
 
CH. XXm. S. 11.] A TRUST AS ASSETS. 683 
 
 Covile (a). The plaintiff argued that Bennet v. Box was a pre- 
 cedent of the Judges' making, who were for restraining the Court 
 of Chancery to the strict rules of law ; that the trust of a term 
 was assets, and why not the trust of a fee-simple ; an equity 
 of redemption was assets, and why not a trust ? But Lord 
 Guildford said, " I know the case of Bennet v. Box has had 
 hard words given it, and been much railed at, but the decree 
 in that cause was made upon great advice, and I do not know 
 how I could be better advised now." And he said, "There 
 was a difference between the case of an heir and the case of an 
 executor, and therefore the trust of a term and the trust of an 
 inheritance were not the same in this point; for whatever 
 money came to the hands of an executor, either by sale of the 
 term, or if money was decreed to him in a court of equity, 
 would be assets ; but if an heir before action brought sold and 
 aliened the assets, the money was not liable in his hands (&), 
 unless the sale were with fraud and collusion ; as, if an heir 
 sold and bought again, there the new-purchased lands would 
 be assets. And as to an equity of redemption, if a man had a 
 mortgage and a bond, before the mortgage should be redeemed 
 by the heir the bond ought to be satisfied, but he did not know 
 that an equity of redemption should be assets in equity to 
 cdl creditors." And his Lordship said, he " should be much 
 governed by the case of Bennet v. Box, unless they could show 
 that the latter precedents had been otherwise," and directed 
 them to attend him with precedents towards the latter end of 
 the term. The cause was brought on again the December 
 following, and the Court ordered that the parties should 
 attend the two Chief Justices and the Lord Chief Baron, 
 who were desired to certify their opinion on the question (c). 
 In Michaelmas term the next year, upon the motion of the 
 defendants, it was ordered, that, unless plaintiffs, the creditors, 
 procured the certificate of the Lord Chief Justices' and Lord 
 Chief Baron's opinion by the first day of the next term, the 
 
 ditora, &o., insist they are oredi- (a) 1 Vern. 172. 
 
 tors," &c. In page 145, for " the (6) Since made liable hy 3 W. 
 
 defendant's wife," read " the defend- & M. o. 14. 
 
 ant Wise." (c) R. L. 1683, A. fol. 166. 
 
684 
 
 A TETJST AS ASSETS. 
 
 [CH. XXIII. S. 11. 
 
 Statute of 
 Frauds. 
 
 Construction of 
 the act, 
 
 Equity of re- 
 demption since 
 the act. 
 
 bill should be dismissed without further motion {a). No further 
 proceedings appear in the cause; and, therefore, it must he 
 concluded, Lord Nottingham's decision was reversed (6). 
 
 Thus stood the law before the Statute of Frauds (c). By 
 the 10th section of that Act it was declared, that " if any cestui 
 que trust should die, leaving a trust in fee-simple to descend 
 to his heir, then and in every such case such trust should be 
 deemed and taken, and was thereby declared to be, assets by 
 descent, and the heir should be liable to and chargeable with 
 the obligation of his ancestor for and by reason of such assets, 
 as fully and amply as he might or ought to have been, if the 
 estate in law had descended to him in possession, in like 
 manner as the trust descended." 
 
 This enactment must be taken to embrace simple trusts only, 
 and not complicated trusts (cZ), or equities of redemption (e). 
 But such interests as are without the statute may, upon the 
 general principles of equity, be treated as assets by analogy to 
 law. 
 
 In Plucknet v. Kii'k (/) it was expressly decided by Lord 
 Jeifries, that an equity of redemption of a mortgage in fee 
 
 (a) R. L. 1684, A. fol. 210. 
 (6) But see Goffe v. Whalley, 1 
 Vern. 282. 
 
 (c) 29 Car. 2. c. 3. 
 
 (d) The former part of the clause, 
 whieh enables the sheriff to take a 
 trust in execution,' was construed 
 not to include a complicated trust, 
 and therefore it is presumed the 
 latter part of the clause could not 
 be differently interpreted. 
 
 (e) Plunhet v. Penson, 2 Atk. 
 293, per Lord Harwioke; Sawley 
 V. Qower, 2 Vern. 61, per Lord 
 Jeffries. 
 
 (/) 1 Vern. 411 ; and see Lord 
 Jeffries's opinion in Sawley y. Qower, 
 2 Vern. 61. Plucknet v. Kirh, as 
 stated in Reg. Lib., was this : — 
 Kirk, seised of an estate in fee, 
 mortgaged it to Sutton in fee for 
 securing 1300?. and interest, and 
 afterwards confessed a judgment to 
 
 Plucknet for securing a loan, and 
 two judgments to Rogers for secur- 
 ing other loans, and became indebted 
 to Wood and Dakins by bond. The 
 two judgment creditors joined with 
 the two bond creditors and others 
 who were simple-contract creditors 
 in filing a bUl, by which they prayed 
 that, in default of personal assets, 
 they might redeem the mortgage, 
 and Lord Jeffries decreed that the 
 plaintiffs, the judgment and bond 
 creditors, might redeem ; and as to 
 the plaintiffs, the simple-contract 
 creditors, his Lordship said, "he 
 would advise with the Lords and 
 the Judges thereon, and after he 
 had so advised would give such di- 
 rections touching the said debts, 
 whether they should be let into 
 the redemption of the premises, as 
 should be agreeable to equity." 1686, 
 B. fol. 181, 844. 
 
CH. XXm. S. 11.] A TEUST AS ASSETS. 685 
 
 should be assets in equity to the payment of bond debts, and 
 so it was held in an anonymous case reported by Freeman (a) ; 
 and the same law was recognised in Acton v. Peirce by Lord 
 Keeper "Wright (fc), and was admitted by Lord Hardwicke with- 
 out observation in Plunket v. Penson(c). 
 
 The doctrine established by these authorities with respect to Tmst in fee since 
 equities of redemption is directly at variance with the decision ^ *° " 
 in Grey v. Colvile, relating to trusts. But the maxim is gene- 
 rally admitted, that, as between the trustee and cestui que trust 
 and all claimiug by or under them, the equitable ought to 
 imitate the legal estate, and therefore, upon principle, the rule 
 that governs equities of redemption ought equally to be applied 
 to every other equitable interest. It would be a strong position 
 to advance, that until the Act of 3 & 4 W. 4, a trust was not 
 assets unless the debtor had merely a plain and simple trust ; 
 but such would be the result, were trusts only liable as assets 
 by virtue of the Statute of Frauds. 
 
 The question, as regards debtors who have died since the z k iW. i. 
 29th of August, 1833, has now been rendered unimportant by "• ^^^' 
 the 3 & 4 W. 4. c. 104, which enacts, that all a person's "estate 
 or interest (which must include a trust) in lands, tenements 
 or hereditaments, corporeal or incorporeal, or other real 
 estate, whether freehold, customaryhold, or copyhold," shall 
 be assets for the payment of debts as well on simple contract 
 as on specialty. 
 
 There remains to be considered the question, whether a trust ■whetlier a trust 
 
 shall be administered as legal or equitable assets ; and upon able^assets^''"''' 
 
 this subject we shall first advert to the case of trusts of chattel 
 
 interests, that is, to equitable assets in the hands of the 
 
 executor. 
 
 It may be remarked in limine, that if an executor recover Trust of a 
 
 • 1 1 • 1 oliattel. 
 money m that character upon a trust or other equitable right, 
 
 the proceeds, ivhen actually come to his hands, will be legal 
 assets, even ia a court of law(cZ): is it not, then, an incon- 
 sistency to say, that, if the property has been reduced into 
 
 (a) P. 115. 155, per Periam, J. ; Anon, case, 
 
 (6) 2 Vern. 480. 1 Koll. Rep. 56; Sarwoodv. Wray- 
 
 (c) 2 Atk. 290. man, cited lb. ; S. C. reported Mo. 
 
 {d) Hawkins y. Lawse, 1 Leon, 858. 
 
686 A TEUST AS ASSETS. [CH. XXIII. S. 11. 
 
 possession, a Court of equity shall administer it as legal assets, 
 but if it be still outstanding, it shall be administered as equit- 
 able assets ? Upon what principle can the Court vary the 
 rights of parties from an accidental circumstance arising out 
 of the conduct of the executor ? 
 Morgan v. Slier- In Morgan V. Sherrard (a) a person had mortgaged a term of 
 years, and afterwards acknowledgfed a statute to Lord Sherrard, 
 and then confessed a judgment to Morgan. The latter filed 
 his bill against the executor to have the equity of redemption 
 made legal assets (a judgment at law taking precedence of a 
 statute), and so Lord Guildford decreed it. 
 Wilson V. Field- Wilson V. Fielding {b) not only confirms this decision, but 
 ™°' sets the principle in a clear light. An executor had exhausted 
 
 the personal assets by part payment of a debt secured by a 
 mortgage and the testator's bond, and the simple-contract 
 creditors filed a biU against the heir to oblige him to refund 
 what had been discharged of the mortgage debt out of the 
 personal estate. The heir was decreed to make good the 
 money, and the dispute was, whether the fund, which was 
 called equitable assets because it could only be recovered in 
 a court of equity, should be distributed among the creditors 
 pa7-i passu, ov, one of the creditors having obtained a judgment 
 against the executor, should be administered according to the 
 legal priority. Lord Macclesfield said, " The doctrine that 
 seems to be laid down by the counsel for the simple-contract 
 creditors, that there is this standing difference between assets 
 in law and assets in equity, that, though the former shall go 
 according to the course of administration prescribed by law, 
 yet the latter shall, without any regard to this, go among the 
 creditors equally however different the nature of their debts, is 
 a doctrine ivithout any reason or foundation, and would establish 
 a rule in equity directly contrary to the known rules of law as to 
 the order in which debts are to be paid. Indeed, as to the case 
 put of land devised by a testator to be sold for the payment of 
 his debts, it is so, and this Court does always decree the profits 
 arising from the sale equally among all the creditors ; but then 
 
 (a) IVern. 293. {h) 10 Mod. 426; S. C. 2 Vera. 
 
 763. 
 
CH. XXni. S. 11.] A TRUST AS ASSETS. 687 
 
 this land may be considered as a gift of the testator among all 
 his creditors, and as the testator, the donor, has not thought fit to 
 make any distinction between his creditors, so this Court, which 
 is in nature of a trustee for the testator, will make none either. 
 But, generally speaking, there is no difference hetiveen assets in 
 law and assets in equity, hut both must be distributed by the 
 executor in a course of administration." 
 
 The next case is that of the creditors of Sir Charles Cox (a), Cox's case. 
 in which the property in question was the equity of redemption 
 of a term. Sir J. Jekyll was of opinion it should be equitable 
 assets, "it being," he said, "precarious and doubtful whether 
 the mortgage would prove worth redeeming, and all debts 
 being in a conscientious regard equal, and equality the highest 
 equity;" but at the same time it was resolved by the Court, 
 that where a bond was due to A., but taken in the name of B., 
 and A. died, that should be paid in a cowie of administratio7i, 
 for in such a case there could hardly be any dispute touching 
 the quantum of the debt, seeing the principal, interest, and also 
 the costs, must be paid to the obligee in the bond ; whereas, in 
 the other case, the costs must be paid by the party coming to 
 redeem : for the same reason, if a term of years were taken in 
 the name of B. in trust for A., this on the death of A. would 
 be legal assets, for here the right to the thing was plain ; and 
 if the trustee contested it, he must prima facie do it on the 
 peril of paying costs. 
 
 Hartwell v. Chitters (b), before Lord Hardwicke, was also the Hartwell v. 
 case of the equity of redemption of a term, and (the point CMtters. 
 apparently not undergoing much discussion) was determined in 
 conformity with Sir J. Jekyll's decision, and subsequently, in a 
 case before the Queen's Bench, we find Mr. Justice Bayley 
 referring to both Hartwell v. Chitters and the case of Sir 
 Charles Cox's creditors with apparent approval (c). 
 
 Mr. Cox, in his note to Peere Williams, disapproves of the observations 
 doctrine held by Sir Joseph Jekyll, that an equity of redemp- ™*etwo 
 tion should be accounted equitable assets ; and observes, that, 
 upon looking into the Master's report made in pursuance of 
 
 (a) 3 P. W. 341. (c) Clay v. WilUs, 1 Barn. & Ores. 
 
 (6) Amb. 308. 372. 
 
688 A TEUST AS ASSETS. [CH. XXHI. S. 11. 
 
 the decree in Cox's case, it appeared the two only creditors 
 were in equal degree, and the Master therefore declined to 
 distinguish which were legal and which were equitable assets, 
 so that the point in question was not in fact determined; 
 and he adds, that Hartwell v. Chitters rested entirely on the 
 authority of Sir Charles Cox's case. At all events it must 
 be remarked, that Sir Joseph Jekyll expressly approved the 
 doctrine, that a plain trust should be legal assets, though he 
 followed his bent of taking subtle and refined distinctions, 
 by holding that a doubtful and precarious equity should be 
 administered as equitable assets. A precarious trust ought 
 upon principle to be governed by the same rules as a plain 
 trust ; and therefore his Honor's distinction could scarcely be 
 relied upon {a) ; and it was said long since by Mitford, after- 
 wards Lord Eedesdale, arguendo, that Cox's case, and Hartwell 
 V. Chitters, had been considered as overruled (6). 
 
 Cook V. Giegson. In a late case before Vice Chancellor Kindersley, the dis- 
 tinction between legal and equitable assets is thus laid down : 
 Legal assets are such as are available to the creditor in a 
 Court of Law, equitable assets such as the creditor can only 
 reach through a Court of Equity. Whether the assets are 
 such that the executor can recover them in a Court of Law or 
 in a Court of Equity only, is immaterial. The true test is, 
 whether he recovers them " virtute officii." If the assets 
 come to Ms hands as executor, a Court of Law would treat 
 them as assets, and they are to be administered as legal 
 assets (c). The cases of Cox's Creditors and Hartwell v. 
 Chitters must now be treated as overruled. 
 
 Trust iu fee. A trust in fee stands in a very different light from the trust 
 
 of a chattel in the hands of the executor. As regards the 
 inheritance, until a late &ci{d) it was only in respect of 
 creditors by specialty in which the heirs were bound, that the 
 question of legal or equitable assets could in fact have ai'isen, 
 
 (a) See Sharpe v. Earl of Sear- (c) Cook v. Chregson, 3 Drew. 
 
 lorough, 4 Ves. 541 ; but see Clay 547 ; and see Lovegrove \. Cooper, 
 
 V. Willis, 1 B. & C. 372 ; Barker v. 2 Sm. & Gif. 271. 
 
 Marj, 9 B. & C. 493. . (<?) 3 & 4 Will. 4. c. 104, which 
 
 (6) Sliarpe \. Earl of Scarborough, will be noticed presently. 
 4 Ves. 541. 
 
CH. XX^II. S. 11.] A TETJST AS ASSETS. 689 
 
 for specialties in which the heirs were not bound, and simple- 
 contract debts, were not payable out of real estate, and statutes 
 and judgments were liens, to a partial extent, upon the 
 equitable fee, and were payable not as debts, but as iu- 
 cumbrances. In respect, then, of specialties in which the 
 heirs were bound, a plain and simple trust was made assets 
 in a court of law in the hands of the heir, by the Statute 
 of Frauds, and therefore was legal assets in equity (a) ; but 
 complicated trusts, and equities of redemption, were not 
 touched by the statute; and it would seem, upon principle, 
 that as equity subjected the trust to specialty creditors by 
 analogy only to law, the Court ought, by observing the analogy 
 throughout, to have adopted the legal course of administra- 
 tion. 
 
 Lord Nottingham, than whom no Chancellor had a more Grey v. ColvUe. 
 just conception of the true nature of trusts, determined to this 
 effect in the case of Grey v. Colvile (&). The bond-creditors 
 had, siuce the ancestor's decease, entered up judgments against 
 the heir ; and Lord Nottiagham, following the analogy of law, 
 decided that the creditors should be paid according to the 
 priority of their judgments out of a trust in fee, thus treating 
 the trust estate as legal assets in the hands of the heir (c). 
 
 Similarly, in the case of a devise of a trust in fee, the Whether trust in 
 
 166 dSTlSGQ is 
 
 analogy presented by the case of the devise of a legal fee legai or equitable 
 ought, it is conceived, to be pursued. It must be borne in '^^■ 
 mind, that untU the 3 & 4 "W. & M. c. 14, a devise of the 
 real estate absolutely deprived the specialty creditors of all 
 remedy against either heir or devisee, and that by this 
 statute a remedy was first given against the heir and de- 
 visee jointly, in respect of the property so devised. The 
 statute, however, expressly excepted from its operation those 
 cases of devises for pajnnent of debts, &c., in which, accor- 
 ding to the doctrine of the Courts of Equity, real estate 
 devised was administered as equitable assets, and it is conceived 
 that the true test whether a trust in fee devised should be 
 
 (a) Plunket v. Penson, 2 Atk. (c) See Morrice v. Bank of Eiiff- 
 
 293, per Lord Hardwicke ; King v. land, 3 Sw. 685 ; Dollond v. John- 
 
 Balhtt, 2 Vein. 248. son, 2 Sm. & Gif. 301. 
 
 (5) 2 Ch. Ee. 143. 
 
FeQBon, 
 
 690 A TRUST AS ASSETS. [CH. XXni. S. 11. 
 
 administered as legal or equitable assets, was whether, if the 
 estate devised had been a legal estate it would have consti- 
 tuted legal or equitable assets. 
 Plunket V. The decision in Plunket v. Penson, though the observations 
 
 of Lord Hardwicke are somewhat sweeping, is not opposed to 
 this view. In that case a testator, seised of the equity of 
 redemption of a trust estate in fee, devised it to his son, who 
 was also his heir, subject to the testator's debts and some 
 annuities and legacies, and died indebted by bond and" simple 
 contract. The point at issue was, whether both species of 
 creditors should be paid pari passu, or the legal priority should 
 be observed. The case of Massam v. Harding was cited by 
 counsel; and it was said that Lord Chief Baron Comyns had 
 there taken the distinction, that, if it was a mortgage for years, 
 then the equity of redemption would be legal assets, because 
 the whole interest was not gone from the mortgagor, the 
 reversion in fee being left in him ; otherwise where it was a 
 mortgage in fee (a) ; and Lord Hardwicke said, he thought the 
 distinction was right ; and in the principal case his Lordship 
 said, " I agree that if a mere trust estate descends upon an 
 heir at law it will be considered as legal, and not as equitable 
 assets; and this is founded upon the third clause of the 
 statute (fo), which gives a specialty creditor his remedy at law 
 by an action of debt against the heir of the obligor ; but it has 
 not made a mortgage in fee of a trust estate subject to the 
 same thing; for if the specialty creditor should bring an action 
 against the heir of the mortgagor, he might plead 7iens per 
 descent. Therefore, if the plaintiff be under the necessity of 
 coining here, this Court wiU act according to its known rule 
 of doing equal justice to all creditors without any distinction 
 as to priority." But whatever force may be attributed to 
 these observations, it certainly was not decided by this case, 
 that an equity of redemption in fee should be administered as 
 equitable assets. Had the ancestor been seised of the legal 
 fee, Lord Hardwicke held, that, as the legal descent would not 
 
 (a) This does not appear in the .the 10th section of the Statute of 
 
 short note of the case in Bunh. 339. Frauds, 29 Car. 2. c. 3, was not 
 
 (6) Viz. of Fraudulent Devises, meant, 
 3 "W. & M. c. 14. But qucere, if 
 
CH. XXin. S. 11.] A TRUST AS ASSETS. 691 
 
 have been broken by the equitable charge, the bond creditor 
 might at law have recovered his debt against the heir ; and 
 thus, having a claim dehors the will, would have been preferred 
 to the simple-contract creditors, who had only a title wider the 
 will. But the ancestor was seised, not of the legal fee, but 
 of an equity of redemption ; and against the heir of such an 
 interest the bond creditor had no action at law, but only a 
 remedy in Chancery. Now the equitable right was to be made 
 strictly analogous to the legal right; and as at law the bond 
 creditor could only have sued the heir, and not the devisee for 
 payment of debts, the question for consideration was, whether 
 the equitable interest had descended or been devised. The 
 testator by charging the land with his debts had certainly not 
 broken the descent as to the surplus interest that might come 
 to the heir ; but, as the debts exceeded the value of the estate, 
 he had disposed of the whole beneficial interest, and the bond 
 creditor could have no remedy against the heir, for there was 
 riens per descent: he could only come into equity with the 
 other creditors under the equitable charge ; and as an estate 
 devised for payment of debts must be administered as equitable 
 assets, the bond creditor had no claim to priority. The 
 decision viewed in this light is not at variance with Lord 
 Nottingham's decree in Grey v. Colvile. 
 
 In Sharpe v. The Earl of Scarborough {a) a testator died sharpe v. Scar- 
 seised of an equity of redemption in fee, and the dispute was °"^^ 
 between the creditors who had obtained judgments in the life- 
 time of the testator, and the simple-contract creditors, who 
 claimed under a charge in the will. Lord Loughborough held, 
 that, as the judgment creditors might have redeemed according 
 to their priorities, they had liens upon the estate, and were 
 therefore entitled to preference. This was the single point 
 determined, though the case has often been cited in support of 
 the doctrine just advocated that an equity of redemption in fee 
 shall be administered as legal assets. 
 
 Before concluding the subject under discussion, we must 3 & 4 W. 4. 
 advert to the late statute for the more effectual payment of "' 
 debts (6). 
 
 (a) 4 Ves. 538. (b) 3 & 4 W. 4. 0. 104. 
 
 Y Y 2 
 
693 A TEUST AS ASSETS. [CH. XXm. S. 11. 
 
 The Act is entitled " An Act to render Freehold and Copy- 
 hold Estates Assets for the Payment of simple contract 
 Debts ; " and it is thereby declared that " when any person 
 shall die seised of or entitled to any estate or interest in lands, 
 tenements, or hereditaments, corporeal or incorporeal, or other 
 real estate, whether freehold, customaryhold, or copyhold, 
 which he shall not by his last will have charged with, or 
 devised subject to the payment of his debts, the same shall be 
 assets to be administered in courts of equity for the payment of 
 the just debts of such persons, as well debts due on simple 
 contract as on specialty; and that the heir or heirs at law, 
 customary heir or heirs, devisee or devisees of such debtor, 
 shall be liable to all the same suits in equity at the suit of any 
 of the creditors of such debtor, whether creditors by simple 
 contract or by specialty, as the heir or heirs at law, devisee or 
 devisees of any person or persons, who died seised of freehold 
 estates, was or were before the passing of that act liable to in 
 respect of such freehold estates at the suit of creditors by 
 specialty in which the heirs were bound : provided always, that 
 in the administration of assets under and by virtue of this Act 
 all creditors by specialty in which the heirs are bound shall be 
 paid the full amount of the debts due to them before any of 
 the creditors by simple contract, or by specialty in which the 
 heirs are not bound, shall be paid any part of their demands." 
 
 CoDBtruction of Upon the construction of this statute the following obser- 
 the Act. , • 
 
 vations occur : — 
 
 1. It has been decided that the words "assets to be ad- 
 ministered in equity " mean only that the creditor shall have his 
 remedy in Chancery, and not at law, and do not imply that the 
 estate shall be taken as equitable assets. The estate therefore 
 is to be distributed as legal assets (a). 
 
 2. The express terms of the Act giving priority to creditors 
 by specialty in which the heirs are bound, over creditors by 
 specialty ia which the heirs are not bound, have, as a matter 
 of course, had full effect given to them (&). 
 
 ((<z) Foster v. Hundley, 1 Sim. N. S. (J) Richardson v. Jenkins. 1 
 
 200; see the judgment more fully Drewry, 477. 
 reported, 15 Jur. 73. 
 
CHAPTER XXIV. 
 
 BELIEF OF THE CESTUI QUE TRUST AGAINST THE FAILURE 
 OF THE TRUSTEE. 
 
 We have now pointed out in what the estate of the cestui que 
 trust primarily consists. We have also examined what are the 
 incidents and properties of it by analogy to estates at law. It 
 follows next that we speak of certain collateral or subsidiary 
 rights by which the cestui que trust is supported in the enjoy- 
 ment of his equitable interest against the various accidents to 
 which an estate, not direct, but transmitted through the instru- 
 mentality of another, must necessarily be exposed. In the 
 present chapter we shall consider the force of the maxim, " A 
 trust shall not fail for want of a trustee." 
 
 It is a general rule that, wherever the intention of the settlor Trust follows the 
 can be clearly collected, and there is no want of consideration, '^***^' 
 the Court will follow the estate into the hands of the legal 
 owner, not being a purchaser for value without notice, and 
 compel him to give effect to the trust by the execution of the 
 proper assurances. 
 
 Thus, if a devisor or settlor appoint a trustee, who either dies Trustee dying in 
 
 testator s life- 
 in the testator's lifetime (a), or disclaims (&), or is incapable of time, or other- 
 taking the estate (c), or if the trustee otherwise fail (d), the 
 trust is not defeated, but fastens on the conscience of the person 
 upon whom the legal estate has descended. " I take it," said 
 Lord Chief Justice Wilmot, " to be a first and fundamental 
 
 (a) Moggridge v. Thachwell, 3 B. (e) Sonley v. Clockmakers' Com- 
 
 C. C. 528 ; S. C. 1 Ves. jun. 475, pany, 1 B. C. C. 81 ; Anon, case, 
 
 ^er Lord Thurlow ; Attorney-Gene- 2 Vent. 349; WTiite v. Baylor, 10 
 
 raly. Downing, kmh. 552, admitted. Ir. Eq. Re. 53, 54. 
 
 (6) Bachhouse v. Backhouse, V. (d) Attorney- General v. Stephens, 
 
 C. of Eng. 20 Deo. 1844. 3 M. &. K. 347. 
 
694 
 
 FAILURE OF THE TRUSTEE. 
 
 [CH. XXTV. 
 
 Direction to sell, 
 and no person to 
 sell named. 
 
 Direction for 
 separate npe, 
 and no trustee 
 appointed. 
 
 Failure of trustee 
 of a power impe- 
 rative. 
 
 principle in equity, that the trust follows the legal estate where- 
 soever it goes, except it come into the hands of a purchaser for 
 valualle consideration without notice. I never heard any dis- 
 tinction made, nor has any case been cited to prove, that a 
 trust, fit and proper to be executed against a trustee, should 
 be suffered to fall to the ground, and remain unexecuted 
 against an heir at law, where there was no trustee. The lapse 
 of the legal estate never has the least influence upon the trusts 
 to which it is subject. Trust estates do not depend upon the 
 legal estate for an existence. A Court of equity considers 
 devises of trusts as distinct substantive devises, standing on 
 their own basis, independent of the legal estate or of one 
 another : and the legal estate is nothing but the shadow, 
 which always follows the trust estate in the eye of a Court of 
 equity (a)." 
 
 So, if a testator direct a sale of his lands for certain purposes, 
 but omit to name a person to sell, the trust attaches upon the 
 conscience of the heir, and he is as strictly bound to carry 
 the intention into effect, as if he were a trustee regularly 
 appointed (b). 
 
 So, if lands be devised (c), or a sum of money be bequeathed (d), 
 to a feme covert for her sole and separate use, but without the 
 interposition of a trustee, the property vests at law in the 
 husband, but in equity he holds upon trust for the separate use 
 of the wife. 
 
 We have seen, in a former chapter, that powers are dis- 
 tributable into arbitrary and imperative, and that powers 
 imperative do in reality partake of the nature of trusts. Upon 
 this ground the Court protects a cestui que trust from the 
 failure of the donee of a power imperative, as it would do from 
 the failure of any other trustee. " If," said Lord Eldon, " the 
 
 (o) Attorney- General v. Lady 
 Bowning, "Wilm. 21, 22. 
 
 (5) First clearly settled in Pitt 
 v. Pelham, Freem. 134. 
 
 (e) Bennet v. Davis, 2 P. "W. 
 316 ; Major v. Lansley, 2 E,. & M. 
 355. 
 
 {d) Rollfe Y. Sudder, Bunb. 187 ; 
 Tappenden v. Walsh, 1 Phillim. 
 
 352 ; Pritchard v. Ames, 1 Turn, 
 & Russ. 222; Parker v. Srooke, 
 9 Ves. 583 ; and see JRolerts v. 
 Spicer, 5 Mad. 491 ; Wills \. Sayers, 
 4 Mad. 409 ; Mich v. Cockell, 9 Ves. 
 375. At first there was some doubt : 
 Harvey v. Harvey, 1 P. W. 125; 
 Burton v. Pierpoint, 2 P. W. 78. 
 
CH. XXrV.] FAILUEE OP THE TRUSTEE- 695 
 
 power be one whicli it is the duty of the party to execute — 
 made his duty by the requisition of the will — put upon him as 
 such by the testator, who has given him an interest extensive 
 enough to enable him to discharge it, he is a trustee for the 
 exercise of the power, and not as having a discretion whether 
 he wiU. exercise it or not ; and the Court adopts the principle 
 as to trusts, and will not permit his negligence, accident, or 
 other circumstance to disappoint the interests of those for 
 whose benefit he is called upon to execute it " (a). " As to the 
 objection," said Lord Chief Justice WUmot, "that these powers 
 are personal to the trustees, and by their deaths become 
 unexecutable, they are not powers, but trusts, and there is a 
 very essential difference between them. Powers 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 obhgatory upon the conscience of the party intrusted. 
 This Court supplies the defective execution of powers, but 
 never the non-execution of them, for they are meant to be 
 optional. But the person who creates a trust means it should 
 at all events be executed. The individuals named as trustees 
 are only the nominal instruments to execute that intention, and 
 if they fail, either by death, or by being under disability, or by 
 refusing to act, the constitution has provided a trustee. Where 
 no trustees are appointed at all, this Court assumes the office 
 in the first instance, and in the event which hath happened it 
 is the same as if no trustees had been appointed at all. There 
 is some personality in every choice of trustees ; but this per- 
 sonality is res unius cetatis, and, if the trust cannot be executed 
 through the medium which was in the primary view of the 
 testator, it must be executed through the medium which the 
 constitution has substituted in its place. A college was to be 
 founded under the eye of five trustees : that cannot be : the 
 death of the trustees frustrates that medium. What then ? 
 Must the end be lost because the means are by the act of God 
 become impossible ? Suppose the question had been asked 
 the testator, ' If the trustees die or refuse to act, do you mean 
 no college at all, and the heirs to take the estate ? ' No : I 
 
 [a) Brown v. Higgs, 8 Ves. 574. 
 
696 
 
 FAILURE OF THE TRUSTEE. 
 
 [CH. xxrv, 
 
 Trustee of a dis- 
 cretion dying in 
 testator's life- 
 time declining 
 office, &c. 
 
 Where the settlor 
 has prescribed a 
 rule, the Court 
 will adopt it. 
 
 Hewett V. 
 Hewett. 
 
 trust them to execute my intention : I do not put it into their 
 power whether my intention shall ever take place at all " (a). 
 
 If trustees, then,have such a discretion committed to them, 
 and they either die in the testator's lifetime (6), or decline the 
 office (c), or disagree among themselves as to the mode of 
 execution ((i), or do not declare themselves before their 
 death (e), or if from any other circumstance (/), the exercise of 
 the power by the party intrusted with it become impossible, 
 the Court wiU substitute itself in the place of the trustees, 
 and will exercise the power by the most reasonable rule. 
 And the Court will take up the trust, whatever dif&culties 
 or impracticabilities may stand in the way ( g) ; for, as Lord 
 Kenyon laid down the rule strongly, if the trust can by any 
 possibility be exercised by the Court, the non-execution by the 
 trustee shall not prejudice the cestuis que trust (h). 
 
 In what mode the Court wUl execute the power will vaiy 
 according to the circumstances of the case. 
 
 Where the discretion of the trustee is to be governed by some 
 rule, or to be measured by a state of facts, which the Court can 
 inquire into as effectually as a private person, then the Court 
 can " look with the eyes of trustees," and wiU substitute its 
 own judgment for that of the individual. 
 
 Thus, in Hewett v. Hewett {i), a power was given to the 
 successive tenants for life " to cut such trees and wood growing 
 upon the premises as A., B., C, and D., or the survivors or 
 survivor of them, should assign, allow, or direct by any writing 
 under their hand." All the trustees died, and the difficulty 
 was, whether the power to cut timber had not thus become 
 
 (o) Attorney- General v. Lady 
 Downing, Wilm. 23. 
 
 (5) Attorney-General v. Lady 
 Downing, Wilm. 1 ; S. C. Amt. 
 550; Attorney- General v. Sick- 
 man, 2 Eq. Ca. Ab. 193. 
 
 (c) Doyley v. Attorney-General, 
 2 Eq. Ca. Ab. 194 ; Jude v. Wor- 
 thington, 3 De Gei & Sm. 389. 
 
 (d) Moseley v. Moseley, Eep. t. 
 Finch, 53 ; and see Wainwright v. 
 Waterman, 1 Ves. jun. 311. 
 
 (e) Hewett v. Hewett, 2 Ed. 332 ; 
 
 Flanders v. Clarh, 1 Ves. 10, per 
 Lord Hardwicke ; Harding v. Glyn, 
 1 Atk. 469 ; May v. Adams, 3 M. 
 & K. 243, per Lord Langdale; 
 Griev.eson v. Kirsopp, 2 Keen, 653 ; 
 Croft V. Adam, 12 Sim. 639. 
 
 {/) Attorney-Generaly. Stephens, 
 3 M. & K. 347. 
 
 {g) Pierson v. Garnet, 2 B. C. C. 
 46, per Lord Kenyon. 
 
 (/») Brown v. Higgs, 5 Ves. 505. 
 
 (j) 2 Ed. 332. 
 
CH. XXIV.l FAILUEE OF THE TRUSTEE. 697 
 
 extinguished ; but Lord Northington said, " The trustees were 
 interposed as supervisors only : it is absurd to suppose the 
 testator meant his trustees should have an arbitrary volition, 
 vrhether the several tenants for life should have any benefit of 
 the fall of timber. If a bill had been brought against the- 
 trustees to assign, allow, or direct timber, mature, and fit, to 
 be cut, would it have been an answer. We do not think fit to 
 allow it — Stat pro ratione volwntas ? I think the Court would 
 not have been satisfied with such an answer. It is the duty 
 of this Court, and of all Courts, to give devises, as far as their 
 respective jurisdictions admit, their full and specific execution. 
 The office of these trustees is not confined to any personal 
 qualification, but such as is general and may be substituted, viz. 
 to see what is fit and proper to be cut." His Lordship there- 
 fore directed a reference, what timber and wood was mature 
 and fit, and that such should be felled with the approbation of 
 the Master. 
 
 In another case a power was given to trustees to apply, with Maintenance, 
 the approbation of the father and mother, the dividends of 
 certain stock to the maintenance of the children. There was 
 a failure of trustees. Lord Eldon said, " The intention was 
 that, if it should be proper the interest should be applied in 
 maintenance, the trustees should have the power. In this 
 instance there were no trustees, at least none who have been 
 acting, and that circumstance imposes upon the Court the 
 necessity of examining strictly what the trustees ought to have 
 done. I shall, therefore, direct a reference to the Master, 
 whether it would have been reasonable and proper for any 
 trustee or trustees, acting in the execution of the will, to apply 
 the interest towards the maintenance of the children (a). 
 
 But the principal authority upon this subject is the case Gower i;. Main- 
 of Gower v. Mainwaring (6). John Mainwaring executed a ^^"°^" 
 trust deed, by which the trustees were to give the residue of 
 the real and personal estate among the settlor's relations 
 where they should see most necessity, and as they should think 
 most equitable and just. Two of the trustees died, and, the 
 third refusing to act, it was discussed, how far the discretion 
 
 (a) Maberley v. Turton, 14 Ves. 499. (J) 2 Ves. 87. 
 
FAILURE OF THE TRUSTEE. [CH. XXIV. 
 
 of the trustees could be Ticariously exercised by the Court. 
 Lord Hardwicke said, " What differs it from the cases men- 
 tioned is this, that here is a rule laid down for the trust. 
 Wherever there is a trust or power — for this is a mixture of 
 both — I do not know the Court can put itself in the place of 
 those trustees, and exercise that discretion. Where trustees 
 have power to distribute generally according to their discretion 
 without any object pointed out or rule laid, down, the Court 
 interposes not ; unless in case of a charity, which is different, 
 the Court exercising a discretion as having the general govern- 
 ment and regulation of charity. But here is a rule laid down : 
 the trustees are to judge on the necessity and occasions of the 
 family : the Court can (a) judge of such necessity : that is a 
 judgment to be made of facts existing, so that the Court can 
 make the judgment as well as the trustees, and, when informed by 
 evidence of the necessity, can judge what is equitable and just 
 on this necessity." And his Lordship decreed a division among 
 the relations (such relations to be restricted to those within 
 the Statute of Distributions) according to their necessities 
 and circumstances, which the Master should inquire into, 
 and consider how it might be most equitably and justly 
 divided (6) (1). 
 
 (o) In Mr. Belt's edition of Yesey (6) 2 Ves. 110 ; and see Liki/ v, 
 ttere is the strange misprint of Sey, 1 Hare, 580. 
 " cannot JTiige." 
 
 Construction of (1) The execution of the power in this case in favour of the settlor's 
 bequest to relations within the Statute of Distributions, according to their necessities, 
 
 poor rela- leads us to observe upon the construction of a direct bequest to a person's 
 
 "poor or necessitous relations." It is commonly thought that the epithet 
 ' poor,' ' necessitous,' or the like, is merely nugatory ; but on consideration 
 there will appear to be a preponderating weight of authority in favour of 
 the contrary doctrine. It is perfectly settled, notwithstanding a case in 
 which Lord Hardwicke is said to have held otherwise, {Attorney- General v. 
 Buchland, cited 1 Ves. 231, Amb. 71,) that " relations," though accom- 
 panied with the words " poor," " necessitous," or the Mke, wiU be restricted . 
 to those within the Statute of Distributions. The only question, therefore, 
 is whether as among those within the statute expressions of this kind will 
 not be allowed their effect. In a case reported by Peere WUliams {Anon 
 case, 1 P. W. 327,) the bequest was to "poor relations," and the Countess 
 of Winohelsea, one of the next of kin, was allowed a share, in regard the 
 word " poor" was frequently used as a term of endearment and compassion, 
 rather than to signify indigence. It is evident that this ease can have no. 
 
 tions." 
 
CH. XXIV,] FAILURE OF THE TRUSTEE, 699 
 
 Where the settlor has given no rule or measure by which How the Conrt 
 the discretion is to be governed, the Court cannot in that case pg^g^ where the 
 act upon mere caprice, but will execute the power by the most ^^^^^°^ o nae'^ 
 reasonable and intelligible rule that the circumstances of the 
 case will admit. 
 
 Upon ordinary occasions the Court proceeds upon the 
 
 application where the word " poor " is not of doubtful meaning, but is 
 clearly to he taken in the sense of poverty and necessity. In Widmore t. 
 Woodroffe, Amb. 636, the testator had given a third of the residue to be 
 distributed " amongst the most necessitous of his relations." There was 
 only one relation within the Statute of Distributions, and it was held that 
 such relation was exclusively entitled. The only point decided, therefore, was, 
 that the addition of the term " necessitous" would not extend the construc- 
 of the word " relations" to those out of the statute, and to this single 
 question were the observations of Lord Camden addressed. " Several 
 eases," he said, " have been cited, all proceeding upon the same ground, 
 making the Statute of Distributions the rule to prevent an inquiry which 
 would be infinite, and would extend to relations ad infinitum ; the Court 
 cannot stop at any other line. Thus it would clearly stand on the word 
 ' relations,' and the word ' poor' being added makes no difference. There 
 is no distinguishing between the degrees of poverty, and therefore the 
 Court has, as Was unanswerably argued, * construed the will as if the word 
 'poor' were not in it." Thus there appears to be no authority for holding 
 the words to be nugatory as among the relations within the statute, while 
 on the contrary side of the question there are, as we shall see, two direct 
 decisions. In Brunsden v. Woolredge, Amb. 507, a testator gave 5001. to 
 be distributed amongst his mother's poor relations, and Sir T. Sewell 
 directed the fund to be distributed amongst the poor relations, of the mother 
 within the statute who were objects of charity. In Mahon v. Savage, 
 1 Sch. and Lef. Ill, we have the authority of Lord Eedesdale equally in 
 point. A testator gave lOOOZ. to be distributed amongst his ^oor relations, 
 or such other objects of charity as should be mentioned in his private 
 instructions to his executors. No instructions were left, and Lord Bedes- 
 dale held, that Lynam, one of the next of kin within the statute, was not 
 entitled to a share, unless he was a poor person at the time of the payment 
 of the legacy. We may also add the dictum of Lord Thurlow in Green v. 
 Howard, 1 B. C. C. 33 :— " The word 'relations,'" he said, "must be 
 confined to the statute, but not always in the proportions of the statute : 
 where the testator has said, to relations according to their greater need, 
 the Court has shown particular favour to one." The argument that the 
 Court cannot distinguish between the degrees of poverty as amongst the 
 relations within the statute is also answered by the case of Gower v. Main- 
 waring, cited in the text, in which a direction for such a distinction was 
 actually made. 
 
 * By referring to the arguments of tinguishing between the degrees of 
 
 the counsel, it will clearly appear poverty," viz. as among the rela- 
 
 in what sense his Lordship meant to tions ad infinitum, not as among the 
 
 employ the words "there is no dis- relations within the statute. 
 
700 
 
 FAILURE OF THE TRUSTEE. 
 
 [CH. XXIV. 
 
 Equality is 
 equity. 
 
 Words of gift and 
 ■words of power 
 distinguished. 
 
 Upon trust for 
 tlie children of 
 A. as B. shall 
 appoint. 
 
 Upon trust to 
 dispose amongst 
 the children of A. 
 
 maxim, that equality is equity. Thus in Doyley v. Attorney - 
 General (a) a testator , gave his real and personal estate to 
 trustees upon trust to dispose thereof to such of his relations 
 of his mother's side who were most deserving, and in such 
 manner as they should think fit, and for such charitable uses 
 and purposes as they should also think most proper and con- 
 venient ; and the power having devolved upon the Court, Sir 
 J. Jekyll directed, that one moiety of the personal estate should 
 go to the relations of the testator on the mother's side, and 
 the other moiety to charitable uses, the known rule that equality 
 is equity being, he said, the best rule to go by. He said he 
 had no rule of judging of the merits of the testator's relations, 
 and could not enter into spirits, and therefore could not prefer 
 the one to the other, but all should come in without distinction. 
 
 With respect to the subject under consideration, the cases 
 in which the donor's intention is expressed in the words of a 
 gift, may admit of distinction from those in which it is ex- 
 pressed in the words of a power. 
 
 If a fund be limited " upon trust for the children of A. as B. 
 shall appoint," the construction appears to be, that the 
 children of A. take a vested interest by the gift, subject to be 
 divested by the exercise of the power. Therefore, on failure 
 of the power, the children, who were the objects of the power, 
 become absolutely entitled, just as if the discretion had never 
 been annexed (&). But if the power given to B. be testa- 
 mentary only, that circumstance affords a ground for con- 
 struing the gift to the children as a gift to those only who might 
 be living at B.'s death (c). 
 
 Where, however, an estate is vested in trustees " upon trust 
 to dispose thereof among the children of A.,'' in this case the 
 children take nothing by way of gift, but the transmission 
 of their interest must be through the medium of the power. 
 
 (a) 2 Eq. Ca. Ah. 195. See Down 
 V. Worrall, 1 M. & K. 561 ; but 
 the two seta of objects were con- 
 nected not by " and," but by " or." 
 It will be observed that Doyley v. 
 Attorney -Qeneral, was not cited. 
 
 (J) Davy V. Hooper, 2 Vern. 665; 
 Fenwichv. Greenwell, lOBeav. 412; 
 
 Modoc V. Jackson, 2 B. C. C. 588 ; 
 Hochley v. Mawhey, 1 Ves. jun. 
 143, see 149, 150; Jones v. Torin, 
 6 Sim. 255, &o. ; Falkner v. Lord 
 Wynford, 9 Jur. 1006. 
 
 (c) Woodcock V. Renneck, 4 Beav. 
 196 ; 1 PhU. 72. 
 
CH. XXrV.] FAILURE OF THE TEUSTEE. 701 
 
 If the trust be to distribute equally among ' the objects, the 
 bequest, though in the form of a power, must be tantamount 
 to a simple gift (a) ; and if the trustees be at liberty to distri- 
 bute unequally, and make no distribution, the Court, though 
 this was long doubted, itself executes the power, and divides 
 the fund equally amongst the objects of it (6). 
 
 But further, a discretion maybe given to the trustee, not only Discretion as to 
 in respect of the proportions to be appointed, but also in po^^er^" 
 respect of the objects to whom the appointment is to be made ; 
 as where a fund is bequeathed to trustees with a discretionary 
 power of distribution to such of a class as the trustees shall 
 think fit. 
 
 In cases of this description the question first to be resolved Whether to be 
 is. Did the settlor intend to communicate a mere power or to tr^gt „j. power. 
 create a trust ? 
 
 In Harding v. Glyn (c) a testator gave to Elizabeth his Harding v. Glyn. 
 wife a house and certain goods and chattels, but " desired her 
 at or before her death to give the same unto and amongst such 
 of the testator's relations as she should think most deserving 
 and approve of." The wife died without having executed the 
 appoiutment, and the Court considered the discretion as im- 
 perative, and divided the estate equally amongst the testator's 
 relations living at the time of the wife's death. 
 
 In The Duke of Marlborough v. Lord Qodolphin (d) a tes- Marlborou"h v. 
 tator by his will gave 30,000Z. to his wife, but by a codicil Godolphin. 
 (without date) gave it to her for life only, and after her 
 decease to be divided and distributed to and amongst such of 
 his children, and in such manner and proportions, as she by 
 deed or will should direct or appoint. The wife by will 
 appointed 17,000Z. between two of the children who died in 
 her lifetime. The sum appointed having failed by lapse, it 
 was questioned whether it should sink into the testator's 
 estate, or belong to the children as cestuis que trust. Lord 
 
 (a) Phillips V. Garth, 3 B. C. C. & M. 78 ; S. C. Taml. 425 ; Grieve- 
 
 64; Rayner v. Mowbray, lb. 234. son v. Kirsopp, 2 Keen, 653 ; Brown 
 
 (6) Hands v. Hands, cited Swift v. Pocoeh, 6 Sim. 257 ; Finch v, 
 
 V. Qregson, 1 T. E. 437, note ; Pope Hollingsworth, 21 Beav. 112. 
 v. Whitcomhe, 3 Mer. 689, corrected (c) 1 Atk. 469, stated from Reg. 
 
 from Keg. Lib. 2 Sug. Powers, 650, Lib.'; Brown v. Higgs, 6 Yes. 501. 
 6th Ed".;- Walsh y. WalUnger, 2 K. [d) 2 Yes. 61. 
 
703 FAILDEE OP THE TEUSTEE. [CH. XXIY. 
 
 Hardwicke considered, that as the gift in the will was an 
 absolute legacy to the wife, the intention of the codicil was 
 not to provide for the children, but to secure their respect 
 and duty to the wife by investing her with a power: that 
 no interest vested in the children independently of any ap- 
 pointment, and therefore the sum that lapsed should fall into 
 the residue. 
 Brown v. Higgs. These two cases were the subject of much discussion in 
 Brown v. Higgs {a), in which a testator gave certain leaseholds 
 to John Brown upon trust, (after payment of certain charges 
 thereon,) " to employ the rents to such of the children of the 
 testator's nephew Samuel Brown as the said John Brown 
 should think most deserving, and that would make the best 
 use of it, or to the children of the testator's nephew William 
 Augustus Brown, if any such there were or might be." John 
 Brown died in the testator's lifetime. Lord Alvanley said, 
 " The question is, whether the surplus rents are a gift to aU 
 the children, or to such of them only as the testator's nephew 
 John Brown, who died in his lifetime, should appoint. If the 
 former can be collected as his intention, the death of the 
 trustee will make no difference : if that intention cannot be 
 collected, the selection not having taken place, whatever the 
 reason of its failing may be, the bequest must fail with it. 
 Upon the true construction of this will, I am of opinion it is 
 equivalent to saying he gives it to the children of Samuel 
 Brown or of William Augustus Brown, with a power to John 
 Brown to select any he thinks fit and to exclude the others." 
 His Lordship, therefore, declared the fund to have been well 
 bequeathed in trust for all the children of Samuel Brown and 
 William Augustus Brown. The cause was reheard before 
 his Lordship, who, after grave consideration of the subject, 
 decreed as before (6). The decree was afterwards affirmed on 
 appeal by Lord Eldon (c), and again affirmed in the House of 
 Lords {d). 
 The doctrine of " The Dtike of Marlborough v. Lord Godolphin," said Lord 
 ^wSS: Eldon, " is certainly very difficult to reconcile with Harding 
 
 ■ (a) 4 Tes. 708. (c) 8 ?es. 661. 
 
 (6) 5 Yes. 495. {d) 18 Yes. 192. 
 
CH. XXIV.] FAILURE OF THE TEUSTEE. 703 
 
 V. Glyn or Brown v. Higgs; but the question is not, whether 
 one case is to be reconciled with others, but whether all the 
 cases have gone upon a principle which professes to save whole 
 Harding v. Glyn. Lord Hardwicke in The Duke of Marl- 
 borough V. Lord Godolphin does not say, that where there is 
 a power, and it is made the duty of the party to execute it, and 
 he would not execute it, in such a case this Court would not 
 act, but he collected from the scope and object of the dis- 
 position taken altogether that it was a case, in which the 
 person having a power to dispose of the sum of 30,000L had a 
 mere power, not clothed with any duty requiring her to execute 
 it, and therefore, as to what was not disposed of, the Court 
 could not interfere (a)." The doctrine of Harding v. Glyn, 
 which has since been confirmed by other authorities (6), may now 
 be considered as indisputably established. The rule, as laid 
 down by Lord Cottenhain, was thus expressed, that "when 
 there appears a general intention in favour of individuals of 
 a class to be selected by another person, and the particular 
 intention fails from that selection not being made, the Court 
 will carrj' into effect the general intention in favour of the 
 class (c)." 
 
 The question in favour of what objects a ^powev imperative, In favour of what 
 whether of disti'ibution merely, or of selection, wiU be executed -5^11 exercise a 
 by the Court, remains to be considered ; and it is conceived that, po'^er imperative. 
 in reference to this question, each kiud of power stands generally 
 upon the same footing. The following results maybe deduced 
 from the authorities : 
 
 First. Where a testator bequeaths property with a power Case where an 
 
 ... - /• 1 in r- 1 n n i .• immediate exer- 
 
 imperative m favour 01 a class, whether 01 children, relations, or ciae of the power 
 others, and it appears to be the intention that the distribution ^^ contemplated. 
 or selection should take place as soon as conveniently may be 
 after the testator's death, then the Court will execute the 
 power in favour of the class as existing at the date of the 
 testator's death (d). 
 
 (a) Brown v. Higgn, 8 Ves. 576. (c) 5 M. & Cr. 92. 
 
 (J) Birch v. Wade, 3 V. & B. {d) Brown v. Higgs, 4 Ves. 708, 
 
 IW; Burroughs. Philcox, 6 M.,&Gt:. &c. ; Longman v. Broom, 7 Ves. 
 
 72 ; Penny v. Turner, 2 Phill. 493 ; 124. The result will, of course, be 
 
 Wahh V. Wallinger, 2 R. & M. 78. the same where a life estate being 
 
704 FAILUEE OF THE TRUSTEE, [CH. XXIV. 
 
 ■Where an im- Secondly. Where the /rame of the will does not of necessity 
 
 JUCQlQ/uQ 6X6rClSG " 
 
 not contemplated, point to an immediate exercise of the power, as where the 
 donee of the power takes a life estate expressly, or by im- 
 plication, the nature of the power given to the donee has to 
 be taken into consideration : 
 
 Where power 1. If the power is to be exercised by will only, then, inas- 
 
 much as the objects of the power are necessarily those only 
 living at the death of the donee, the Court executes the power 
 in favour of those members of the class only who are in esse 
 at the death of the donee (a). 
 
 Where power not 2. "Where, however, the power given to the tenant for life is 
 
 merely testamen- . , , , , 
 
 tary. not merely testamentary, the question, whether the class to 
 
 take is to be ascertained at the death of the testator or of the 
 
 donee of the power, is involved in considerable difficulty. 
 
 The decisions which support an execution of the power in 
 
 favour of the class of objects as existing at the death of the 
 
 donee (b), and those which support an execution in favour of 
 
 the class as existing at the death of the original testator (c), 
 
 are almost evenly balanced; but the apparent absence of 
 
 any full consideration of the question, and the circumstance 
 
 that in some of the cases the power, though not expressly 
 
 limited to an exercise by will, did not in terms authorise an 
 
 execution by deed or writing, and may perhaps have been 
 
 viewed by the Court as testamentary, detracts from their 
 
 value as authorities upon this point. 
 
 Upon principle, too, as well as upon authority, the question 
 
 is a difficult one. It may be said, in support of ascertaining 
 
 the class at the death of the original testator, that the donee 
 
 of the power may exercise it in favour of the class existing at 
 
 given to tlie donee of tlie power, tlie 1 Phil. 72 ; Much v. RolUngsviortht 
 
 donee dies in the testator's lifetime. 21 Beav. 112. 
 Bee i'enny V. Turner, 2 Phil. 493; (6) Doyley v. Attorney- General, 
 
 HutcMnson v. Hutchinson, 13 Ir. 2 Eq. Ca. Ahr. 195 ; Harding v. 
 
 Eq. Ke. 332. Glyn, 1 Atk. 469 ; Pope v. Whit- 
 
 (o) Cruwys v. Colman, 9 Yesey, combe, 3 Mer. 689, corrected jGrom 
 
 319; Sirch\. Wade,3Y.&'B. 198; Reg. Lib. 2 Sugd. Pow. 650, 6th 
 
 WalsJi V. Wallinger, 2 R. & M. Edit. 
 
 78 ; Brown v: Pococh, 6 Sim. 257 ; (e) Hands v. Hands, cited 1 T. R. 
 
 Burrough v. Philcox, 5 M. & Cr. 437, note ; Grieveson v. Kirsopp, 2 
 
 72 ; and see the analogous cases of Keen, 653. 
 Woodcock V. Benneck, 4 Beav. 190, 
 
CH. XXIV.] FAILUEE OP THE TRUSTEE. 705 
 
 the time of exercise, to the exclusion of those who have died 
 before, and also, where the power is one of selection, to the 
 exclusion of those who may come into esse subsequently, but 
 that the Court cannot act arbitrarily, and cannot show any 
 favour, but must observe equality towards all. Who, then, are 
 the objects of the power ? As it was not the duty of the donee 
 of the power to exercise it at one time more than another, the 
 only objects of the power must be all those who might by 
 possibility have taken a benefit under it, that is, those living 
 at the death of the testator, and those who come into being 
 during the continuance of the life estate; otherwise, should 
 all the class predecease the tenant for life (an event not im- 
 probable, where children or some limited class of relations are 
 the objects), there would be a power imperative which is con- 
 strued as a trust, and no cestui que trust, a result which, it is 
 conceived, the Court would be somewhat unwilling to adopt. 
 On the other hand, it is to be observed that the power may 
 properly be exercised by the donee at any time before death, 
 and there is no obligation to exercise it earlier, and if any 
 members of the class die before the power is exercised, they, 
 according to the ordinary rule, cease to be objects of it. 
 The donee of the power, having an undoubted right to post- 
 pone the execution of it until the last moment of his life, 
 the only default which the Court has to supply, is the non- 
 exercise just before the death, and that default must, there- 
 fore, be supplied in favour of those who were objects at the 
 date of the death of the donee. 
 
 3. It is clear that where the donee tenant for life may 
 exercise the power by deed or will, the members of the class in 
 existence, at the date of the death of the donee will alone take, 
 if, upon the purview of the original instrument, they alone 
 appear to be the objects of the power (a). 
 
 It may be useful to inquire more particularly in con- Construction of 
 nection with this subject, in what manner the Court will tio™*^ " ''^^' 
 execute a power in favour of " relations." 
 
 The donee of the discretion, if he have a power of selection. Power of seleo- 
 may appoint to relations in any degree (b), and it is only in dktribrtioi^^ 
 
 (o) Winn\.Fenwick,n:Bea,\A38; {b) Supple y. Lowson, Amh. 129 ; 
 aTiiseeTiffinY.Longman,15Bea.Y.2l5. Grant v. Lynam, 4 Kuss. 292; 
 
3'06 FAILUEB OP THE TRUSTEE,. [CH. XXIV. 
 
 those cases where he has a mere power of Mstribution that he 
 must confine himself to the relations within the Statute of 
 Distribution of Intestates' Estates (a). But the Court, except 
 where the bequest is for the benefit of poor relations by way 
 of founding a charity (b), or the testator has furnished some 
 intelligible rule by which the relations out of the statute may 
 be easily ascertained (c), must in all cases appoint to the 
 relations within the statute ; for as on the one hand the 
 Court cannot act arbitrarily by selecting particular objects, so 
 on the other it cannot execute the power in favour of relations 
 in general, for this would lead ad infinitwri (d). 
 Whether rela- The point still open to discussion is, in what shares such 
 
 per stirpes or relations shall take — whether those who in case of intestacy 
 per capita. would have claimed by representation shall under the execution 
 
 of the power by the Court take per stirpes or per capita. 
 
 Now, the rule that those should be deemed rela,tions who 
 would take a distributive share under the statute was adopted 
 on the ground, that unless some line were drawn for restricting 
 the meaning of the word, a bequest to relations would be void 
 
 Harding v. Glyn, 1 Atk. 469 ; 8. the discretion was a power or a 
 
 C. stated from J2e^. Lib., Brown -v. trust; for if a power, and it had 
 
 Higgs, 5 Ves. 501; MahonY. Savage, not been executed by the mil, the 
 
 1 Soh. & Lef, 111 ; Cruwys v. Col- fund would have sunk into the resi- 
 
 man, 9 Ves. 324, per Sir W. Grant ; due, and the plaintiff have been 
 
 Spring v. Biles, cited Swift v. Greg- entitled as residuary legatee. Note, 
 
 son, 1 T. E. 435, note [f). In a power of selection will be implied 
 
 Brunsden v. Woolredge, Amb. 507, in the case of " relations," where it 
 
 Sir T. Sewell seems to have confined would not have been implied in the 
 
 the trustees to relations within the case of " children." Spring-^. Biles, 
 
 statute, but his opinion was other- and Mahon v. Savage, uhi supra. In 
 
 wise in Supple v. Lowson, uhi the latter case the words were 
 
 supra. " amongst the relations," but see 
 
 (a) Isaac v. Defriez, Amb. 595 ; Pope v. Whitcomhe, 3 Mer. 689, 
 
 but see the case stated from Reg. where the expression was similar. 
 
 Lib., Attorney- General v. Price, (6) See White v. White, 7 Ves. 
 
 17 Ves. 373, note (o) ; Carr v. Bed- 423; Attorney- General v. Price, 
 
 ford, 2 Ch. Ee. 146; Pope v. Whit- 17 Ves. 371 ; Isaac v. De Friez, lb, 
 
 combe, 3 Mer. 689. The last case, 373, note (a) ; and see Mahon v. 
 
 and Forbes v. Ball, 3 Mer. 437, were Savage, 1 Sch. & Lef. HI. 
 
 both decided by Sir W. Grant, but (c) Bennett v. Honywood, Amb. 
 
 appear to be contradictory; however, 708. 
 
 in the latter case the question raised {d ) Thus in Bennett v. Sony- 
 
 was, not whether the donee had wood, ubi supra, 456 persons ap- 
 
 exceeded her power, but whether plied as relations within two years. 
 
CH. XXIV.] FAILURE OF THE TETJSTEE. 707. 
 
 for uncertainty. As this was the sole foundation for appealing 
 to the statute at all, it is evident the single inquiry for the 
 Court is, who would take a distributive share : in what pro- 
 portions they would take is wholly beside the question, and in 
 fact beyond the Court's jurisdiction ; for, when the class has 
 been ascertained, the testator himself has determined the pro- 
 portions by devising to the objects in words creating a joint 
 tenancy (a). No distinction can be taken between real and. 
 personal estate; yet it could scarcely be held, that if lands 
 were devised to the testator's " relations," the kindred within 
 the statute would take in unequal proportions. 
 
 The result of the authorities would seem to accord with Prineiple to be 
 what is correct upon prineiple, viz. that in a gift to " relations," the cases. 
 (whether the testator has added the words " equally to be divided," 
 or not,) the distribution among the relations within the statute 
 must be made per capita, and not per stirpes (&). The question Next of kin. 
 with respect to " next of kin " can no longer arise : for by the 
 decision of Ehnsley v. Young, upon appeal from Sir J. Leach 
 to the late Lords Commissioners (c), the words " next of kin " 
 must be construed to mean " nearest of kin," to the exclusion 
 of those who would take under the statute by representation. 
 
 We have stated that, as a general principle, the Court will Subject of the 
 execute the power among the objects equally ; but it sometimes livisioa!^^ ^ ° 
 happens that the subject of the gift is incapable of division, or 
 the settlor has expressly directed the whole to be bestowed on 
 one object to be selected by the trustee. In such cases the 
 Court still acts upon the maxim, that, if by any possibility the 
 power can be executed, the Court will do it. 
 
 In Moseley v. Moseley (d), a very early case, an estate was Moseley v. 
 devised to trustees upon trust to settle on such of the sons of °^^ ^^' 
 
 (o) See Walter v. Maunde, 19 Hinchley v. Maclarens, 1 M. & K. 
 
 Yes. 427, 428. 27 ; Withy v. Mangles,, 4 Beav. 
 
 (5) See Thomas v. Sole, Cas. 358; 10 CI. & Fin. 215. The above 
 
 t. Talb. 251 ; Stamp v. Coohe, 1 cases "will be found discussed in 
 
 Cox, 236; Phillips y. Oarth, 3 B. Append. No. IX. 
 
 C. C. 64 ; Green v. Howard, 1 B. (c) 2 M. & K. 780 ; and see 
 
 C. C. 33 ; JRat/ner v. Mowhray, 3 Withy v. Mangles, 4 Beav. 358 ; 
 
 B. C. C. 234, Reg. Lib. B. 1791, fol. 10 CI. & Fin. 215. 
 
 183 ; Pope v. Whitcombe, 3 Mer. (d) Rep. t. Finch, 63 ; S. C. cited 
 
 689, Reg. Lib. B. 18,09, fol. 1635 ; Clarke v. Turner, Freem. 199. 
 
 z z 2 
 
708 FAILURE OP THE TRUSTEE. [CH. XXIV. 
 
 N. as the trustees should think fit. The trustees having 
 neglected to comply with the direction, the sons of N. filed a 
 biU to have the benefit of the trust, and the Court decreed the 
 trustees, within a fortnight next after the entry of the order, to 
 nominate such one of the plaintiffs as they should think fit, 
 upon whom to settle the lands of the testator ; and if the 
 trustees should fail to nominate within that time, or there 
 should be any difference between them concerning such nomi- 
 nation, then the Court would nominate one of the plaintiffs, it 
 being the testator's intent that his estate should not be divided, 
 but settled upon one person. 
 Riohardson v. In Richardson v. Chapman (a) Dr. Potter, Archbishop of 
 
 Canterbury, gave all his options to trustees upon trust, that in 
 disposing thereof " regard should be had according to their 
 discretions to his eldest son, his sons in law, his present and 
 former chaplains, and others his domestics, particularly Dr. T., 
 his chaplain, and Dr. H., his librarian; also to his worthy 
 friends and acquaintance, particularly to Dr. Richardson." 
 The trustee tried first to give the option in question to himself. 
 He then fixed upon a person, with whom he appeared to have 
 made an underhand bargain. When this failed, he, in breach 
 of his duty, presented a Mr. Venner. On a bill filed to set 
 aside the presentation. Lord Northington considered the trust 
 to be of a kind that the Court could not execute, and dismissed 
 the bill. Dr. Eichardson appealed against this decision to the 
 House of Lords, and the other person, who stood prior to him, 
 not appearing, the House reversed the decree, and ordered the 
 presentation to be made to the appellant. " This case," says 
 Lord Alvanley, *' shows, that however difficult it may be to 
 select the persons intended, and though it must depend from 
 the nature of the trust upon the opinion of the trustees as to 
 the merit of the persons who are the objects, yet the Court will 
 execute even a trust of that nature, if the trustee shall either 
 neglect to execute, or be disabled from executing, or shows by 
 his conduct any intention not to execute it as the testator 
 intended he should. When one reads the nature of this trust, 
 how difiicult it was to make the selection, it is decisive to show 
 
 (a) 7 B. P. C. 318; S. C. cited Brown v. Siffg$, 5 Yes. 504, 505. 
 
CH. XXIV.] FAILUEE OP THE TRUSTEE. 709 
 
 the Court must do it, though the trust is in its nature so 
 discretionary " (a). 
 
 In Brown v. Higgs (b) an estate was devised " to one of the Brown v. Higgs. 
 sons of Samuel Brown, as John Brown should direct by a con- 
 veyance in his lifetime, or by his last will and testament ; " and, 
 John Brown not having executed the power. Lord Alvanley 
 was inclined to think, though he would not decide the point, 
 that the children of Samuel Brown could not establish a claim : 
 but the ground of this opinion was not that a trust had been 
 created which the Court could not execute, but that the inten- 
 tion of the testator as collected from the will was to communi- 
 cate a mere power. 
 
 {a) Brown v. Higgs, 5 Ves. 504. (J) 4 Ves. 708, see 718, 719 ; 5 
 
 Vea. 495, see 508. 
 
CHAPTER XXV. 
 
 THE EIGHTS OP THE CESTUI aUE TRUST IN PREVENTION 
 OF A BREACH OF TRUST. 
 
 As the estate of the cestui que trust depends for its continuance 
 upon the faith and integrity of the trustee, it is reasonable that 
 the cestui que trust, whose interest is thus materially concerned, 
 should be allowed by all practicable means to secure himself 
 against the occurrence of any act of misconduct. We shall, 
 therefore, next consider the rights of the cestui que trust that 
 have a tendency to secure to him this protection. 
 
 Cestui que trust 
 entitled to ap- 
 pointment of 
 proper trustees. 
 
 Trustee dying 
 in testator's life- 
 time. 
 
 Death of trustees 
 after having 
 acted. 
 
 Trustee refusing 
 to act, becoming 
 incapable, or 
 misconducting 
 himself, &o. 
 
 I. The cestui que trust is entitled to have the custody and 
 administration of the estate, confided to the care both oi proper 
 persons and of a proper numher of such persons. 
 
 Thus if the trustee originally appointed by a will happen to 
 die in the testator's lifetime, the cestui que trust, where such a 
 course would be for his interest, may have the property better 
 secured by a conveyance to an express trustee for himself. 
 
 So, where the original number of trustees has become 
 reduced by deaths, the cestui que trust may restore the property 
 to its original security by calHng for the appointment of new 
 trustees in the place of the trustees deceased {a) ; and even a 
 cestui que trust in remainder may file a bill to have the number 
 of trustees filled up (6). 
 
 If a trustee refuse to act (c) or become so circumstanced 
 that he cannot effectually execute the office (as where a trustee 
 goes abroad to reside permanently {d), or a feme trustee mar- 
 
 [a) Buchanan v. Hamilton, 5 Wood v. Stane, 8 Price, 613. Anon. 
 
 Ves. 722 ; Sibbard v. Lambe, Amb. 4 Ir. Eq. Rep. 700. 
 
 309. {d) O'JReilly v. Alderson, 8 Hare, 
 
 (5) Finlay v. Howard, 2 Dru. & 101 ; lie Ledwich, 6 Ir. Eq. Rep. 
 
 "War. 490. 561 ; Commissioners of Charitable 
 
 (c) Maggeridge v. Grey, Nels. Donations v. Archbold, 11 Ir. Eq. 
 
 42 ; Travell v. Danvers, Finch, 380; Rep. 187. 
 
CH. XXVJ APPOINTMENT OF NEW TRUSTEES. 711 
 
 i?ies (a), ot the trustees of a chapel entertain opinions contrary 
 to the founder's intention (&) ), or if the trustee become bank- 
 rupt (c), or misconduct himself in any manner (d), (as by dealing 
 with the trust property for his own personal advancement [e] 
 by suffering a co-trustee to commit a breach of trust (/), or by 
 absconding on a charge of forgery (g) ) ; in these and the like 
 cases the cestvA que trust may have the old trustee removed, 
 and a new trustee appointed in his room. And in such a suit 
 it will not be scandalous or impertinent to challenge a trustee 
 for misconduct, or to impute to him any corrupt or improper 
 motive in the execution of the trust, or to allege that his 
 behaviour is the vindictive consequence of some act on the 
 part of the cestui que trust, or of some change in his situation ; 
 but it wiU be impertinent, and may be scandalous, to state 
 circumstances of general malice or personal hostility {h). And 
 if the old trustee be removed on the ground of misconduct, 
 he must bear the expense of the conveyance to the new trustee, 
 as an act necessitated by himself (i). 
 
 If the settlement require the trustees of a charity to be Trustees required 
 inhabitants of a particular place, it is improper to appoint ante^" "'°'^'''*' 
 persons trustees who do not answer thftt description, provided 
 at the time of the election there were any inhabitants proper 
 to be trustees {k). But where it has been the custom to appoint 
 trustees not being inhabitants, the Court wiU not remove the 
 existing trustees, though it will take care that the founder's 
 directions are better observed for the future (Z) ; and generally, 
 though trustees may have been appointed irregularly in the 
 
 {a) Lake v. De Lambert, 4 Yes. {d) Mayor of Coventry v. Attor- 
 
 592. ney- General, 7 B. P. C. 235 ; Buch- 
 
 (5) Attorney-General Y. Pearson, ridge y, Glasse, Cr. & Ph. 126, see 
 
 7 Sim. 290, see 309; Attorney- 131. 
 
 General v. Shore, lb. 309, see 317. (e) Hx parte Phelps, 9 Mod. 357. 
 
 (c) Bainhrigge v. Blair, 1 Beav. (/) Ex parte Reynolds, 5 Yes. 
 
 495 ; In re Roche, 1 Conn. & Laws. 707. 
 
 306; Commissioners of Charitable (g) MillardY.PIyre,2Yes.iwa..94:. 
 
 Donations v. Arehbold, 11 Ir. Eq. {h) Earl of Portsmouth v. Fel- 
 
 Eep. 187 ; and if the trustee com- lows, 5 Mad. 450. 
 
 pound with, his creditors, it is pre- (?) Ex parte Greenhouse, 1 Mad. 
 
 sumed that he may equally be re- 92. 
 
 moved, for the oesiuis que trust have fjc) Attorney-General v. Cowper, 
 
 a right to have the administration 1 B. C. C. 439. 
 
 of the trust estate committed to (Z) Attorney- General v. Stam- 
 
 responsible persons. ford, 1 Phill. 737. 
 
712 
 
 APPOINTMENT OP NEW TEUSTEES. 
 
 [CH. XXV. 
 
 Trustee not to 
 be dismissed 
 from caprice. 
 
 Trustee appoint- 
 ed by the Court 
 cannot exercise 
 arbitrary or 
 purely legal 
 powers. 
 
 In appointing 
 new trustees the 
 Court wUI not 
 give them a 
 
 first instance, the cestui que trust cannot come for their remova;! 
 after an acquiescence in the nomination for a great number of 
 years (a). 
 
 The Court will not dismiss a trustee for the mere caprice of 
 the cestui que trust without any reasonable cause shown (6), or 
 because the trustee has refused from honest motives to invest 
 the trust-fund in a purchase of leasehold estate, where a power 
 for the purpose was given to him with the" consent of the tenant 
 for life, and the tenant for life thought the purchase desirable (c), 
 nor even if the trustee have transgressed the strict line of his 
 duty, provided there was no wilful default, but merely a mis- 
 understanding (d). Where, however, a trustee pertinaciously 
 insisted on being continued in the of&ce, though his co-trustees 
 were unwilling to act with him. Lord Nottingham said, " He 
 liked not that a man shoiild be ambitious of a trust when he 
 could get nothing but trouble by it," and, without any reflec- 
 tion on the conduct of the trustee, declared he should meddle 
 no further in the trust (e). 
 
 If there be an arbitrary power, with which the original 
 trustee was invested, it is not exercisable by the new trustee 
 appointed by the Court (/). And of course, a trustee appointed 
 by the Court cannot exercise a legal power which the original 
 trustee could not have assigned ; as if a power of sale be given 
 to trustees to preserve contingent remainders, and to the sur- 
 vivors of them, and the executors or administrators of the 
 survivors, new trustees appointed by the Court cannot execute 
 the power (g). 
 
 As the substitution of a trustee by the Court proceeds upon 
 a full consideration of the case, and is never made unless the 
 Court is satisfied as to the fitness of the person proposed, it 
 
 [d] Attorney - General v. Cum- 
 ing, 2 T. & C. Ch. Ca. 139, see 150. 
 
 (b) O'Xeeffe v. Calthorpe, 1 Atk. 
 18; and see Pippin v. Tucking, 2 
 Jones and Lat, 95. 
 
 (c) Lee v. Young, 2 Y. & C. Ch. 
 Ca. 632. 
 
 {d) See Attorney-General v. 
 Coopers' Company, 19 Ves. 192 ; 
 Attorney- General v. ■Caius College, 
 2 Keen, 150. 
 
 (e) Uvedale v. Ettrich, 2 Cli. Ca. 
 130. 
 
 (f ) Doyley v. Attorney- General, 
 2 Eq. Ca. Ab. 194; Hibbard v. 
 Lambe, Amb. 309 ; Fordyce v. 
 Bridges, 2 Thill. 497 , and see Cole 
 V. Wade, 16 Ves. 44, 47 ; Drayson 
 V. Pocock, 4 Sim. 283 ; Lord v. 
 Sunn, 2 T. & C. Ch. Ca. 98. 
 
 (g) Newman v. Warner, 1 Sim. 
 N. S. 457. 
 
CH. XXV.J APPOINTMENT OF NEW TRUSTEES. 713 
 
 cannot be expected that the Court should authorise the inser- power of ap- 
 
 pointing other 
 
 tion of a power m the conveyance to the new trustees enabnng trastees. 
 them to nominate other trustees in their stead as often as 
 occasion may require : this would plainly be an abandonment 
 by the Court of its own jurisdiction — a delegation of it to the 
 care and judgment of individuals. Accordingly, notwith- 
 standing some previous fluctuation in the practice (a), it 
 is now settled that, except in charity cases (6), the Court will 
 not authorise the insertion of such a power in the deed of 
 conveyance (c). 
 
 It was commonly, but erroneously, supposed, that by a Appointment 
 clause in Sir Edward Sugden's Trustee Act (d), (now repealed), & i W. 4. c. 60. 
 a new trustee might in all cases have been appointed by the 
 summary process of a petition. However, the words of the 
 enactment did not authorise a petition for the mere purpose 
 of appointment of new trustees, but only where application was 
 made under the act for a conveyance or transfer which could 
 not otherwise he obtained (e), and the recent creation of the trust 
 or other circumstances rendered it safe (/). The Court had 
 authority to appoint new trustees by way of secondary or col- 
 lateral only, and not of original jurisdiction. 
 
 The Court might have appointed a new trustee, although The Court may 
 
 ... „ . . appoint, though 
 
 the settlement contained a power oi appomtmg new trustees, if there te also a 
 under the circumstances the power could not be exercised {g), ^°^^'^* 
 
 {a) Joyce v. Joyce, 2 Moll. 276 ; to the views of the other judges, 
 
 White V. White, 5 Beav; 221. declined to foUow his own previous 
 
 (6) Attorney- General v. Surst, decision in WTiite v. White. 
 
 M. K, Dec. 2, 1791, Reg. Lib. A. {d) 11 G. 4. & 1 W. 4. c. 60, s. 22. 
 
 1791, f. 487 ; see the decree, stated (e) In re Fitzgerald, LI. & G. 
 
 Seton's Dec. 130 ; In the matter t. Sugd. 20 ; Ex parte Whitley, id. 
 
 0/52 G. 3. c. 101, 12 Sim. 262; Re 23; In re Anderson, id. 27; Re 
 
 Lovetfs Exhibition, Sidn. Suss. Coll. Byrne, 1 Jones & Lat. 535 ; In 
 
 Camh., cor. V. C. Knight Bruce, re Pennefather, In re Hartford, 
 
 Dec. 20, 1849. Harte v. French, 2 Drur. & War. 
 
 (e) Bayley v. Mansell, 4 Madd. 292 ; but see Ex parte Plunket, 8 
 
 226; RrownY. Brown, 3 Y. & C. 395 
 Southwell V. Ward, Taml. 314 
 Bowles V. Weeks, 14 Sim. 591 
 
 Ir. Eq. Rep. 523. 
 
 (/) In re Nicholls, LI. & G. t. 
 Sugd. 17; Ex parte Whitley, id.. 23. 
 
 Oglander v. Oglander, 2 De Gex & [g) In re Fauntleroy, 10 Sim. 
 
 Sm. 381; Holder v. Durbin, 11 252; In re Foxall, 2 Phill. 281; 
 
 Beav. 594; in which last case and see In re Roche, 1 Conn. & 
 
 Lord Langdale, M. R., in deference Laws. 306. 
 
714 
 
 APPOINTMENT OF NEW TRUSTEES. 
 
 [CH. XXV. 
 
 but if the power was exercisable the donees of the power 
 should have nominated a new trustee, and then a petition 
 should have been presented, praying the necessary conveyance 
 or transfer (a). If the person in whom the legal estate was 
 vested could make the transfer without an order, there was no 
 case for the jurisdiction of the Court. 
 ] 3 & U Y. i;. 60. By the larger provisions of the act now in force (13 & 14 Vict, 
 c. 60, s. 33), it is enacted that whenever it shall be expedient to 
 appoint a new trustee or new trustees, and it shall be found 
 inexpedient, difficult, or impracticable, so to do without the 
 assistance of the Court, the Court may appoint a new trustee 
 or trustees, either iu substitution for or in addition to any 
 existing trustee or trustee. 
 
 The Bankruptcy Act (6) has also authorised the appointment 
 of a new trustee on petition in the case of the trustee's bank- 
 ruptcy. It declares that " if any bankrupt shall, as trustee, be 
 seised of or entitled to any real or personal estate, it shall be 
 lawful for the Lord Chancellor (c), on the petition of the person 
 entitled in possession to the receipt of the rent, issues, and 
 profits, dividends, interest, and produce thereof (ti), on due notice 
 given to all other persons, if any, interested therein, to order 
 the assignees and all persons, whose act or consent thereto is 
 necessary, to convey, assign, or transfer the said estate to such 
 person or persons as the Lord Chancellor shall think fit upon 
 the same trusts as the said estate was subject to before the 
 bankruptcy." 
 
 Upon this enactment the following points have been deter- 
 mined : — 
 
 1. The act requires that notice should be given to all per- 
 sons interested. In one case where a conveyance was made 
 
 Appointment of 
 new trustee 
 under the Bank- 
 ruptcy Act. 
 
 Construction of 
 the act. 
 
 (o) In re Laffan, 1 Conn. & Laws. 
 395. 
 
 (J) 12 & 13 Viet. c. 106, s. 130, 
 re-enacting 6 G. 4. o. 16, s. 79. 
 
 (c) Tlie petition, though it may 
 be heard by a V. C, should be 
 addressed to the Lord Chancellor. 
 Ex parte Cartwright, 3 De Gex & 
 Sm. 648. In the matter of Heath, 
 9 Hare, 616, the objection that the 
 
 petition should be heard by the Court 
 of Appeal to whom the jurisdiction 
 in bankruptcy had been committed 
 by the 14 & 15 V. c. 83, was over- 
 ruled, s. 7. 
 
 {d) These words, prescribing the 
 person by whom the petition is to be 
 presented, limit the jurisdiction 
 somewhat inconveniently. See Ex 
 parte Cousen, 1 De Gex, 451. 
 
en. XXV.] APPOINTMENT OF NEW TRUSTEES. tl5 
 
 by A. to B. upon trust by sale or other disposition to secure a 
 mortgage sum advanced by C, and B. became bankrupt, the 
 Court refused to make an order on the petition of A. without 
 notice to C. {a). But afterwards in a similar case notice to the 
 mortgagor was dispensed with (&). Where any doubt exists who 
 are the cestuis que trust all must be served, for it was not 
 meant that the Court should decide upon the right (c). If the 
 bankrupt himself be served with the petition he wiU be allowed 
 his costs (d). y«^y 
 
 2. The act directs the assignees and othiCTS to convey ; but ^^^ wAA^ 
 where the trust is clear, the legal estate does not pass to the 
 assignees, and therefore in such a case they need not be parties 
 to the conveyance, but the words of the act are regarded as 
 suT'plvijSage (e). 
 
 3. The Court is to order the conveyance, assignment, or 
 transfer to be made to such 'person or persons as the Court 
 shall think fit, and therefore it has been held that if A. and B. 
 be trustees, and A. die, and B. become bankrupt, the Court 
 can order the conveyance, assignment, or transfer to two new 
 trustees (/). 
 
 If there be a power of appointment of new trustees, and the 
 power be exercised, the Court will direct the conveyance, 
 assignment, or transfer to be made to the person so appointed (jr), 
 or if all parties interested who are sui juris concur in the 
 selection of a person as new trustee, the Court will order 
 accordingly (/i) : or the Court, on an affidavit of the fitness 
 of the person proposed, wUl in common cases make the ap- 
 pointment at once without the expense of a reference (i). 
 
 (a) Ux parte Orgill, 2 D. & C. 151 ; S. C. Z Mont. & Ayr. 145 ; 
 
 413; and see Ex parte Hardman, Ex parte Saunders, 2 Gr. & J. 132; 
 
 3 Mont. Deae. & De Gex, 559. Ex parte Inkersole, ib. 230. 
 
 (6) Ex parte Marshall, 3 De Grex {g) Ex parte , In re Eeming- 
 
 & Sm. 670. ton, 3 D. & C. 24 ; and see Williams 
 
 (c) Ex parte Congreve, 1 De Gex, v. Sird, 1 V. & B. 3. 
 
 267. (h) See Ex parte Whish, 2 Mont. 
 
 {d) Ex parte Whitley, 1 Deac. & Ayr. 214; Ex parte Stubhs, 2 
 
 478. Mont. Deao. & De G. 570. 
 
 (e) Ex parte Painter, 2 D. & (i) Ex parte Beveridge, 4 D. & 
 
 Ch. 584; see Ex parte Walton, 2 C. 455; Ex parte Inkersole, 2 G. 
 
 Mont. & Ayr. 242. & J. 230 ; Ex parte Palmer, Deae. 
 
 (/) Ex parte Wilkinson, 2 Des-o. 177; Ex parte Walton, 2 M. & A. 
 
716 APPOINTMENT OP NEW TRUSTEES. [CH. XXT. 
 
 4. The act directs the conveyance, assignment, or transfer 
 to be made upon the same trusts as the property was subject 
 to before the bankruptcy; but if the trust has since been 
 executed, and a petition be presented by the person solely 
 interested, the Court will order the conveyance, assignment, 
 or transfer to be made to the petitioner (a). 
 
 5. The costs of all parties, including the bankrupt him- 
 self (&), wiU be paid out of the trust fund(c), or by the 
 petitioner in the first instance, who will recover them over 
 from the trust fund (d). 
 
 CaaeofcharitaUe There exists in the case of charitable trusts, the same 
 
 trusts. . 
 
 right to have a proper number of trustees appointed in the 
 
 case of an ordinary trust, and a mode less expensive than by 
 
 suit asserting the right has been similarly provided by 
 
 I W. i, c. 60, statutory enactment. Thus bv the 1 Wm. 4, c. 60, s. 23, and 
 
 ». 23, 2 W. 4, ^^^ •' . r ' 
 
 li. 57, o. 3. 3 Wm. 4, c. 57, s. 3, it was in substance enacted that when 
 
 the person in whom any real property might have been vested 
 in trust for any charity should be dead, the Court of Chancery 
 might on petition direct advertisements to issue for the repre- 
 sentative of the person or last survivor of the. persons in whom 
 such real property might have been vested to appear or give 
 notice of his title, and prove his pedigree or other title as- 
 trustee, and if no person appeared to give such notice, or the 
 person giving it should fail to prove his title, the Court might 
 appoint any new trustees for such charity, in case no trustees 
 for such charity duly appointed should then be existing, and 
 such real property might be conveyed to such new trustees 
 when so appointed, or to the existing trustees previously ap- 
 pointed, as the case might be, by any person whom the said 
 Court might direct without the necessity of any decree. 
 5&6-W.4, C.76, Again by 5 & 6 Wm. 4, c. 76, s. 71, the Act depriving the 
 municipal corporations of the administration of charities, it was 
 enacted that in every borough in which the body corporate or 
 
 '242 ; Ux parte Page, 1 D. & C. 478 ; and see Cartwright, 3 De Gex 
 
 321 ; Ex parte Suffery, 2 D. & C. & Sm. 648. 
 
 576 ; Ex parte Cartwright, 3 De (c) Ex parte Buffery, 2 D. & C. 
 
 Gex & Sm. 648. 576. 
 
 (a) Ex parte Hancox, Mont. 247. {d) Ex parte Saunders, 2 G. & J- 
 
 (h) Ex parte Whitley, 1 Deac, IZ2; ExpartePainter,^!).^^^^^. 
 
CH. XXV.] APPOINTMENT OF NEW TRUSTEES. 717 
 
 any one or more of the members of such body corporate in his 
 or their corporate capacity then stood solely or together with any 
 person or persons elected solely by such body corporate, or 
 solely by any particular number, class, or description of mem- 
 bers of such body corporate, seised or possessed for any estate or 
 interest whatsoever of any hereditaments or personal estate 
 whatsoever, in whole or in part, in trust or for the benefit of 
 any charitable uses or trusts whatsoever, all the estate, right, 
 interest, and title, and all the powers of such body corporate or 
 of such member thereof, should from and after the 1st day of 
 August, 1836, utterly cease. Provided also, that if Parliament 
 should not otherwise direct, on or before the said 1st day of 
 August, 1836 {which was not done), the Lord High Chancellor 
 or Lords Commissioners of the Great Seal should make such 
 orders as he or they should see fit for the administration, 
 subject to such charitable uses or trusts as aforesaid, of such 
 trust estates. 
 
 Under the authority "to m^ke orders," the Court of Chan- jTirisdiotion of 
 eery has from time to time, for the due management of the chancery under 
 charity property, appointed trustees in the place of the cor- 6&7W. 4, o. 76, 
 poration. The jurisdiction of the Court, however, has been 
 held not to apply to a case only where no estate was vested 
 in the old corporation, the charity property being vested in 
 trustees and the corporation being merely visitors with powers 
 of nomination (a). But where there was a charity corporation 
 substantially, though not identically, the same in its compo- 
 nent parts as the municipal corporation, the case was held to 
 be within the spirit if not the letter of the section, above 
 referred to (6). 
 
 The appointment of trustees by the Court under the Act, legal eetate. 
 though it made them the custodiers of the property, could not 
 of course transfer to them the legal estate, which, notwith- 
 standing the strong negative words used in the statute, it 
 was decided, remained in the corporation (c). But now by 
 16 & 17 Vict. c. 137, s. 65, the legal estate is vested without 
 
 (a) Attorney- General v. New- SfC., of Exeter, 2 De Grex, Mac. & 
 
 hury Corporation, C. P. Coop. Eep. Gor. 507. 
 
 837—38, 72; Christ's Hospital v. (c) Doe v. Norton, 11 Mees. & 
 
 Grainger, 16 Sim. 102. W. 913. 
 
 (5) Attorney -General v. Mayor, 
 
IIB 
 
 APPOINTMENT OF NEW TEUSTEES. 
 
 [CH. XXV.. 
 
 Petitions for 
 appointment of 
 new trustees of 
 charities. 
 
 Appointment of 
 trustees of 
 churches under 
 the Charitable 
 Trusts Act. 
 
 any actual conveyance in the trustees appointed by the Lord 
 Chancellor, and upon the death, resignation, or removal o£ 
 any of the trustees, and the appointment of any new trustee 
 or trustees, the legal estate is transferred to the trustees for the 
 time being without any conveyance. 
 
 Petitions for filling up vacancies in the number of trustees 
 of charities, whether in substitution for a corporation or other- 
 wise, ought under the old practice to have been presented, 
 imder Sir S. Eomilly's Act (52 Geo. 3. c. 101), as well as the 
 Municipal Corporation Act, and the Attorney- General's fiat 
 must have been obtained to such a petition (a), though this 
 rule does not appear to have been uniformly adhered to (b). 
 
 Now under the Charitable Trusts Act (16 & 17 Vict. c. 137), 
 s. 28, new trustees of any charity the gross annual income 
 whereof exceeds SOL (c) may be appointed by one of the equity 
 judges in chambers, and the Court has power at the same 
 time to make an order under the Trustee Act, without 
 petition, vesting the estates in the new trustees (d). But the 
 sanction of the Charity Commissioners under the 17th section, 
 must be obtained. 
 
 Trustee may be H- The cestui que trust is entitled to file a bill against his 
 compeUed to any trustee, and compel him to the execution of any particular act 
 
 E duty. 
 
 Maintenance of 
 right at law. 
 
 of duty. 
 
 Thus, if the legal estate in the hands of the trustee be 
 assailed by a stranger, the cestui que trust may not institute 
 proceedings in the name of the trustee without his authority (e), 
 but may oblige the trustee on giving him a proper indemnity 
 to assert the legal right (/) ; and so if the trustee of a covenant, 
 even a voluntary one, will not sue upon it, the cestui que trust 
 
 {a) Me Warwick Charities, 1 Phill. 
 559; Be Rollers Charity, 3 De 
 Gex, Mao. & Gor. 153 ; 2Je London, 
 Brighton, &c.. Railway Co, 18 Beav. 
 608. 
 
 (i) Nightingale' s Charity, 3 Hare, 
 336; Belke's Charity, 13 Jur. 317. 
 
 (c) By s. 32, where the income is 
 below 30Z., the District Courts of 
 Bankruptcy and County Courts have 
 jurisdiction. 
 
 id) Me Davenporf s Charity, 4 
 
 De Gex, Mao. & Gor. 839 ; In Lin- 
 coln Primitive Methodist Chapel, 
 1 Jut. N. S. lOU, V. C.'Stuart does 
 not appear to have been aware of 
 the decision in Davenport's Charity. 
 
 (e) See Crossley v. Crowther, 9 
 Hare, 386. 
 
 (/) Foley T. Surnell, 1 B. C. C. 
 277, per Lord Thurlow ; Cary, 14 ; 
 and see Kirby v. Mash, 3 T. & C. 
 295 ; Malone v. Geraghty, 2 Conn, 
 and Laws. 261. 
 
CH. XXV.J STATUTE OF LIMITATIONS. 719 
 
 may compel the trustee on a proper indemnity to lend his name 
 to the cestui que trust, to enable him to sue (a). Otherwise, 
 should the trust property he lost, and the trustee himseK 
 become insolvent, the cestui que triist's equitable interest would 
 be absolutely destroyed. 
 
 But if A. allege in himself a title which he does not possess, Purcliaserfor 
 and sells to B. for valuable consideration without notice of a ™^^' 
 prior settlement under which C. is the real cestui que trust, the 
 Court will not, in a suit by C. against A. and B., compel the 
 trustee of the settlement to convey the legal estate to C, or to 
 lend his name to C. for the purpose of trying an ejectment 
 against B. the bona fide purchaser for value without notice (&). 
 
 Sir Joseph Jekyll laid down the rule, that " the forbearance " Forbearance of 
 
 /.111 , . J.J' ^ i_ •!. ±-\ • £11 J.1 the trustee shall 
 
 01 the trustees in not doing what it was their omce to have ^^^ prejudice the 
 done should in no sort prejudice the cestids que trust (c); " and e^tm que trust " 
 hence it has been inferred that a right gained by a stranger 
 through the neglect of the trustee shall be no bar in equity to 
 the claim of the cestui que trust; but the principle was evi- 
 dently intended to apply as between the privies to the trust 
 only, and not as between the privies to the trust and a stranger. 
 
 " The rule, that the Statute of Limitations does not bar a statute of 
 trust estate," said Lord Hardwicke, " holds only as between ^"^t^*'™»- 
 cestuA que trust and trustee, not between cestui que trust and 
 trustee on the one side, and strangers on the other, for that 
 would make the statute of no force at all, because there is 
 hardly any estate of consequence without such trust, and so 
 the act would never take place. 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(cZ). "A cestui que trust," said Lord Eedesdale, "is 
 always barred by length of time operating against the trustee. 
 If the trustee does not enter, and the cestui que trust does not 
 compel him to enter, as to the person claiming paramount the 
 cestvi que trust is barred («)." And Lord Manners observed, 
 
 (a) See Fletcher v. Fletcher, 4 (d) Lewellin v. Machworth, 2 Eq. 
 
 Hare, 78. Ca. Ah. 579. 
 
 (J) TurnerY.Bueh,12'Vm.A\i.2\. (e) Hovenden v. Lord Annesley, 
 
 (e) Lechmere v. Earl of Carlisle, 2 Sch. & Lef. 629. 
 3 P. "W. 215. 
 
720 
 
 STATUTE OF LIMITATIONS. 
 
 [CH. XXV. 
 
 Whether an 
 infant can be 
 barred by the 
 laches of his 
 trustees. 
 
 " The opinion of Sir J. Jekyll, if intended to apply to third 
 persons, which I do not conceive it was, has often been denied, 
 and is contrary to many decisions. If the trustees who are so 
 appointed neglect their duty, and suffer an adverse possession 
 of twenty years to be held, I apprehend the Statute of Limita- 
 tions is a bar to the cestui que trust (a)." 
 
 In Allen v. Sayer {b), as corrected from the Registrar's Book, 
 a testator gave his real estate after his mother's and wife's 
 decease to Allen, an infant, his heirs and assigns, and by the 
 same will gave his real estate to A. B. and C. D. upon trust, if 
 occasion should be, to sell the same in aid of the personal 
 estate for payment of debts, and appointed his wife and mother 
 the executrixes of his will. The wife renounced, and the 
 mother only proved. Shortly after the testator's decease, 
 which happened about 1678^ the trustees of the will not offer- 
 ing to interfere, and Allen being of the age of ten years, and 
 the testator's mother of great age, and therefore averse to any 
 dispute, one Sayer, who was connected with the family by mar- 
 riage, and pretended a claim to the lands, prevailed with 
 Curtis, the tenant in possession under a lease for years, to 
 attorn and pay rent to himself, and gave him a bond of indem- 
 nity. Sayer then levied a fine of the lands with •proclamations, 
 and five years passed and no entry was made. In 1688 the 
 testator's mother died, and the right of Allen, the infant, to 
 the possession, then accrued. About 1689 the infant attained 
 his age of twenty-one years, and in 1690 brought an ejectment 
 at law, but failed. Upon this he instituted a suit in equity, 
 and Lord Somers decreed, that " the fine and non-claim should 
 not incur against the plaintiff, who was then an infant ; "^ and 
 his Lordship is reported by Vernon to have said, that " al- 
 though the fine and non-claim was a good bar at law, the legal 
 estate being in the trustees, who were of full age and ought to 
 have entered, yet the plaintiff ought not to suffer for their 
 laches, being an infant, and who, so soon as of age, made entry. 
 
 (a) Pentland v. Stohes, 2 B. & B. 
 75. In this case the cestui que trust 
 was part of the time an infant, and 
 as Lord Manners expressed a gene- 
 ral opinion, it would seem he con- 
 
 curred in the doctrine, that an infant 
 is hound as well as an adult. 
 
 (i) 2 Vern. 368. See the case 
 stated from Reg. Lih., Appendix, 
 No. X. 
 
CH. XXV.] STATUTE OF LIMITATIONS. 721 
 
 and brought his ejectment, and likewise his bUl in that Court, 
 before five years had incurred after he had attained his age." 
 But this must not be taken as a decision by Lord Somers, 
 that the right of an infant cestui que trust to a legal estate 
 cannot be barred by the laches of his trustee ; for it must be 
 remarked, 1. That the legal fee was in the trustees, both by 
 force of the word " estate," and also from the trust to sell, and 
 therefore the infant could not have maintained an action at 
 law, independently of the fine and non-claim. 3. It is not 
 clear that the conusor, when he levied the fine, was seised of 
 the freehold ; for he had merely the attornment of the tenant, 
 and this of itself would not work a disseisin (a). 3. The 
 interest of the infant was subject to the prior life estate in the 
 same lands of the testator's mother, and it is not said, however 
 probable, that this estate was taken under the will ; if it was 
 an estate prior to the testator's interest, then, as the mother 
 did not die till 1688, the right of entry of the infant, or rather 
 of the devisees in trust for him, was not barred until five years 
 after the reversion had fallen into possession, within which 
 period of time the suit in equity was instituted. 4. The 
 conusor of the fine had full notice of the trust, and contrived 
 to get into possession of the land through the fraud and collu- 
 sion of the tenant, to whom he had given a bond of indemnity, 
 and it-cannot be disputed, that, where the conusor's estate was 
 originally infected with fraud, the fine and non-claim can have 
 no effect in removing the blot (&). 
 
 In The Earl v. The Countess of Huntingdon (c). Lord Mac- Earl v. Countess 
 clesfield was of opinion, that a fine and five years' non-claim 
 would, in favour of a purchaser, bar a trust term, though the 
 cestui que trust was an infant. 
 
 In Wych v. The East India Company id), A. had agreed with Wyeh «. East 
 the Company for an allowance of two per cent., and afterwards ' ^^' 
 
 died intestate, leaving an infant son. B. took out administra- 
 tion durante minoritate, but instituted no suit upon the contract. 
 
 (a) See Co. Lit. 322 b, 325 a. Gex & Sm. 273 ; Langley v. Fisher, 
 
 (i) See Kennedy v. Daly, 1 Soh. 9 Beav. 90. 
 
 & Lef. 379, 381 ; Salsbury v. Bagott, (c) Cited Wych v. East India 
 
 2 Svr, 612 ; Bell v. Bell, LI. & G. t. Company, 3 P. W. 310, note (G). 
 
 Plunket, 44 ; Reece v. Trye, 1 De {d) Z P. W. 309. 
 
722 STATUTE OF LIMITATIONS. [CH. XXV. 
 
 The son, within six years after he had attained his age, but not 
 within six years after the cause of action accrued, brought his 
 bill against the Company for an account, and they pleaded the 
 Statute of Limitations. Lord Talbot said, " The administrator, 
 during the infancy of the plaintiff, had a right to sue ; and 
 though the cestui que trust was an infant, yet he must be bound 
 by the trustees not suing in ' time ; for I cannot take away the 
 benefit of the Statute of Limitations from the Company, who 
 are in no default, and are entitled to take advantage thereof 
 as well as private persons, since their witnesses may die, or their 
 vouchers he lost. And as to the trust, that is only between the 
 administrator and the infant, and does not affect the Company." 
 
 3&4W. 4,c.27. It must be observed, however, that the principles involved 
 in the foregoing authorities seem to be impliedly contradicted 
 by the recent Statute of Limitations, 3 & 4 Wm. 4, c. 27, s. 24, 
 which, whUe creating an absolute bar to equitable as well as 
 legal estates, appears to assume that the trustee and cestui que 
 trust have distinct rights of suing ; and further, that although 
 the 25th section of the Act, providing that the right of the 
 cestui que trust shall be deemed to have accrued at and not 
 before the time of conveyance by the trustee to a purchaser 
 for value, might seem at first sight to give a statutory recog- 
 nition to those principles alluded to, yet, according to the 
 tenour of the late decisions, that section is to be viewed merely 
 as a special exception in favour of the cestui que trust, and not 
 as abridging the rights to sue of a cestui que trust in remainder 
 or under disability {a). 
 
 Tenant for life of If a tenant for life of leaseholds, who is regarded as a trustee 
 
 renewable lease- /. i . 
 
 holds neglecting for the remamderman, be bound to renew, and by his threats 
 or acts manifest an intention not to renew, the remainderman 
 may file a bUl, and have a receiver appointed for the purpose 
 of providing the renewal fine out of the rents and profits of 
 the estate ; and if the period of renewal has already expired, 
 a receiver may be appointed on proof of the tenant for life's 
 default (6). 
 
 (a) Thompson v. Simpson, 1 Dru. see 239, 250. W.B. In none of these 
 
 & War. 489 ; Commissioners of cases had there been an actual oon- 
 
 Charitable Donations v. Wi/brants, veyance by a trustee. 
 1 Jon. &Lat. 182; Attorney-General (J) See Bennett v. Colley, 5 Sim. 
 
 V. Magdalen College, 18 Beav. 223, 192 ; S. C. 2 M. & K. 233. 
 
CH. XXV.] STATUTE OF LIMITATIONS. 7S3 
 
 In one case, where a suspicion was entertained that the Trustee giving 
 
 s Gcuntv 
 
 trustee would not fairly execute his trust, the Court required 
 of him, if he continued in the office, to enter into securities 
 for his good faith (a). 
 
 And generally a cestui que trust, though entitled to a mere Cestui que trust 
 
 , . _ , 1 r*i 11 1 1 , may tave a con- 
 
 contingent benent, may, upon reasonable cause shown, apply to tingent interest 
 the Court to have his interest properly secured (6). seeured. 
 
 III. As the cestui que trust may compel the trustee to the Trustee may be 
 observance of his duty, so, on the other hand, if the cestui que violating Ma 
 trust have reason to suppose, and can satisfy the Court, that '^"'^' 
 the trustee is about to proceed to an act not authorised by the 
 true scope of the trust, he may obtain an injunction from the 
 Court to restrain the trustee from such a wanton exercise of 
 his legal power (c). 
 
 It is clear the cestui que trwst would be entitled to an iajunc- Though the 
 
 damage would not 
 
 tion where the act m contemplation would, if done, be irreme- be irreparable. 
 diable {d) ; but in Pechel v. Fowler (e), a case in the Exchequer, 
 it is said to have been held, that a cestui que trust could not 
 restrain an improvident sale by the trustee, because the cestui 
 que trust might proceed against the trustee for the consequen- 
 tial damage to the estate, and so the injury was not irreparable ; 
 but Sir J. Leach, under similar circumstances, granted an in- 
 junction (/) ; and other authorities are not wanting in support 
 of so just and reasonable a right (g). 
 
 (a) Keeling v. Child, Rep. t. (e) 2 Anst. 549. 
 
 Fiach, 360. (/) Anon, case, 6 Mad. 10. 
 
 (5) Cole V. Moore, Mo. 806. [g] See Webb v. Earl of Shaftes- 
 
 (c) Balls V. Strutt, 1 Hare, 146. bury, 1 Ves. 487, 488 ; Eeeve v. 
 
 {d) See Corporation of Ludlow v. Parkins, 2 J. & "W. 390 ; Milligan 
 
 Greenhouse, 1 Bl. W. B. 57 ; In re v. Mitchell, 1 M. & K. 446 ; Attor- 
 
 Chertsey Market, 6 Price, 279, 281; ney- General v. Mayor of Liverpool, 
 
 Attorney ~ General v. Foundling 1 M. & C. 210; Vann y. Barnett, 
 
 Hospital, 2 Ves. jun. 42. 2 B. C. C. 157. 
 
 A 2 
 
CHAPTER XXVI. 
 
 THE REMEDIES OF THE CESTUI CiUE TRUST IN THE EYENT 
 OF A BREACH OF TRUST. 
 
 Upon the subject of the cestm que trust's remedies for a 
 breach of trust, we shall consider, 1, The right of the cestui 
 que trust to follow the estate into the hands of a stranger, 
 to whom it has been tortiously conveyed ; 2. The right of 
 attaching the property into which the trust estate has been 
 wrongfully converted ; 3. The remedy against the trustee per- 
 sonally, by way of compensation for the mischievous conse- 
 quences of the act ; and, 4. The mode and extent of redress in 
 breaches of trust committed by trustees of charities. 
 
 SECTION I. 
 
 OP FOLLOWINO THE ESTATE INTO THE HANDS OE A STBANGEK. 
 
 The questions that suggest themselves upon this subject are. 
 First,. Into whose hands the estate may be followed ; Secondly, 
 Within what limits of time ; Thirdly, What account the Court 
 win direct of the mesne rents and profits. 
 
 I. If the alienee be a volunteer, then the estate may be fol- 
 lowed into his hands, whether he had notice of the trust (a), 
 or not (6) ; for, though he had no actual notice, yet the Court 
 
 (a) Mansell v. Mansell, 2 P. W. &%\,per Cur. ; Bell v. Bell, 1 Rep. 
 
 678 ; Saunders v. Dehew, 2 Vern. t. Plunkett, 58 ; Pye v. George, 2 
 
 271 ; S. 0.2 Freem. 123; Langton Salk. 680, per Lord Harcourt; and 
 
 V. Astrey, 2 Ch. Re. 30; S. C. Nels. see 1 Re. 122 b; Burgess y. Wheate, 
 
 ^26. 1 ed. 219; Spurgeon v. Collier, 1 
 
 (6) Mansell v. Mansell, 2 P. W. ed. 66 ; Cole v. Moore, Mo. 806. 
 
CH. XXVI. S. 1.] OP FOLLOWING THE ESTATE. 
 
 725 
 
 will imply it against him where he paid no consideration. But, 
 if the alienee be a purchaser of the estate at its full value, then, 
 if he take with notice of the trust, he is (subject to the protec- 
 tion afforded by the Statutes of Limitations) bound to the 
 same extent and in the same manner as the person of whom 
 he purchased (a), even though the conveyance was made to him 
 by fine with non-claim (6) ; for, knowing another's right to the 
 property, he throws away his money voluntarily, and of his own 
 free will (c) ; and the rule applies not only to the case of a 
 trust, properly so called, but to purchasers with notice of any 
 equitable incumbrance, as of a covenant or agreement affecting 
 the estate (d), or a lien for purchase money (e). But, if a 
 bond fide purchaser have not notice, he then merits the full 
 protection of the Court, and his title, even in equity, cannot be 
 impeached (/). 
 
 ■ (o) Dunhar \. Tredennick, 2 B. 
 & B. 319, jper Lord Manners ; Paw- 
 lett y. Attorney-General, Hard. 469, 
 per Lord Hale ; Burgess v. Wheate, 
 1 Ed. 195, per Sir T. Clarke ; JBovey 
 v. Smith, 1 Vern. 149; Phayre v. 
 Peree, 3 Dow, 129 ; Adair v. Shaw, 
 1 Sch. & Lef. 262, per Lord Redes- 
 dale ; Wigg v. Wigg, 1 Atk. 382 ; 
 Mead v. Lord Orrery, 3 Atk. 238, 
 per Lord Hardwioke ; Mackreth v. 
 Symons, 15 Ves. 350, per Lord 
 Eldon ; Mansell v. Mansell, 2 P. 
 "W. 681, per Cur. ; Willoughhy v. 
 Wilhughhy, 1 T. R. 771, per Lord 
 Hardwioke; Verney v. Carding, 
 cited Joy v. Campbell, 1 Sch. & 
 Lef. 345 ; Flemming v. Page, Rep. 
 t. Pinch, 320 ; Powell v. Price, 2 
 P. W. 539, admitted ; Backhouse v. 
 Middleton, 1 Ch. Ca. 173 ; '8. C. id. 
 208; Walley v. Whalley, 1 Vern. 
 484 ; Pearce v. Newlyn, 3 Mad. 186. 
 
 {V) Kennedy v. Daly, 1 Sch. & 
 Lef. 355 ; and see Bell v. Bell, 1 
 Rep. t. Plunket, 44. 
 
 (c) Mead v. Lord Orrery, 3 Atk. 
 238, per Lord Hardwioke. 
 
 {d) Daniels v. Damson, 16 Ves. 
 249; Earl Brook v. Bulkeley, 2 
 Ves. 498 ; Taylor v. Stibbert, 2 Ves. 
 
 jun. 437 ; Winged v. Lefebury, 2 
 Eq. Ca. Ab. 32 ; Ferrars v. Cherry, 
 2 Vern. 384 ; Jackson's case. Lane, 
 60 ; Crofton v. Ormsby, 2 Sch. & 
 Lef. 583 ; Kennedy v. Daly, 1 Sch. 
 & Lef. 355. 
 
 (e) Mackreth v. Symmons, 15 
 Ves. 329; Walker v. Preswick, 2 
 Ves. 622, per Lord Hardwioke ; 
 Kator V. Pembroke, 1 B. C. C. 302, 
 per Lord Loughborough ; Gibbons 
 V. Baddall, 2 Eq. Ca. Ab. 682, note 
 (J) ; JElliot V. Edwards, 3 B. & P. 
 181 ; and see Grant v. Mills, 2 V. 
 & B. 306 ; Dunbar v. Tredennick, 
 2 B. & B. 320. 
 
 (/) Burgess v. Wheate, 1 Ed. 
 195, per Sir T. Clarke; id. 246, 
 per Lord Henley ; Millard's case, 
 2 Freem. 43; Mansell v. Mansell, 
 
 2 P. W. 681, per Cur. ; Willoughby 
 V. Willoughby, 1 T. R. 771, per 
 Lord Hardwioke; Dunbar v. Tre- 
 dennick, 2 B. & B. 318, per Lord 
 Manners ; Trevor v. Trevor, 1 P. 
 W. 633 ; Harding v. Hardrett, 
 Rep. t. Finch, 9 ; Cole v. Moore, 
 Mo. 806, per Cur. ; Jones v. Powles, 
 
 3 M. & K. 581 ; Payne v. Compton, 
 2 Y. & C. 457. 
 
726 
 
 OF FOLLOWING THE ESTATE. . [CH. XXVL S, 1. 
 
 Purchaser with- 
 out notice from 
 purchaser with 
 notice. 
 
 Purchaser with 
 notice from pur- 
 chaser without 
 notice. 
 
 If the purchaser have no notice of the trust at the time of 
 the purchase, but afterwards discover the trust and obtain a 
 conveyance from the trustee, it seems he cannot protect himself 
 by taking shelter under the legal estate ; for notice of the trust 
 converts him into a trustee, and he must not, to get a plank to 
 save himself, be guilty of a breach of trust (a). A purchaser 
 without notice from a purchaser with notice is not liable, for 
 his own bona fides is a good defence in itself, and the mala fides 
 of the vendor ought not to invalidate it (&). But the rule does 
 not apply to the case of a charitable use, for it has been ruled 
 that a purchaser without notice from a purchaser with notice 
 shall be bound by the claim of the charity (c). In other 
 respects the principles of equity as to the doctrine of notice 
 are applicable to charities in the same manner as between 
 private persons {d). 
 
 A purchaser with notice from a purchaser without notice is 
 exempt from the trust, not from the merits of the second pur- 
 chaser, but of the first ; for if an innocent purchaser were 
 prevented from disposing of the beneficial interest, the necessai-y 
 result would be a stagnation of property (e). But, if the trustee 
 sell the lands to a bond fide purchaser without notice, and after- 
 wards himself become the owner of the lands, though for a good 
 and valuable consideration, the trust as to him revives again, 
 and he shall restore the land to the trust (/) ; and in this 
 respect equity foUows the law; for, if a trespasser of goods 
 
 (o) Saunders v. Dehew, 2 Vern. 
 271 ; S. C.2 Freem. 123 ; Langton 
 V. Astrey, 2 Ch. Re. 30 ; S. C, Nels. 
 126. 
 
 (i) Mertins v. Joliffe, Amb. 313, 
 per Lord Hardwicke ; Ferrars v. 
 Cherry, 2 Vern. 384; see Pitts v. 
 Edelph, Tothill, 164 ; Salshury v. 
 Bagott, 2. Sw. 608. 
 
 (c) East Oreenstead's ease, Duke, 
 65, Sutton Colefield case, id. 68 ; 
 and see id. 94, 173 ; see Commis- 
 sioners of Charitable Donations 
 V. Wybrants, 2 Jones and Lat. 194. 
 
 (d) See 3 Vend, and Pur. 944, 
 13th Ed". 
 
 (e) Harrison v. Forth, Pr. Ch. 
 
 51 ; Bradwell v. Catchpole, stated 
 Walker v. Symonds, 3 Sw. 78, 
 note (o) ; Mertins v. Jolliffe, Amb. 
 313, per Lord Hardwicke; Brand- 
 lyn v. Ord, 1 Atk. 571, per eun- 
 dem ; Sweet v. Southcote, 2 B. C. 
 C. 66; 'M' Queen v. Farquhar, 11 
 Ves. 478, per Lord Eldon ; Lowther 
 V. Carlton, 2 Atk. 242; S. C. 3 
 Barn. 358 ; S. C. For. 187 ; Andrew 
 V. tFrigley, 4 B. C. C. 136, per 
 Cur. ; Salshury v. Bagott, 2 Sw. 
 608, per Cur. 
 
 (/) Bovy V. Smith, 2 Ch. Ca. 124 ; 
 -S. C. 1 Vern. 60, 84, 144 ; Kennedy 
 V. Daly, 1 Soh. & Lef. 379, per 
 Lord Redesdale. 
 
CH. XXVI. S. 1.] OF FOLLOWING THE ESTATE. 727 
 
 sell them in market overt, the owner's title is barred; but, 
 if they come to the trespasser again, the owner may seize 
 them (a). 
 
 Upon the question, how far a purchaser will be bound by How far pm- 
 notice of a doubtful equity, Lord Northington said, in Cord- *ticeof°a™oubt- 
 well V. Mackrill (b), " A man must take notice of a deed on ^^ equity, 
 which an equity, supported by precedents the justice of which 
 every one acknowledges, arises, but not the mere construction of 
 words, which are uncertain in themselves, and the meaning of 
 which often depends on their locality." And Sir W. Grant 
 observed, " There may be such a doubtful equity that a pur- 
 chaser is not to be taken to know ivhat will be the decision, and 
 that is all Lord Camden (c) means ; but in this case the equity 
 is clear " (d). 
 
 The rule, that " heirs of the body " in articles shall be Notice of "heirs 
 construed " first and other sons," does not appear to have been ° e o y. 
 fully established till about the year 1720 (e) : Lord Hardwicke 
 therefore said, that notice of ancient articles, that is, of articles 
 before the doctrine was well settled, should not bind a bond 
 fide purchaser (/). And afterwards, in a case of both articles 
 and settlement before marriage, the settlement reciting the 
 articles, Lord Hardwicke thought that, as the equity in this 
 instance rested upon, a single authority (^), and that one 
 in which the question arose between the parties and their 
 representatives and mere volunteers, the purchaser ought not 
 to be bound by the claim of the issue (h). But notice of 
 modern articles, that is, of articles entered into since the clear 
 establishment of the rule, wUl affect a purchaser (i); but, even 
 then, the articles themselves must be produced, that the Court 
 
 (a) See Sovy v. Smith, 2 Ch. Ca. accordingly relief not asked against 
 
 126. purchasers in West v. Errissey, 2 
 
 (J) Cordwell v. Mackrill, 2 Ed. P. W. 349. 
 
 347; S. a Amb. 516. {g) West v. Errissey, 2 P. "W. 
 
 (c) Sir W. Grant appears to liave 349. 
 
 supposed the decision was by Lord (A) Warrick v. Warrick, 3 Atk. 
 
 Camden. . 291. 
 
 {d) Parker v. Brooke, 9 Ves. (i) Senhouse v. Earle, Amb. 288, 
 
 588. per Lord Hardwicke ; Davies v. 
 
 (e) By Trevor v. Trevor, 1 P. Davies, 4 Beav. 54 ; and see Parker 
 
 W. 622. V. Srooke, 9 Ves. 587. 
 
 (/) Senhouse v. Earle, Amb. 288 ; 
 
738 
 
 OF FOLLOWING THE ESTATE. [CH. XXVI. S. 1: 
 
 Of title long 
 neglected. 
 
 may judge from the whole instrum^iit ; for the true construc- 
 tion depends upon the words, and other parts of the deed may 
 be material to find out their meaning (a). 
 Lord St. Leo- Lord St. Leonards however, observed, that Corchmll v. 
 
 tions on Cordwell Mackrill was of no great authority, though decided by a great 
 ■V. MaokrHl. Judge ; and conceived the true rule to be that, where upon the 
 
 whole articles it was plain what construction the Court would 
 put upon them had it been called upon to execute them at the 
 time they were made, they should be enforced however difficult 
 the construction might he, even as against a purchaser with 
 notice, but not after a lapse of time where there was anything 
 so equivocal or ambiguous in them as to render it doubtful how 
 they ought to be effectuated. (&). 
 
 In a case where a residuary legatee had enjoyed for nineteen 
 years a copyhold estate, which had been mortgaged to the 
 testator in fee, and then the heir of the testator recovered the 
 land by ejectment and mortgaged it, and the residuary legatee, 
 having neglected to assert his title to the possession for nine 
 years, at the end of that period filed a bill in Chancery, and 
 established his claim, it was determined that the mortgagee of 
 the heir after the ejectment was not called upon to notice the 
 right of the residuary legatee ; for it was not that " clear broad 
 plain equity " which should aifect a purchaser (c). 
 
 A testator had given a leasehold estate to his daughter to her 
 sole and separate use, but without the interposition of a trustee {d), 
 and the husband, supposing himself absolutely entitled, entered 
 into possession, and afterwards mortgaged the premises ; and 
 it was held the mortgagee was boimd to notice the equitable 
 construction of the will, as a doctrine well understood (e) ; and, 
 the husband having obtained a reversionary lease and mort- 
 gaged it, the mortgagee was of course held cognisant of the 
 rule, that leases obtained under cover of the tenant right would 
 be subject to the equity of the original term (/). 
 
 Separate use. 
 
 (o) Cordwell v. Mackrill, Amb. 
 515 ; S. a 2 Ed. 344. 
 
 (J) Thompson v. Simpson, 1 Dru. 
 & War. 491. 
 
 (c) Hardy v. Reeves, 4 Ves. 466 ; 
 S. a 5 Ves. 426. 
 
 [d) See supra, p. 121. 
 
 (e) Parker v. Brooke, ' 9 Ves. 
 583. 
 
 (/) And see Coppin v. Ferny- 
 hough, 2 B. C. C. 291. 
 
CH. XXVI. S. 1.] STATUTE OP LIMITATIONS. 729 
 
 Where the trust estate to be followed is an equitable interest Purchasers of 
 only, then, prima facie, the title of the cestui que trust must rests. 
 prevail against the alienee ; since, as between parties entitled 
 to equities only, the general rule is, qui prior est tempore potior 
 est jure ; that is, as between persons having only equitable 
 interests, if their merits are in aU other respects equal, priority 
 of time gives the better equity (a). Thus a party taking an 
 equitable mortgage, with notice of a prior equitable mortgage, 
 cannot, by assignment to another without notice, give him a 
 better title (6). 
 
 And as to chases in action of which the legal interest is not Choses in action, 
 transferable at law, a purchaser, whatever amount may have 
 been paid by him, cannot stand on a better footing than the 
 trustee of whom he purchased, but must (in conformity with 
 the established rule governing assignments of choses in action) 
 hold it subject to precisely the same equities as the trustee (c). 
 
 II. "Within what limits of time the suit must be instituted. Time no bar in a 
 
 direct trust, 
 
 It is a weU-known rule, that, as between cestui que trust otherwise in a 
 
 . . constructive 
 
 and trustee in the case of a direct trust, no length of time is trust. 
 a bar ; for, from the privity existing between them, the posses- 
 sion of the one is the possession of the. other, and there is no 
 adverse title {d). It has hence been argued, that, as the person 
 into whose hands the estate is followed is also, by construc- 
 tion of law, a trustee, the cestui que trust is entitled to the 
 benefit of the rule, and is not precluded by mere lapse of 
 
 {a) See Mice v. Mice, 2 Drewry, v. Turvill, 2 P. "W. 144; Bell v. 
 73. Bell, Kep. t. Plunket, 66 ; Attorney- 
 
 (b) Ford V. White, 16 Beav. 120, 
 
 (c) Ord V. White, 3 Beav. 357 
 Cockell V. Taylor, 15 Beav. 103: 
 Clack V. Holland, 19 Beav. 262: 
 Barnard v. Hunter, 2 Jur. N. S, 
 1213 ; Mangles v. Bixon, 3 H. of L 
 
 General v. Mayor of Exeter, Jae. 
 448; Heath v. Henly, 1 Ch. Ca. 
 20; Sheldon v. Weldman, 1 Ch. 
 Ca. 26 ; Wedderhurn v. Wedder- 
 hurn, 2 Keen, 749 ; 4 M. & C. 41 ; 
 Lord Hollis^s case, 2 Vent. 345 ; 
 
 Ca. 702. Earl ofPomfret v. Windsor, 2 Yes. 
 
 {d) See Chalmer v. Bradley, 1 484 ; Hargreaves v. Miehell, 6 Mad. 
 
 J. & W. 67; Bennett v. Colley, 2 326; Nevarre v. Mutton, 1 Yin. Ab. 
 
 M. & K. 232; Llevellyn v. Mack- 185; Shields y. Atkins, S Afk. 563; 
 
 worth, Barn. 449 ; Wilson v. Moore, Phillipo v. Munnings, 2 M. & C. 
 
 1 M. & K. 146 ; Townshend v. 309 ; Ward v. Arch, 12 Sim. 472 ; 
 
 Townshend, 1 B. C. C. 554 ; Ha- Young v. Waterpark, 13 Sim. 204 ; 
 
 mond-v. Hicks, 1 Yern. 432; Norton Gough v. Bult, 16 Sim. 323, 
 
''^^ STATUTE OF LIMITATIONS. [cH. XXVI. S. 1. 
 
 time from establishing his claim. But the authorities to 
 the contrary are clear and express, and cannot leave a 
 doubt (a). 
 
 " It is certainly true," said Sir W. Grant, " that no time 
 bars a direct trust ; but if it is meant to be asserted that a 
 court of equity allows a man to make out a case of constructive 
 trust at any distance of time after the facts and circumstances 
 happened out of which it arises, I am not aware that there is 
 any ground for a doctrine so fatal to the security of property 
 as that would be : so far from it, that not only in circumstances 
 where the length of time would render it extremely difficult to 
 ascertain the true state of the fact, but where the true state of 
 the fact is easily ascertained, and where it is perfectly clear 
 that relief would originally have been given upon the ground of 
 constructive trust, it is refused to the party who, after long acqui- 
 escence, comes into a court of equity to seek that relief " (6). 
 And Lord Eedesdale observed, " The position that trust and 
 fraud are not within the statute must be thus qualified : that 
 if a trustee is in possession, and does not execute his trust, the 
 possession of the trustee is the possession of the cestui que 
 trust ; and if the only circumstance is, that he does not per- 
 form his trust, his possession operates nothing as a bar, because 
 his possession is according to his title: but the question of fraud 
 •is of a very different description ; that is a case where a person 
 who is in possession by virtue of the fraud is not, in the 
 ordinary sense of the word, a trustee, but is to be constituted 
 a trustee by a decree of a court of equity, founded on the 
 fraud ; and his possession in the mean time is adverse to the 
 title of the- person who impeaches the transaction on the ground 
 of fraud " (c). 
 
 (o) Townshend v. Townshend, 1 & Cr. 16; Portloch v. Gardner, 1 
 
 B. C. C. 550, see 554 ; Bonney y. Hare, 594 ; Ex parte Basell, 3 T. 
 
 Ridgard, 1 Cox, 145; Andrew' y. & C. 622 ; Wedderhurn r. Wedder- 
 
 Wrigley, 4 B. C. C. 125 ; Lockey v. hum, 4 M. & Cr. 53 ; but see Attor- 
 
 Lockey, Pr, Ch. 518; Collard v. ney- General y. Christ's JTospital, 3 
 
 Hare, 2 E. & M. 675; and see M. & K. 344 (the case of a oha- 
 
 Cholmondeley v. Clinton, 2 J. & W. rity). 
 
 190; S. C. affirmed, 4 Bligh 4; ^eZ/ (i) Beckford v. Wade, 17 Ves. 
 
 V. Bell, Rep. t. Plunket, 66; Attor- 97. 
 
 ney- General, v. Fishmongers' Com- (c) Hovenden v. Lord Annesley, 
 
 pany, 2 Beav. 588 ; affirmed 5 M. 2 Sch. & Lef. 633. 
 
CH. XXVI. S. 1.] STATUTE OF LIMITATIONS. 731 
 
 As the remedy of the cestm que trust is considered, therefore, 
 on the footing of any other equitable right, it may be proper to 
 examine briefly how the lapse of time operates generally upon 
 suits for equitable relief. 
 
 To claims in equity there appear to be but three bars : Three bars to 
 — 1. A statute of limitation; 2. The presumption of some- ^i"' '^ 
 thing done which, if done, is subversive of the plaintiff's 
 right ; 3. The ground of public policy or the inconvenience of 
 the relief. 
 
 1. Where there is a statutable bar at law, the same period Bar by analogy 
 was always by analogy, or rather in obedience to the statute, 
 adopted as a bar in equity (a). 
 
 The language of Lord Camden upon this subject has been Lord Camden's 
 admired as peculiarly energetic. " A Court of equity," he said, "^^^' 
 " which is never active in relief against conscience or public 
 convenience, has always refused its aid to stale demands, where 
 the party has slept upon his right, and acquiesced for a great 
 length of time. Nothing can call forth this Court into activity 
 but conscience, good faith, and reasonable diligence. Where 
 these are wanting, the Court is passive, and does nothing. 
 Laches and neglect are always discountenanced ; and therefore, 
 from the beginning of this jurisdiction, there was always a 
 limitation to suits. But as the Court had no legislative autho- 
 rity, it could not properly define the time of bar by a positive 
 rule to an hour, a minute, or a year : it was governed by circum- 
 stances. But as often as jparliament had limited the time of 
 actions and remedies to a certain period in legal proceedings, 
 the Court of Chancery adopted that rule, and applied it to 
 similar cases in equity ; for when the legislature had fixed the 
 time at law, it would have been preposterous for equity, which, 
 by its own proper authority, always maintained a limitation, to 
 
 (a) See £x parte Dewdney, 15 Ab. 315 ; Pearson v. Pulley, 1 Ch. 
 
 Ves. 496 ; Bonney v. Midgard, 1 Ca. 102 ; Johnson v. Smith, 2 Burr. 
 
 Cox, 149; Bechford v. Wade, 17 961; Attorney- General v. Mayor 
 
 Ves. 97 ; Townshend v. Townshend, of Exeter, Jac. 448 ; Salter v. Ca- 
 
 1 B. C. C. 654 ; Aggas v. Pickerell, vanagh, 1 Dru. & Walsh, 668 ; Kings- 
 
 3 Atk. 225; Belch v. Harvey, Ap- ton v. Lorton, 2 Hog. 166; Foley 
 
 pendix to Vend, and Puroh. No. xiv. v. Hill, 1 Phill. 399 : Hamilton v. 
 
 13th Ed°. ; White v. Ewer. 2 Vent. Grant, 3 Dow. 44. 
 340 ; Knowles v. Spence, 1 Eq. Ca. 
 
732 
 
 STATUTE OF LIMITATIONS. [CH. XXVI. S. 1. 
 
 Lord Bedcsdfkle's 
 views. 
 
 Limitation of 
 twenty years. 
 
 countenance laches beyond the period that law had been con- 
 fined to by parliament ; and therefore in all cases, where the 
 legal right has been barred by parliament, the equitable right to 
 the same thing has been concluded by the same bar " (a). 
 
 Lord Eedesdale, in a case before him, said, that "if the 
 equitable title be not sued upon within the time that a legal title 
 of the same nature ought to be sued upon, the Court, acting by 
 analogy to the statute, will not relieve. If the party be guilty 
 of such laches in prosecuting his equitable, as would bar him 
 if his title were solely at law, he shall be barred in equity " (b). 
 And in a subsequent case his Lordship observed, " It is said 
 that Courts of equity are not within the statutes of limitations. 
 This is true in one respect ; they are not within the words of the 
 statutes, because the words apply to particular legal remedies ; 
 but they are within the spirit and meaning of the statutes, and 
 have been always so considered. I think it is a mistake in 
 point of language to say that Courts of equity act merely by 
 analogy to the statutes : they act in obedience to them " (c). 
 And again, " I think the statute must be taken virtually to 
 include Courts of equity ; for when the legislature has by sta- 
 tute limited the proceedings at law in certain cases, and 
 provided no express limitations for proceedings in equity, it 
 must be taken to have contemplated that equity followed law ; 
 and therefore it must be taken to have virtually enacted in 
 the same cases a limitation for Courts of equity also " {d). 
 And the same doctrines have been repeatedly recognised by 
 the highest authorities, amongst whom may be numbered 
 Lord Manners (e), Sir T. Plumer (/), and Lord Lynd- 
 hurst (g). 
 
 Upon these principles, then, an equitable claim to lands 
 could never have been preferred after a lapse of tweijty years ; 
 
 (a) Smith y. Clay, cited in note Cholmondeley v. Lord Clinton, 2 J. 
 
 to Deloraine v. Browne, 3 B. C. C. 
 639. 
 
 (6) Bond V. Hopjeins, 1 Sch, & 
 Lef. 429. 
 
 (c) Hovenden v. Lord Annesley, 
 2 Sch. & Lef. 630. 
 
 (d) lb. 63], ; and see Marquis of 
 
 & W. 192. 
 
 (e) Medlicott v. O'Donel, 1 B. & 
 B. 166. 
 
 (/) 3Iarquis of Cholmondeley v. 
 Lord Clinton, 2 J. & W. 151. 
 
 (<?) Foley V. Hill, 1 PM. 405. 
 
CH. XXVI. S. l.J STATUTE OF LIMITATIONS. ' 733 
 
 for though to writs of right and to formedons much longer 
 periods were allowed at law, yet equity always looked upon 
 these as peculiar and excepted cases, and guided itself rather 
 by analogy to the statute of James, which fixed the limitation 
 to the prosecution of rights of entry {a). And it may be 
 observed, that although at law the remainder-man's right 
 always ran only from the determination of the particular 
 estate, yet, in the case of a bill to redeem filed by the person 
 entitled in remainder to the equity of redemption, twenty 
 years' possession by the mortgagee without account or admis- 
 sion of title, though partly or wholly during the lifetime of the 
 tenant for Ufe, barred the remainder-man ; the ground for the 
 distinction apparently being, that the remainder-man might file 
 bill to redeem during the continuance of the life estate (6). 
 But where the mortgagee is also tenant for life of the equity 
 of redemption, the time does not run against the remainder- 
 man of the equity of redemption until his death (c) ; and the 
 same rule apphes where the mortgagee is tenant in common 
 with others of the equity of redemption (d). 
 
 Where a fine, with proclamations, was levied by a person Fine, 
 claiming adversely, though a volunteer, without actual notice 
 or other imputation of fraud, a constructive trust was held to 
 be barred after a lapse of five years (e). 
 
 In the case of a statutory bar the limited period affords a statutory bar not 
 substantive insuperable obstacle to the plaintiff's claim, and rluee^ poTert^,° 
 no plea of poverty, ignorance, or mistake, can be of any avail. *°- 
 However clear and indisputable the title, could the merits be 
 inquired into, the limited time has elapsed, and the door of 
 justice is closed (/). If the Court could relieve after twenty 
 years on the ground of distress, or any similar plea, so might 
 
 (a) Marquis of Cholmondeley v. {d) Wynne v. Styan, 2 Phil. 303. 
 
 Lord Clinton, 2 J. & W. 192. (e) Bell v. Bell, Eep. t. Plunket, 
 
 (6) See Gifford v. Hort, 1 Seh. 44. 
 
 & Lef. 407 note ; Blahe v. Foster, 4 (/) Marquis of Cholmondeley v. 
 
 Bligh, N. S. 140; Corheit-j. Barker, Lord Clinton. 2 J. & W. 139, per 
 
 1 Anstr. and 3 Anstr. 755 ; Har- Sir T. Plumer ; Byrne v. Frere, 
 
 rison v. Hollins, 1 Sim. & Stu, 471. 2 Moll. 171, 178, per Sir A. Hart. 
 
 (c) Raffery v. King, 1 Keen, But as to mistake, see Brooksbank 
 
 601, and cases ttere cited ; Burrell v. Smith, 2 Y. & C. 58. 
 V. Lord Egremont, 7 Beav. 205. 
 
734 
 
 STATUTE OF LIMITATIONS. [CH. XXVI. S. 1. 
 
 Fraud. 
 
 How defendant 
 may take advan' 
 tage of the 
 statute. 
 
 it after thirty, forty, or fifty ; there would be no limitation, and 
 property would be thrown into confusion (a). 
 
 But no time will cover a fraud so long as it remains con- 
 cealed ; for, until discovery (or at all events until the fraud 
 might with reasonable diligence be discovered), the title to 
 avoid the transaction does not properly arise (b). But, after 
 discovery, the defendant may avail himself of the statute, for 
 he has a right to say, " You shall not bring this matter under 
 discussion at this distance of time; it is entirely your own 
 neglect that you did not do so within the period limited by the 
 statute " (c). 
 
 The defendant may avail himself of the Statute of Limita- 
 tions, when the bar to the claim appears on the face of the 
 bill, by demurrer (d) : when it does not appear on the bill, by 
 plea (e) ; or the defendant may pray in his answer to have 
 
 (a) Hovenden v. Lord Annesley, 
 2 Sch. & Lef. 640. 
 
 (J) Blair v. Bromley, 2 Phil. 
 354 ; Cotterell v. Purchase, Cas. t. 
 Talbot, 63, per Lord Talbot ; Med- 
 licotty. O'Donel, 1 B. & B. 166, ^er 
 Lord Manners ; Arran v. Tyrawly, 
 cited lb. 170 ; Alden v. Gregory, 
 2 Ed. 280; Morne v. Royal, 12 Ves. 
 374, per Lord Erskine ; Bitknell v. 
 Gough, 3 Atk. 558 ; South Sea 
 Company t. Wymondsell, 3 P. W. 
 143 ; Booth v. Warrington, 4 B. P. 
 C, 163 ; Pickering v. Zord Stam- 
 ford, 2 Ves. jun. 280, per Lord 
 Alvanley; Hovenden v. Lord An- 
 nesley, 2 Sob. & Lef. 634 ; Boche v. 
 O'Brien, 1 B. & B. 330 ; Blenner- 
 hassett y. Day, 2 B. & B. 118, per 
 Lord Manners ; Whatton v. Toone, 
 5 Mad. 64 ; and see Whalley v. 
 Whalley, 1 Mer. 436; Western v. 
 Cartwright, Sel. Cas. Ch. 34, But 
 Sir A. Hart thought time would run 
 against fraud from the date of it, 
 though undiscovered, provided the 
 person entitled had knowledge of 
 the fraud a reasonable time before 
 the expiration of the period, Byrne 
 V, Frere, 2 Moll, 137. 
 
 (c) Hovenden v. Lord Annesley, 
 2 Sch, & Lef. 634, per Lord Eedes- 
 dale ; Western v. Cartwright, Sel. 
 Ch. Ca. 34; and see Mulcahy v. 
 Kennedy, 1 Ridg. 337. 
 
 (d) Foster v. Hodgson, 19 Ves. 
 180; Hoare v. Pech, 6 Sim. 51; 
 Beckford v. Close, cited lb. 184; 
 Ferguson v. Livingston, 9 Ir. Eq. 
 B.ep. 202 ; Hardy v. Reeves, 4 Ves, 
 479, per Lord Alvanley; Hodle v. 
 Healey, IV. & B. 539 ; Hovenden 
 V. Lord Annesley, 2 Seh. & Lef. 637, 
 638 ; Fyson v. Pole, 3 Y. & C. 266 ; 
 Jenner v. Tracey, cited Cook v. 
 Arnham, 3 P. W. 287, note (B) ; 
 Pearson v. Pulley, 1 Ch. Ca. 102 ; 
 Frazer v. Moor, Bunb. 54. But 
 Deloraine v. Browne, 3 B. C. C, 
 633, and Lord Hardwicke in Aggas 
 V. Pickerell, 3 Atk. 225, contra; 
 and see CKelly v. Glenny, 9 Ir. 
 Eq. Rep. 25. 
 
 (e) Aggas v. Pickerell, 3 Atk. 
 225, and the cases their cited; 
 Wych V, F. I. Company, 3 P. W. 
 309 ; Lacon v. Lacon, 2 Atk. 395 ; 
 Welford v. Liddel, 2 Ves. 400; 
 Blewitt V. Thomas, 2 Ves. jun, 669 ; 
 
CH. XXVI. S. 1.] BAR FROM PRESUMPTION. 785 
 
 the same benefit at the hearing as if he had pleaded the 
 statute (ft) ; but, if he neither demur, nor plead, nor pray to have 
 the same benefit as if he had pleaded, he cannot shelter him- 
 self under the statute at the time of the hearing (b) ; though it 
 seems the Court itself may still, in its own discretion, refuse to 
 grant relief after the limited period (c). 
 
 Even when the bill charges fraud, the defendant may In cases of fraud. 
 demur (d), or plead (e), according to the circumstances of the 
 case. If the plaintiff allege that he only discovered the fraud 
 within the period limited by the statute, the defendant must 
 by plea either deny the fraud, or prove that the plaintiff had 
 knowledge of it (/). 
 
 2. The Court, after great length of time, will presume Bar from pre- 
 some act to have been done, which, if done, is a bar to the ^ "^ "'°' 
 demand (g). 
 
 The period at which the Court raises the presumption Atwliattime 
 depends upon the circumstances of the case. As a general raised?^*'™ '^ 
 rule, the Court presumes, after a lapse of twenty years (1), 
 but where there is a statutable bar at law, and of a different 
 period, the Court will not entertain a presumption within a 
 less time than the period fixed by the statute. Thus, in a 
 case at law, where an action was brought for the recovery of a 
 quit-rent, no demand of payment having been made for the 
 preceding thirty-seven years, Baron Eyre was of opinion, that 
 
 {a) Barber v. Barber, 18 Ves. ley, 2 Sch. & Lef. 637, disapproving 
 
 286 ; &c. Lord Deloraine v. Browne, 3 B. C. 
 
 (5) Earl of Pomfret v. Lord C. 633 ; Hoare v. Fech, 6 Sim. 51. 
 2 Ves. 483, per Lord (e) South Sea Company v. Wy- 
 
 Hardwioke ; Harrison v. Sorwell, mondsell, 3 P. W. 143. 
 
 10 Sim. 382; Prince v. Seylin, (/) See Mitford on Pleading, 269, 
 
 1 Atk. 494, per eundem ; and see 4th Ed". 
 
 Attorney- General v. Christ's Sos- {g) Pattison v. Hawkesworth, 
 
 pital, 3 M. & K. 344. 10 Beav. 375 ; and see Attorney- 
 
 (c) Prince v. Seylin, ubi supra. General v. Moor, 20 Beav. 119. 
 
 {d) See Hovenden v. Lord Annes- 
 
 (l) In Harmoody. Oglander, 6 Ves. 199, 8 Ves. 106, the bUl was filed 
 after a lapse of thirty -two years, yet neither Lord Alvanley nor Lord Eld on 
 considered the length of time to bar the plaintift''s demand; but in this 
 case the parties were equitable tenants in common, and as between them the 
 presumption of ouster did not arise, or not in an equal degree. 
 
736 BAR rSOM PRESUMPTION. [CH. XXVI. S. 1. 
 
 although the claim was not barred hy the statute, yet after 
 non-payment and acquiescence of that length of time a release 
 might be presumed, and directed the jury to find the quit-rent 
 extinguished. A new trial was. granted, and Lord Mansfield 
 said, " There was no instance of setting up any length of time 
 short of the period fixed by the statute as a bar to the demand, 
 and in cases of quit-rents like the present the reason of carry- 
 ing back the limitation to the period fixed by the statute, 
 viz. fifty years, was the stronger, because the consideration 
 was so trifling, though, if a real ground for supposing a re- 
 lease or extinguishment appeared, the smallness of the claim 
 would have no weight ; but in this case there was mere length 
 of time, which, barely as such, ought not to be received as a 
 bar " (a). 
 Grotmd of the Presumptions are made, not necessarily because the Court 
 
 preaiuaption. 
 
 really believes what is presumed, but, in the absence of 
 evidence, for the purpose and from a principle of quieting the 
 possession (6). Lord Erskine observed, " It is said you cannot 
 presume unless you believe. It is because there are no means of 
 creating belief or disbelief, that such general presumptions are 
 raised : upon the weakness and iufirmity of aU human tribunals 
 in judging of matters of antiquity, instead of belief, which must 
 be the foundation of this judgment upon a recent transaction, 
 where the circumstances are incapable of forming anything like 
 belief, the legal presumption holds the place of particular and 
 individual belief " (c). Where positive evidence can be presented 
 to the Court, the fact may be presumed after a period much 
 shorter than the usual one. And, on the other hand, though 
 the distance of time may be far greater than the ordinary limit 
 for presumption, yet if there appear any positive evidence to 
 negative the fact, the legal inference cannot be sustained, for 
 the rule is stabit prcesumptio donee probetur in contrarium. But 
 the Court has judged it better for the ends of justice, that pre- 
 sumptions should he favoured in law, and should not be re- 
 butted by very slight evidence in contradiction (d). 
 
 (a) Eldridge v. Knott, Cowp. 214. (c) Hillary v. Waller, 12 Ves. 
 
 (5) Eldridge v. Knott, Cowp. 215, 266. 
 
 per Lord Mansfield ; and see Greti- {d) Jones v. Turberville, 2 Ves. 
 
 fell V. Girdlestone, 2 Y. & C. 682. jun. 13, per Lord Commissioner 
 
CH. XXVI. S. 1.] BAE FROM PRESUMPTION. 737 
 
 Under the head of presumption, we may notice the subject of Waiver. 
 waiver. " As to waiver," said Sir W. Grant, " it is difficult to 
 say precisely what is meant by that term. With reference to the 
 legal effect, a waiver is nothing, unless it amount to a release. 
 It is by a release, or something equivalent only, that an equi- 
 table demand can be given away. A mere waiver signifies 
 nothing more than an expression of intention not to insist 
 upon the right, which in equity wiU not without consideration 
 bar the right any more than at law an accord without satisfac- 
 tion would be a plea. If there be a consideration however 
 slight, I do not know that the Court would not consider it a 
 sufficient foundation for a release, or what is equivalent to a 
 release " (a). And Lord Cottenham appears to have enter- 
 tained similar views (6). 
 
 Waiver must not be confounded with acquiescence. Acqui- Acquieacenoe. 
 escence, properly so called, is of two kinds : — First, direct, 
 where the act complained of was done with a full knowledge 
 and express approbation of another, in which case a Court of 
 equity will not allow that other to seek relief against the very 
 transaction to which he was himself a party (c). Secondly, 
 indirect, where a person having a right to set aside a trans- 
 action, stands by and sees another dealing with property in a 
 manner inconsistent with that right, and makes no objection; 
 in this case, also, a Court of equity will not relieve {d). 
 
 The Court cannot presume a person to have abandoned his 
 right so long as he remains in ignorance of it, or labours under Ignorance, mis- 
 a mistake (e) ; and the distress of a person, so far as it accounts tress. 
 for his laches, will pro tanto weaken the foundation of the pre- 
 
 Eyre; and see Grenfell v. Girdle- {d) Duke of Leeds v. Amherst, 
 
 stone, 2 T. & C. 662. 2 Phill. 123 ; Phillipson v. Qatty, 
 
 (o) Staekhouse v. Sarnston, 10 7 Hare, 523. 
 Ves. 466. (e) See Marquis of Cholmondeley 
 
 (6) Duke of Leeds Y. Earl of Am- v. Lord Clinton, 2 Mer. 362 ; Man- 
 
 herst, 2 Phill. p. 123 ; but see Ho- dall v. JErrington, 10 Ves. 427 ; 
 
 berts v. Tunstall, 4 Hare, 266, per Roche v. O'Brien, 1 B & B. 330, 
 
 Vioe-ChanceUor Wigram. see 342 ; Pickering v. Stamford, 
 
 (c) See Kent v. Jackson, 14 Beav. 2 Ves. jun. 280, and following 
 
 384 ; Styles v. Ouy, 1 Mac. & Gor. pages ; S. C. ib. 585 ; Chalmer v. 
 
 427 ; -Ec parte Morgan, 1 Hall & Bradley, 1 J. & W. 65, and follow- 
 
 TwelhjSW; Graham V.Birkenhead, ing pages; Bennett y. Colley, 2 M. 
 
 &o., Railway Company, 2 Mao. & & K. 232 ; Stone v. Godfrey, 5 
 
 Gor. 146. De Gex Mao. & Gord. 76. 
 
 3b 
 
738 
 
 BAR FEOM PRESUMPTION. [CH. XXVI. S. 1. 
 
 How the de- 
 fendant is to 
 avail himself of 
 
 Deloraine 11, 
 Browne. 
 
 A class of per- sumption (a). So a release of riglit cannot with the same force 
 ^™^' be presumed against a class of persons, as against an indi- 
 
 vidual ; for it is not likely that a person having only an aliquot 
 share in the property, should pursue his remedy with the same 
 spirit, as if he were the exclusive proprietor (&). 
 
 A bar by analogy to a statute may, as we have seen, be taken 
 advantage of by demurrer, or plea, or answer ; but a presump- 
 the presumption, tion, being the inference of a fact, cannot be made available as 
 a defence by demurrer. 
 
 Thus, in Deloraine v. Browne (c), the defendant put in for 
 general demurrer, that it appeared by the bill the last trans- 
 action sought to be impeached thereby happened twenty-eight 
 years before the filing of the bill, and the plaintiff had shown 
 no cause why he had not sooner instituted the suit. " The 
 argument," said Lord Thurlow, " must be, not that a positive 
 limitation of time has barred the suit, for that would be a pure 
 question of law, but that from long acquiescence (^) it should be 
 presumed that the frauds charged did not exist, or that it 
 should be intended that the plaintiff had confirmed the trans- 
 action, or had released, or submitted upon such consideration 
 as to bar himself from the general equity stated in the bill. 
 This must be an inference of fact, and not an inference of law; 
 and the demurrer must be overruled, because the defendant 
 has no right to avail himself by demurrer of an inference of 
 fact upon matter on which a jury in a court of law would col- 
 lect matter of fact to decide their verdict if submitted to them, 
 or a Court would proceed in the same manner in equity. 
 What limitation of time will bar a suit where there is no posi* 
 tive limitation, or under what circumstances the lapse of time 
 ought to have that effect, must depend on the facts of the par- 
 ticular case, and the conclusion must be an inference of fact, 
 
 (o) See Boche v. O'Brien, 1 B. & 
 B. 342 ; Hillary v. Waller, 12 Ves. 
 266 ; Qowland v. De Faria, 17 Ves. 
 25 ; Byrne v. Frere, 2 Moll. 171, 178. 
 
 (6) See Whichcote v. Lawrence, 
 3 Ves. 752 ; Anon, case, cited Lister 
 V. Lister, 6 Ves. 632; Kidney v. 
 Coussmaker, 12 Ves. 158 ; Hard- 
 wick V. Mynd, 1 Anst. 109 ; Attor- 
 
 ney- General v. Lord Dudley, Coop. 
 146; but see Elliot y. Merriman, 2 
 Atk. 42 ; Hercy, v. Diniooody, 2 
 Ves. jvm. 87. 
 
 (c) 3 B. C. C. 633. 
 
 {d) Lord Thurlow evidentlymeans 
 here by this word mei% abstinence 
 from suing, as to which see infra, p. 
 741. 
 
CH. XXVI. S. l.J BAE TO RELIEF FROM TIME. ?39 
 
 and not an inference of law, and therefore cannot be made 
 on demurrer " (a) (1). 
 
 3. Though the plaintiff's demand cannot be met by an abso- Bar from pubUc 
 lute bar, and no release of right can be presumed ; yet, thirdly, venience. 
 relief will not be granted where, if administered, it tcould lead 
 to great public or private inconvenience (b). 
 
 Thus in a biU for an account against an executor or admi- 
 nistrator, who is in equity a trustee, and not reached by any 
 statute of limitation, though the presumption of a final settle- 
 ment may be rebutted by positive evidence, the Court will not 
 open the account at any distance of time, when it is probable 
 most of the parties are dead and the vouchers and receipts 
 are lost (c). 
 
 Where a suit was prosecuted after a delay of threescore and 
 two years, Lord Keeper Wright said, that " the cause being 
 now within one year of the grand climacteric^ it was fit it 
 should be at rest "(d). But bills have been dismissed at the 
 end of twenty-seven years (e), and a much shorter period would 
 be a sufficient bar, should the Court see a difficulty in granting 
 the relief: every case must be determined with reference to its 
 own particular circumstances (/). 
 
 In Pickering v. Lord Stamford (g) a testator gave the residue Pickering v. 
 of his personal estate to a charity, and thirty-five years after 
 his decease, the next of kin filed their bill for an account, 
 
 (rt) See the argument stated in {d) St. John v. Turner, 2 Vern. 
 
 Mitford on Pleading, 212, 4tli edit. 418. 
 
 (i) See Attorney - General v. (e) Camphell v. Graham, 1 R. 
 
 Mayor of Exeter, 3 a.0. 'i'ii. & M. 453. 
 
 (c) Sunton v. Davies, 2 Ch. Ke. (/) See Hercy v. Dinwoody, 2 
 
 44 ; Huet v. Fletcher, 1 Atk. 467 ; Ves. jun. 93 ; Earl of Pomfret v. 
 
 Pearson v. Belchier, 4 Ves. 627 ; Lord Windsor, 2 Ves. 483. 
 
 Hercy t. Dinwoody, 2 Ves. jun. 87. [g) 2 Ves. jun. 272. 
 
 (1) Lord Tlmrlow considered the demurrer in this case to turn on pre- 
 sumption, and, on that supposition, it was rightly over-ruled; hut Lord 
 Redesdale, whose profound knowledge of equity pleading cannot be dis- 
 puted, afterwards declared his opinion that the defendant's demurrer was 
 good, as stating Cot matter of fact, but what is matter of law, viz. the bar 
 to the plaintiff's demand by analogy, or in obedience to the Statute of 
 Limitations. Hovenden v. Lord Annesley, 2 Sob. & Lef. 637 ; and see 
 0' Kelly v. Glenny, 9 Ir, Eq. Rep. 25. 
 
 8 B 2 
 
740 BAE TO RELIEF EBOM LENGTH [CH. XXVI. S. 1. 
 
 and prayed that such part as consisted of money upon mort- 
 gage or other real securities, might be declared a void bequest, 
 and distributable, subject to debts, &c., among the testator's 
 next of kin. Lord Alvanley said : " I should be happy to dis- 
 miss the bill, if I were authorised by law to say this Court 
 would not entertain one after twenty years, every disability to 
 sue being removed. I heartily wish it was so, and see no 
 reason why it should not. It is a grievous thing that the 
 defendants should be disturbed after so long a lapse. At the 
 same time, I know no rule that has established that mere length 
 of time will bar. Therefore, that being the case, I am to say 
 whether, under the circumstances, a bar can be presumed " (a). 
 And for facilitating the question of presumption, his Lordship 
 directed certain previous inquiries by the Master ; and it 
 appearing from the report, that no release or assignment of 
 their interest by the next of kin for the purposes of the charity 
 could, under the circumstances, be presumed, his Lordship 
 then had recourse to the ground of inconvenience. " It does 
 not follow," he said, " that the bill may not be dismissed, 
 though it cannot be pleaded to. The question in all these 
 cases is, whether there are motives of public policy or private 
 inconvenience, to induce the Court to say, under all the circum- 
 stances, the suit ought not to be entertained; and if great 
 public inconvenience would arise, and the stale demand would 
 involve the parties in endless difficulties in clearing the 
 accounts — difficulties arising from the negligence of the other 
 parties in lying by, I very much concur with the principle 
 Lord Cowper lays down in Pooley v. Ray (6), that a person, 
 who willingly stands by while the executor pays away money, 
 shall not oblige him to refund, for this would be drawing the 
 executor into a snare. If from the plaintiff's lying by it is 
 impossible for the defendants to render the accounts he calls 
 for, or it will subject them to great inconvenience, he must 
 suffer; or the Court will oppose, what I think the best ground, 
 public convenience. It might have happened, that the trustees, 
 taking possession of the personal estate and not aware of the 
 law, might in the course of so many years have conducted 
 
 (a) 2 Ves. jun. 283. (6) 1 P. "W. 355. 
 
CH. XXVI. S. 1.] OF TIME LACHES. 741 
 
 themselves so as not to be able to prove of what the personal 
 estate consisted at the death of the testator. They might have 
 kept such accounts that it would have been impossible to 
 determine whether the plaintiffs could have made any specific 
 demand upon any part of the personal estate. If so, I should 
 have dismissed the bill. If the executors had lost the accounts, 
 I should not have punished them ; for executors are not bound 
 to keep accounts for thirty years. The plaintiffs are so con- 
 scious of this, that they do not call on the trustees to account 
 for what has been disbursed before any demand made; and 
 therefore it is insisted no such inconvenience will arise, as they 
 only desire such an account as can be given, and are willing 
 to take that part of the personal estate that appears to have 
 consisted of real securities, and demand no account of interest 
 farther than from the time of filing the biU. It appears that 
 the trustees, who by their conduct have done themselves great 
 credit, have kept such accounts that there is no difficulty in 
 finding the personal estate at the death of the testator. Then, 
 the only inconvenience will be, that the charity will now cease 
 .to have so much. That is certainly to be lamented, but it will 
 not involve any person in difficulties to be attributed to the 
 neglect of the plaintiffs. Therefore, desiring to be understood 
 by no means to give any countenance to these stale demands, 
 but upon the circumstances that there is nothing inducing 
 great public or private inconvenience, that the accounts are 
 found, and that the trustees are not called on to account for 
 what has been disbursed, I am bound to decide in favour of 
 the plaintiffs " (a). 
 
 The doctrine laid down by Lord Alvanley in the case refer- Bar from length 
 red to, that mere length of time will not bar, requires some quali- ° ™^' 
 cation. Lapse of time or delay in suing, unaccounted for by 
 disability or other circumstances, constitutes in the eye of a 
 Court of equity, laches disentitling the plaintiff, in certain 
 classes of cases at least, to rehef from the Court. Thus where 
 a plaintiff cestui que trust seeks to impeach a purchase by a 
 trustee, a delay of less than twenty years will bar his title to 
 relief (6). So where a plaintiff seeks to set aside a purchase 
 
 (a) 2 Ves. jun. 582, and following (6) See the oases collected, pp. 470, 
 
 pages. 471, supra. 
 
742 LAPSE OF TIME LACHES. [CH. XXVI. S. 1. 
 
 from him of a reversionary interest (a), or to fix a defendant 
 with a constructive trust (&), or comes to a Court of equity- 
 alleging a case of fraud as a ground for avoiding the 
 operation of the Statute of Limitations (c) . So where an 
 account is sought by a surviving partner against the estate of 
 a deceased partner, the Court, even assuming such case to 
 fall within the exception as to merchants' accounts in the 
 Statute of Limitations, will not assist after a delay of thirteen 
 years {d). And where the assistance of the Court is sought in 
 a suit for specific performance (e), or in one partaking of that 
 character (/), the rule is extremely strict. It is difficult to 
 refer the refusal of relief by the Court in the instances men- 
 tioned, to any one general principle. In the cases of pur- 
 chases by trustees, or of claims founded upon constructive 
 trust, the probability of alteration of circumstances in regard 
 to the property, and the unfairness of the plaintiff lying by, 
 have weighed with the Court. Perhaps, the nearest approach 
 to general principle will be found under the head of " Public 
 Convenience; " " Expe'dit Repullicce ut sit finis litium." 
 Bar from laches, It has been pointed out that in certain cases a delay of 
 statute ofUmita- l^ss than twenty years operates as a bar ; and the Court in 
 '""'^' these instances departs still further from the analogy offered by 
 
 the Statute of Limitations, by taking into account partly time 
 which may have elapsed while the plaintiff's interest was rever- 
 sionary!^). The question remains, whether laches can in 
 general be relied upon as a bar to a mere dry equitable de- 
 mand falling within the purview of some or one of the Statutes 
 of Limitations ; and if, as suggested, public convenience be 
 the true ground for holding laches to be a bar, then it would 
 seem that the legislature itself having prescribed a term of 
 limitation which it deems sufficiently short, the Court ought 
 not further to abridge that term. Accordingly, we find the 
 
 (o) Roberts v. Tunstall, 4 Hare, (e) Southcomhy. Bishop of Exeter, 
 
 257. 6 Hare, 213. 
 
 (6) Clegg v. Edmondson, 3 Jur. (/) Hope v. Corporation of Olou- 
 
 N. S. 299; and seePennellY. Home, cester, 1 Jur. N. S. 320. 
 3 Drewry, 337. [g) Moherts v. Tunstall, 4 Hare, 
 
 (c) Blair v. Ormond, 1 De Gex & 266 ; and see Browne t. Cross, 14 
 
 Sm. 428. Beav. 105. 
 
 {d) Tatamy. Williams, 3Hare,347. 
 
CH. XXVI. S. 1.] STATUTE OF LIMITATIONS. 743 
 
 present Lord Chancellor expressing himself to the effect, " that 
 the simple abstaining from legal proceeding is unimportant, 
 unless the party aggrieved continues inactive so long as to bring 
 the case within the purview of the Statute of Limitations" (a) ; 
 and Lord Langdale (6), and Lord Cottenham (c), appear to have 
 entertained the same views. 
 
 We may now introduce the late Act for the limitation of Late Limitation 
 actions and suits (d). ■*-°'' 
 
 By the 34th section it is declared, that " no person claiming ^^nds and rents. 
 any land or rent in equity shall bring any suit to recover 
 the same, but within the period during which by virtue of 
 the provisions therein-before contained he might have made 
 an entry or distress, or brought an action to recover the 
 same respectively, if he had been entitled at law to such estate, 
 interest, or right in or to the same as he shall claim therein 
 in equity." 
 
 The 25th section declares, that, "when any land or rent Express trusts 
 shall be vested in a trustee upon any express trust, the right 
 of the cestui que trust, or any person claiming through him, to 
 bring a suit against the trustee, or any person claiming through 
 him, to recover such land or rent, shall be deemed to have first 
 accrued, according to the meaning of the Act, at, and not before, 
 the time at which such land or rent shall have been conveyed to 
 a purchaser for valuable consideration, and shall then be 
 deemed to have accrued only as against such purchaser, and 
 any person claiming through him." 
 
 The 36th section declares, that " in every case of a concealed p^.^^^ 
 fraud the right of any person to bring a suit in equity for the 
 recovery of any land or rent of which he, or any person 
 through whom he claims, may have been deprived by such 
 fraud, shall be deemed to have first accrued at, and not before, 
 the time at which such fraud shaU, or with reasonable diligence 
 might, have been first known or discovered." 
 
 By the 27th section it is provided, that "nothing in the Act Acquiescence. 
 contained shall be deemed to interfere with any rule or juris- 
 
 (o) Rochdale Canal Company v. (c) Buhe of Leeds-7. Earlof Am- 
 
 Kirtg, 2 Sim. N. S. 89. herst, 2 Phil. 126. 
 
 (J) Mehrtens v. Andrews, 3 Beav. (<Z) 3 & 4 W. 4. c 27. 
 76. 
 
744 
 
 STATUTE OF LIMITATIONS. [CH. XXVI. S. I. 
 
 Charges. 
 
 Arrears of rent 
 on interest. 
 
 diction of Courts of equity in refusing relief, on the ground of 
 acquiescence or otherwise, to any person whose right to bring 
 a suit might not be barred by virtue of that Act." 
 
 The 40th section declares that no action or suit or other 
 proceeding shall be brought to recover any swm of money 
 charged upon land at law or in equity or any legacy (a), but within 
 twenty years from the accruer of the right, unless there has 
 been part-payment of principal or interest, or some acknow- 
 ledgment. 
 
 And the 42nd section enacts, that no arrears of rent or of 
 interest in respect of any sum of money charged upon, or pay- 
 able out of, any land or rent, shall be recovered by any action 
 or suit, but within six years next after the same shall have 
 become due, or after an acknowledgment of the same in 
 writing shall have been given to the person entitled thereto 
 or his agent, signed by the person by whom the same is pay- 
 able or his agent. 
 Result of the Act. Thus twenty years' possession is now a statutory bar to suits 
 in equity in respect of equitable interest, as well as to actions 
 at law upon legal rights ; but in ease of disability a term of ten 
 years is allowed by the 16th section next after the cesser of 
 the disability, but by the 17th section no suit can be brought 
 after the lapse of forty years from the accruer of the right to 
 ' sue, whatever disabilities may have existed. 
 
 As it is the natur-e of a trust that the legal estate should be 
 in one person and the equitable interest (which may or may 
 not carry the right of possession) in another, it is obvious that 
 mere possession would not be a fair criterion by which to 
 regulate the equitable estate. On the one hand, the possession 
 of the trustee may be according to the title and should not 
 prejudice the cestui que trust; and on the other hand, the cestui 
 que trust, when let into possession, is tenant at wiU to the 
 trustee, who ought not, therefore, to be ousted by an act in 
 the due execution of the trust. The statute, therefore, has 
 declared by the 25th section that, as between the trustee and 
 any person claiming through him, and the cestui que trust 
 
 Mere possession 
 not a fair crite. 
 rion in the case 
 of trust estates. 
 
 (fl) The word legacy inoludes a 
 residue or share of residue ; Prior v. 
 
 Hornihlow, 2 Y. & G. 201 ; Christian 
 V. Devereux, 12 Sim, 264. 
 
CH. XXVI. S. 1.] STATUTE OF LIMITATIONS. 745 
 
 and any person claiming through him, time shall not run until 
 there has been a conveyance to a purchaser for valuable con- 
 sideration. The trust estate may, therefore, be followed by 
 the cestm que trust, not only as against the trustee, but as 
 against all volunteers claiming under him (a); but so soon 
 as the estate is conveyed to a purchaser for valuable consider- 
 ation, as if it be made the subject of a marriage settlement, 
 the time begins to run (-6). No possession by a purchaser 
 for valuable consideration, shoW; of twenty years, will be 
 a bar(c). And if the cestui que trust be a remainder-man, 
 the time it seems will not run until the remainder falls into 
 possession {d). 
 
 The 35th section applies only to express trusts ; it is, there- Express trusts. 
 fore, necessary to ascertain with precision what is meant by the 
 phrase. Trusts, as regards the provisions of the statute, may 
 be considered as divided into express trusts and constructive 
 trusts ; the former arising upon the language of some written 
 instrument, and the latter such as are elicited by the principles 
 of a Court of equity from the acts of parties. 
 
 It is not necessary to use the word trust in order to create Word "trust" 
 an express trust (e), but any language that would in equity "onStT^*" 
 raise or imply a trust will he deemed an express trust. If, express trust. 
 therefore, land be devised to a person upon trust to receive 
 the rents and thereout to pay certain arrears, the surplus rents 
 result to the heir-at-law upon the face of the instrument, and 
 this being an express trust, the heir-at-law is not barred by 
 twenty years' possession by the trustee (/). 
 
 {a) Heenany.Berry,23ov.,&ha.%. (e) Charitable Donations \. Wy- 
 
 303 ; Salter v. Cavanagh, 1 Dru. & brants, 2 Jon. & Lat. 197. 
 
 Walsh, 668 ; Blair v. Nugent, 3 Jon. (/) Salter v. Cavanagh, 1 Dru, & 
 
 & Lat. 658, 9 Ir. Eq. Rep. 400; Walsh, 668; ani see Charitable Do- 
 
 Savenscroft v. Frisby, 2 Coll. 16 ; nations v. Wybrants, 2 Jon. & Lat. 
 
 and see Dixon v. Gay fere, 17 Beav. 196, 7 Ir. Eq. Kep. 580. In Lord St. 
 
 421. Johny. Boughton, 9 Sim. 223, where 
 
 (J) PetreY.Petre, 1 Drewry, 371. was an express trust to sell and pay 
 
 (e) Attorney- General v. Flint, 4 debts, the V. C. of England held 
 
 Hare, 147. that as no part of the produce of the 
 
 {d) Thpnvpson v. Simpson, 1 Dru. sale had been set apart for debts, 
 
 & War. 489; Attorney -General v. the case was not within the excep- 
 
 Magdalen College,. 18 Beav. pp. 239, tion of the 25th sect., but fell under 
 
 . 250. the 40th sect. This, it is conceived, 
 
 cannot be maintained. 
 
746 STATUTE OF LIMITATIONS. [CH. XXVI. S. 1. 
 
 Constructiye But trusts arising by the construction of a Court of equity 
 
 trusts not saved. p.-iii ■,■,-, i. 
 
 from the act of parties, will not be saved by the clause relating 
 to express trusts, as if the devisee for life of a leasehold estate 
 renew in his own name, the statute will begin to run from the 
 time of the renewal (a). 
 Mere charges. Mere charges- might have been held to fall under the de- 
 
 scription of express trusts, but that they are dealt with by the 
 statute under a separate section, viz., the 40th ; a circumstance 
 which shows that they were meant to be distinguished from 
 express trusts. If, therefore, an estate be devised to A., 
 charged with lOOOZ. in favour of B., or "A. paying lOOOZ. to 
 B.," although a bill will lie in equity to have the sum raised 
 on the footing of a trust, yet it is not an express trust within 
 the meaning of the statute, and would, therefore, be barred 
 at the end of twenty years (6). 
 
 Charge coupled But a charge in form may be an express trust in fact, if the 
 with a duty. . . '.,„,. 
 
 grantee or devisee be mvested with any fiduciary character, as 
 
 if an estate in Ireland be devised to A., subject to a rent-charge 
 for the maintenance of a schoolmaster to be appointed ; here no 
 trustee is interposed between the devisee and the intended 
 recipient, and the trust, therefore, fastens itself on the con- 
 science of the devisee (c). So, if an estate be devised to 
 trustees and their heirs, upon trust to convey to J. W. for life 
 charged with annuities to certain corporations for charitable 
 purposes. Here, although the corporations are interposed 
 as trustees ; yet, as the devisees are bound to execute a settle- 
 ment, so as to secure the annuities and retain the legal estate 
 in the mean time, they are, until the settlement has been 
 executed, trustees for the Charity (<Z). So, though a simple 
 charge of the testator's debts falls within the 40th section, 
 and the creditor is barred after twenty years (e), yet, if the 
 will be so worded as to impose on the devisees subject to 
 
 (a) Petre-v.Petre,lDtewTy,31l. (c) Attorney -General v. Persse, 
 
 lb) Knox V. Kelly, 6 Ir. Eq. 2 Dru. & War. 67. 
 
 Eep. 279 ; Toft v. Stephenson, 7 (d) Charitahle Donations v. Wy- 
 
 Hare, 1 ; Hodge v. Churchward, brants, 2 Jon. & Lat. 182, 7 Ir. Eq. 
 
 16 Sim. 71 ; Francis r. Grover, 5 Eep. 580. 
 
 Hare, 39; Hughes y. Kelly, 3 Dm. (e) Bundas v. Blake, 11 Ir. Eq, 
 
 & War. 482 ; and see Harrison v. Rep. 138, and cases there cited, 
 Duignan, 2 Drur. & War. 295, 
 
CH. XXVI. S. 1.] STATUTE OF LIMITATIONS. 747 
 
 the charge the personal obligation of exerting themselves 
 actively in paying the debts, it becomes an express trust and 
 falls within the exception of the 25th section (a). 
 
 A charge upon an estate may at the same time be a mere Charge and 
 charge within the 40th section, as between some parties, while insrmemruer. 
 it is an express trust within the 25th sectioii, as between other 
 parties. If, for instance, an estate be devised to A. and his 
 heirs, subject to a charge of 5001. to B. and C. upon certain 
 trusts, here, as between A. and the two trustees, it is a mere 
 charge and will be barred in twenty years, but, as between 
 the two trustees and their cestuis que trust, it is an express 
 trust and the time of the bar as to them will be' extended 
 accordingly. And if a term be limited to trustees for the 
 purpose of securing the charge, the rights of the cestuis que 
 trust wUl not be barred so long as the term vested in their 
 trustees remains unbarred (6). 
 
 To make the 40th section operate as a bar there must be a 40th section. 
 hand to receive, and capable of signing a receipt, as if 4=001. 
 be charged on an estate, and by the same deed it is assigned 
 to trustees upon trust for A. and B. for their lives, and after 
 the death of the survivor for their children, but no power of 
 signing receipts is given to the trustees, and, on the contrary, 
 the Court collects the intention that the trustees were not to 
 raise the money till after the death of the surviving tenant for 
 life, the statute will not begin to run until the latter period (c). 
 
 It will be observed that, by the 25th section the cestui que Persons claim- 
 trust and any person claiming through him may enforce the trust trus^""^''*''^ 
 against the trustee and any person claiming through him, but 
 both trustee and cestui que trust may be ousted by the intrusion 
 of a third title, and if so, the statute will begin to run from the 
 dispossession of the trustee and cestui que trust. Thus, 
 in 1810, a legal estate was vested in trustees upon trust for 
 five tenants in common, but from that time till the filing of 
 the bill in 1842, four of the tenants in common received the 
 
 (o) Hunt V. Bateman, 10 Ir. Eq. (c) McCarthy y. Daunt, 11 Ir.Eq. 
 
 Rep. 360, and cases there cited. Rep. 29. Assuming that the trustees 
 
 (6) Young v. Lord Waterparh, could not sign a receipt, the deci- 
 
 13 Sim. 202, on appeal, 15 L. J. sion was right ; hut it was a bold 
 
 N. S. Ch. 63;-and see Ward v. Arch, step to say thatihe trustees had not 
 
 12 Sim. 472. such a power. 
 
748 STATUTE OF LIMITATIONS. [CH. XXVI. S. l. 
 
 rents to thp exclusion of their co-tenant and of the trustees 
 who never executed their duty; and it was held that there 
 had been an ouster of both trustees and cestui que trust, 
 and that the right of such ceslmi que trust was barred by the 
 statute (a). 
 Possession by one But possession by one cestui que trust, where it is according 
 of the cestuis que ^^ ^j^g ^j^jg (even where a trustee might at any time, and in the 
 strict discharge of his duty ought to, have taken possession), will 
 not give a title to the cestui que trust in possession to the ouster 
 of the trustee and the other cestuis que trust who claim under 
 him, otherwise the most mischievous consequences would 
 follow from the statute {b). In these cases the cestui que trust 
 in possession is the tenant at will of the trustees, and until 
 that will is determined, the possession of the cestui que trust is 
 the possession of the trustee (c). But the doctrine that a 
 cestui que trust, who is in possession with the consent or acqui- 
 escence of the trustee, must be regarded as his tenant at will, 
 does not prevent a third party who obtains possession from the 
 cestui, que trust, and holds for twenty years without payment of 
 rent or acknowledgment of title to either cestui que trust or 
 trustee, from setting up the statute as a bar ; or at all events, 
 the third party may plead the statute where the cestui que trust 
 was never in actual occupation (d). 
 42nd section. The 42nd Section of the Act, limiting the recovery of arrears 
 
 of rent or interest to the last six years only, has no application 
 to cases of express trusts within the 25th section, but the cestui 
 que trust may recover from his trustee the whole arrearages from 
 the commencement of the title (e). And under the 42nd sec- 
 tion, as under the 40th, where there is a subsisting term not 
 
 (a) BurroughsY.McCreightjlJon. B. Eep. 231; 13 Jur. 871; and see 
 
 & Lat. 290, 7 Ir. Eq. Rep. 49; Doe v. Phillips, 10 Q,. B. Eep. 
 
 Charitable Donations v. Wyhrants, 130, which is not at variance with 
 
 2 Jon. & Lat. 198 ; 7 Ir. Eq. Rep. Oarrard v. Tuck, as in the former 
 
 580; Law Y. Bagwell, 4 Dru. & case the tenancy at will had not been 
 
 War. 409. determined. 
 
 (J) Young v. Lord Waterpark, 13 (rf) Melling y. Leah, 16 Com. B. 
 
 Sim. 202. On appeal, 15 L. J. N. Rep. 652. 
 
 S. Ch. 63 ; Cox v. Dolman, 2 De G. (e) Playfair v. Cooper, 17 Beav. 
 
 M. & G. 592. 187 ; Gough v. Bult, 16 Sim. 323. 
 
 (c) Oarrard v. luck, 8 Com, 
 
CH. XXVI. S. 1.] STATUTE OP LIMITATIONS. 749 
 
 barred, upon which the trustee may obtain possession, the 
 whole arrearages may be recovered (a). 
 
 Thus, in Cox v. Dolman{h), a testator devised his lands to the Cox v. Dolman, 
 use of trustees for ninety-nine years upon trust to pay certain 
 annuities, and subject thereto to the use of J. Cox for life, with 
 remainder over; and after the death of S. Cox, one of the 
 annuitants filed a bill to have the arrears of the annuity raised 
 out of the estate. The executors of S. Cox pleaded the statute 
 as a bar to more than six years' arrears, but the Court held 
 that it was the case of an express trust, and that the tenant for 
 life had taken possession subject to the trust, and that the 
 term was a subsisting one, upon which the trustees might at 
 any time have recovered, and the plaintiff was declared entitled 
 to the whole arrears, which -were to be paid out of the assets of 
 the tenant for life up to the day of his death, and since his 
 death by the remainder-man. The direct remedy was, no doubt, 
 to have the whole arrears raised by sale or mortgage of the 
 term, but as the remainder-man would be entitled to recover the 
 arrears that accrued in the lifetime of the tenant for life from 
 his estate, the Court, to avoid circuity, decreed payment at once 
 out of the tenant for life's assets. 
 
 The case of charities requires a separate consideration. It Ciliarities. 
 was at first doubted whether they were at all affected by the 
 statute (c) ; but it was afterwards held that they were within the 
 operation of the Act, though they would generally be protected 
 by the 35th section, relating to express trusts (d). If, however, 
 the principles for the first time laid down by the Master of 
 the Eolls in Attorney-General v. Magdalen College (e), be 
 recognised by the other Courts, it wiU be difficult to find 
 a case in which the rights of the Charity can be barred. 
 
 The rents of certain premises in Southwark had been applied Attomey-Qene- 
 for more than a year by the rector and churchwardens of St. College. 
 Olave for the benefit of the poor of that parish. In 1790 the 
 
 (o) Cox V. Dolman, 2 De Gex, (c) Incorporated Society v. Bich- 
 
 Mac. & Gord. 592 ; Snow v. Booth, ards, 1 Dru. & War. 287, 288. 
 2 K. & J. 132 ; Earl of Mansfield (d) Charitable Donations r. Wy- 
 
 V. Ogle, 1 Jur. N. S. 414. hrants, 2 Jones and Lat. 182, 7 Ir. 
 
 (i) 2 De G. M. & G. 692. Eq. Rep. 580. 
 
 (e) 18 Beav. 223. 
 
750 MESNE RENTS AND PROFITS. [CH. XXVI. S. 1. 
 
 rector and churchwardens, and two inhabitants, by a feoffment 
 with livery of seisin and a fine, conveyed the premises to 
 Morden College, in consideration of a rent-charge reserved. 
 In 1852 an information was filed by the Attorney- General to 
 set aside the conveyance, and the questions eventually resolved 
 themselves into the effect of the Statute of Limitations. Under 
 these circumstances it was ruled by the Master of the Eolls : 
 1st, that as no legal estate appeared to have been vested in the 
 rector and churchwardens and two inhabitants, the conveyance 
 of 1790 was a disseisia, and not a conveyance by the trustees 
 within the 35th section ; 2nd, that trustees of a Charity who 
 make a conveyance are barred after twenty years, but that the 
 cestuis que trust have an independent right to sue, as to which, 
 time does not begin to run untU there is some cestui que trust 
 who is capable of suing (a) ; 3rdly, that the Attorney-General, 
 as he had no legal or beneficial interest in the property, was 
 not such a person as could sue, within the meaning of the 
 25th section ; 4thly, that the rector and churchwardens, who 
 in this case had no legal or beneficial interest, were not such 
 persons within the meaning of the Act ; 5thly, that the poor of 
 the parish were not such persons, inasmuch as they could not 
 institute a suit on their own behalf, but an information must 
 be filed ia the name of the Attorney- General ; and, under these 
 circumstances, the Court set aside the conveyance, and directed 
 it to be cancelled. The cestuis que trust of a Charity are, 
 from the nature of the case, not in a position to litigate with 
 their wealthy neighbours, and as an information in the name 
 of the Attorney-General, who alone can sue, must in general 
 be at the relation of other parties, who should be liable for 
 costs, there can be no doubt that charities would greatly 
 suffer if they were bound by the same lapse of time as in the 
 case of private persons. It is not unlikely, therefore, that the 
 doctrines thus broadly laid down by the Master of the Eolls 
 may be followed by other judges. 
 
 Account of mesne III. We shall briefly notice to what extent a court of equity, 
 pro s. upom-ecovery of the estate, will direct an account against the 
 defendant of the mesne rents and profits. 
 
 {a) Attorney- General v. Pearce, 2 Dtu, & 'War. 57. 
 
CH. XXVI. S. 1.] MESNE RENTS AND PROFITS. 751 
 
 The general rule is, that a cestui que trust, by establishing General rule. 
 his claim to the land, has thereby established a right to the 
 mesne rents and profits from the very commencement of his 
 title; for if the corpus of the estate was his, the rents and 
 profits, which ought to follow the corpus, were tortiously inter- 
 cepted by the wrongful possessor (a). 
 
 But to the above rule several exceptions must be made ; Exceptions, 
 for, — 
 
 1. It would seem the cestui que trust cannot enforce an 
 account beyond the period of the preceding six years; pro- 
 vided, at least, the defendant has pleaded the Statute of Limi- 
 tations in bar (&). 
 
 2. If the defendant was a bond fide possessor, that is, if he 
 had no notice of the plaintiff's title expressly given him, and 
 had no deeds or writings in his custody which showed the title 
 of the plaintiff or any stranger, in such case the account of the 
 mesne rents and profits will be restricted to the time of filing 
 the bill (c) ; and no further account will be granted, though the 
 plaintiff was an infant, and the defendant an express trustee, 
 but ignorant of his own true character {d). However, such rents 
 and profits as accrued before the filing of the bill, but never 
 came to the hands of the defendant, as money paid into Court, 
 will follow the right to the land, and be decreed to the 
 plaintiff (e). 
 
 3. If the cestui que trust be guilty of laches, the account will 
 not be carried further back than to the filing of the bill, for it 
 
 (a) Dormer v. Fortescue, Ridg. 750 ; Harmood v. Oglander, 6 Ves, 
 
 Rep. t. Hardwicke, 183; S, C. 3 215; Brummond v. Duke of St. 
 
 Atk. 130, per Lord Hardwicke ; Albans, 5 Ves. 439 ; Jlercy v. Bal- 
 
 Robson V. Trevor, 2 P. W. 191 ; lard, 4 B. C. C. 468 ; Stackhouse 
 
 Coventry v. Hall, 2 Ch. Ca. 134; v. Barnston, 10 Ves. 470; Mony^ 
 
 Attorney'QeneralY. Floyer, 2 Vern. penny v. BristoU), 2 R. & M. 125. 
 
 748 ; Duke of NorfolKs case, 3 Ch. (c) Dormer v. Fortescue, Ridg, 
 
 Ca. 52 ; Stackpole v. Davoren, 1 B. Rep. t. Hardwicke, 183 ; S. C. S 
 
 P. C. 9 ; and see Turner v. Buck, Atk. 134, per Lord Hardwicke ; 
 
 22 Vin. ab. 21. In Thomas v. Tho- Pulteney v. Warren, 6 Ves. 93, ^er 
 
 mas, 2 K. & J. 70, Vice-Chaneellor Lord Bldon ; Edwards v. Morgan, 
 
 Wood appears to have considered M'Clel. 541, see 554, 555; Forder 
 
 the rule to be to give an account v. Wade, 4 B. C. C. 521. 
 
 from the date only of filing the bUl. {d) Brummond v. Duke of St. 
 
 (J) Love V. Fade, Rep. t. Finch, Albans, 5 Ves. 433, see 439. 
 
 269; Eeade v. £ea'de, 5 Ves. 749, (e) S. C. 
 
752 
 
 MESNE EENTS AND PBOFITS. [CH. XXVI. S. 1. 
 
 Bill for relief 
 followed by 
 another bill for 
 an account. 
 
 How the order 
 for an account is 
 worded. 
 
 Who is the per- 
 son to account. 
 
 was the plaintiff's own fault that he did not institute his suit 
 at an earlier period (a) ; and if it be a case of great laches, the 
 Court will show its displeasure by not directing an account 
 beyond the date of the decree (6). 
 
 In an old case, a cestm que trust had filed his bill for an 
 estate upon the ground of an equitable title, and charged the 
 defendant with the receipt of the mesne rents and profits, but 
 prayed only for a conveyance of the lands, omitting to pray 
 specially for any account of the rents. A conveyance was 
 decreed, and no account ordered ; but afterwards the cestm 
 que trust filed a second bill for the exclusive purpose of obtain- 
 ing an account of the mesne rents and profits, and the Court 
 so decreed it (c). 
 
 The order to account for mesne rents and profits will not, 
 except in a case of gross fraud (d), contain the words, " which, 
 without neglect or default, the defendant might have received," 
 and a direction to make all just allowances in taking the 
 account will be inserted (e). 
 
 The assignee who has had the perception of the rents and 
 profits, will, in the first instance, account for them, not, how- 
 ever, with interest (/). But if the assignee be insolvent, the 
 trustee who tortiously assigned will then be answerable for the 
 mesne rents and profits personally (g) (1). 
 
 (a) Dormer v. Fortescue, Eidg. " 
 Eep. t. Hardwioke, 183; S. C. 3 
 Atk. 130, per Lord Hardwioke; 
 Cooh V. Arnham, 2 Eq, Ca. Ab. 
 235 ; Pettiward v. Prescott, 7 Ves. 
 541 ; Bowes v. East London Water- 
 works' Company, 3 Mad. 375 : and 
 see Pickett v. Loggon, 14 Ves. 
 215 ; Kidney v. Coussmaher, 12 Ves. 
 158 ; Schroder v. Schroder, Kay, 
 591. 
 
 (6) Aeherley v. Poe, 5 Ves. 665. 
 
 (c) ffall. V. Coventry, 2 Ch. Ca. 
 134. 
 
 (<^ Stackpole v. Davoren, 1 B. 
 P. C. 9. 
 
 (e) Howell v. Howell, 2 M. & 
 C. 478. 
 
 (/) Macartney v. Blackwood, 
 Ridg. Lapp. & Sch. 602. 
 
 {g) Vandebende v. Levingston, 
 3 Sw. 625. 
 
 Accounting for 
 ■mesne rents and 
 profits. 
 
 Account may be 
 
 (1) As the subject of aeoounting for mesne rents and profits in equity is 
 nowhere to he found in any systematic form, the following remarks may 
 perhaps be found useful. 
 
 An account of rents and profits may be sought, either independently 
 of relief respecting the corpus of the land, or as incident or collateral to it. 
 
 I. Where the account is sought independently of other relief, if it be 
 
 had against an directed against a person who is an express trustee, then, as the statutes 
 
CH. XXVI. S. 2.] CONVEESION OF THE TRUST PEOPEETY. 
 
 753 
 
 SECTION II. 
 
 THE EIGHT or ATTACHING THE PKOPBETT INTO WHICH THE TKITST 
 ESTATE HAS "WTiONGB'TJII.T BEEN CONTEEIED. 
 
 If the trust estate has been tortiously disposed of by the General rule, 
 trustee, the cestui que trust may attach and follow, so long as it 
 can be traced, the property that has been substituted in the 
 place of the trust estate. 
 
 It seems never to have been doubted, that where the 
 
 of limitation do not run between trustee and cestui que trust, an account 
 will be directed from the time the rents were withdrawn. See Attorney- 
 General V. Breioers' Company, 1 Mer. 498 ; Mathew v. Brise, 14 Beav. 
 341. 
 
 If the claim to the rents rest upon a, legal title, the plaintiff has then a 
 legal remedy, and cannot come into a court of equity at all ; Jesus College 
 v. Bhom, 3 Atk. 262 ; and see Dinwiddie v. Bailey, 6 Ves. 136 ; Taylor 
 v. Crompton, Bunb. 95 ; Lansdowne v. Lansdowne, 1 Mad. 137 ; except in 
 cases where, from the complicated nature of the accounts, or other parti- 
 cular circumstances, a court of law would afford very inadequate relief; 
 see O' Conner v. Spaight, 1 Sch. & Lef. 309 ; Corporation of Carlisle v. 
 Wilson, 13 Ves. 276. But an infant may file a biU for an account upon a 
 legal title ; Gardiner v. Fell, 1 J. & "W. 22 ; Jioierdeau v. Bous, 1 Atk. 
 543 ; Tallop v. Solworthy, 1 Eq. Ca. Ab. 7 ; Neiohurgh v. Bicherstaffe, 
 1 Vern. 295; Curtis v. Curtis, 2 B. C. C. 631. per Cur, ; as every person 
 entering upon an infant's lands is regarded in the light of a bailiff or receiver 
 for the infant; Dormer v. Fortescue, 3 Atk. 130, per Lord Hardwicke 
 Pulteney v. Warren, 6 Ves. 89, per Lord Eldon ; Morgan v. Morgan, 
 Atk. 489 ; Lord Falkland v. Bertie, 2 Vern. 342, per Cur. ; Doe v. Keen. 
 7 T. E. 390, per Lord Kenyon ; Sicks v. Sallitt, 3 De G. M. & G. 782 
 And the jurisdiction against a person entering during the infant's minority 
 remains, though the bill be not filed until after the infant attains 21 
 Blomfield v. Fk/re, 8 Beav. 250 ; Hicks v. Sallitt, ubi supra. And gene 
 rally all persons may have an account upon a legal title in respect of mines, 
 which are a species of trade ; Bishop of Winchester v. Knight, 1 P. W. 
 ,406 ; and see Pulteney v. Warren, 6 Ves. 89 ; Lansdowne v. Lansdowne, 1 
 Mad. 116 ; Parrott v. Palmer, 3 M. & K. 632 ; or of tithes, which when 
 .severed are property in trust ; Collins v. Archer, 1 E. & M. 284, &c. ; but 
 not it seems of timber, without praying an injunction, Jesus College v. 
 Bloom, 3 Atk. 262 ; and see Pulteney v. Warren, 6 Ves. 89 ; University 
 of Oxford V. Richardson, lb. 701 ; Grierson v. Eyre, 9 Ves. 346 ; but 
 see Garth v. Cotton, 1 Dick. 211 ; Lee v. Alston, 1 B. C. C. 194. 
 
 Although where a remedy lies at law an account cannot be had in equity 
 against the pernor of the profits himself, yet, perhaps, after his decease, 
 if the action survive at law against the executor, the party entitled to the 
 profits may consider himself a creditor, and file a bill in equity for an 
 account of the assets, Monypenny v. Bristow, 2 E. & M. 117 (but the 
 
 3 Q 
 
 express trustee 
 without reference 
 to the statutes of 
 limitation. 
 
 Account in equity 
 cannot be had in 
 respect of a legal 
 title. 
 
 Except the ac- 
 count be compli- 
 cated, &c. 
 
 Or the plaintiff 
 be an Infant. 
 
 Or in the case of 
 mines. 
 
 Or tithes. 
 Or timber. 
 
 Whether after 
 the death of the 
 pernor an ac- 
 count may be 
 had in equity 
 
754 
 
 CONVEESION OF THE TRUST PEOPEETY. [CH. XXVI. S. 3. 
 
 Tortious conver- conversion was in pursuance of the trust, the newly acquired 
 
 "°°* property would be bound by the original equity (a); but 
 
 in the leading case of Taylor v. PJmmer (6), it was con- 
 
 (a) Burdett v. Willet, 2 Vern. 159; Ex parte Sayers, 5 Ves. 169; 
 
 638 ; JRyall v. Bolle, 1 Atk. 172 ; Anon, case, Bel. Ch. Ca. 57. 
 
 Hx parte Chion, 3 P. W. 187, note (i) 3 Maul. & Sel. 662. 
 (A); Waite y. Whorwood, 2 Atk. 
 
 against the exe- 
 cutor. 
 
 Wliere the ac- 
 count in equity 
 is concurrent 
 ■with that at law, 
 it will he con- 
 fined to the legal 
 limit. 
 
 Where a legal 
 remedy did exist, 
 but has expired, 
 equity mil not 
 assist. 
 
 Unless there be 
 mistake. 
 
 Or fraud. 
 
 bill also prayed delivery of title deeds) ; Gardiner v. Fell, 1 J. & W. 22 
 (but the plaintiff was also an infant). 
 
 Where, as in the preceding cases, a court of equity assumes a concurrent 
 jurisdiction with courts of law, the account will not be extended beyond 
 the legal limit of six years, provided the statute be pleaded, Zockey v. 
 Lockey, Pr. Ch. 518 ; but if the defendant do not avail himself of the statute 
 by demurrer, plea, or answer (see Monypenny v, Bristow, 2 E. & M. 125), 
 or if the plaintiff be an infant who is exempted from the statute of limi- 
 tations, Hicks T. Sallitt, 3 De G. M. & Gr. 782, the account wiU be granted 
 in equity, as at law from the time the title accrued. 
 
 It often happens that a legal remedy did exist, but has since, by the 
 death of a party, or the determinaton of the estate, become extinguished. 
 In such a case, as the right was not, but only is, without a remedy at law, 
 there seems no ground in general for the interference of a court of equity. 
 Barnwall v. Barnwall, 3 Eidg. P. C. 71, per Lord Fitzgibbon ; Sutton v. 
 Simpson, 2 Vern. 722; Norton v. Freeker, 1 Atk. 525, 526, per Lord 
 Hardwicke ; and see Pulteney v. Warren, 6 Ves. 88. 
 
 But if the remedy was lost through mistake, the Court upon that principle 
 will interpose : as where a lease was held for the lives of A. and his two 
 daughters B. and C, and A. afterwards married again, and had another 
 daughter, who was also named B., and the landlord on the expiration of 
 the lease by the death of the real cestui que vie, did not enter, B. the 
 daughter by the second marriage being mistaken for B. the life named in 
 the lease, Lord Macclesfield said, " Where one has title of entry, and 
 neglects to enter or to bring his ejectment, but sleeps upon it for several 
 years, as he has no remedy at law for the mesne profits, so neither has he in 
 equity, for it was his own fault he did not enter, and he shall never come 
 into a court of equity for relief against his own negligence, or to make the 
 tenant in possession who held over his lease to be but his bailiff or steward, 
 whether he wUl or not ; but in the present ease, hy reason of the circum- 
 stance of both daughters heing of the same name, and the mistake consequent 
 thereon, the defendant must account for the mesne profits from the expira- 
 tion of the lease." Buke of Bolton v. Beane, Pr. Ch. 516, (Note, in this 
 case Lord Hardwicke thought a remedy still existed at law, Bormer v. 
 Fortescue, Eidg. Eep. t. Hardwicke : but Lord Macclesfield was evidently 
 of a different opinion, and so was Lord Fitzgibbon. Sarnicall v. Barnwall, 
 3 Eidg. P. C. 68.) 
 
 So equity will relieve where the remedy was prevented hy fraud: as 
 where A. was entitled to a leasehold estate, but B., concealing the deeds, 
 remained in possession until the term had expired. Lord Eing directed an 
 account of the rents and profits from the time that A.'s title accrued, on 
 
CH. XXVr. S. 3.] CONVEESION OF THE TEUST PKOPEBTY. 755 
 
 tended, that where the conversion was tortious, then as the 
 estate purchased was not in a form consistent with the trust, 
 
 the gronnd that A. had been kept in ignorance of his just rights throtigh 
 B.'s fradulent concealment of the deed and counterpart. Bennet v. White- 
 Tiead, 2 P. "W. 644 ; and see Duke of Bolton v. Deane, Pr. Ch. 516, and 
 Barnwdll v. Barnwall, 3 Eidg. P. C. 66. 
 
 And generally the Court will in all oases lend its aid where the legal Or some fault in 
 process has been lost, not by any delay on the part of the plaintiff, but the defendant. 
 through some default of the defendant. Pulteney v. Warren, 6 Yes. 73. 
 
 II. An account may be sought as incident or collateral to the relief. 
 The doctrines upon this subject have been very distiactly laid down by 
 Lord Fitzgibbon, afterwards Lord Clare, in Barnwall v. Barnwall, 3 Kidg. 
 P. C. 66. 
 
 1. "The general rule of equity," he said, "is, that if the suit for Plaintiff recover- 
 reoovery of possession be properly cognisable in a court of equity, and the ing the estate on 
 plaintiff obtain a decree, the court will direct an account of rents and profits, aQ equitable 
 
 as incident to such relief." ®" 
 
 This rule has been treated of in the text, and requires no further obser- 
 vation. 
 
 2. "If a man have a mere legal title to the possession, he has no right If a person haTe 
 to come into equity for the recovery of it ; and if he has originally recovered ^ l^S^l tit'^. ^^ 
 the possession at law, he has no manner of right to proceed by biU for an g^°°f e'the'^f 
 account of rents and profits : as his title to the possession was at law, he the estate or the 
 must proceed for the whole there." See also Dormer v. Fortescue, 3 Atk. mesne rents and 
 130 ; Tilly v. Bridges, Pr. Ch. 252 ; Owen v. Aprioe, 1 Ch. Re. 32 ; Anon. P^fits. 
 
 case, 1 Vern. 105, contradicted 3 Atk. 129. 
 
 Upon this rule it must be remarked, that a dowress, [Mundy v. Mundy, Unless the plain- 
 2 Ves. jun. 122; IfArcy v. BWke, 2 Soh. & Lef. 387; Wild v. Wells, tiff be a dowress. 
 1 Diek. 3 ; Meggot v, Meggot, 2 Id. 794 ; Goodenough v. Ooodenough, 2 
 Id. 795 ; Curtis v. Curtis, 2 B. C. C. 620 ; Moor v. Black, Rep. t. Talbot, 
 126 ; and see Dormer v. Fortescue, 3 Atk. 130 ; Pulteney v. Warren, 6 
 Tes. 89 ; Agar v. Fairfax, 17 Ves. 552 ;) and infant (see Dormer v. For- Or an infant. 
 tescue, 3 Atk. 130, 134 ; S. C. Eidg. Rep. t. Hardwioke, 183, 191 ; Pul- 
 teney V. Warren, 6 Ves. 89; Newhurgh v. Bickerstaffe, 1 Vern. 295,) 
 are allowed to proceed in equity upon their legal title, and incidentally 
 to the relief will be decreed an account of the mesne rents and profits. 
 But by 3 & 4 W. 4, o. 27, s. 41, the arrears of dower are recoverable for six 
 years only next preceding the commencement of the suit. And the account 
 of an infant will be barred, if he do not bring his bill within six years 
 after he has attained his majority. Lochey v. Lockey, Pr. Ch. 518. 
 
 3. "If a party be obliged to come into a court of equity for aid to If a person apply 
 enable him to prosecute his title at law," (as where he cannot recover in to equity to aid 
 a legal action by reason of an outstanding term, or because the title deeds tis action at law, 
 to the estate are in the hands of the defendant,) " after possession recovered -^^j.-^ f„j. ^j^ 
 
 at law, there may be cases in which he may come back for an aoooimt of account. 
 rents and profits in the suit depending in equity." And see Dormer v. 
 Fortescue, 3 Atk. 124 ; S. C. Ridg. Rep. t. Hardwicke, 176 ; Reade v. 
 Meade, 5 Ves. 744. Or the plaintiff being obliged to resort to equity on Or being obliged 
 one ground, may, to prevent circuity, ask complete relief in the first to come to equity 
 instance in that court ; and if his title be established, either by the deter- °" ™® ground, 
 minAtion of the Court itself, or by an issue directed at law, an account of 
 
 3 2 
 
756 CONVEESION OF THE TRUST PHOPEETY. [CH. XXTI. S. 2. 
 
 and the cestui que trust would be under no obligation to accept 
 it in lieu of the rightful property, the cestui que trust should 
 come in as a general creditor, and not be permitted to assert 
 a specific lien. But this distinction was disallowed by the 
 Court, and indeed seems to have been viewed as not maia- 
 tainable in the prior (a) as well as in the subsequent (6) cases. 
 Lord EUenborough observed, " Upon a view of the authorities 
 and consideration of the arguments, it should seem, that, if 
 the property in its original state and form was covered with 
 a trust, no change of that form can divest it of such trust, or 
 give the trustee, or those who represent him in right, any 
 other more valid claim in respect to it than they respectively 
 had before such change. An abuse of trust can confer no 
 rights on the party abusing it, nor on those who claim in 
 
 (a) Whitecomb v. Jacob, 1 Salk. 
 160 ; Lane v. Dighton, Amb. 409. 
 Ryal V. Ryal, lb. 413 ; Balgney 
 V. Samilton, lb. 414. Wilson v. 
 Foreman, 2 Dick. 593, is misre- 
 ported ; see Leneh v. Lench, 10 
 Ves. 519. 
 
 (J) Lord Chedworth v. Edwards, 
 8 Ves. 46; Greathy v. Noble, 3 
 Mad. 79 ; Buckeridge v. Glasse, Cr. 
 & Ph. 126 ; Murray v. Pinhett, 12 
 CI. & Fin. 784 ; Sheridan v. Joyce, 
 1 Jones & Lat. 401 ; Trench v. 
 Harrison, 17 Sim. 111. 
 
 bis wiiole reKef 
 there. 
 
 But the account 
 in equity ■will be 
 restricted to the 
 legal limit. 
 
 Unless the de- 
 fendant be guilty 
 of fraud. 
 
 Where laches, no 
 account beyond 
 the filing of the 
 biU. 
 
 the rents and profits will be consequential upon the relief. Townsend v. 
 Ash, 3 Atk. 336 ; Edwards v. Morgan, M'Clel. 541 ; Reynolds v. Jones, 
 2 Sim. & Stn. 206. 
 
 In these oases the account will clearly be restricted to the period of six 
 years ; for the plaintiflP recovers upon a legal title, and the circumstance of 
 his being obliged to sue in equity does not alter the nature of the action 
 for mesne rents and profits. See JReade v. Reade, 5 Ves. 749, 750 ; Sar- 
 mood V. Oglander, 6 Ves. 215 ; Drummond v. Duke of St. Albans, 5 Ves. 
 439 ; Mercy v. Ballard, 4 B. C. C. 468 ; Stackhouse v. Barnston, 10 Ves. 
 470 ; Monypenny v. Bristow, 2 E. & M. 1 25 ; and see Reynolds v. Jones, 
 
 2 Sim. & Stu. 206. In a late case, Thomas v. Thomas, 2 K. & J. 70, 
 Vice-Chanoellor "Wood considered the rule to be, to give the accoimt from 
 the filing of the bill only. 
 
 But if the plaintiff has been kept out of the estate by thejraud, misrepre- 
 sentation, or concealment of the defendant, the Court will suppose that, 
 had the plaintiff known his just rights, he would have commenced his 
 action at law on the first accruer of his title, and will then decree an 
 account of the mesne rents and profits against the defendant from that 
 period. Dormer v. Fortescue, Ridg. Eep. t. Hardwicke, 184, 185 ; S. C. 
 
 3 Atk. 130. 
 
 On the other hand, if the plaintuff be in fault, as, if he be guilty of 
 laches, the account will be restricted to the time of filing the biU. Edwards 
 V. Morgan, M'Clel. 541, see 557. 
 
CH. XXVI. S. 2.J CONVERSION OF THE TRUST PROPERTY. 757 
 
 privity mth him " (a). But where a man borrows money for 
 the purpose of purchasing an estate, and afterwards misapplies 
 a trust fund in discharge of the debt so contracted, the trans- 
 action cannot be treated as a purchase made with the trust 
 money (6). 
 
 It was said by Lord King that "money had no earmark, " Money has no 
 insomuch that if a receiver of rents should lay out all the 
 money in the purchase of land, or if an executor should realise 
 all his testator's estate, and afterwards die insolvent, yet a 
 court of equity could not charge or foUow the land " (c) ; and 
 
 hank-notes and negotiable bills have been represented as pos- ^^"'^ "°*6s and 
 
 . negotiable bills, 
 sessmg the same quality. But the notion seems to have ori- 
 ginated from some misconception, and cannot be supported. 
 "'Tis pity," said Lord Mansfield, "that reporters sometimes 
 catch at quaint expressions that may happen to be dropped at 
 the bar or bench, and mistake their meaning. It has been 
 quaintly said that the reason why money cannot be followed is 
 because it has no earmark, but this is not true. The true 
 reason is upon account of the currency of it — it cannot be re- 
 covered after it has passed in currency. Thus, in the case of 
 money stolen, the true owner cannot recover it after it has 
 been paid away fairly and honestly upon a valuable and bond 
 fide consideration ; but before the money has passed in cur- 
 rency an action may be brought for the money itself. Apply 
 this to the case of a bank-note — an action may lie against the 
 finder, it is true, but not after it has been paid away in cur- 
 rency. A bank-note is constantly and universally, both at 
 home and abroad, treated as money, as cash, and paid and 
 received as cash, and it is necessary for the purposes of com- 
 merce, that their currency should be established and secured. 
 No dispute ought to be made with the bearer of a cash-note, 
 in regard to commerce and for the sake of the credit of these 
 notes " (d). And Lord EUenborough observed, " The product 
 
 (a) Taylor v. Plumer, 3 M. & S. 19 ; and see Waite v. Whorwood, 
 
 574. 2 Atk. 159; Whitecomh v. Jacob, 
 
 (5) Denton y.Davies, 18 Yes. 499. 1 Salk. 160. 
 
 (c) Deg V. JDeg, 2 P. "W. 414 ; {d) Miller v. Race, 1 Burr. 457, 
 
 and so his lordship seems to have 459. 
 decided in Cox v. Bateman, 2 Ves. 
 
758 CONVERSION OF THE TRUST PROPERTY. [CH. XXVI. S. 2. 
 
 of or substitute for the original thing still follows the nature 
 of the thing itself as long as it can be ascertained to be such, 
 and the right only ceases when the means of ascertainment 
 fail, which is the case when the subject is turned into money, 
 and mixed and confounded in a general mass of the same 
 description. The difficulty which arises in such a case is a 
 difficulty of fact and not of law, and the dictum that money 
 has no earmark must be understood in the same way, i. e., as 
 predicated only of an undivided and undistinguishable mass of 
 current money ; but money kept in a bag, or otherwise kept 
 apart from other money, guineas, or other coin marked (if the 
 fact were so) for the purpose of being distinguished, are so far 
 earmarked as to faU within the rule which applies to every 
 other description of personal property, whilst it remains in the 
 hands of the factor or his general legal representatives " (a). 
 The only distinction, then, between money, notes, and bills, and 
 other chattels, appears to be this — that the former, for the pro- 
 tection of commerce, cannot be pursued into the hands of a 
 bond fide holder, to whom they have passed in circulation, 
 whilst other chattels can be recovered even from a purchaser 
 for valuable consideration, provided he did not buy them in 
 market overt. Money (6), notes (c), and bills (d), may be fol- 
 lowed by the rightful owner, where they have not been circu- 
 lated or negotiated, or the person to whom they so passed had 
 express notice of the trust (e). And the only difference to be 
 taken between money and notes, on the one hand, and bills on 
 the other, is that money is not earmarked, and therefore 
 cannot be traced except under particular circumstances, but 
 notes and bills, from carrying a number or date, can in general 
 be identified by the owner without difficulty (/). 
 
 {a) Taylor v. Plumer, 3 M. & S. teney v. Darlington, 1 B. C. C. 232, 
 
 ^'^- and Cator v. Earl of Pembroke, 2 
 
 (i) See Taylor v. Plumer, 3 M. B. C. C. 287 ; and see Ex parte 
 
 & S. 675 ; Miller v. Race, 1 Burr. Sayers, 5 Ves. 169 ; Lord Ched- 
 
 457; Howard v. Jemmet, 3 Burr. loortJiY. Edwards,i\esAe; Ryall\. 
 
 1369; King v. Egginton, 1 T. R. JSo/Ze, 1 Atk. 172; Raphael y. Bank 
 
 370 ; Ryall y. Rolle, 1 Atk. 172. of England, 17 Com. Bench E,e. 161. 
 
 (e) Anon, case, 1 Salk. 126 ; S. C. (e) Verney v. Carding, cited Joy 
 
 1 Raym. 138; Miller y. Race, 1 Burr. v. Campbell, 1 Sch. & Lef. 345. 
 457 ; Taylor v. Plumer, 3 M, & §. 562 . (/ ) See Ford v. Hopkins, 1 Salk. 
 
 {d) Rennet v. Mayhew, cited Pul- 283. 
 
CH. XXVI. S. 3.] CONVERSION OF THE TRUST PROPERTY. 759 
 
 "We may here put the case of trust money mixed in the Trust money 
 same heap with the trustee's money. It may be said that ^tee'Imoney. 
 the trust money has, like water, run into the general mass, 
 and become amalgamated, and therefore the cestvA que trust 
 has no lien. But clearly this cannot be maintained, for sup- 
 pose a trustee, partly with his own money and partly out 
 of the trust fund, to have purchased an estate. It cannot be 
 predicated of any particular part of the estate that it was pur- 
 chased with the cestui que trust's money, and yet the cestui que 
 trust has a lien upon the whole for the amount that was mis- 
 employed (a). And it foUows in the other case, that though 
 the identical pieces of coin cannot be ascertained, yet, as there 
 is so much belonging to the trust in the general heap, the 
 cestui que trust is entitled to take so much out. 
 
 The doctrine of following trust money was carried to a great Ex parte Sayers. 
 length in Ex parte Sayers (h) : — A. who resided in Dominica, 
 wrote to his agents in London to procure and send him half- 
 joes and dollars, directing them to send to the amount of 
 5000Z. at one time, 5000Z. at another, and 5000L every suc- 
 ceeding opportunity; and remitted two bills of 10,000Z. and 
 6000Z. to be placed to his credit. The agents discounted the 
 bills, and remitted 5600Z. to Peter and Co., at Lisbon, with 
 directions to purchase joes, and, if they could not procure 
 them, to return the money in good bills. Another remittance 
 was afterwards made, to the same amount, with similar direc- 
 tions. The answer from Lisbon was, that joes could not be 
 procured, and soon afterwards good bills were sent to near the 
 amount of the remittance. In the interval the London agents 
 had become bankrupts, and the bills got into the hands of the 
 assignees. A. petitioned for the bills as his specific property, 
 and Lord Loughborough made the order, observiug, " It is 
 admitted, very properly, that if joes had been returned, the 
 petitioner would have a right to them, as purchased by his 
 order with money remitted by him for that purpose, and it 
 would be a narrow rule to hold, that, the commission being in 
 train to be executed, the property, being separated and severed 
 
 (a) Lane v. BigUon, Amb. 409 ; Price r. Bldkemore, 6 Beav. 507. 
 Lewis V. Madochs, 17 Yes. 57, 58 ; (*) 5 Yes. 169, 
 
through a bank. 
 
 760 OONVEESION OF THE TRUST PROPERTY. [OH. XXVI. S. 3. 
 
 property, by the accident that the joes were not bought, should 
 be lost to the owner. If the money got into the general fand, 
 it got out again." 
 
 Assets employed Upon a similar principle, if an executor of a deceased partner 
 continue the testator's capital in the trade, though the capital 
 may consist only of the stock and debts of the partnership, and 
 these may undergo a continual course of change and fluctuation, 
 yet the Court follows the trust capital throughout all its rami- 
 fications, and gives to the beneficiaries of the deceased partner's 
 estate the fruits derived from that capital so continually altered 
 and changed (a). 
 
 Money followed And SO if a trustee pay trust-money into a bank to a simple 
 account with himself, not in any way earmarked with the trust, 
 and also keep private monies of his own to the same account, 
 the Court wiU disentangle the account, and separate the trust 
 from the private monies, and award the former specifically to 
 the cestui que trust (6). Lord Justice Knight Bruce observed (c), 
 " Let me suppose that the very coins and the very notes 
 received by the trustee on account of the trust, had been placed 
 by him together in a particular repository, such as a chest, 
 mixed confusedly together as among themselves, but in a state 
 of clear and distinct separation from every thing else, and that 
 they had so remained at his death, it is, I apprehend, certain 
 that after his death, the coins and notes thus circumstanced 
 would not have formed part of his general assets, but would 
 have been specifically applicable to the purposes of the trust. 
 Suppose this case to be varied by the fact, that in the same 
 chest with these coins and notes the trustee had placed money 
 of his own of a known amount, had never taken it out again, 
 but had so mixed and blended it with the rest of the contents 
 of the chest, that the particular coins or notes of which this 
 money of his own consisted could not be identified. What 
 difference would that make ? None, as I apprehend, except — if it 
 be an exception — that his executors would possibly be entitled 
 to receive from the contents of the repository an amount 
 equal to the ascertained amount of the money in every sense 
 
 [a) See Pennell v. Deffell, 4 De (6) PennellY. Befell, iDe G. M. 
 
 G. M. & G. 389; and see pp. 319 & (j. 372. 
 & 321, supra. . (c) lb. p. 381. 
 
CH. XXVI. S. 2.] CONVERSION OF THE TRUST PROPERTY. 761 
 
 his own, so mixed by himself with the other money ; hut not 
 in either case, as I conceive, would the blending together of 
 the trust-moneys, however confusedly, be of any moment as 
 between the various cestids que trust on the one hand, and the 
 executors as representing the general creditors on the other. 
 Let it be imagined that in the second case supposed, the 
 trustee after mixing the known ataount of money of his own 
 with the trust-moneys, had taken from the repository a sum for 
 his own private purposes, and it could not be ascertained 
 whether in fact the specific coins and notes forming it included 
 or consisted of those or any of those which were in every sense 
 his own specifically, what would be the consequence ? I appre- 
 hend that in equity, at least, if not at law also, what he so 
 took would be solely or primarily ascribed to those contents 
 of the repository which were in every sense his own ; he would, 
 in the absence of evidence that he intended a wrong, be deemed 
 to have intended and done what was right ; and if the act could 
 not in that way be wholly justified, it would be deemed to have 
 been just to the utmost amount possible." And having laid 
 down these principles, the Lord Justice proceeded : " When a 
 trustee pays trust-money into a bank to his credit, the account 
 being a simple account of himself not marked or distinguished 
 in any other manner, the debt thus constituted from the bank 
 to him, is one which as long as it remains due belongs specifically 
 to the trust, as much and as effectually as the money so paid 
 would have done had it been specifically placed by the trustees in 
 a particular repository and so remained ; that is to say, if the 
 specific debt shall be claimed on behalf of the cestuis que trust, it 
 must be deemed specifically theirs as between the trustee and 
 his executors and the general creditors after his death on the 
 one hand, and the trust on the other. Whether the cestuis que 
 trust are bound to take to the debt, whether the deposit was a 
 breach of trust, is a different question. This state of things 
 would not, I apprehend, be varied by the circumstance of the 
 bank holding also for the trustee, or owing also to him money 
 in every sense his own." For the mode in which the 
 Court dealt with the subsequent items on the debit and 
 credit side of such an account, the reader is referred to the 
 case itself. 
 
763 
 
 CONVEESION OF THE TRUST PEOPERTT. [CH. XXVI. S. 3. 
 
 Following money 
 into land with 
 reference to the 
 Statute of 
 Frauds. 
 
 Trustee bound to 
 invest a certain j 
 sum, and pur- 
 chasing at that 
 price. 
 
 Covenant to 
 settle his whole 
 personal estate 
 and subsequent 
 purchase. 
 
 In tracing money into land, the principal difficulty has arisen 
 from the Statute of Frauds (a), the seventh section enacting that 
 all declarations of trusts of lands shall be manifested and proved 
 by some writing. It was formerly held that parol evidence, to 
 prove a state of circumstances from which a court of equity 
 would eKcit a constructive trust, was inadmissible (&) ; but Lord 
 Hardwicke, on the ground that constructive trusts were excepted 
 out of the Statute of Frauds (c) ruled that parol evidence might 
 be given (d) ; and Sir T. Clarke, in the leading case of Lane v. 
 Dighton (e), (though, had the point been res Integra, he should 
 have thought the evidence not admissible within the statute,) 
 yet followed the authority of Lord Hardwicke ; and Sir W. 
 Grant has since declared that, whatever doubts might formerly 
 have been entertained upon the subject, the law is now 
 settled (/). 
 
 If a trustee be under an obligation to lay out money on land, 
 and purchase an estate at a price corresponding with the sum 
 to be invested, the Court independently of positive evidence, 
 may presume the trust money to have been so applied (g). But 
 no such presumption can be raised where it can be shown 
 that the trustee, though under such an obligation, was mis- 
 taken in the nature of the trust, and acted under a different 
 impression (h). And where a tenant for life with power to sell 
 and invest in the purchase of other land, purchased lands 
 with borrowed monies, and many years afterwards sold the 
 settled estates, and applied the purchase money partly in 
 discharge of the debts thus contracted by him, it was held 
 that the purchased lands could not be treated as liable to 
 the trusts Of the settled estates (i). 
 
 In Lewis v. Madocks (k), no evidence to connect any parti- 
 cular fund with the estate was necessary, for a person having 
 covenanted on his marriage to settle all the personalty he 
 
 (a) 29 Car. 2, o. 3. 
 
 (J) See supra, ch. viii. s. 2. p. 
 204. 
 
 (c) By the 8th. section. 
 
 {d) Myal v. Ryal, Amb. 413; 
 and see Anon, case, Sel. Ch. Ca. 67. 
 
 (e) Amb. 409. 
 
 (/) Lench v. Lench, 10 Vea. 517. 
 
 {g) See Anon, case, Sel. Ch. Ca. 
 67 ; Price v. Blahemore, 6 Beav. 
 607. 
 
 [h) Perry v. Phelips, 4 Ves. 108, 
 see 116, 117. 
 
 (i) Denton v. Bavies, 18 Ves. 
 499. 
 
 {k) 8 Ves. 150; 8. C. 17 Ves. 48. 
 
CH. XXVI. S. 3.] REMEDY FOE BREACH OF TRUST. 763 
 
 should acquire upon certain trusts, and having afterwards 
 invested parts of his personalty on land, it was clear that 
 the mone}' expended upon the estate was bound by the trust, 
 and could therefore be followed into the purchase. 
 
 Where a trust fund is traced into land, and the fund con- Whether cestui 
 stitutes a part only of the money laid out in the purchase, fate the land 
 the Court has usually given a lien merely on the land for the '*^®'^' ™ ^'^ °^'^ 
 trust money and interest (a) ; but where the entire land is 
 clearly the fruit of the trust fund, the cestms que ir«s{ must, 
 upon principle, have a right to take the land itself, whether 
 the purchase be or not of a description authorised by the 
 trust (6). 
 
 SECTION III. 
 
 OF THE EEMEDT EOE A BEEACH OP TETJST A&AIIfST THE TET7STEE 
 PEESOIfAlLT. 
 
 In the event of a breach of trust, the cestui que. trust is en- 
 titled to file a biU against the trustee (a right which is not 
 affected by the Statute of Limitations) (c), to compel from him 
 personally a compensation for the loss the trust estate has 
 sustained. The same rule applies where a corporation is 
 trustee; and a corporation, since the Municipal Corporation 
 Act, is liable for a breach of trust committed before the Act {d). 
 
 If the trustee dispose of the trust estate to a purchaser for Land tortiousiy 
 valuable consideration without notice, the cestui que trust may ^° ' 
 compel the trustee to purchase other lands of equal value to be 
 
 (o) Lane v. Bighton, Amb. 409 ; {d) Attorney- General v. Corpo- 
 
 Lewis V. Madocks, 8 Ves. 150 ; 17 ration of Leicester, 9 Beav. 546. 
 
 Ves. 48, see 57 ; Price v. Blahemore, A solicitor who wilfully advises 
 
 6 Beav. 507. a breach of trust, is liable to be 
 
 (5) Trench y. Barrison, 17 Sim. struck off the roU ; Goodwin r. Gos- 
 
 111. Lord Manners, in 8avage v. nell, 2 Coll. 457, see p. 462. And 
 
 Carroll, 1 B. &B. 265, see 284, seems so a fortiori a solicitor, who, being a 
 
 to have thought otherwise ; but this trustee himself, commits a wilful 
 
 was before Taylor v. Plumer. breach of trust ; In re Chandler, 
 
 (e) Phillipo V. Munnings, 2 M. 2 Jur. W. S. 366; In re Hall, 2 
 
 & C. 309 ; Milnes v. Cowley, 4 Jnr. N. S. 633. 
 Price, 103 ; Cator v. Croydon Bail- 
 way Company, 4 T. & C. 405. 
 
764 
 
 EEMEDT FOE BREACH OP TRUST. [CH. XXVI. S. 3. 
 
 Neglect to pur- 
 chase stock. 
 
 Policy forfeited. 
 
 settled upon the like trust {a), or the cestm que trust, may at his 
 option take the proceeds of the sale, with interest, or the present 
 estimated value of the lands sold, after deducting any in- 
 crease of price caused by subsequent improvements (6). 
 
 So where a testator gave a legacy of 1200Z., and directed the 
 executor to invest it in the funds, and the estate was wound 
 up, hut the executor neglected to invest, and the price of stock 
 rose ; it was held, that retainer by the executor, after- account-" 
 ing for the residuary estate, was equivalent to payment to a 
 trustee ; that if the cestui que trust sustained a loss by the 
 trustee neglecting his duty, the cestui que trust had a right to 
 charge the trustee with the amount of the loss ; that the executor 
 was therefore bound to purchase so much stock as the legacy 
 would have produced had it been invested at the proper 
 period (c). And, in another case, where a testator had directed 
 an investment in the funds and an accumulation of the divi- 
 dends, the trustee was decreed to purchase the sum of stock 
 which the fund, if regularly invested, would have produced, 
 and to make good the amount due in respect of subsequent 
 accumulation (i). But if the trustee have a discretion of invest- 
 ing on government or real securities, the trustee is answerable 
 for the money only with interest, and not in the alternative for 
 the money with interest on the stock with dividends at the 
 option of the cestui que trust (e). 
 
 So if a trustee suffer a poUcy of insurance to become forfeited 
 through neglect to pay the premiums, he is bound to make 
 compensation to the cestwi que trust for the consequential 
 damage to the estate (/) ; that is, if he have funds iu hand for 
 payment of the premiums ; but if he have none and can pro- 
 cure none, he would be exempt from liability. He may, how- 
 ever, either advance money himself, or borrow it from another 
 on the security of the policy, and the lien on the policy wiU 
 be allowed ig). So if a settlement contain a covenant for the 
 
 (a) See Manselly. Mansell, 2 P.W. 
 681 ; Vernon v. Vaudry, Barn. 303. 
 
 (J) ^ee Attorney- General y. East 
 Retford, 2 M. & K. 35; but see 
 Denton v. Savies, 18 Ves. 504. 
 
 (c) Byrchall v. Bradford, 6 Mad. 
 13; S. C. Id. 235; and see Pride 
 
 v. Foohs, 2 Beav. 430. 
 
 {d) Pride v. FooTta, 2 Beav. 430. 
 
 (e) See ante, pp. 355, 356. 
 
 (/) Marriott -v. itrewersfey,Tanil. 
 470. 
 
 {g) Clack v. Holland, 19 Beav. 
 273, 276, per Cur. 
 
CH. XXVI. S. 3.] AGAINST TRUSTEE PEESONALLY. 765 
 
 transfer of stock and the trustees neglect to enforce the transfer, 
 
 they are liable for all the consequences {a). 
 
 If a trustee has assumed to act as trustee and received Receipt by person 
 , 1 . 1 1 /. 1 1 , ^"^ * trastee, 
 
 money m that character, ne is accountable tor the proceeds to but acting as 
 
 the cestui que trust, and cannot defend himself by showing that ^"° " 
 
 in fact he was not legally a trustee (6). 
 
 If a bill be filed for an account with an allegation of wilful wilful default, 
 default and a prayer for consequential relief, and the common 
 accounts only are directed, it is too late to ask relief on further 
 directions against any wilful act that has transpired accidentally 
 from the other inquiries (c). 
 
 If the trustee himself be dead, the bill may be filed against b;ii acainst 
 
 the representative : and an executor or administrator will be trustee's pepo°al 
 '■ _ _ representative. 
 
 answerable for the damage, though he may have distributed 
 the assets amongst the legatees or next of kin, without previous 
 notice of the breach of trust (except it was done under the sanc- 
 tion of the Court {d) ), or the cestui que trust may recover the 
 assets from the legatees or next of kin amongst whom they 
 have been distributed (e). 
 
 But the claim of the cestui que trust is a simple contract debt Breach of trust 
 only, and therefore, until the late Act, making all a person's pie contract debt 
 real and personal estate liable to his simple contract debts, it ""'y* 
 was recoverable not from the real but only from the personal 
 estate. However, if the trustee signs the trust deed and ITnless tie trus- 
 engages under his hand and seal by words that would amount nauted. 
 to a covenant at law, to execute the trust, then the breach of 
 trust becomes a specialty (/). 
 
 In awarding compensation to the cestui que trust against the Immaterial 
 trustee, the Court pays no regard to the circumstance whether ^^as gainer or 
 
 the trustee derived any actual advantage or not, but proceeds br^^^^oJ^r 
 
 trust. 
 
 (a) Fenwick v. Greenwell, 10 {d) KnatchhuU v. Fearnhead, 3 
 
 Beav. 412. M. & C. 122 ; March v. Russell, 3 
 
 (J) Rackham v. Siddall, 16 Sim. M. & C. 31 ; Lowy. Carter, 1 Beav. 
 
 297 ; afSrmed on appeal to the ex- 426 ; Sill v. Oomme, lb. 540 ; Un- 
 
 tent of the interest of the plaintiff, derwood v. Hatton, 5 Beav. 39. 
 
 the tenant for life ; 1 Mao. & dor. (e) March v. Russell, 3 M. & Or. 
 
 607 ; and see Derhishire v. Home, 31 ; KnatchhuU v. Fearnhead, 3 M. 
 
 3 De Gex, Mac. & Gor. 80 ; Hope & Cr. 126 ; Underwood v. Hatton, 
 
 V. Liddell, 21 Beav. 183. 5 Beav. 38. 
 
 (c) Coope v. Carter, 2 De Gex, (/) See supra, pp. 238, 239. 
 Mac. & Gor. 292. 
 
766 
 
 EEMEDY FOR BEEACH OF TRUST. [CH. XXVI. S. 3. 
 
 Or whetlier the 
 loss ■would have 
 occurred had no 
 breach been com- 
 mitted. 
 
 Case of trustee 
 bringing a profit 
 as well as a loss 
 to the trust. 
 
 Trustee not 
 chargeable Trith 
 imaginary Talues. 
 
 upon the principle, that a trustee, who deviates from the line of 
 his duty, is under an obligation to make good the loss to 
 the cestui que trust (a) : and if a trustee be guilty of mis- 
 conduct, and a loss follow, the Court does not acquit him, 
 because the loss was more immediately caused by some 
 event wholly beyond the control of the trustee, such as 
 fire, lightning, or other accident (b). "Although," said Lord 
 Cottenham, " a personal representative acting strictly within 
 the line of his duty, and exercising reasonable care and 
 diligence, will not be responsible for the failure or depre- 
 ciation of the fund in which any part of the estate may 
 be invested, or for the insolvency or misconduct of any 
 person who may have possessed it, yet, if that line of duty 
 be not strictly pursued, and any part of the property be in- 
 vested by such personal representative in funds, or upon 
 securities, not authorised, or be put within the control of 
 persons who ought not to be intrusted with it, and a loss be 
 thereby eventually sustained, such personal representative will 
 be liable to make it good, however unexpected the result, how- 
 ever little likely to arise from the course adopted, and however 
 free such conduct may have been from any improper motive (c)." 
 And a trustee who has been wilfully the cause of loss to one 
 trust-fund, cannot set off against it an improvement made in 
 another fund held in trust for the same parties {d). 
 
 But a trustee wiU not be charged with imaginary values (e) ; 
 and, being regarded as a mere stakeholder, he will not be Hable 
 for more than he has actually received (/), except in cases of 
 very supine negligence, or wilful default (g). 
 
 (a) See Domfbrd v. t)ornford, 
 
 12 Ves. 129 ; Maphael v. Boehm, 
 
 13 Ves. 411; S. C. lb. 490, 491; 
 Moons V. Be Bernahs, 1 Huss. 
 305; Adair v. Shaw, 1 Sch. & 
 Lef. 272 ; Lord Montford v. Lm-d 
 Cadogan, 17 Ves. 489 ; Scurjteld 
 V. Howes, 3 B. C. C. 90 , but see 
 Attorney- General v. Greenhouse, 
 1 Bligh, K. R. 57—59. 
 
 (4) See Caffrey v. Darby, 6 Ves. 
 496 ; Cocker v. Quayk, 1 E. & M. 
 535 ; Mjler v. Fyler, 3 Bear. 568 ; 
 
 Kellai/aay v. Johnson, 5 Beav. 324 ; 
 Munch V. Cockerell, 5 M. & Cr. 212. 
 (e) Clough v. Bond, 3 M. & Cr. 
 496. 
 
 (d) Wiles V. Gresham, 2 Drewry, 
 258, see p. 271. 
 
 (e) Palmer v. Jones, 1 Vem. 144. 
 (/) Harnard v. Welster. Sel. Ch. 
 
 Ca. 53. 
 
 {g) Pybus V. Smith, 1 Ves. jun. 
 193, per Lord Thurlow ; Palmer r. 
 Jones, 1 Vern. 144, per Lord Not- 
 tingham. 
 
CH. XXVI. S. 3.] AGAINST TBUSTEK PERSONALLY. 767 
 
 Where co-trustees are jointliJ implicated in a breach Co-trustees 
 
 "^ ^ ^ . guilty of breach 
 
 of trust, the cestvi que trust, though he obtain a decree of trust. 
 
 against the trustees jointly, may have process of execution 
 against any one of them separately (a) ; for as regards the 
 remedy of the cestUii que trust there is no primary liability, 
 but each trustee is responsible for the entirety of the loss 
 incurred (6). However, where a trustee had refused to accept 
 the office unless another should be named with him, and the 
 trust money be divided between them, so that each might be 
 responsible for a moiety only, and this was accordingly done, 
 but the trust deed was drawn in the usual form as if they were 
 joint trustees of the whole sum, it was held, upon the insolvency 
 of one of the trustees, that the co-trustee should not be answer- 
 able for more than the moiety paid to himself, the division of 
 the trust money being, Sir J. Leach observed, " a term in the 
 creation of the trust (c)." Where several defendants are in- 
 volved in a breach of trust, the court decrees costs against 
 them jointly for the plaintiff's greater security, "and does not 
 distinguish between the relative culpabilities of the defend- 
 ants (d). But in an analogous case where one defendant was 
 called upon to pay all the costs, he obtained an order in the 
 same cause upon a motion (which however was not opposed) 
 for contribution by the other defendants (e). 
 
 A corporation filed a bill against five of the corporators who Corporators. 
 were regarded as its agents and trustees, to make them liable 
 for the consequences of certain acts done by them, with the 
 view of illegally aliening the corporation property, and it was 
 held to be unnecessary to make all the corporators parties who 
 in any way had participated in the acts, for the defendants 
 were wrong doers, and the case against each was distinct, 
 depending upon its own evidence (/). 
 
 (a) & parte Shakeshaft, 3 B. C. 188; MichardsonY. Jenkins, iSrewf. 
 
 C. 197 ; Walker v. Symonds, 3 Sw. 477 ; Alleyne v. Darcy, 4 Ir. Ch. 
 
 74, 75; Attorney-General v. Wil- Re. 206. 
 
 son, 1 Cr. & Phil. 28, per Lord Cot- (c) Birh v. Betty, 6 Mad. 90. 
 
 tenham ; and see Ex parte Angle, {d) Lawrence v. BoiOle, 2 PMlli 
 
 Bam. 426 ; but see In re Chertsey 140 ; 1 C. P. Coop. temp. Cott. 241. 
 
 Market, 6 Price, 278, 279 ; Taylor (e) Pitt v. Bonner, 1 T & C. Ch. 
 
 V. Tabrtlm, 6 Sim. 281.' Ca. 670. 
 
 (6) See Wilson v. Moore, 1 M. & (/) Attorney- Oenerdly. Wilson, 
 
 K. 146; Lyse v. Kingdon, 1 Coll. 1 Cr. & PhU. 1, see 28; and see 
 
768 
 
 EEICEDY FOE BREACH OP TEUST. [CH. XXVI. S. 3. 
 
 Liability and 
 contribution as 
 between the trus- 
 tees themselves ; 
 or between them 
 and other par- 
 ties. 
 
 Trafford v. 
 Boehm. 
 
 Though, as respects the remedy of the cestm que trust, each 
 trustee is individually responsible for the whole amount of the 
 loss, whether he was the principal in the breach of trust, or 
 was merely a consenting party, yet, as between the trustees 
 themselves, (unless the transaction was vitiated not only by 
 constructive but actual fraud, when the Court will hold itself 
 entirely aloof (a),) it seems an apportionment, or contribution 
 amongst the trustees, may be compelled on a bill filed for the 
 purpose (6) ; and so, as between the trustees and a third per- 
 son who has reaped the benefit of the breach of trust, though 
 the trustees must make the disbursement in the first instance 
 to the injured party, the loss may eventually be cast on the 
 person who was the gainer by the breach of trust (c). 
 
 In Trafford v. Boehm (d), Henry Heathcote and Charles 
 Boehm were the trustees of Mr. Trafford's marrige settle- 
 ment, and the fortune of the lady was placed in their hands, 
 to be laid out in a purchase of lands as soon as one could 
 conveniently be found. No suitable purchase offering, the 
 money was invested by the direction of the husband in South 
 Sea Stock, and a loss was incurred. Lord Hardwicke said, 
 " There is no doubt this Court will endeavour to deliver 
 a trustee from any mischief that may happen from a mis- 
 application of trust money, and in the present instance the 
 
 J^i^yi^^^ 
 
 London Gas Light Company v. 
 Spottiswoode, 14 Beav. 272, 273. 
 
 (o) See Lingard v. Bromley, 1 
 Ves. & B. 114; Tarleton v. Hornby, 
 1 T. & C. 336; Attorney-General 
 V. Wilson, 1 Cr. & PhU. 28. 
 
 (6) Ex parte Shaheshaft, 3 B. C. 
 C. 198, ^er Lord Thurlow; Lingard 
 V. Bromley, 1\ V. & B. 114; Perry 
 V. Knott, 4 Beav. 180, per Lord 
 Langdale; and see Knatchbull v. 
 Fearnhead, 3 M. & C. 122; Pitt v. 
 Bonner, 1 T. & C. Ch. Ca. 670 ; Bx 
 parte Burton, 3 Mont. D. & De Gex. 
 373 ; Baynard v. Wolley, 20 Beav. 
 583 ; and see Wilson v. Goodman, 
 4 flaie, 54. 
 
 (c) Trafford v. Boehm, 3 Atk. 
 440 ; Greenwood v. Waheford, 1 
 Beav. 576; Booth v. Booth, 1 Beav. 
 
 125 ; Lord Montfort v. Lord Cado- 
 gan, 17 Ves. 485; 19 Ves. 635; 8. 
 C. 2 Mer. 3 ; and see Sbwe v. JEarl 
 of Montfort, 7 Ves. 150, 151 ; Jacob 
 V. Lucas, 1 Beav. 436 ; Lincoln v. 
 Wright, 4 Beav. 432. But if a 
 tenant for life have a general power of 
 appointment, a person taking un- 
 der the power cannot oome upon the 
 estate of the tenant for life, the donee 
 of the power, for a breach of trust 
 by him, for the estate so appointed 
 is part of the tenant for life's assets. 
 Williams v. Lomas, 16 Beav. 1. 
 Secus where the decree o f the power 
 is a feme covert, except in a case 
 of actual fraud by her ; Vaughan v. 
 Vanderstegen, 2 Drewry, 165, 363. 
 (rf) 3 Atk. 440. 
 
CH. XXVI. S. 3.] AGAINST TRUSTEE PERSONALLY. 769 
 
 loss must first come out of the estate of the husband, because 
 
 done with his concurrence or subsequent assent, for he has 
 
 passed the account with the trustees, and constantly received 
 
 the dividends of the stock. The rule of the Court is, that if a 
 
 trustee err in the management of the trust with appi-ohation of the 
 
 cestui que trust, it must be made good first out of the estate of 
 
 the person who consented to it." 
 
 And the same principle was acted upon in the case of Lo7-d Montfort *. 
 ■: Cadogan. 
 
 Montfort v. Lord Cadogan (a). By indenture bearing date 
 
 in 1772, certain leaseholds were vested in trustees upon 
 trust in the first place to renew the leases out of the rents 
 and profits, and then upon trust for Lord Montfort for life, 
 remainder to Lady Montfort for life, remainder to the issue. 
 The first period of renewal occurred in 1786, and the second in 
 1800, and Lord Montfort died in 1799. The trustees, instead 
 of renewing as they should have done, permitted Lord Mont- 
 fort during his life and Lady Montfort after his decease, to 
 receive the whole rents of the estate. Lord Montfort, the son 
 and only issue, renewed the lease at his own expense in 1808, 
 during the lifetime of the Dowager Lady Montfort, and then 
 filed a bill against her, the executors of Lord Montfort his 
 father, and the trustees, to be repaid the money he had ad- 
 vanced for the renewal. Sir W. Grant said, " Though my 
 opinion is that these trustees are answerable, they are not alone 
 answerable. The tenants for life have acquiesced in the breach 
 of trust, and profited by it by receiving the whole rents and 
 profits, a part of which was applicable to the renewals. All 
 these parties are answerable to the plaintiff; but as betiveen the 
 tenants for life and the trustees, if Lord Montfort has left assets, 
 they will in the first place be applicable to make good so much 
 of the fine as corresponds with the period of his enjoyment. Lady 
 Montfort is in like manner answerable for the period of her 
 possession, and the accruing rents during her life are liable to 
 be impounded to make good the demand against her. What- 
 ever can be got from these funds will go in ease of the trus- 
 tees." And the decree was, that the renewal fine ought to be 
 paid to the plaintiff by the trustees, but that the same ought to 
 be paid to them out of the estates of Lord Montfort deceased, and 
 
 (o) 17 Ves. 485. 
 
770 REMEDY FOR BREACH OF TRUST. [CH. XXVI. S. 3. 
 
 of the Dowager Lady Montfort, according to the times they had 
 respectively been in possession. From this decree some of the 
 parties appealed (a), and Lord Eldon, before whom the case 
 was now argued, said, " One question is, whether Lord Mont- 
 fort's estate, if sufficient, and that of Lady Montfort should 
 have been resorted to for payment of the plaintiff's demand 
 before the trustees were called upon, and many cases have 
 established, that a tenant for life joining in a breach of trust 
 shall be answerable in the first instance ; but the cestui que trust 
 is not bound to wait while inquiries as to assets, or what pro- 
 portion Lady Montfort is to pay, are depending. My opinion 
 therefore is, that the Master of the EoUs was perfectly right in 
 charging the trustees in th.e first instance, and also in deciding, 
 that they have a remedy over against those who took the rents 
 and profits which ought to have paid the fine." His Lordship 
 then proceeded to consider the proportion in which the estate 
 of Lord Montfort deceased, and the Dowager Lady Montfort, 
 ought to contribute. " It is a little difficult," he said, " to 
 determine the meaning of these terms in which the tenants for 
 life are charged according to the times they have respectively 
 been in possession. In 1799 (when Lord Montfort died). Lady 
 Montfort was entitled by the settlement to possession of the 
 leasehold estate, under a lease renewed in 1786, for fourteen 
 years, with a fund accumulating for the fine, to be paid on the 
 next renewal in 1800. If therefore the decree is to be under- 
 stood, that, as Lord Montfort enjoyed from 1772 to 1799, and 
 Lady Montfort from 1799 to 1808, when the fine in question 
 was paid, that sum is to be reimbursed as between his and her 
 estates in this proportion, that his estate is to be charged 
 according to the account of the rents between 1772 and 1799, 
 and she is to pay according to the rents from 1799 to 1808, 
 she appears to me to be charged in a way in which she is not 
 chargeable. My opinion is, that the estate of the late Lord 
 Montfort is to be made answerable to the trustees after they 
 have paid the plaintiff ; and Lady Montfort is also answerable, 
 but only for the proportion for which she ought to be called 
 upon, with a due regard to the obligation of the trustees to put 
 
 (o) 19 Yes. 635 ; S. 0.2 Mer. 3. 
 
CH. XXVI. S. 3.] BANKRUPTCY OF THE TRUSTEE. 771 
 
 her in possession of the estate fully renewed in 1786, and with 
 an accumulating fund to be applied to another renewal in 1800. 
 Lord Moutfort having received the rents from 1772 to 1799, 
 and not having renewed, and a much larger fine of course being 
 required at the end of twenty-eight years than fourteen years, 
 his estate must be answerable for the increase ; but if the 
 trustees should not find his estate sufficient to answer that, I 
 cannot, as between them and Lady Montfort, throw any part of 
 the increase upon her. That must therefore fall upon the 
 trustees personally." 
 
 If a tenant for life, or other person having a partial The interest of 
 interest, be an actor in a breach of trust, all the benefit that ^^gatoeMh rf 
 would have accrued to him, either from that trust fund, or any *"*^* ^^y ^^ 
 
 stopped to corn- 
 other estate comprised in the same settlement (a) may be pensate the 
 
 retained as against him, his assignees in bankruptcy (b), or 
 (except where the defence of purchase for value without notice 
 is applicable) those claiming under him(c), until the amount 
 retained, with the accumulations thereon (d), have compensated 
 the trust estate for the loss it had sustained. It was con- 
 tended in one case, that on a similar principle, where an 
 estate was devised to a person who was a debtor to the tes- 
 tator, the debt was a lien on the devised estate, but the Court 
 not finding any precedent did not allow the claim (e). 
 
 If the trustee become bankrupt, the loss may be proved Bankruptcy of 
 against his estate (/), and if interest would have been decreed * * t'™^'*^' 
 in equity against the trustee himself, it will constitute part of 
 
 (o) Woodyatt v. Greshy, 8 Sim. (c) Woodyatt v. Gresley, 8 Sim. 
 
 180 ; £x parte Mitford, 1 B. C. C. 180 ; Priddy v. Rose, 3 Mer. 86 ; 
 
 398; see Priddy v. Pose, 3 Mer. Cole y. Muddle, 10 Hare, 186; and 
 
 105 ; Burridge v. Row, 1 T. & C. see Morris v. Lavie, 1 Y, & C. Ch. 
 
 Ch. Ca. 183, 583 ; Lincoln^. Wright, Ca. 380. 
 
 4 Beav. 432, per Lord Langdale ; {d) Ex parte King, 2 M. & A. 
 
 Fuller v. Knight, 6 Beav. 205; 410. 
 
 M'Gachen v. Dew, 15 Beav. 84. (e) Ex parte Barff, 1 De Gex, 
 
 (6) Ex parte Turpin, 1 D. & C. 613. 
 
 120; Ex parte Smith, 1 Deao. 143; (/) KehU v. Thompson, 3 B. C. 
 
 Woodyatt v. Gresley, 8 Sim. 185, C. 112 ; Moons v. Be Bernales, 1 
 
 per Cur. ; Ex parte King, 2 M. & Russ. 301 ; Bornford v. Dornford, 
 
 A. 410; see Smith v. Smith, 1 Y. 12 Ves. 127; Ex parte Shakeshaft, 
 
 & C. 338 ; Burridge v. Row, 1 Y. SB. C. C. 197 ; Bick v. Motly, 2 
 
 & C. Ch. Ca. 183, 683 ; Rahy v. M. & K. 312 ; Lincoln v. Wright, 
 
 Ridehalgh, 1 Jur. N. S. 363. 4 Beav. 427. 
 
 8 D 2 
 
773 
 
 BANKRTTPTCY OF THE TEUSTEB. [CH. XXVI. S. 3. 
 
 Stock. 
 
 Trustee a partner 
 and lending the 
 trust money to 
 the firm with 
 notice. 
 
 How far trust 
 debt barred by 
 the bankrupt's 
 certificate. 
 
 the debt in the proof against the estate in the hands of the 
 assignees (a), and if the breach of trust was a sale of stock and 
 misemployment of the money, the cestui que trust may, at his 
 option, elect to prove for the proceeds of the sale, or for the 
 price of the stock at the date of the commission of bankrupt (&). 
 
 If the bankrupt trustee was one of a firm, and the trust 
 money had been lent to the firm, with notice of the equity 
 attached to it, then, inasmuch as a breach of trust creates a 
 joint and several liability, proof may be made either against 
 the joint estate of the partners or the separate estate of the 
 bankrupt trustee, at the option of the cestui que trust (c); 
 and if the bankrupt has laid out the trust money on a 
 mortgage, the cestui que trust is not put to his election whether 
 he will prove for the debt, and abandon the mortgage, or take 
 the mortgage and abandon the debt, but may prove for the debt, 
 and have the benefit of the mortgage also (d) ; and if the trust 
 money has been invested, though improperly, the cestui que 
 trust has a right to elect to prove for the money and interest, 
 or for the value of the securities and profits (e). But if the 
 bankrupt in whose hands the trust fund was be one of the 
 trustees, and indebted to the trust estate, and also in part 
 beneficially interested in the trust, proof cannot be made for 
 the whole amount, but only for the balance after setting off 
 the bankrupt's beneficial interest against the debt due from 
 him (/). 
 
 The original trust debt itself wiU be barred by the certificate 
 of the bankrupt, though no proof was made, and the cestui 
 que trust did not know of the misapplication of the trust 
 ixmd.{g). But it is the duty of the trustee to make sure 
 that some person prove on behalf of the trust, and if he do 
 
 (o) Dornfo?-d v. Bornford, Bidk 
 V. Motly, Moons v. De Bernales, 
 uhi supra. 
 
 (J) Ex parte Shaheshaft, 3 B. C. 
 C. 197 ; Ex parte Ourner, 1 Mont. 
 Deao. & De G-ex, 497 ; and see Ex 
 parte Moody, 2 Rose, 413 ; Ex parte 
 Stutely, 1 Mont. Deae. & De Gex, 
 643. 
 
 (c) Ex parte Heaton, Buck. 368 ; 
 Ex parte Watson, 2 V. & B. 414 j 
 
 see Ex parte Paulson, 1 De Gex, 
 79. 
 
 {d) Ex parte Biddulph, 3 De G. 
 & Sm. 587 ; Ex parte Geaves, 2 
 Jur. N. S. 651. 
 
 (e) In re Montefiore, 9 Jur. 
 562. 
 
 (/) Ex parte Turner, 2 De Gex, 
 Mac. & Gor. 927. 
 
 (<7) Ex parte Holt, 1 Deae. 248. 
 
CH. XXVI. S. 3.] CONCUREENCE IN BREACH OF TRUST. 773 
 
 not, he is liable in equity for tHis neglect of duty; and 
 though he has obtained his certificate he will remain respon- 
 sible personally for the amount that might have been received 
 by way of dividend (a). If the bankrupt was one of several rroof where 
 
 , ..,,. T,T- 1 1 n , . <"i^ of several 
 
 co-trustees, who were jointly implicated in a breach of trust, trustees is 
 then proof may be made against the bankrupt's estate for ''^''^"p*- 
 the whole money lost, though he was not the party benefited by 
 the breach of trust (b) ; and though the other trustee be Uving 
 and solvent (c). And the proof against the bankrupt will not 
 be precluded by a bond given not to sue the other trustee 
 reserving the rights against all other parties (d), though a 
 release to the other trustee, being an extinguishment of the 
 debt, would prevent any subsequent proof (e). 
 
 So if two co-trustees be bankrupts, proof may be made Co-trustees 
 against the estates of both (/) ; but of course more than 20s. in 
 the pound cannot be received in the whole. Or at the same " 
 
 time that proof is made against the estate of one who is a 
 bankrupt, legal proceedings may be taken against the solvent 
 trustee ; for proof under a bankruptcy is not payment {g). 
 
 But where the whole debt is proved against the estate of the Contribution, 
 bankrupt trustee, the assignees may afterwards file a bill, and 
 compel contribution from the other trustee Qi), even where the 
 bankrupt trustee himself could not, from his fraudulent con- 
 duct, have obtained such relief (i). 
 
 In assigning to the cestui que trust the foregoing remedies 
 against the trustee, it must of course be understood that the 
 cestui qus trust has not himself concurred in the breach of 
 duty, or subsequently acquiesced in it, and, a fortiori, has not 
 executed a formal reZease. 
 
 If a cestui que trust concur in the breach of trust, he is for ConomTence of 
 
 the cestui que 
 
 ever estopped from proceeding against the trustee for the con- 
 
 (a) Orrettr. Corser, 21 Beav. 52. {g) Ex parte King, 1 Deao. 164, 
 
 (5) Ex parte Shakeshaft, 3 B. C. &o. 
 
 C. 197. {h) See Ex parte Shakeshaft, 3 
 
 (c) Hx parte Beilhy, 1 G. & J. B. C. C. 97 ; Bromky v. Lingard, 
 167. IV. &B. 114. 
 
 (d) lb. («) See Muckleston v. Broivn, 6 
 
 (e) See Blackwood v. Borrowes, Ves. 68 ; Joy v. Camphell, 1 Soli. 
 2 Conn. & Laws. 478. & Lef. 335, 339 ; Ottley v. Browne, 
 
 (/) Keblev. Thompson, 3 B. C. C. 1 B. & B. 360. 
 112; Ex parte Poulson, IDeGex, 79. 
 
774 
 
 CONCUERENCE IN BREACH OF TRUST. [CII. XXVI. S. 3. 
 
 trust in the 
 breach of trust. 
 
 Ignorance. 
 
 Feme coverts and 
 infants cannot 
 concur. 
 
 Bxcept guilty of 
 actual fraud. 
 
 sequences of the act (a). Thus, in the leading' case of Brice v. 
 Stokes (b), where the trust estate was sold with the approbation 
 of Brice, the tenant for life, and the purchase money was 
 improperly left in the hands of one of the trustees with the 
 knowledge of Brice, Lord Eldon held, that the trustees were 
 answerable to the remainderman for the principal, but not to 
 the tenant for life for the interest. " If," said his Lordship, 
 " there are two trustees, and a transaction takes place, in which 
 the fund is taken out of the state in which it ought to have 
 remained, and is not placed in a state in which it ought to be, 
 but is kept in hands which ought not to retain it, if any partis 
 cular cestui que trust has acted in authorising that as much as 
 the trustee who has not the money in his hands, and continues 
 to permit it to be so treated, in a question between that cestm 
 que. trust and that trustee, the latter shall not be called upon 
 by the former." 
 
 But persons cannot be held to have concurred in a breach of 
 trust who had not the means of knowing that the acts to which 
 they were parties involved a breach of trust (c). 
 
 And persons cannot concur in a breach of trust, who, as, feme 
 coverts {d) and infants (e), have no legal capacity to consent to 
 the transaction. 
 
 But neither coverture nor infancy will be a protection from 
 a charge of fraud, and therefore if a feme covert (f), or 
 
 (o) Walker v. Symonds, 3 Sw. 
 64, per Lord Eldon; Wilkinson v. 
 Parry, 4 Russ. 272; Cocker v. 
 Quayle, 1 E. & M. 535 ; Nail v. 
 Punter, 5 Sim. 555 ; Newman v. 
 Jones, Rep. t. -Pinoh, 58; and see 
 Fellows T. Mitchell, 1 P. W. 81 ; 
 Booth V. Booth, 1 Beav. 125; 
 ZangfordY. Oascoyne, 11 Ves. 336; 
 White V. White, 5 Ves. 555 ; In re 
 Chertsey Market, 6 Price, 280, 284 ; 
 Baker v. Carter, 1 Y. & C. 255 ; 
 Byrchall y. Bradford, 6 Mad. 13 ; 
 Morley v. Lord Hawke, cited in 
 Small V. Attwood, 2 T. & J. 520 ; 
 Fyler v. Fyler, 3 Beav. 650. 
 
 (J) 11 Ves. 319. 
 
 (c) Bucheridge v. Glasse, 1 Cr. 
 & Ph. 135, per Lord Cottenham. 
 
 {d) Byder v. Bickerton, cited 
 Walker v. Symonds, 3 Sw. 80 ; 
 Underwood v. Stevens, 1 Mer. 717 ; 
 Smith V. French, 2 Atk. 243 ; Need- 
 ler's case, Hob. 225 ; Bench v. Lench, 
 10 Ves. 517, per Sir W. Grant; 
 Lord Montfort v. Lord Cadogan, 
 19 Ves. 639, 640, per Lord Eldon; 
 and see Parkes v. White, 11 Ves. 
 221 ; Bateman v. Davis, 3 Mad. 98. 
 
 (e) See supra, pp. 34, 39; and 
 Wilkinson v. Parry, 4 Russ. 276. 
 
 (/) Ryder v. Bickerton, cited 
 Walker v. Symonds, 3 Sw. 82, per 
 Lord Hardwicke, and see Savage 
 V. Foster, 9 Mod. 35 ; Lord Mont- 
 
CH. XXVI. S. 3,] ACQUIESCENCE IN BREACH OF TRUST. 775 
 
 infant (a), draw .in a trustee to commit a breach of trust, such 
 feme covert or infant cannot afterwards call the trustee to 
 account for having exceeded the line of his duty. 
 
 And a feme covert will be bound by her concurrence Separate use. 
 in a breach of trust as to a fund which is settled to her 
 separate use (6). But she will not be estopped upon the 
 ground of concurrence where it was not her own voluntary 
 act, but her judgment was misled, or she was under undue 
 influence (c). And a feme covert has no power to concur in 
 any act as to a fund settled to her separate use, with a restraint 
 against anticipation (<Z), and of course concurrence, will not 
 operate beyond the interest settled to her separate use, as if 
 a feme be tenant for life to her separate use with a power 
 of appointing the corpus by will, though her concurrence would 
 affect the life interest it does not prevent the appointees under 
 the wiU from holding the trustees responsible (e). But other- 
 wise, if the feme be tenant for life, with a general power of 
 appointment which is equivalent to ownership, and is therefore ^ 
 regarded as an estate to her separate use (/). 
 
 Again, a cestui que trust, though he did not concur at the Acquiescence of 
 . 1/, cestui gue trust. 
 
 time, may have acquiesced mthe breach of trust subsequently (^). 
 
 How far the mere knowledge of a right to sue in respect of Wlether 
 
 1 , , . . -11 • 1 ™^''^ knowledge 
 
 a breach of trust, and the abstaining to sue will, without any and abstinence 
 
 other act, constitute laches in the eye of a Court of equity, in°^es'ofb-eMh 
 and disentitle the plaintiff to relief, as in the particular ofti™st. 
 
 fort V. Lord Cadogan, 19 Ves. (e) Kellaway v. Johnson, 5 Beav. 
 
 640 ; Vandehende v. Livingston, 3 319. 
 
 Sw. 625 ; Evans v. Siehnell, 6 Ves. (/) Brewer v. Swirles, 2 Smale 
 
 181 ; Jones v. Kearney, 1 Dru. & & Giff. 219. 
 
 "War. 166. {g) 'Walker v. Symonds, 3 Sw. 64, 
 
 (a) See the eases at note (e), p. per Lord Eldon ; Hope v. Liddell, 
 ZQ, supra. 21 Beav. 183; SriceY, Stokes, 11 
 
 (b) Walker v. Shore, 19 Ves. Ves. 326; Macdonnell y. Harding, 
 387 ; see 393 ; and see Bucheridge v. 7 Sim. 190 ; Broadhurst y. Balguy, 
 Glasse, Ci. & Ph. 136. 1 Y. & C. Ch. Ca. 16; Lincoln v. 
 
 (e) Whistler Y. Newman, 4 Ves. Wright, i'Bea.Y. 432; Blackwood y. 
 
 129 ; Hughes v. Wells, 9 Hare, Borrowes, 2 Con. & Laws. 459 ; and 
 
 773; and see Walker v. Shore, 19 see Thompson v. Simpson, 1 Dru. 
 
 Ves. 393. & War. 459 ; Kent v. Jackson, 14 
 
 [d) Cocker y. Quayle, 1 E. &M. Beav. 384; GrahamY. Birkenhead 
 
 535; tut see Derbishire v. Home, Co., 2 Mac. & Gor. 146; Stone v. 
 
 3 De G. M. & G. pp. 102, 113. Godfrey, 5 De Gex, Mac. &Gor. 76. 
 
776 
 
 ACQUIESOENCE IN BEEACH OF TRUST. [CH. XXVI. S. 8. 
 
 Harden v. 
 Parsons. 
 
 instances of purchases by trustees^ &c. above referred to (a), 
 cannot be considered as clearly settled. The present Master 
 of the Eolls in a late case appears to have thought that mere 
 delay disentitled a plaintiff under such circumstances to relief, 
 but his decision rested also on facts amounting, in his Honor's 
 opinion, to actual acquiescence (b). 
 
 A testator gave 400Z. to A., B., C, and D., his executors, 
 upon trust to invest in lands to be settled on E. The money 
 was lent improperly to A. upon the security of his bond, and 
 lost ; but, as E., the legatee, had constantly accepted interest on 
 the loan, and had neither brought his bill, nor called on the 
 executors to invest the money in land, it was held he had 
 virtually consented, and thus estopped himself from holding 
 the trustees responsible (c). 
 Smitii V. French. In another case, on the marriage of Mr. Segar with Miss 
 French, a sum of lOOOi., belonging to the lady, was assigned to 
 her mother as trustee, and by indenture executed after the 
 marriage, the trusts were declared for the separate use of the 
 wife, remainder to the issue, remainder, if no issue, to the 
 survivor. At the joint solicitation of the husband and wife the 
 money was advanced to the husband, and, with the exception of 
 350^., was never repaid ; but the mother, who was the trustee, 
 had threatened to proceed for the remainder, when the daughter 
 fell upon her knees and begged her to desist, as she would 
 release her from all claims. For seven years after the hus- 
 band's death the widow lived with her mother, and made no 
 demand, but several times offered to execute a release. The 
 daughter then married again, and a bill was filed against the 
 mother to make good the money lost ; but Lord Hardwicke 
 said, " I think it comes very near the case of an infant, who, 
 contracting a debt during his minority, shows his consent to it 
 by confirming it after he comes of age, which shall effectively 
 bind him, though it was voidable at his election. So here a 
 promise by the wife to release during the coverture, it is 
 certain, would not bind the wife, but if, after the death of her 
 
 (o) See p. 742, supra. 
 
 (6) Browne v. Cross, 14 Beav. 
 105, pp. Ill, 113 ; and see the oases 
 at pp. 741, 742, 743, supra. 
 
 (c) Harden v. Parsons, 1 Ed. 
 145 ; and see Loader v. Clarke, 2 
 Mao. & Gor. 382. 
 
CH. XXVI. S. 3.] ACQUIESCENCE IN BEEACH OF TRUST. 777 
 
 husband, she repeats the promise, it is a confirmation of it, and 
 good " (a). 
 
 It seems that a public and fluctuating body, as parishioners. Fluctuating body 
 may be bound by acquiescence (&). But it is almost unneces- or creditors. 
 sary torepeat, that acquiescence cannot be objected against a 
 class of persons, as parishioners or creditors, with the same 
 degree of force as against a single individual (c). . 
 
 Lastly, a cestui que trust may preclude himself from his Release and 
 
 . confirmation by 
 
 remedy against the trustee by executing a formal release of the cestui que trust. 
 breach of trust, or giving validity to the transaction by an 
 express confirmation (d). And if the cestui que trust release 
 the principal in a breach of trust or fraud, he cannot after- 
 wards proceed against the other parties who would have been 
 secondarily liable (e). 
 
 But acquiescence, and release or confirmation, to have the Eeqnisites for 
 
 ™ 1 • 1 I 1 1 , 1 T TaM aequies- 
 
 eftect we have mentioned, must be understood to be accom- cenoe, release, or 
 panied with the following conditions :— confirmation. . 
 
 1. As in the case of concurrence, the cestui que trust must 
 be sui juris, and not a feme covert or infant, and in the case 
 of infants, the Court continues its protection even after they 
 have attained twenty-one till such time as they have acquired 
 all proper information (/). However, a feme covert is clearly 
 sui juris as regards property settled to her separate use in 
 possession where there is no restraint against anticipation ; 
 though she cannot bind herself prospectively as to an estate 
 which will stand limited to her separate use upon a contingency 
 which has not yet occurred (g). Whether the separate estate 
 
 [a) Smith v. French, 2 Atk. 243. (e) Thompson v. Harrison, 2 B. 
 
 (6) See Corporation of Ludlow v. C. C. 164 ; see Blachioood v. Bor- 
 
 Oreenhouse, 1 Bligh New Rep. 92 ; rowes, 2 Conn. & Laws. 478. 
 
 In re Chertsey Market, 6 Price, (/) See Walker v. Symonds, 3 
 
 280, 284; Edenhorough v. Arch- Sw. 69; JSicks v. Hicks, 3 Atk. 
 
 hishop of Canterbury, 2 Ruas. 105, 274 ; Osmond v. Fitzroy, 3 P. "W. 
 
 108; Attorney-General v. Scott, 1 131; Hylton v. Hylton, 2 Ves. 
 
 Yes. ild ; Attorney-Oeneraly, Cum- 647; Kilhee v. Sneyd, 2 Moll. 
 
 ing, 2 Y. & C. Ch. Ca. 150. 233 ; March v. Bussell, 3 M. & 
 
 (e) See sM^ro, p. 471. C. 42, 44; Bateman v. JDavis, 3 
 
 (d) Blackwood v. Borrowes, 2 Mad. 98; Wedderburn v. Wedder- 
 
 Conn. & Laws. 459 ; French v. Hob- burn, 4 M. & C. 41. 
 
 «o»i, 9 Ves. 103; Wilkinson y. Parry, [g) Mara v. Manning, 2 Jon. & 
 
 4Russ. 272; Aylwyny. Bray, cited Lat. 311. 
 in Small Y. Attwood, 2 Y. & J. 517. 
 
778 STATUTE OF CHAEITABLE USES. [CH. XXVI. g. 4. 
 
 of a married woman who is restrained from anticipation can 
 be affected by her acquiescence, appears to be at present 
 unsettled. In a late case (a) Lord Justice Turner intimated 
 his leaning to be in favour of the affirmative, though, but 
 for such high authority, the negative might have seemed 
 the sounder view. The language of Lord Justice Knight 
 Bruce in the case alluded to, was more guarded. But, of 
 course, the restraint on anticipation can impose no fetter as 
 respects income accrued due before the acts of acquiescence 
 relied upon (6). 
 
 2. The cestm que trust must be fully cognisant of all the 
 facts and circumstances of the case (c). 
 
 3. The cestui que trust must not only be acquainted with 
 the facts, but be also apprised of the law, or how those facts 
 would be dealt with if brought before a Court of equity (^). 
 
 4. The release must not be wrung from the cestui que trust 
 by distress or terror (e). 
 
 SECTION IV. 
 
 OP THE MODE AND EXTENT OP EEBEESS IN BEEACHES OF TETJST 
 COMMITTED BT TBTTSTEES OE CHABIIZES. 
 
 I. Of the mode of redress. 
 Ordinary mode The regular and ordinary course of proceeding is by way of 
 
 (o) Berhishire v. Home, 3 De 2 Keen, 722 ; 4 M. & C. 41 ; Munch 
 
 Gex, Mac. & Gor. 80. v. Cocherell, 9 Sim. 339 ; 5 M. & 
 
 (J) Mowley v. Unwin, 2 Kay & Cr. 179 ; Broadhurst t. Balguy, ] 
 
 John. 138. T. & C. Ch. Ca. 16. 
 
 (c) Adams v. Clifton, 1 Euss. {d) Cocherell v. Cholmeley, 1 E. 
 
 297 ; Walker v. Symonds, 3 Sw. 1 
 Randall v. Errington, 10 Ves. 423 
 Buckeridgey. Glasse, Cr, &Ph. 126 
 
 & M. 425, per Sir J. Leach; and 
 see Chesterfield v. Janssen, 2 Ves. 
 146, 149, 152, 158; Bowes v. JEast 
 
 Bennettv. Colley,21£. &K.2'i2,per London Water Works Company, 
 
 Lord Brougham; and see £arl of 3 Mad. 384; McCarthy v. Becaix, 
 
 Chesterfield v. Janssen, 2 Ves. 146, 2 R. & M. 615 ; Marker v. Marker, 
 
 149, 152, 168 ; Roche v. O'Brien, 1 9 Hare, 16 ; Stone v. Godfrey, 5 
 
 B. & B. 339, and the oases there De Gex, Mac. & Gor. 90 ; Burrows 
 
 cited ; Bowes v. East London Water v. Walls, 5 De Gex, M. & G. 254. 
 Works Company, 3 Mad. 375; (e) Bowles v. Stewart, 1 Soh. 
 
 McCarthy v. Becaix, 2 E. & M. & Lef. 209, see 226. 
 615 ; Wedderhurn T, Wedderburn, 
 
CH. XXVI. S. 4.] SIR S. ROMILLY'S ACT. 779 
 
 information (1) in the name of the Attorney-General : the King of redress in 
 
 ' ■' ^ breach of trust 
 
 is 'parens patricB, and it is the duty of his officer, the Attorney- by charitable 
 General, to see that justice is administered to every part of 
 his Majesty's subjects. Eelators need not be personally 
 interested (a). They are required merely because the Attorney- 
 General, prosecuting a suit in the name of the Crown, would 
 not be liable to costs, and unless some person were made 
 responsible, proceedings might be instituted very oppressive 
 to individuals (&). 
 
 In the reign of Elizabeth an Act was passed, commonly statute of oha- 
 called the Statute of Charitable Uses (c), by which the Court of 
 Chancery was empowered to issue commissions to certain per- 
 sons, including the bishop of the diocese, who were authorised, 
 after summoning a jury of the county where the property was 
 situate, to inquire into any abuse or misapplication of the trust 
 estate. Many of these proceedings were so little consonant 
 with justice, and, on appeal to the Lord Chancellor, were found 
 at once so puzzling, and so far from accomplishing the object 
 in view, that at length the practice of issuing commissions fell 
 into disuse, and people again resorted to the original process 
 by way of information (d). 
 
 After commissions had ceased to be issued, the legislature 52 G. 3, c. loi, 
 endeavoured to provide a remedy, not as before, by creating a Act. 
 new jurisdiction, but by giving liberty to proceed under the old 
 jurisdiction in a summary mode. The 52 Geo. 3, c. 101, com- 
 monly called Sir Samuel Eomilly's Act, and intituled " An Act 
 
 (a) Attorney- General v. Vivian, (c) 43 Eliz. c. 4. 
 
 1 Russ. 226. ((^) Corporation of Ludlow v. 
 
 (6) Corporation of Ludlow v. 6rreeMAoMse, IBlighN.R. 61, 62,^er 
 Greenhouse, 1 Blighj N. R. 48, per Lord Redesdale. 
 Lord Redesdale. 
 
 (1) Where the management of no charity revenue is concerned, as in a 
 suit instituted by parishioners for the mere purpose of setting aside the 
 nomination of a clerk to the bishop by the trustees of the advowson, the 
 Attorney-General need not be a party ; it is the simple case of cestuis que 
 trust calling upon the trustees to exercise the legal right; and the suit 
 should be not by information, but by bill. See Attorney -General v. 
 Parher, 1 Ves. 43; S. C. 3 Atk. 576; Attorney- General v. Fovster, 
 10 Ves. 335 ; Attorney- General v. Newcnmhe, 14 Ves. 1 ; Davis v. Jenkins, 
 3 V. & B. 151 ; Inhabitants of Clapham v. Hewer, 2 Vern. 387; Attorney- 
 General Y. Cuming, 2 T. & C. Ch. Ca. 149. 
 
780 
 
 SIR s. eomilly's act. 
 
 [CH. XXVI. s. 4. 
 
 Striottires on the 
 Act. 
 
 Construction of 
 the Act. 
 
 Interest. 
 
 Breach of trust. 
 
 to provide a summary Eemedy in Cases of Abuses of Trusts 
 created for Charitable Purposes," declared that " in every case 
 of a breach of any trust created for charitable purposes, or 
 whenever the direction or order of a Court of equity should be 
 deemed necessary for the administration of any trust for chari- 
 table purposes, it should be lawful for any two or more persons 
 to present a petition to the Chancellor, Master of the Eolls, or 
 Court of Exchequer, praying such relief as the nature of the 
 case might require, such petition to be heard in a summary 
 way upon affidavits or such other evidence as should be pro- 
 duced, the order made thereon to be final and conclusive, 
 unless appealed against to the House of Lords within two years 
 from the entry thereof." And it was provided that "every 
 petition should be signed by the persons preferring the same 
 in the presence of and be attested by the solicitor or attorney 
 concerned for the petitioners, and should be allowed by his 
 Majesty's Attorney or Solicitor General." 
 
 These enactments, though penned by a very able hand, have 
 been strongly reprobated as very loosely and obscurely worded 
 — as tending rather to increase than diminish the expense of 
 the application — in short, as having produced more mischief 
 than benefit. " It was a wise saying," observed Lord Redes- 
 dale, " that the farthest way about was often the nearest way 
 home, and he believed that these summary proceedings would 
 be not always the nearest, or at least not the best way 
 home (a)." 
 
 Upon the construction of this statute the following points 
 have been resolved : — 
 
 1. Although the Act authorises any two or more persons to 
 present the petition, the words must be understood to mean 
 any persons having an interest (b) : and the Court is bound 
 to see not only that the petitioners are possessed of a clear 
 interest, but that they prove themselves to be possessed of the 
 identical interest they allege in their petition (c). 
 
 2. It has been said that the body of the statute is to be 
 
 (a) Corporation of Ludlow v. 
 Greenhouse, 1 Bligh N. E. 49. 
 
 (J) In re Bedford Charity, 2 Sw. 
 518, per Lord Eldon, 
 
 (c) Corporation of Ludlow v. 
 Greenhouse, 1 Bligh N. E. 91, per 
 Lord Eldon. 
 
CH. XXVI. S. 4.] 
 
 SIR S. EOMHiLYS ACT. 
 
 781 
 
 governed by the preamble, and therefore will not authorise a 
 petition for any other purpose than relief against a breach of 
 trust [a). But this narrow construction gives no force to the 
 words in the Act, " or whenever the direction or order of a Coii/rt 
 of equity shall be deemed necessary for the administration of any 
 trust for charitable purposes ;'' and the doctrine has since been 
 called into question, and may be considered as overruled (&). 
 
 3. The provision extends only to plain and simple cases for Plain and simple 
 the opinion or direction of the Court (c), not where a question the Act. 
 is to be discussed adversely who are to be intrusted with the 
 administration of the charity estate (d), or who are entitled to 
 the benefit of it (e), or whether the trustees or governors of the 
 charity have or not, by the constitution of it, a certain authority, 
 as of removing a master (/), or where any stranger is inter- 
 ested (g) (for the right of a third person cannot be disposed of 
 on petition (h) ), or where the relief which is sought is directed 
 against the assets of a deceased trustee (i), or where the object 
 of the application is not to have the existing charity regulated. 
 
 (a) Corporation of Ludlow v. 
 Greenhouse, 1 BlighN.E. 66, 67, 81, 
 per Lord Redesdale ; and see In re 
 Clarke's Charity, 8 Sim. 42. 
 
 (6) In re Upton Warren, 1 M. & 
 K. 410; In re Parke's Charity, 
 12 Sim. 332 ; In re Manchester New 
 College, 16 Beav. 610 ; In re Hall's 
 Charity, 14 Beav. 115 ; and see In 
 re Slewringe's Charity, 3 Mer. 707 ; 
 Ex parte Rees, 3 V. & B. 12 ; In re 
 Clarke's Charity, 8 Sim. 34 ; In re 
 Phillipotfs Charity, 8 Sim. 381 ; and 
 the cases collected in the note to In 
 re Sail's Charity, 14 Beav. 120. 
 
 (c) Corporation of Ludlow v. 
 Greenhouse, 1 Mad. 92, reversed 
 in D. P. 1 Bl. N. K. 17, see 66, 
 81, 89 ; In re Phillipott's Charity, 
 8 Sim. 381 ; Ex parte Brown, 
 Coop. 295 ; Ex parte Skinner, 2 
 Mer. 456, 457, per Lord Eldon; 
 and see In re Chertsey Market, 6 
 Price, 277. 
 
 {d) In re West Betford Church 
 and Poor-lands, 10 Sim. 101 ; In 
 re PhilKpott's Charity, 8 Sim. 381. 
 
 (e) Corporation of Ludlow v. 
 Greenhouse, 1 Bligh N. R. 66 ; Be 
 Manchester New College, 16 Beav. 
 610; In re Clarke's Charity, 8 Sim. 
 34. 
 
 {f ) Attorney- General v. Corpora- 
 tion of Bristol, 14 Sim. 648; and 
 see Manchester New College, 16 
 Beav. 610; Attorney- General v. 
 East Betford Grammar School, 17 
 Law Journ. N. S. Ch. 450 ; but see 
 Be Fremington School, 10 Jur. 512 ; 
 11 Jur. 421 ; Be Phillips's Charity, 
 9 Jur. 959. 
 
 [g) Corporation of Ludlow v. 
 Greenhouse, 1 Bligh N. R. 66, per 
 Lord Redesdale ; Ex parte Bees, 
 3 V. & B. 10 ; In re Manchester New 
 College, 16 Beav. 610 ; but see In 
 re Upton Warren, 1 M. & K. 410. 
 
 (A) Corpm-ation of Ludlow v. 
 Greenhouse, 1 Bl. N. R, 93, per 
 Lord Eldon. 
 
 (i) Ex parte Skinner, Wils. 15, 
 per Lord Eldon ; In re Saint Wenn's 
 Charity, 2 S. & S. 66. 
 
782 siE s. eomilly's act. [ch. XXVI. s. 4. 
 
 but to have the funds diverted to some other charitable pur- 
 pose (a). The Court has jurisdiction, however, under the Act, 
 to settle a scheme of the charity (6), or to alter a scheme pre- 
 viously settled by decree (c), or to appoint new trustees (d), or 
 where parishes have been divided to apportion the charities 
 amongst the districts (e), or to direct a sale of the charity 
 estate in a proper case (/), and generally the Court, as between 
 the trustees and cestuis que trust of the charity, exercises a 
 discretion as to whether it can put in operation the powers 
 given by the Act with benefit to the charity (g). 
 
 Allowance. 4. The allowance "by the Attorney or Solicitor General" 
 
 must be construed with reference to the previous law upon the 
 subject, and must therefore be taken to mean, not by the 
 Attorney or Solicitor General indifferently, but by the Attorney- 
 General, when there is such an officer, and in the vacancy of 
 that office by the Solicitor-General (h). 
 
 Wantofsigna- 5. If the petition be not signed by the Attorney-General or 
 
 Solicitor-General, or if, after signature, it be not duly served, 
 any order made by the Court will be an absolute nullity (i), 
 and the petition may be taken off the file for irregularity (k). 
 
 Caution in signa- 6. As the intention of the legislature was to guard the 
 
 ture. , . 
 
 chanty fund from abuse, and with that view to prevent pro- 
 ceedings from being instituted, as they frequently were before, 
 for no other reason than because it was known the costs would 
 
 (a) In re Heading Dispensary, 10 of a williiig purchaser) such orders 
 
 Sim. 118. -were made, but the Court did not 
 
 (5) Zn re Moyston Free Orammar warrant the title ; but in Suir Island 
 
 School, 2 Beav. 228 ; In re Berh- Female Charity School, 3 Jon. & 
 
 hampstead Free Orammar School, Lat. 171, the Lord Chancellor, not- 
 
 2 V. & B. 134; In re Shrewsbury withstanding Re Parkers Charity, 
 
 Grammar School, 1 Mao. & Gor. declined to make such an order. 
 
 324 ; 1 Hall & Tw. 401. As to the jurisdiction of the Court 
 
 (c) Attorney-General v. Bishop generally to sell charity lands, see 
 
 of Worcester, 9 Hare, 328. supra, p. 503. 
 
 {d) Bignold v. Springfield, 7 CI. {g) In re Manchester New Col- 
 
 & Fin. 71. lege, 16 Beav. 610. 
 
 (e) In re West Mam Charities, 2 (/i) Corporation of Ludlow v. 
 
 De Gex & Sm. 218. Greenhouse, 1 BlighN. E. 51, 52, 82, 
 
 (/) Jte Parke's Charity, 12 Sim. per Lord Redesdale ; Ex parte Skin- 
 
 328. In lie Alderman Newton's »e»", 2 Mer. 456, ^er Lord Eldon. 
 
 Charity, 12 Jur. 1011 (the case (i) Attorney- General v. Green, 
 
 of an exchange), and again, in Pe 1 J. & W. 305. 
 
 Sowerhy's Charity, Jan. 26, 1849, {k) In Pe Bovenby Hospital, 1 
 
 before the V. C. of England (the case M. & Cr. 279. 
 
CH. XXVI. S. 4.] SIB S. EOMILLY'S ACT. 783 
 
 be paid out of the charity estate, the Attorney- General, or, in 
 the vacancy of that office, the Solicitor- General, ought not to 
 sanction the petition with his signature but upon as much 
 deliberation as if the relief were sought by way of infor- 
 mation (a). 
 
 7. The Attorney-General by his allocatur, or allowance, of Attorney-General 
 the petition, is not functus officio, and precluded from all future ""^ ^ ^ ^* ^' 
 control, but must be made a party to any subsequent proceed- 
 ings under the petition, as he would have been to aU pro- 
 ceedings by way of information (&). 
 
 8. The Attorney- General, as representing the person of the May correct his 
 King in his character of parens patrice, is bound to see justice J^'^sment. 
 done, not only to the plaintiff in the petition, but also to the 
 
 trustees and other defendants, and therefore is not estopped by 
 his allocatur of the petition from afterwards correcting his 
 judgment, but may support or oppose the views of the peti- 
 tioners, as in his discretion he may think fit (c). 
 
 9. When the jurisdiction of the Court has been once Motion. 
 attracted by the petition, any subsequent order may be made 
 upon motion without the expense of any further petition {d). 
 
 10. No appeal lies to the Lord Chancellor from an order Ajipeal. 
 made by the Master of the KoUs, but only to the House of 
 Lords directly (e). 
 
 Under powers given by the 58 Geo. 3, c. 91, & 59 Geo. 3, Acts appointing 
 
 ■^ ° "^ ... . . Commissioners of 
 
 c. 81, certain commissioners of inquiry into charities were Inquiry, 
 appointed, and by the 59 Geo. 3, c. 91, it was enacted, that 
 when it appeared to such commissioners of inquiry that the 
 directions or orders of a Court of equity were requisite for 
 remedying any neglect, breach of trust, fraud, abuse, or miscon- 
 duct in the management of any trust created for charitable 
 purposes, &c., it should be lawful for the said commissioners, 
 
 (a) Ex parte Skinner, 2 Mer. (c) Corporation of Ludlow v. 
 
 456, per Lord Eldon. Greenhouse, 1 Bl. N. R. 43—52. 
 
 (5) Corporation of Ludlow v. {d) In JJe Slewringe's Charity, 3 
 
 Greenhouse, 1 Bligh N. K. 51, 65, Mer. 707 ; Ex parte Friendly So- 
 
 82, 9,Z,per Lord Redesdale ; Attor- ciety, 10 Ves. 287; In re Chipp%ng 
 
 ney- General v. Stamford, 1 Phill. Sodhury School, 5 Sim. 410. 
 
 737 ; and see In re Chertsey Market, (e) Be Royston Grammar School, 
 
 6 Price, 271 ; Attorney- General v. 9 L. J. N. S. Ch. 250; and see He 
 
 Haberdashers' Company, 15 Beav. Manchester College, 16 Beav. 618. 
 397, 
 
784 
 
 NEW JUEISDICTION OF 
 
 [CH. XXVI. S. 4. 
 
 16 & 17 Vict, 
 c, 137. 
 
 Powers of 
 inquiry. 
 
 New jurisdiction 
 at chambers. 
 
 New jurisdiction 
 of Courts of 
 Bankmptey and 
 County Courts. 
 
 Necessity for 
 
 to certify the particulars of such case to his Majesty's Attorney- 
 General, and thereupon it should be lawful for the Attorney- 
 General to apply to, or commence a suit in the Court of 
 Chancery, stating and setting forth the neglect, breach of trust, 
 fraud, abuse, or misconduct or other cause of complaint or 
 application, and praying such relief as the nature of the case 
 might require. The labours of these commissioners of inquiry 
 proved very valuable, and many informations were filed in con- 
 sequence of certificates made by them ; but their powers, after 
 being frequently continued, expired in 1837. 
 
 By the late Charitable Trusts Act, 1853, great additional 
 facilities have been afforded for detecting and remedying 
 breaches of trust in charity matters. 
 
 Four commissioners are appointed {a), to whom are con- 
 fided powers of inquiry (6) similar to those given to the 
 commissioners appointed by the Acts of George 3, and also 
 a similar power of certifying cases to the Attorney-General 
 as fit for his interference (c). 
 
 In cases of charities the incomes of which exceed 80Z. per 
 annum, the same jurisdiction is given in charity cases to the 
 Chancery Judges at chambers as was before the Act exercisable 
 by the Court of Chancery or the Lord Chancellor intrusted 
 with the custody of lunatics in a suit regularly constituted, or 
 upon petition ; but the Judge may direct an information, biU, 
 or petition to be filed or presented {d). And the provisions of 
 the Act in respect to charities whose incomes exceed 30L per 
 annum, are applicable to charities within the city of London, 
 the income whereof is less than 30Z. per annum (e). 
 
 Where the incomes of charities do not exceed 30Z. per 
 annum, the District Courts of Bankruptcy and County Courts 
 have the same jurisdiction as the Court of Chancery (/) ; and 
 with the permission of the Charity Commissioners, to be 
 applied for within one month after the order is made (p), an 
 appeal lies to the Court of Chancery (/i). 
 
 The Act contains a special provision that no suit or pro- 
 
 (a) Sect. 1. 
 (J) Sects. 9 to 14. 
 (c) Sect. 20. 
 {d) Sect. 28. 
 
 (e) Sect. 30. 
 (/) Sect. 32. 
 (V) Sect. 39. 
 (A) Sect. 40. 
 
CH. XXVI. S. 4.] CHANCEEY AND COUNTY COURTS. 785 
 
 ceeding not being an application " in any suit or matter actiublly previous coDsent 
 
 ,. „ . of Charity Com- 
 
 penamg, shall be commenced or taken without an authority missioners before 
 
 previously obtained from the charity commissioners. The ceedmgs.™' 
 
 construction of this clause has given rise to considerable 
 
 difficulty. It was at first held that where money had been 
 
 paid into Court under the Trustee Relief Act, 10 & 11 Vict. 
 
 c. 96 (a), or under a Railway Act {b), no such suit or matter was 
 
 pending as to obviate the necessity of previously obtaining 
 
 the concurrence of the charity commissioners, and further,that 
 
 if a scheme had been settled in the same charity, under Sir S. 
 
 Romilly's Act, a petition for a new application of part of the 
 
 charity funds must have had the previous sanction of the 
 
 charity commissioners (c). But it has since been decided by 
 
 the Court of Appeal, that in such cases the previous sanction 
 
 of the charity commissioners is unnecessary. The object 
 
 of the provision was merely to stop the enormous abuses in 
 
 reference to proceedings in charity matters, and the words 
 
 suit or matter actually pending mean pending at the time 
 
 of the application, and not at the passing of the Act (d). 
 
 The Act contains other provisions (e) of a preventive rather other provislous 
 than a remedial kind. Thus by the 16th section, the Board 
 has power to entertain applications for their opinion or advice, 
 and persons acting in accordance therewith are indemnified. 
 
 By the 48th section, lands belonging to any charity may be 
 vested in the secretary of the Board as a corporation sole by 
 the name of the Treasurer of Public Charities; and by the 51st 
 section, annuities, stock, shares, or securities held for any 
 charity may be vested in the Official Trustees of charitable 
 funds ; and by the 54th and following sections, the Board have 
 power to approve provisionally of new schemes of charities, 
 varying from the original endowment, but which are to be 
 submitted annually to Parliament for its ratification. 
 
 By the Amendment Act, 18 & 19 Vict. c. 134, by the 15th cliaritaWe trusts 
 
 Amendment Act. 
 
 {a) Be MarkwelVs Legacy, IV (c) Be Ford's Charity, 3 Diewrj, 
 
 Beav. 618 ; In re Skeetes, 1 Jur. 324. 
 
 N. S. 1037 ; and see Be Bingley {d) Be Lister's Hospital, 6 Dc 
 
 School, 2 Drewry, 283. Grex, M. & G. 184. 
 
 (J) Be London Brighton and South (e) See p. 504, supra, for powers 
 
 CoasfBaihcay Company, 18 Beav.608. of leasing, sale, &o. given by the Acts. 
 
 8 s 
 
786 
 
 MESNE RENTS AND PROFITS. [CH. XXVI. S. 4. 
 
 section, the name of the Treasurer of Public Charities is 
 abolished, and the secretary of the Board for the time being is 
 styled the OflScial Trustee of charity lands ; and, by the 17th and 
 18th section, the Act provides for the appointment of the 
 Official Trustees of charitable funds to consist of the secretary 
 of the Board for the time being, and such other persons as the 
 Lord Chancellor may appoint who are to have perpetual 
 
 succession. 
 
 What account 
 will be directed 
 of mesne rents 
 and profits. 
 
 The aooonnt not 
 affected by 
 statutes of limi- 
 tation. 
 
 How far by pre- 
 sumption. 
 
 II. Of the extent of redress. 
 
 Under this head we propose to inquire only within what period 
 of time the account of mesne rents and profits directed against 
 the trustee guilty of the breach of trust wiU be restricted. 
 
 It has been stated in a former page, that to suits for relief in 
 equity there exist but three bars : first, a statute of limitations; 
 secondly, the presumption of an Act which, if done, is an answer 
 to the plaintiff's demand ; and, thirdly, the public or private 
 inconvenience that would arise from the Court's interference. 
 
 1. It is clear that until the recent statute informations 
 against trustees of charities (the trust being not constructive 
 but direct) were not within the purview of the statutes of limi- 
 tations (a). It was at one time, indeed, held, that although the 
 statute was not an absolute bar, yet the Court would be 
 governed by the same period, as a good rule how far back to 
 carry the account (6) ; but afterwards the doctrine was denied, 
 and the Court professed to pay no attention whatever to the 
 limitation of any statute (c). But now chaiities are within the 
 operation of the 3 & 4 W. 4, c. 27, but are protected by the 
 saving clause, which excepts cases of an express trust (d). 
 
 2. It was observed by Sir T. Plumer, that presumption also 
 did not apply to the case of trustee and cestui que trust (e). 
 
 (a) Attorney- General v. Mayor of 
 Exeter, Jac. 448, per Sir T, Plumer ; 
 Attorney- General v. Brewers' Com- 
 pany, 1 Mer. 498, per Sir W. Grant; 
 see Incorporated Society, v. Rich- 
 ards, 1 Conn. & Laws. 58; 1 Dru. 
 & War. 258. 
 
 (6) Love v. Bade, Rep. t. Finch, 
 269 ; 2 Eq. Ca. Ab. 12, pi, 20. 
 
 (c) Attorney- General v. Mayor 
 of Exeter, Attorney - General v. 
 Brewers' Company, Incorporated 
 Society v. Richards, ubi supra. 
 
 {d) See ante, 749, 750. 
 
 (e) Attorney-General v. Mayor 
 of Exeter, ubi supra. 
 
SH. XXVI. S. 4.] MESNE EEKTS AND PROFITS. 787 
 
 However, although the Court cannot presume the cestui que 
 trust to have released the right to the estate, it may, in certain 
 cases, presume the employment of the funds in a particular 
 manner to have been by the direction or with the consent of 
 the cestui que trust. In Attorney-General v. Scott (a), the 
 parishioners had purchased an advowson by subscription in 
 the names of trustees ; and by a decree of the Court the 
 advowson had been vested in twenty-five of the principal 
 inhabitants, upon trust to elect and present a proper clerk, the 
 presentation to be approved by certain assistant preachers. 
 The trustees, for a century, had been in the habit of electing 
 and presenting without such approbation ; and, the last election 
 being disputed as irregular for want of that formality. Lord 
 Hardwicke said, " The general disusage was evidence of the 
 consent of the parishioners to lay aside that part of the consti- 
 tution as useless : he would presume the common consent of 
 the trustees and parishioners to lay aside the custom, as the 
 Court would presume an ancient bye-law to vary the constitu- 
 tion of a corporation." 
 
 3. The Court may set a limit to the account on the ground Bar to the ao- 
 of inconvenience ; and this bar applies in its full force to cases convenience of 
 of charities. " It is the constant practice of courts of equity," ^ ' 
 said Sir Thomas Plumer, " to discourage stale demands ; and 
 this principle has often been acted upon in cases of charities. 
 When there has been a long period, during which a party has, 
 imder an innocent mistake, misapplied a trust fund from the 
 laches and neglect of others, that is, from no one of the public 
 setting him right, and when the accounts have, in consequence, 
 become entangled, the Court, under its general discretion, con- 
 sidering the enormous expense of the inquiries, and the great 
 hardship of calling upon representatives to refund what fami- 
 lies, acting on the notion of its being their property, have 
 spent, has bfeen in the habit, while giving relief, of fixing a 
 period to the account. The result of the authorities is, that in 
 each case the Court is bound to be guided by the particular 
 circumstances" (&). 
 
 (o) 1 Ves. 413; and see In re (6) Attorney- General v. Mayor 
 
 CherUey Market, 6 Price, 280. of Exeter, Jao. 448. 
 
 3 £ 2 
 
788 MESNE RENTS AND PROFITS. [CH. XXVI. S. 4. 
 
 Attorney-General lu Attorney -General V. The Corporation of Stafford (a), the 
 Stafford. trustees in their answer, filed in 1811, had furnished accounts 
 
 of the trust estate from the year 1791, and Lord Gifford saw 
 no inconvenience in decreeing the account as far back as the 
 trustees themselves had stated it, but refused to extend it 
 farther. 
 
 Where no inconvenience can be objected^ the Court wiU 
 
 carry back the account to the time of commencement of the 
 
 misappKcation, or at least up to the period, when the plaintiff's 
 
 title to the fund first accrued. 
 
 Attorney-General In Attorney -General v. The Mayor of Exeter (b), the de- 
 
 V. Mayor of . . . 
 
 Exeter. fendants admitted by their answer, that they had been m pos- 
 
 session of the charity estate for the last SOO years, and had 
 applied considerable parts of the rents and profits to the 
 purposes of the charity, and that the residue of the rents and 
 profits, the amounts of which would appear from their books, 
 they had always been ready and willing to apply ; and Sir W. 
 Grant decreed an account of the rents and profits without any 
 limitation of time. Sir T. Plumer, before whom the cause was 
 reheard, observed, " Suppose the case of trustees called upon 
 to account for the receipts of two or three hundred years, who 
 admit the receipt, and say they have conscientiously laid up 
 the money, and that they have it ready for the charity, or that 
 they have invested it in the funds or in land, unmixed with 
 other money. What is the Court to do ? Can the Court give 
 to the trustees a part of the money or land which they acknow- 
 ledge not to be theirs ? It is admitted to belong to the charity, 
 and the charity must have it. There is no difficulty from com- 
 plicated accojmts : all the topics of hardship that may some- 
 times be urged fail of application to this case." > And his 
 Honour compelled the defendants to account for the rents and 
 profits for the whole period of 200 years. 
 
 Attorney-General In Attorney -Generals. The Brewers' Company (c), an estate 
 
 v Tii6 Brcw6rs' 
 
 Company. bad been vested in that company upon trust for the repairs of 
 
 the Harrow Eoad; and, by an Act of 19 Geo. 3, the proprie- 
 tors of all lands chargeable with the said repairs were directed 
 
 [a) 1 Euss. 547. (o) 1 Mer. 495. 
 
 {h) Jac, 4-13 ; 2 Russ. 362. 
 
Cir. XXVI. S. i.] MESNE BENTS AND PROFITS. 789 
 
 to pay the sums which should be so charged to certain trustees 
 appointed by the Act. About 1810, an information was filed 
 in the name of the Attorney-General, the trustees under the 
 Act being the relators, for an account of the rents and profits 
 which the company had not applied. Sir W. Grant said, " It 
 was a point not yet decided, from what period a corporate body 
 should account in matters of trust ; for to give the account 
 only from six years would be to create an analogy between a 
 trust account and a common account. However, the Act 
 which had been passed was not meant to have a retrospective 
 operation, and the trustees under that Act could not say they 
 had a right to the accumulated fund from any antecedent 
 period ; and the Attorney- General, suing at the relation of the 
 trustees, could have only such an account as the trustees them- 
 selves would be entitled to ;" and therefore his Honor directed 
 the account to be taken from the date of the Act of Parliament, 
 a period of about thirty years. 
 
 In a recent suit against a corporation the account was carried Attorney-General 
 back to the last appointment of new trustees of the corporation, Newwr*'"" °^ 
 a period short of ten years ; and in another contemporaneous 
 suit against the same corporation, but where the legal estate 
 was not in trustees, but in the corporation itself, the Court 
 by analogy, and for want of another fixed point, ordered the 
 account to commence at the date of the last appointment of 
 new trustees in the first suit (a). 
 
 In every suit, the limit of the account is regulated by the General result. 
 particular circumstances. In some cases it is carried back to 
 the period when the corporation was first informed of the mis- 
 application (as by the publication of the Charity Commis- 
 sioners' Report) ; in other cases it has been directed from the 
 time of filing the information, and in others from the date of 
 the decree (b). 
 
 In some cases, where the defendant has been in strict- Compromise 
 ness accountable for a very long period, but, if the right General. ™''^^' 
 were enforced, it would impose great hardship, it has been 
 referred to the Attorney-General, as representing the charity, 
 
 (o) Attorney- General v. New- (J) See Attorney- General y. Sra- 
 
 hury, 3 M. & K. 647. pers' Company, 6 Beav. 390. 
 
790 
 
 MESNE RENTS AND PROFITS. [CH. XXVI. S. 4. 
 
 Trustees acting 
 from mistake. 
 
 Distinctions be- 
 tween corpora- 
 tions and indi- 
 viduals. 
 
 to certify whether under the circumstances it might not be 
 proper for the charity to accept a less sum (a) 
 
 But where the trustees have diverted the charity funds from 
 their proper channel through mistake, it is now settled, that the 
 Court will not call back any disbursements made before the filing 
 of the information (6), or before the trustees had notice that the 
 propriety of such application would be called into question (c). 
 The Court holds a strict hand over trustees where there is any 
 wilful misemployment ; but where the Court sees nothing but 
 mistake, while it gives' directions for the better management 
 in future, it refuses to visit with punishment what has been 
 transacted in time past. To carry back the account to the very 
 commencement of the misapplication would be the ruin of 
 half the corporations in the kingdom (d) ; besides that to act on 
 such a principle would be a great discouragement to under- 
 take the office of trustees of charities (e). 
 
 If an individual make an annual payment for a particular 
 purpose out of the profits of his estate, it is a reasonable pre- 
 sumption, from the strong interest which he has to resist an 
 unfounded demand, that he has inquired the origin of the 
 claim, and he is therefore fixed with implied notice of all 
 the circumstances that attend it; but the same presump- 
 tion cannot be applied to corporations, because, having no 
 immediate personal interest in the application of the profits 
 of the corporate property, they may, without the imputation 
 
 (a) Attorney- General v. Mayor 
 of Exeter, 2 Euss. 370 ; and see 
 Attorney-General v. Corporation of 
 Carlisle, 4 Sim. 279; Attorney- 
 General V. Brettingham, 3 Beav. 
 91 ; Attorney- General v. Pretyman, 
 4 Beav. 462. 
 
 (6) Attorney-General Y. Corpora- 
 tion of Exeter, 2 Russ. 45 ; affirmed, 
 3 Russ. 395; Attorney- General v. 
 Dean of Christchurch, Jac. 474. 
 637 ; S.C.2 Russ. 321 ; Attorney- 
 General V. jRighy, 3 P. W. 145 ; 
 Attorney-General v, Caius College, 
 2 Keen, 150; Attorney- General v. 
 Drapers^ Company, 4 Beav. 67 ; 
 Attorney- General v. Christ s Hos- 
 
 pital, ib. 73 ; and see Attorney- 
 General V. Newbury, 3 M. & K. 
 150. 
 
 (c) Attorney- General v. Bur- 
 gesses of East Retford, 2 M. & K. 
 35, see 37 ; and see Attorney- Gene- 
 ral v. Corporation of Berwick^ 
 upon- Tweed, Taml. 239; Attorney- 
 General V. Caius College, 2 Keen, 
 150. 
 
 (d) Attorney- General v. Bur- 
 gesses of Retford, 2 M. & K. 37, 
 per Sir J. Leaeh. 
 
 (e) Attorney -Generals. Corpm-a- 
 tion of Exeter, 2 Russ. 54, per Lord 
 Eldon. 
 
CH. XXVI. S. 4.] BREACH OF CHARITABLE TRUSTS. 791 
 
 of culpable negligence, adopt and follow the practice of their 
 
 predecessors (a). 
 
 When the charity fund has been administered by a parish Breach of trust 
 
 by a parish, 
 and misapplied, as a parish is a fluctuating body, and the 
 
 present rate-payers ought not to pay for past defaults, no retro- 
 spective account can be ordered (b). 
 
 In the East Retford case (c), before Sir J. Leach, the Court, Mode of attach- 
 on proof of a breach of trust by the corporation, directed an tion property. 
 inquiry by the Master of what property the corporation was 
 possessed not devoted to special purposes, with the view that 
 compensation might be made to the charity by an immediate 
 sale ; but the case upon that point was subsequently appealed 
 against and reversed, as contrary to principle (d), and the plain- 
 tiff must now confine himself to a sequestration in the ordinary 
 course. 
 
 (a) Attorney- General v. £u7-- (c) 2 M. & K. 35. 
 
 gesses of East Retford, 2 M. & K. \d) 3 M. & Cr. 484 ; and see 
 
 38, per Sir J. Leach. Attorney- General v. Newarh-upon- 
 
 (6) Ex party Fowlser, 1 J. & W. Trent, 1 Hare, 395. 
 70; and see cases cited ib. 73, 
 note (a). 
 
CHAPTER XXVII. 
 
 MAXIMS OF EaUITY FOR SUSTAINING THE TRUE CHARACTER 
 OF THE TRUST ESTATE AGAINST THE LACHES OR TORT 
 OF THE TRUSTEE. 
 
 Besides the several rights and reraedies which have just been 
 the subject of discussion, the Court, with the view of keeping 
 the trust estate in its regular channel, and sustaining its proper 
 character, whether of realty or personalty, against the laches or 
 other misbehaviou/r of the trustee, has found it necessary to 
 establish two maxims, which we now proceed to examine : viz., 
 first, "What ought to be done shall be considered as done (a) ; 
 and, secondly. The act of the trustee shall not alter the nature 
 of the cestui que trust's estate (&). 
 
 SECTION 1. 
 
 WHAT OTTGHT TO BE DONE SHALL BE COlfSIDEEED AS BONE. 
 
 " The forbearance of the trustees/' said Sir J. Jekyll, " in not 
 doing what it was their office to have done, shall in no sort pre- 
 
 (a) Walker v. Denne, 2 Ves. jun. Fitzgerald y. /ej-KOJse, 5 Mad. 29, per 
 183, per Lord Loughborough ; Sir J. Leach ; JEarl of Buckingham 
 Foone v. Blount, Cowp. 467, per v. Drury, 2 Ed. 65, per Lord Hard- 
 Lord Mansfield ; Holland v. Hughes, wicke ; Cfuidot v. Guidot, 3 Atk. 
 16 Ves. 114, per Sir W. Grant; 256, per Lord Haidwioke; Crab- 
 Gaskell v. Harman, 11 Ves. 507, tree v. Bramble, lb. 687, ^e?' eun- 
 per Lord Eldon ; Stead v. Newdi- ' dem ; Trafford v, Boehm, lb. 446, 
 gate, 2 Mer. 630, per Sir W. Grant ; per eundem ; &o. 
 Pulteney v. Darlington, 1 B. C. C. (J) Philips v. Brydges, 3 Ves. 
 237, per Lord Thurlow; Burgess 127, per Lord Alvanley; Earlom 
 V. Wlteate, 1 Ed. 186, per Sir T. v. Saunders, Amb. 242, per Lord 
 Clarke ; Lechmere v. Earl of Car- Hard wicke ; Selby v. Alston, 3 Ves. 
 lisle, 3 P. W. 215, per Sir J. Jekyll; 341, ^er Sir R. P. Arden. 
 
CH. XXVII. S. 1.] CONVEESION OF MONEY INTO LAND. 793 
 
 judice the cestuis qtie trust, since at that rate it would be in 
 the power of trustees, either by doing or delaying to do their 
 duty, to affect the right of other persons ; which can never be 
 maintained. "Wherefore the rule in such cases is, that what 
 ought to have been done shall be taken as done, and a rule 
 so powerful it is as to alter the very nature of things, to 
 make money land, and, on the contrary, to turn land into 
 money (a)." And Lord Macclesfield, in the case of a bequest 
 to a trustee for purchasing lands, observed, " If the purchase 
 had been made it must have gone to the heir, but if the trustee, 
 by delaying the purchase, might alter the right, and give it to 
 the executors, this would be to make it the ivill of the trustee, 
 and not the will of the testator, which would be very unreasonable 
 and inconvenient (b)." 
 
 Upon these grounds it is in equity a universal rule, that Money to be laid 
 money directed to be laid out in the purchase of land, or land ""garfed ^ land^ 
 directed to be sold and turned into money, shall be considered 
 as that species of property into which it is directed to be con- 
 verted ; and this, in whatever manner the direction is given, 
 whether by will, by way of contract, by marriage articles, by 
 settlement, or otherwise, and whether the money has been ac- 
 tually deposited in the hands of trustees for the purpose, or is 
 only covenanted to be paid, whether the land has been actually 
 conveyed, or is only agreed to be conveyed (c). 
 
 Thus, if money be stipulated to be laid out in land to be set- Subject to cur- 
 tled on a feme covert in fee or in tail, the husband of the feme *^^^' 
 is entitled to his curtesy, though no purchase be actually made 
 in the lifetime of the wife ; and he wUl be decreed the interest 
 of the money until a purchase can be found ; and when the 
 investment has been made, he will have a life estate in the 
 lands, (d). 
 
 Whether under similar circumstances a widow could, before whether subject 
 the late Dower Act, have established her title to dower, was *° dower, 
 much questioned. It was admitted she was not dowable of a 
 
 (o) Lechmere v. Earl of Carlisle, C. C. 499 ; and see Wheldale v. 
 
 3 P. W. 215. Partridge, 5 Ves. 396. 
 
 (6) Scudamore v. Scudamore, Pr. {d) Sweetapple v. Bindon, 2 Vern. 
 
 Ch, 543. 536 ; Cunningham v. Moody, 1 Ves. 
 
 (c) Fletcher v. Ashhurner, I B. 174 ; Dodson v. Sag, 3 B. C. C. 405. 
 
794 CONVEESION OF MONEY INTO LAND. [CH. XXVH. S. 1. 
 
 mere trust estate (a) ; but, where money was to be converted into 
 land, and the interest was only prevented from being legal 
 through the forbearance of the trustee, it was contended that 
 the rights of parties ought not to be varied by the neglect of 
 the person who is merely the nominal instrument. 
 SirJ. Jekyii's "Marriage," said Sir J. Jekyll, "is in its nature a civil, 
 
 opinion. ^^^ .^ ^^^ celebration a sacred contract, and the obligation 
 
 is a consideration moving from each of the contracting 
 parties to the other, and from this obligation arises an 
 equity to the wife in several cases without any previous agree- 
 ment, as to make good a defective execution of a power, or 
 defective conveyance, or supply the defect of surrender of copy- 
 hold estate : in all which the Court relieves the wife, and 
 makes a provision for her, where it is not unreasonable or in- 
 jurious to others (&)." And he afterwards added, " I cannot 
 but wonder how it ever came to be thought that a tenant by 
 the curtesy was entitled to relief in equity more or farther than 
 a dowress, and particularly that a tenancy by the curtesy may 
 be of a trust estate, but not dower, which is no less than a 
 direct opposition to the rule and reason of the law, which allows 
 dower of a seisin in law, but not a tenancy by the curtesy, 
 because the wife cannot gain an actual seisin, but the husband 
 may ; which reason holds in a trust estate ; for the wife can- 
 not gain or compel a trustee to convey the legal estate to 
 the husband, but the husband himself may ; therefore, if any 
 distinction is to be made, dower, one would think, ought to 
 be preferred to curtesy (c)." If the wife, therefore, had this 
 general equity, why might she not come into Chancery, and plead 
 the rule of the Court that what ought to be done should be taken 
 as done — that, as the equitable estate should have been made 
 a legal estate, it ought to be so considered in respect of dower ? 
 LordHardwicke's The Opinion of Lord Hardwicke was on more than one occa- 
 oprnion. gjQjj expressed adversely to the wife's claim (d) ; but there were 
 
 several authorities in favour of the dower (e). 
 
 {a) Altered by the late Act, 3 & 4 [d) See Cunningham v. Moody, 
 
 ^Y. 4, e. 105. 1 Ves. 176 ; CraUree v. Bramble, 
 
 (J) Banhs v. Sutton, 2 P. W. 3 Atk. 687. 
 
 704. (e) Fletcher v. Bohinson, cited 
 
 (c) Banks v. Sutton, 2 P. W. 706. Dudley v. Dudley, Pr, Ch. 250 ; 
 
CH. XXVII. S. l.J CONVEESION OF MONEY INTO LAND. 795 
 
 Now, by a late Act (except where the marriage was celebrated I-^te Dower Act. 
 on or before the 1st day of January, 1834), the Legislature has 
 given dower out of every species of trust estate : subject to be 
 defeated, however, by any declaration of intention on the part 
 of the husband {a). 
 
 Upon the principle under discussion it has also been argued, Money to he laid 
 that if money be articled, or directed, to be laid out in land to ™tjeot'to"es°°* 
 be settled on a person in fee, if the cestvi que trust die without ''•'^**- 
 heirs, the money shall, as land, escheat to the lord : but be- 
 tween dower and escheat there is, it is submitted, this manifest 
 distinction, that a widow claims through her husband, and has 
 a general equitj', which gives her locus standi in Court ; but a 
 lord by escheat comes under no head of equity — is entirely a 
 stranger to the trust, claiming by title paramount of his own (b). 
 The pretence for his claim is, that the operation of the rule so 
 absolutely converts the equitable into a legal estate, that all the 
 incidents, that would have ^belonged to the legal, must be con- 
 sidered in Chancery as attached to the equitable ; but the rule 
 was not meant to subvert the nature of a trust, but to be sub- 
 servient to it — ^not to benefit third persons, but to protect the 
 interest of parties privy to the trust. And of this opinion appears 
 to have been Sir T. Clarke, in the case of Burgess v. Wheate (c). 
 There A., seised ex parte paternd, conveyed the estate to trustees 
 in trust for herself, her heirs, and assigns, and died without heir 
 of the paternal line, but leaving an heir of the maternal ; and it 
 was argued in favour of the heir ex parte maternd, that, as the 
 the cestui que trust might at any time have called upon the 
 trustees to convey, and equity looked upon what ought to have 
 been done as done, the Court would by a fiction consider the 
 conveyance of the legal estate as actually executed ; and then, 
 in default of heirs of the paternal line, the lands would descend 
 to the heir ex parte maternd. But the Master of the EoUs 
 said, " Had such a conveyance been executed, it would have 
 
 S. C. stated from E. L. in Banks (J) Walker v. Benne, 2 Ves. 
 
 V. Sutton, 2 P. W. 709; Otway v. jun. 185, per Lord Loughborough; 
 
 Hudson, 2 Vern. 583; Banks v. Henchman v. Attorney- General, 3 
 
 Sutton, 2 P. W. 700 ; In re Lord M. & K. 494, per Lord Brougham. 
 Lismore, 1 Hog. 177. (c) 1 Ed. 177 ; S. C. \ W. 
 
 (a) See p. 626, supra. Blaekst. Rep. 123. 
 
796 
 
 CONVERSION OF MONEY INTO LAND. [CH. XXVII. S. 1. 
 
 How affected by 
 the cestui que 
 trust's will. 
 
 Is subject to 
 judgments. 
 
 been like a feoffment and refeoffment, and have made A. seised 
 of a new use ; but, as this was not done, the consequences in- 
 sisted on will not follow, for nothing is looked upon in equity 
 as done but what ought to have been done — not what might 
 have been done ; nor will equity consider things in tliat light in 
 favour of everybody, hut only of those who had a right to pray it 
 might he done. The rule is, that it shall he either hetween the 
 parties who stipulate what is to he done, or those who stand in 
 their ])lace. A. never prayed a conveyance, and one cannot 
 tell whether she ever would, and the maternal heir is not to 
 be considered as a privy in blood, but a mere stranger (a.)." 
 As the lord by escheat claims not in privity, it results that, 
 according to Sir T. Clarke's construction of the rule, he has no 
 title to a subpoena. 
 
 As money to be laid out in land is regarded as land, it could 
 not before the late Wills Act have been devised by an infant, 
 though of sufficient age to bequeath personal estate (6) ; and, 
 for the same reason, it will pass by the cestui que trust's 
 will under the general description of all the testator's 
 
 lands (c), or of all his lands in the county of or else- 
 
 ivhere (d), though in the latter case it may very plausibly be 
 contended, that the testator could not have referred to money, 
 but must have alluded to something that possessed a local 
 character. 
 
 So money to be converted into land is bound by a judg- 
 ment (e), but was never accounted personal assets, and there- 
 fore was not, until the late Act (/), liable to the payment of 
 simple-contract debts (g). 
 
 (o) 1 Ed. 186. 
 
 (J) Earlom v. Saunders, Amb. 
 241. By the late Act, 7 W. 4, & 
 1 V. e. 26, an infant cannot make 
 a will even of personal estate. 
 
 (e) Ouidot V. Guidnt, 3 Atk. 256, 
 per Lord Hardwioke ; Raahley t. 
 Masters, 1 Ves. Jun. 201; 8. C. 
 3 B. C. C. 99 ; Green v. Stephens, 
 17 Ves. 77 ; Biddulph v. Biddulph, 
 12 Ves. 161. 
 
 {d) Lingen v. Sowray, 1 P, W. 
 172 ; Guidot v. Guidot, 3 Atk. 254. 
 
 (e) Frederick v. Aynscomhe, 1 
 Atk. 392, 
 
 (/) 3 & 4 "VV. 4, c. 104. 
 
 [g) Whitwiok v. Jermin, cited 
 Baden v. Barl of Pembroke, 2 
 Vern. 58 ; Lawrence v. Beverley, 
 cited lb. 55; S. C. 2 Keb. 841; 
 Fulham v. Jones, cited PuUeney 
 V. Darlington, 7 B. P. C. 550; 
 Foone v. Blount, Cowp. 467, per 
 Lord Mansfield. 
 
CH. XXVn. S. l.J CONVERSION OF MONEY INTO LAND. 797 
 
 So a gift by a parent (a freeman of the city of London) to a Orphanage share. 
 child of money to be laid out in land was considered a purchase 
 by the father, and a donation of the estate, and consequently 
 under the law existing before the recent Act (a), the child was 
 not bound, before receiving his orphanage share, to bring the 
 purchase into hotchpot (b). 
 
 With respect to the heir of the person upon whom the lands, In -what cases 
 when purchased, are directed or agreed to be settled, it is neces- ^Ton land goes 
 sary, for ascertaining his rights, to distinguish between the *" *''® ''"''• 
 cases where the real representative, claims as against a stranger, 
 and where he claims as against the executor of his own ancestor. 
 
 It appears to be perfectly established that the heir is entitled Case of the heu- 
 to the money as land, if he seek to enforce his equity against I strangerr^"^ 
 a stranger. Thus, 1. If a sum of money be bequeathed to be 
 laid out in a purchase of lands to be settled to the use of A. 
 and his heirs, and A. die before a purchase has been obtained, 
 the money is the property, not of the executor, but of the heir 
 of A. (c). 2. If on the marriage of A. money be actually de- 
 posited in the hands of trustees, either by A. himself or by a 
 stranger, to be laid out in a purchase of lands to be settled to 
 the use of A. for life, remainder to his wife for life, remainder 
 to the issue in tail, remainder to A. in fee, and A. die without 
 issue, his heir, and not his executor is entitled id). 3. If on 
 the marriage of A. there be a covenant on the part of B. to lay 
 out money in a purchase of lands to the above uses, and A. die 
 without issue, his heir takes the benefit of the covenant(e). 
 
 (a) 19 & 20 Vict. c. 94. ■would have resulted to the exeou- 
 
 (6) Hume v. Edwards, 3 Atk. tors of the testator, but, as money to 
 
 450; Annandy. Honeywood, 1 Vern. be converted and settled in tail upon 
 
 345. a discretion which was not exer- 
 
 (c) Scudamore v. Scudamore, Pr. cised, it belonged to the adminis- 
 
 Ch. 543. Abbott v. Lee, 2 Vern. trators of the legatee, as was decreed 
 
 284, at first sight appears contra, by the Court. See the case stated 
 
 but it seems from the Registrar's from Reg. Lib. App. No. II. 
 
 book that the direction for conver- (d) Disher v. Disher, 1 P. W. 
 
 sion was not imperative, but to be 20 i; Chaplin v. Horner, lb. 483; 
 
 at the discretion of the testator's Edwards v. Countess of Warwick, 
 
 executors. Had the money been 2 P. W. 171 ; and see Lechmere v. 
 
 absolutely converted into land, the Lechmere, Gas. t, Talb. 90. 
 
 ultimate remainder by failure of (e) Knights v. Athyns, 2 Vern. 
 
 issue of the surviving daughter 20. 
 
798 
 
 CONVERSION OF MONEY INTO LAND. [CH. XXVIX. S. 1. 
 
 Case of the heir 
 claiming against 
 the executor of 
 his own ancestor. 
 
 The heir has a 
 right, if any 
 person has an 
 equitable inter- 
 est. 
 
 Walker v. Denno. 
 
 But if the heir have to enforce his claim, not against a 
 stranger, but against the pe7-sonal representative of his own 
 ancestor, as if A. on his marriage covenant to lay out money in 
 a purchase of lands to be settled to the use of himself for life, 
 remainder to his wife for life, remainder to the issue in tail, 
 remainder to his own right heirs, in this instance the question 
 whether the heir can call upon the executor for the money 
 must depend upon this further distinction : — 
 
 1. If at the death of A. there be an equitable interest in the 
 fund outstanding in another, as a life estate in the wife, or an 
 estate tail in the issue, then the real quality of the money is 
 sustained and continued by that right, and the heir of A. is 
 entitled to call upon A 's executor (a) ; and if there be such an out- 
 standing claim at the death of the ancestor, the circumstance that 
 the heir institutes his suit during the subsistence of that claim, 
 or after its determination, seems to be perfectly immaterial (&). 
 
 In Walker v. Denne (c) Lord Loughborough expressed some 
 doubt upon this doctrine. " Is there,'' he said, " any case 
 where the heir has jB.led a bill merely as such, and has had 
 money paid to him, because it was directed to be laid out in 
 land ? The idea is commonly entertained, but there are 
 doubts about it. I do not recollect any case where the heir has 
 said, The money ought to be laid out — all the particular objects 
 are gone, and I as heir claim the money as land for my 
 benefit. Upon that I doubt what gives the heir a title to a 
 subpoena in this Court : between the heir and personal repre- 
 sentative their rights are pure legal rights : chance decides 
 what shall be real, what personal : neither has a scintilla of 
 equity to make the property that which it is not in fact." To 
 this reasoning of Lord Loughborough it may be replied, that, 
 when it is said there is no equity between the real and personal 
 representatives, the meaning is no more than this — that what 
 is real estate at the death of the ancestor will go to the heir, 
 
 («) Kettleby v. Atwood, 1 Vern. 
 298 ; re-heard, lb. 471 ; Lancy v. 
 Fairechild, 2 Vern. 101 ; Chaplin 
 V. Horner, 1 P. W. 483 ; Lechmere 
 V. JEarl of Carlisle, 3 P. W. 211 ; 
 affirmed, Cas. t. Talbot, 89; Old- 
 ham V. Hughes, 2 Atk. 452, 
 
 (5) See Chaplin v. Horner, 1 P, 
 W. 483 ; Lechmere v. Lechmere, 
 Cas. t. Talb, 80. 
 
 (c) 2 Ves, jun. 175, 176, 183; 
 and see Oxenden v. Lord Compton, 
 lb. 70; Lord Compton v. Oxenden, 
 lb. 265. 
 
CH. XXVII. S. 1.] CONVEESION OF MONEY INTO LAND. 799 
 
 and what is personal estate at the death of the testator will go 
 to the executor ; but, for the purpose of determining what is real 
 and what is personal estate, the Court is guided, not by the legal 
 nature of the property at the death of the owner, but, as appears 
 in numerous instances, by the stamp and character impressed 
 upon it in consideration of a court of equity. Thus if a mort- 
 gagee in fee die, the mortgage being regarded as a mere security 
 for part of the mortgagee's personal estate, the executor may 
 call upon the heir for a conveyance of the land. On the other 
 hand, if the mortgagor die, the heir of the mortgagor may call 
 on the executor to discharge the incumbrance out of the per- 
 sonal assets. So if a person contract for the sale of an estate, 
 and die before the completion of the sale, the legal fee descends 
 upon the heir, but the purchase-money passes to the executor ; 
 and, on the other hand, if a person contract for the purchase of 
 an estate, and die, the executor must pay the money, but the 
 heir is entitled to the purchase. Thus, in the words of Lord 
 Talbot, " "Where the dispute is between the two representatives 
 of the deceased, the one of his real, the other of his personal 
 estate, the heir's being but a volunteer in regard to his ancestor 
 will not exclude him from the aid of the Court, for though the 
 question is between two volunteers, the Court will determine 
 which way the right is, and wiE decree accordingly (a)." " I 
 am disposed," said Lord Eldon, " to say, notwithstanding the 
 opinion of Lord Eosslyn in Walker v. Denne, and some other 
 modern authorities, that if the instrument be taken to impress 
 a fund with real qualities immediately upon the execution, in 
 the question between the heir and executor, the money being 
 once clearly and plainly impressed with real uses as land, and 
 one of those uses being for the benefit of the heir, it will 
 remain for his benefit, and it is not correct to say the Court 
 does not interpose between volunteers, if they give to the exe- 
 cutor that money which the instrument has given to the 
 heir (6)." And Sir W. Grant to the same efi'ect observed, 
 " There is no weight in the circumstance that the property 
 is found in the shape of money or land, for the character is 
 
 (a) Leehmere v. Lechmere, Cas. t. (i) Wheldah v. Partridge, 8 
 Talb. 90. Ves. 235. 
 
800 CONVERSION OF MONEY INTO LAND. [CH. XXVII. S. 1. 
 
 to be found in the deed. The opinion of Lord Rosslyn that 
 property was to be taken as it happened to be at the death of 
 the party from whom the representatives claimed, was much 
 doubted by Lord Eldon, who held, in which I perfectly concur, 
 it must be considered as being in the state in which it ou^ht 
 to be. Lord Rosslyn's rule was new, and not according to 
 prior cases (a)." 
 
 2. But if A. die, leaving neither wife nor issue, so that, to 
 where th" money use the technical expression, the money is " at home," that is, 
 IS "at home." ^_ ^^^ ^j^g ^-j^g q£ j^-g ^gj^jjj^ ^g ^j^g absolute and exclusive owner, 
 
 and there is no outstanding right in another person, in this 
 case the real quality of the money has become merged and 
 extinguished, and on the death of A. the heir has no equity to 
 call upon the executor. To keep on foot the notional conver- 
 sion of money into land, it is evident there must be a right in 
 some one to insist upon the actual conversion ; but if A. be in 
 possession of 20,000Z. upon trust to lay out in a purchase of 
 lands to be settled to the use of himself and his heirs, the right 
 and the thing both centering in the same person, there is no- 
 body to sue, and it foUows the action is extinguished (6). 
 The decision in the much litigated case of Chichester v. 
 Bickerstaff. Bickerstaff (c), amounted probably to no more than this. 
 
 On the marriage of Sir J. Chichester with the daughter of Sir 
 C. Bickerstaff, the latter agreed to pay 15001. by way of portion, 
 which, together with 1500Z. more to be advanced by Sir John 
 Chichester within three years after the marriage, was to be 
 invested in lands to be settled on Sir John for life, remainder 
 to his wife for life, remainder to the issue in tail, remainder to 
 Sir John in fee. Sir John and his lady, within one year after 
 the marriage, both died without issue, the husband having sur- 
 vived. Sir John by his will 7nade Sir C. Bickerstaff his executor, 
 and bequeathed the residue of his personal estate, after pay- 
 ment of his debts, &c., to Frances Chichester, his sister. The 
 heir at law of Sir John brought his bill against Sir Charles to 
 
 {a) Thornton v. Hawley, 10 Ves. (e) 2 Vera. 295 ; 8. C. cited 
 
 138 ; Kirhman v. Miles, 13 Ves. Pulteney v. Darlington, 7 B. P. C. 
 339. 554. 
 
 (J) See Pulteney v. Darlington, 
 1 B. C. C. 237. 
 
CH. SXVn. S. 1.] CONVERSION OF MO>rET INTO LAND. 801 
 
 compel him to pay tJie 1500?., insisting that byTirtue of the 
 marriage articles the money ought to be looked upon as land, and 
 therefore belonged to him as heir. Lord Somers said, " This 
 money, thotigh once bound by the articles, vet when the Tnfe 
 died without issue became free again, and was under the power 
 and dispose of Sir John, as the land would likewise have 
 been in case a purchase had been made pursuant to the articles, 
 and therefore would have been assets to a creditor, and must 
 have gone to the executor or administrator of Sir John ; and 
 this is much stronger where there is a residuary legatee ;" and 
 therefore dismissed the biU. Then follows what is apparently 
 the note of the reporter, viz. that " money shall in many cases 
 be considered as land when bound by articles in order to a 
 purchase, but whilst it remains still money, and no purchase 
 made, the same shall be deemed as part of the personal estate 
 of such person, who might have aliened the land in case a pur- 
 chase had been made." 
 
 In this case it has been commonly, but surely without reason, Errors respect- 
 supposed, that the suit of the plaintiff was for the 1500L which ,.. Bickeistaff. 
 Sir Charles had articled to pay, and in consequence of this 
 misconception, the authority of the decision has repeatedly 
 been called into question. Thus Sir J. Jekyll, overlooking the 
 very material circumstance, that Sir Charles had been ap- 
 pointed the executor of the testator, observes, " It is remark- 
 able with respect to thia case, that the wife died within three 
 years after the marriage, during which period the purchase was 
 to be made, so that the time was not come within which the 
 money was to be laid out ; and till then it continued money ; 
 and posably the Cotirt had some evidence to induce them to 
 believe, that Sir John Chichester looked on the money as per- 
 sonal estate; and if this does not distinguish it from other cases, 
 I doubt, in opposition to so many decrees, the resolution here 
 given icovM hardly he maintainable {a)." And Lord Talbot 
 was apparentiy under the same misapprehension, for he 
 observes, " Had the money in the case before me been de- 
 posited in the hands of trustees, it must have been looked upon 
 as real estate, and the heir have been entitled. This seems to 
 
 (a) Lechmere v. Carlisle, 3 P. W. 221. 
 
 3 F 
 
802 CONVERSION OP MONEY INTO LAND. [CH. XXVH. S. 1. 
 
 be granted, and no authority against it but what has been col- 
 lected from the case of Chichester v. Biekerstaff. It is probable 
 the Court went upon some reason, which induced it to think 
 tliat Sir John looked upon that money as personal estate, for 
 otherwise the authority of that case is not to be maintained, 
 being contrary to all former resolutions (a)." But Lord Thur- 
 low viewed the case in a different light, and evidently considered 
 the 1500?. sought by the bill of the plaintiff to be the 1500Z. 
 articled to be paid by the testator himself, and so payable out 
 of his assets in the hands of Sir John Biekerstaff, his executor. 
 " Where," said his Lordship, " a sum of money is in the hands 
 of one without any other use but for himself, it will be money, 
 and the heir cannot claim, like the case of Chichester v. Bicker- 
 staff, against which I think there is no judgment, though there 
 are a number of opinions. I know no better authority than 
 that case (b)." 
 Facts from The Eegistrar's book has been searched, but no decree can 
 
 book. be found. It appears, however, from a motion in the cause for 
 
 dissolving an injunction, that the circumstances of the case were 
 as follows : — Sir Charles Biekerstaff had brought an action at law 
 against the plaintiff, and had obtained judgment for a certain 
 sum upon a balance of accounts. Upon this the plaintiff insti- 
 tuted a suit in equity for staying the proceedings at law, alleg- 
 ing, that Sir Charles stood indebted to himm the sum of 30001, 
 to which the plaintiff was entitled as heir at law of Sir John, under 
 Sir John's marriage articles. It was ordered by the Court that 
 judgment should be entered up, but execution should be 
 stayed till the cause should be heard the Easter term following. 
 As Vernon, the reporter, speaks only of one sum of 1500Z., to 
 which the executor was declared entitled, it is probable the 
 other sum was adjudged to the heir, a decision that would in 
 every respect be conformable to principle ; for while the 1500Z., 
 covenanted to be paid by Sir John himself was, by the death 
 of his wife without issue in his lifetime, " at home," and there- 
 fore set free from the articles, the other sum of 1500L which 
 was covenanted to be paid by Sir Charles, was outstanding in 
 
 (a) Zechmere v. Lechmere, Gas. (i) PuUeney v. Darlington, 1 B. 
 
 t. Talb. 90. C. C. 238. 
 
CH. XXVn. S. 1.] CONVERSION OF MONEY INTO LAND. 803 
 
 the hands of Sir Charles as trustee, and would therefore retain 
 the character of real estate until some act by Sir John to 
 remove that impression. 
 
 To the -principle under consideration must be referred Puiteneyv. 
 the case of Pulteney v. Darlington (a). Henry Guy the 
 testator appointed Lord Bath, Taylour, and Lake, his exe- 
 cutors, and devised to them, their heirs, and assigns, all his 
 estates at Earl's Court, and certain freeholds and copyholds at 
 MusweU Hill, upon trust to sell, and directed that, after pay- 
 ment of his debts and legacies, all such monies or other 
 personal estate as should remain in the hands of the executors, 
 or be raised by sale of the devised estates, should be laid out 
 in the purchase of lands to be settled to the use of Lord' Bath 
 for life, remainder to the first and other sons in tail, remainder 
 to General Pulteney for life, remainder to the first and other 
 sons in tail, remainder to Daniel Pulteney for life, remainder to 
 the first and other sons in taU, with a remainder in fee to the 
 father of Lord Bath, which afterwards became vested in Lord 
 Bath himself. The testator died in 1710. Daniel died with- 
 out issue in the lifetime of Lord Bath and General Pulteney. 
 Lord Bath had issue a son, who died, without having disturbed 
 the settlement, in the lifetime of his father. General Pulteney 
 never had any issue. Lord Bath, who acted in the executorship, 
 retained in his hands the sum of 23,488i. upon the trusts of 
 the will ; and, after the decease of Daniel 'and of his own son, 
 by his will, bearing date in 1763, devised aU his real and per- 
 sonal estate to General Pulteney and appointed him executor:, 
 so that, whether the sum of 0,3,4.681. was to be regarded as the 
 real or as the personal estate of Lord Bath, utraque via data it 
 became vested in General Pulteney under this devise and 
 bequest. General Pulteney proved the will, took possession 
 of the estates, and transferred the securities upon which the 
 23,488Z. was invested into his own name.. By his will bearing 
 date in 1767, General Pulteney devised aU his estates in 
 Middlesex, Salop, and York, to- certain uses,, and gave all 
 his money, securities, goods, chattels, and personal estate, 
 to his executors upon certain trusts; so that, under 
 
 («) 1 B.. C, C. 223.. 
 
 3 E 2, 
 
804 CONVEESION OF MONEY INTO LAND. [CH. XXVU. S. 1. 
 
 General Pultenejr's will, if the 2B,i88l. was, under the circum- 
 stances, to be taken as land, then, for want of a general devise, 
 it had descended upon the plaintiff as General Pulteney's heir ; 
 but if was to be regarded as personalty, it was included in the 
 bequest of the General's- personal estate. Lord Bathurst, 
 before whom the cause was first heard, conceived the heir had 
 no title, and dismissed the bUl. It was afterwards reheard 
 before Lord Thurlow, who affirmed the decree upon two 
 grounds ; first, that the money was " at home," the possibility 
 of issue having, on the death of General Pulteney, the sur- 
 viving tenant for life, become extinct, and therefore, at his 
 decease, there was no claim upon the fund outstanding in any 
 other person ; and, secondly, that General Pulteney had mani- 
 fested a disposition to destroy the impression of real estate, 
 and continue the fund as money. His Lordship said, " If there 
 be no legal or equitable title out against the party who is in 
 possession of the fund, there the rule, that when the right and 
 the thiag centre in one and the same person the action is ex- 
 tinguished, applies, and the heir cannot say there was a use 
 for him;." and then, after commenting upon the numerous 
 decisions upon the subject, his Lordship continued : '' The use 
 that I make of these cases, notwithstanding the dicta they con- 
 tain, is this, that where a sum of money is in the hands of one 
 without any other use but for himself, it wiH be money, and 
 the heir cannot claim. But whether that is clearly so or not, 
 circumstances of demeanour in the person, even though sUght, 
 wUl be sufficient to decide it : a very little would do : receiving 
 it from the trustees there is no doubt would be sufficient : Lord 
 Bath did receive it— he had it in his hands. Suppose he had 
 it by way of covenant : otherwise, where would there be an end ? 
 If he kept it subject to a covenant to lay it out for fifty years, 
 should the heir come for it at the end of that term ? It would 
 lead to infinite inconveniences." The decree was afterwards 
 affirmed in the House of Lords, and upon the ground, as stated 
 by Lord Eldon, that the money was " at home (a)." 
 Actual receipt of Of course the money wUl be "at home" where the person 
 
 the money makes t ^ ■,■■,■,, ^ 
 
 it "at home." absolutely entitled to the fund receives it from the trustee the 
 
 («) Wheldale v. Pm-tridffe, 8 Ves. 235. 
 
CH. XXVn. S. 1.] CONVEESION OF MONET INTO LAND. 805 
 
 depositary of it, and that whether the payment is made with 
 the sanction of the Court, or by the voluntary act of the 
 trustee himself (a). 
 
 If a testator bequeath a sum of money to be laid out in lands, Money be- 
 to be settled to certain uses, with the ultimate remainder to i^a oiit on land, 
 his own right heirs, and the prior limitations fail, the heir may ^*^riTtieira " 
 file a bill against the executor of his ancestor, and though the 
 only person entitled, may claim to have the benefit of the con- 
 version. 
 
 Lord Loughborough, in Walker v. Denne (b), appears to have Doubts of Lord 
 doubted upon this point, and observed, that in general a limit- 
 ation to the right heirs of the testator was an indication that 
 he had n.o will concerning it, and meant that he did not know 
 what to do with it : but his Lordship's doctrines have, as before 
 remarked, been repeatedly disapproved, and the very point was 
 decided by Lord Northington in the case of Bobinson v. 
 Knight (c). 
 
 Lord Macclesfield advanced the position, that if a person Voluntary cove- 
 voluntarily and without consideration covenanted to lay out money on land. 
 money in a purchase of land to be settled on himself and his heirs, 
 the Court would compel the execution of such a contract, though 
 merely voluntary ; for in all cases, where it was a measuring 
 cast between an executor and an heir, the latter should in equity 
 have the preference (d). But the position that the heir is more 
 favoured than the executor, though often repeated (e), does not 
 appear to be founded on any intelligible priaciple. The notion 
 may have arisen from the leaning of the Court towards the heir 
 in respect of lands of which the ancestor was seised. And as to 
 the application of the rule, that what ought to be done shall 
 be looked upon as done, the heir in the case put by Lord 
 Macclesfield cannot, it seems, take advantage of it ; for the 
 
 (o) See Pulteney v. Darlington, wick, 2 P. "W. 176 ; and see Lech- 
 
 1 B. C. C. '236; Bowes v. Earl of mere'Y. Lechmere, Cas t. Talb. 90, 
 
 Shaftesbury, 5 B. P. C. 144 ; Chap- 91. 
 
 Un V. Horner, 1 P. "W. 483, as to (e) See Crahtree v. Bramble, 3 
 
 the 1350Z. Atk. 689 ; Scvdamore v. Scudamore, 
 
 (h) 2 Ves. jim. 175—177. Pr. Ch. 544 ; Saytor v. Sod, 1 P. 
 
 (c) 2 Ed. 155. W. 364 ; Wilson v. Beddard, 12 
 
 {d) Edwards t. Countess of War- Sim. 32. 
 
806 
 
 CONVEESION OF MONEY INTO LAND. [CII. XXVII. S. 1. 
 
 Conversion must 
 be absolute or 
 imperative, not 
 optional. 
 
 Of conversion 
 apparently op- 
 tional, but Tvliere 
 the uses declared 
 are exclusively 
 applicable to real 
 estate. 
 
 Court will not act upon the rule universally, but only where the 
 agreement is founded on a good or valuable consideration (a). 
 The opiaion expressed by Lord Macclesfield may therefore 
 justly be doubted. 
 
 In the preceding observations it has of course been assumed, 
 that the direction or agreement for conversion is by the terms 
 of the instrument made absolute and imperative ; for, where a 
 mere option is given, the original character of the property con- 
 tinues untU the discretion has been exercised, and the conver- 
 sion actually effected ; as, if the direction or agreement be to 
 lay out money in " lands or securities (6)," in " freeholds or 
 leaseholds (c)," or if by any other mode of expression an inten- 
 tion be manifested of not converting the property at all 
 events {d). 
 
 But where the uses declared are exclusively applicable to real 
 estate, the direction or agreement will be construed to be im- 
 perative, though the direction or agreement be to lay out the 
 money in " freeholds, leaseholds, or copyholds {e)," or the instru- 
 ment contain an authority to invest the money upon securities 
 until a purchase can be found (/), or, the fund being already 
 out upon security, a power is inserted to caU it in, and lay it 
 out upon other securities {g), or even though the direction or 
 agreement be to lay out the money on lands or securities, the 
 intention in the last case apparently being, that the money 
 shall be invested upon security until a suitable purchase can be 
 found, and that the interest and dividends in the mean time 
 shall be paid to the person who would be entitled to the 
 rents {h). 
 
 (o) See Crabtree v. Bramble, 3 
 Atk. 687 ; Frederick v. Frederick, 
 1 P. W. 713. 
 
 (6) CurUng v. May, cited Ouidot 
 V. Ouidot, 3 Atk. 255 ; Amler v. 
 Amler, 3 Ves. 583 ; and see Van v. 
 Barnett, 19 Ves. 102. 
 
 (c) Walker v. Denne, 2 Ves. jun. 
 170; Davies v. Ooodhew, 6 Sim. 585. 
 
 [d) Wheldale v. Partridge, 5 Ves. 
 388 ; S. C. 8. Ves. 227 ; and see 
 Abbot V. Lee, 2 Vern. 284 ; Davies 
 V. Ooodhew, 6 Sim. 585; Folley v. 
 Seymour, 2 Y. & C. 708. 
 
 (e) Hereford v. Ravenhill, 5 
 Beav. 61. 
 
 (/) FdwardsY, Countess of War- 
 wick, 2 P. W. 171; Farlom v. 
 Saunders, Amb. 241 ; and see Davies 
 V. Ooodhew, 6 Sim. 585. 
 
 (g) Thornton v. Hawley, 10 Ves. 
 129 ; and see Triquet v. Thornton, 
 13 Ves. 345. 
 
 (h) Earlom v. Saunders, Amb. 
 241 ; Cowley v. Hartstonge, 1 Dow. 
 361 ; Arnold v. Johnson, 1 Ves. 
 169 ; Cookson v. Heat/, 5 Beav. 
 22 ; 12 CI. & Fin. 121. 
 
CH. XXVII. S. 1.] CONVERSION OF LAND INTO MONEY. 807 
 
 And, where the uses are thus exclusively applicable to real Conversion at 
 estate, the dire'ction or agreement will be regarded as impera- ofaparty?^^ 
 tive, though the settlement require the purchase to be made at 
 the request of a party (a), for the insertion of such a clause has 
 been taken to mean, not that a conversion may not be effected 
 before, but that it shall certainly be effected after request (6). 
 And the construction is the same, though the purchase be 
 directed to be made with a person's consent and approbation (c) ; 
 for upon a convenient purchase being proposed, the Court, 
 said Sir J. Jekyil, will take upon itself to judge thereof, and, 
 without some reasonable objection made, will order the money 
 to be laid out in it, so that such a proviso seems to be imma- 
 terial, and as if omitted (d). But of course the instrument may 
 be so strongly expressed as to show the intention of the par- 
 ties, that the request or consent of a particular person should 
 be a substantial ingredient, and that no conversion should 
 take place unless it were given («). 
 
 As money to be converted into land is considered as land. Land to be con- 
 so land to be converted into money is, upon the same principle, ^^regarfeda™^^ 
 invested with all the properties of money. Thus, if an estate money. 
 be directed or agreed to be sold, and the proceeds be made 
 payable to A., the property, though unconverted at A.'s 
 decease, wiU pass by a general bequest of all his personal 
 estate (/) ; and, if A. die intestate, will vest in his per- 
 sonal representative (g), but will not be liable to probate duty Qi). 
 
 So, if the proceeds be given to an alien, he is capable of Alien. 
 taking for his own benefit, and the crown is excluded (i)- 
 
 (o) Thornton v. Hawley, 10 Ves. 585 ; and see Re Taylor's Trust, 9 
 
 129; Johnson v. Arnold, 1 Ves. 169. Hare, 596. 
 
 (i) lb. 137; but see. Stead v. (/) Stead v. Newdigate, 2 Mer. 
 
 Newdigate, 2 Mer. 530. 521. 
 
 (c) Thornton v. Hawley, uhi su- (g) Ashby v. Palmer, 1 Mer. 296 ; 
 
 prd. In Symons v. Sutter, 2 Vern. £iffgs v. Andrews, 5 Sim. 424 ; 
 
 227, Hutehins was right, according Burton v. Hodsoll, 2 Sim. 24 ; 
 
 to Sir J. Jekyil, Jjechmere v. Earl Qrieveson v. Kirsopp, 2 Keen, 653 ; 
 
 of Carlisle, 3 P. W. 220, and Lord Griffith v. Ricketts, 7 Hare, 299 ; 
 
 Thurlow, PuUeney v. Darlington, Sardey v. Hawkshaw, 12 Beav. 
 
 1 B. C. G. 238; but see Stead v. 552. 
 
 Newdigate, 2 Mer. 530. {h) Matson v. Swift, 8 Beav. 368 ; 
 
 {d) Lechmere v. Earl of Carlisle, Custanoe v. Bradshaw, 4 Hare, 324. 
 
 3 p. "W. 220, per Sir. J. Jekyil. (») Bu Hourmelin v. Sheldon, 1 
 
 (e) Bavies v. Goodhew, 6 Sim. Beav. 79 ; 4 M. & Or. 525. 
 
808 
 
 CONVERSION OF LAND INTO MONET. [CH. XXVn.. S.,1, 
 
 Charity. 
 
 The conversion 
 must be impera 
 tive. 
 
 'Implied oonyer- 
 sion in cases of 
 bequests of 
 "wasting property 
 /to persons in 
 ■succession. 
 
 And if leaseholds be stamped with a trust for conversion,, and 
 the proceeds be given to A., and A. dies having by ,his wiU 
 given his personal estate to a charity, the leasehold wiU pass 
 by the bequest (a). 
 
 But if real and personal estate be given to trustees upon 
 trust for a class, with a discretionary . and not an imperative. 
 power to convert the whole into personal estate, and if the trus- 
 tees make a partial conversion, and then the discretionary power 
 becomes extinguished by their death or otherwise, the objects 
 of the trust will take the property as real or personal estate, 
 according to the actual condition in which it is found (6). So 
 if a mortgage deed contain a power of sale with, a direction 
 that the surplus proceeds .shall be paid to the mortg.agor,_ his 
 executors, administrators, and assigns, and the property is 
 sold by the mortgagee, the surplus will be personal, or real 
 estate of the mortgagor, according as the sale takes place before 
 or after his death (c). But where an option to purchase has 
 been created by a testator, and exercised after his death, such 
 exercise has been held to effect a retrospective conversion (d). 
 
 In some cases a conversion of personal estate is implied. Thus 
 as a general rule, if a testator give his personal estate (e), or the 
 residue of his personal estate (/), or the interest of his property (^), 
 in trust for or to (h) several persons in succession, and the pro- 
 perty is of a wasting nature, as leaseholds, long annuities, &c., 
 the Court implies the intention that such perishable estate 
 
 (o) ShadboU-v. Thornton, 17 Sim. 
 49. But the ground upon wHcli 
 the Court held that there was such 
 a trust for conversion does not appear 
 in the report. 
 
 (6) Walter v. Maunde, 19 Ves. 
 424 ; Shipperdson v. Tower, 1 T. 
 & C. Ch. Ca. 441 ; Polley v. Sey- 
 mour, 2 T. & C. 708 ; and see Cow- 
 ley V. Hartstongue, 1 Dow. 378; 
 Bourne v. Bourne, 2 Hare, 35. 
 Otherwise, where the power is im- 
 perative, . Grieveson v. Kirsopp, 2 
 Keen, 653. 
 
 (c) Wright v. Rose, 1 Sim & Stu. 
 322 ; and see Re Cooper's Trust, 4 
 De a. M. & G. 768. 
 
 {d) Lawes v. Bennett, 1 Cox; 167 ; 
 
 Townley v. Bedwell, 14 Ves. 590 ; 
 but see Brant v. Vause, 1 T. & C. 
 Ch. Ca. 580 ; Emuss v. Smith, 2 De 
 Gex & Sm. 722. 
 
 (e) Howe v. Earl of Dartmouth, 
 7 Ves. 137. 
 
 {/) CranehY. Cranch, cited Howe 
 V. Earl of Dartmouth, 7 Ves. 141, 
 note ; Powell v. Cleaver, cited, lb. 
 142 ; Wichfleld v. Baker, 2 Beav. 
 481 ; Crawley v. Crawley, 7 Sim. 
 427 ; Sutherland v. Coohe, 1 Coll. 
 498; Johnson Y. Johnson, 2 Coll. 441, 
 
 (g) Fearns v. Young, 9 Ves. 549 ; 
 Bennr. Dixon, 10 Sim. 636. See 
 Oakes V. Strachey, 13 Sim. 414. 
 
 {h) House V. Way, 12 Jur. 959. 
 
OH. XXVII. S. 1.] IMPLIED CONVEESION. 809 
 
 should assume a permanent character, and so become capable of 
 succession. The Court accordingly in these cases, directs a 
 conversion into 3 per cent. Bank Annuities. " It is given," 
 observed Lord Eldon in the leading case of Howe v. Earl of 
 Dartmouth {a), " as all his personal estate, and the mode in 
 which he says it is to be enjoyed is to one for life, and to the 
 others afterwards. Then the Court says it is to be construed 
 as to the perishable part, so that one shall take for life and the 
 others afterwards, and unless the testator directs the mode so 
 that it is to continue as it was, the Court understands that it 
 shall be put in such a state that the others may enjoy it after 
 the decease of the first, and the thing is quite equal, for it 
 might consist of a vast number of particulars ; for instance, a 
 personal annuity not to commence in enjoyment till the expi- 
 ration of twenty-one years from the death of the testator, pay- 
 able upon a contiagency perhaps. If in this case it is equitable 
 that long or short annuities should be sold to give every one 
 an equal chance, the Court acts equally, in the other case, for 
 those future interests are for the sake of the teiiant for life to 
 be converted into a present interest, being sold immediately 
 in order to yield an immediate interest to the tenant for life. 
 As in the one case, that in which the tenant for life has too 
 great an interest, is melted for the benefit of the rest, in the 
 other, that of which, if it remained in specie, he might never 
 receive anything,- is brought in, and he has immediately the 
 interest of its present worth." 
 
 But an intention that the property should be enjoyed ira specie intention to give 
 may appear from the form of the bequest, or be collected from ^|^* ^T^"^' 
 the terms in which it is expressed. As if there be a specific may be collected 
 
 from the bequesti 
 
 bequest of leaseholds or of stock, or if the testator assume 
 that the property is to remain in specie by speaking of the 
 devisees or legatees as in the perception of the rents of lease- 
 hold estate, or the dividends of stock, or if a testator negative 
 a sale at the time of his death by directing a conversion at a 
 subsequent period. 
 
 Thus, the property was decreed to be enjoyed in specie Instances, 
 where a testatrix having long annuities, and no other stock, 
 
 la) 7 Yes. 148. 
 
810 IMPLIED CONVEESION OF [CH. XXYH. S. 1. 
 
 gave certain legacies out of her "funded property" and 
 bequeathed. " the remainder of her dividends to A. for life," and 
 after her decease gave sums of " stock" of various amounts to 
 different persons {a). So where a testator having long annuities 
 gave lOOZ. long annuities to A., "the residue of his property 
 all he did or might possess in the funds, copy or leasehold 
 estate," to B. and C. for their lives, and on the death of both 
 to be divided among certain persons in the will named (&). So 
 where a testator having^7ease/toWs gave aU his estate to A. and 
 B. upon trust to permit C. to enjoy " the rents, issues, profits, 
 interest, and annual proceeds thereof," for her life, and on her 
 decease upon trust for the two daughters of C. (c). So where 
 a testator having leaseholds gave aU his property of every 
 description and denomination unto three trustees upon trust for 
 A. B. for her life, for her separate use, and upon her decease 
 upon trust for C . D. for her lifej for her separate use, and on 
 her decease unto her children in equal shares ; and if there 
 should be no children, the whole of the property to be sold by 
 auction, and the proceeds to be distributed amongst certain 
 parties {d). So where a testator having leaseholds, gave his wife 
 " all his property in every shape, and without any reserve, and 
 in whatever manner it was situate for her life, and at her 
 death, the property to be divided" amongst certain persons (e). 
 So where a testator having leaseholds, and being entitled to 
 an annuity pur autre vie, gave to his wife " aU the interest, 
 rents, dividends, annual produce or jprofits, use and enjoy- 
 ment" of aU his real and personal estate for her life, and after 
 her decease to A., or in case he died in the testator's lifetime. 
 
 (a) Vincenty. NewcombefYo-wage, Sremner, 2 [Sm. & Gif. 237; aud 
 
 599; and see Sutherland v. Cooke, see contra, Piehup v. Atkinson, 4 
 
 1 Coll. 503. Hare, 624. 
 
 (6) Bethune v. Kennedy, 1 M. & (d) Daniel y. Warren, 2 T. & C. 
 
 C. 114. Ch. Ca. 290; Chambers^. Chambers, 
 
 (e) Ooodenough v. Tremamondo, 15 Sim. 183; Burton v. Mount, 2 
 
 2 Beav. 512 ; Bowden v. Bowden, De Gex & Sm. 383. 
 
 17 Sim. 65 ; Harris v. Poyner, 1 (e) Collins v. Collins, 2 M. & K. 
 
 Drew. 174; Blann v. Bell, 2 De 703; see observations on this case in 
 
 Gex, Mac. & Gor. 775 ; Crowe v. Vaughan v. Buck, 1 Phill. 78 ; Lieh- 
 
 Crisford, 17 Beav. 507; Hood v. field y. Baker, l^'Bea.sr. 4A1. 
 Clapham, 19 Beav. 90 ; Marshall v. 
 
CH.XXVn. S. 1.] WASTING PEOPEETY. 811 
 
 to B. and C. {a). So where a testator having long annuities 
 and no other stock, gave all his real and personal estate to his 
 executors " upon trust to permit his wife to receive the rents 
 and profits, dividends, and annual proceeds for life, and on 
 her decease upon trust to sell his freehold and leasehold houses, 
 and to convert the whole of his estate into money (6)." So where 
 a testator having leaseholds gave to his wife " the full and 
 entire .enjoyment" of his real and personal estate for her life, 
 and after her decease he directed his trustees to sell all the 
 leasehold and chattel property (c). So where a testator having > 
 leaseholds and long annuities gave to his wife "the whole 
 income of his property" for her life, " but not to sell without 
 the whole consent of all parties," and at her decease the tes- 
 tator gave a debt owing to him to A. and lOOL 3 per cent, 
 •stock to be " bought in" within three months from his wife's 
 decease to B., and then disposed of the residue (d), So where 
 a testator gave the residue of the stocks and funds that should 
 be standing in his name at his decease to trustees upon trust to 
 pay the interest and dividends thereof to A. for life, and on her 
 decease upon trust for B. and C, and the testator gave a power 
 to the trustees to transfer the stocks and funds into any other 
 funds and bequeathed the residue of his personal estate to A. 
 absolutely, it was held that the long annuities of which the tes- 
 tator died possessed, were to be specifically enjoyed, and that 
 the power given to the trustees was for the security of the 
 property, and was not intended to cut down the specific gift (e). 
 
 The case of Mills v. Mills {f), is not to be reconciled with MiUs^. jEUg, 
 the foregoing authorities, and is not considered as law. A 
 jtestator gave his freeholds, and leaseholds, stocks in the public 
 funds, and aU other his real and personal estate to trustees 
 upon trust to pay the rents, issues, and profits of his freehold 
 and leasehold estates and the dividends, interest, and proceeds 
 of his money in the funds, and other his said personal estate to 
 
 (a) Pickering v. Pickering, 2 [c) HarvegY.JTarveg, 5Bea.Y.lSi. 
 
 Beav. 31 ; 4 M. & C. 289 ; but the [d) Hinves v. Hinves, 3 Hare, 
 
 will wa? also of a very special eha- 609. 
 
 raeter. (e) Lord v. Godfrey, 4 Mad. 455. 
 
 (5) AUock V. Sloper, 2 M. & K. (/) 7 Sim. 501 ; see Oakes v. 
 
 g99_ Strachey, 13 Sim. 414. 
 
812 
 
 IMPLIED CONVEESION. 
 
 [CH. XXYH. S. 1, 
 
 £ule as to 
 conversion 
 where property 
 is not "wasting, 
 but of a class 
 not authorised 
 by the Court. 
 
 A. for life, with remainders over, and a question arose as to the 
 testator's leaseholds, and bank stock. The Vice-Chancellor 
 held that the leaseholds were not to be specifically enjoyed, but 
 must be sold; ■" Unless/' he said, " the bequest is construed as a 
 general bequest the consequence would be that if he had sur- 
 rendered the leaseholds and taken renewals they would not 
 have passed;" but there seems to be some confusion here 
 between a specific bequest and a direction for specific en- 
 joyment (a). Unquestionably, it was a general bequest in 
 "■the sense that the testator meant all the leaseholds he should 
 have at the time of his death to pass, but consistently with 
 this intention, he might declare, as the legal construction 
 apparently was, that aU such leaseholds should be specifically 
 enjoyed. It was rightly decided, that the bank stock should be 
 sold, for it did not fall under the description of " public 
 funds," and therefore, had not been specifically mentioned. 
 There could have been no difficulty in holding, that finder the 
 same clause, part should be specifically enjoyed and part be 
 converted (6). 
 
 The rule of the Court under which perishable property is 
 converted does not proceed upon the assumption that the 
 testator in fact intended his property to be sold, but is founded 
 upon the circumstance that the testator has intended the perish- 
 able property to be enjoyed by different persons in succes- 
 sion, which can only be accomplished by means of a sale (c). 
 The object of the rule in truth is to secure a fair adjustment 
 of the rights of the tenant for life and those coming after him. 
 Upon similar grounds, therefore, where a residue which is 
 without any express trust for conversion, bequeathed to persons 
 in succession, consists of property which, though not wasting, 
 is of a class producing a high rate of interest in proportion to 
 its money value, and liable consequently to additional risk^ 
 such as railway shares, canal shares, shares of insurance or 
 other companies, foreign bonds or stocks, &c., &c., the persons 
 
 (a) As to the distinction, see 
 Pickering v. Tickering, 2 Beav. 57 ; 
 4 M. & C. 299. 
 
 (J) See Vaughan v. Buck, 1 Phill. 
 
 75 ; Bethune v. Kennedy, 1 M. 
 & C. 114. 
 
 (c) Cafe V. Bent, 5 Hare, 35. 
 
PH. XXVII. S. 1.] DIRECTION TO ACCUMULATE. 813 
 
 entitled in expectancy have a right to call for the conversion of 
 such property into Three per Cent, stock (a). 
 
 If a testator direct that his personal estate shall be laid Direction for 
 
 investment of 
 
 out in a purchase of lands, to be settled on A. for life, with personal estate 
 remainders over, and that the interest of the personal estate ti^ns of income 
 shall be accumulated and laid out in a purchase of lands to be "^ ^^^ 
 settled to the same uses, the Court to prevent the hardship 
 that would fall upon the tenants for life, if the purchases were 
 protracted for a long period, either from unavoidable circum- 
 stances, or from the dilatoriness of the trustee, interprets the 
 intention in such cases to be that the accumulation should be 
 confined to one year from the testator's death. At the expira- 
 tion of that period, the Court presumes the trustees to be 
 m a condition to invest the personal estate, and gives the 
 tenant for life the interest from that time (.&). 
 
 So if a testator devise his real estate to be sold and the Devise of real 
 produce thereof, and also the rents and profits of the said estate, trust to sell and 
 in the meantime to be laid out in Bank Annuities or other "'"^est proceeds 
 
 and rents until 
 
 securities, upon trust for A. for life, with remainders over, the sale. 
 accumulation of the rents is not extended beyond one year 
 from the testator's death, but the tenant for life is entitled to 
 them from that period (c). 
 
 From the language used by Lord Eldon, in the case of Produce during, 
 Sitwell V. Bernard {d), (in which the rule, that the accumulation testator's deatk 
 where expressly directed, extends only to one year from the 
 testator's death, was first established), an impression prevailed 
 that in no case was the tenant for life entitled to the produce 
 of the land, or fund to be converted during the first year. 
 Poth Sir John Leach (e), and Sir Thomas Plumer (/), sanc- 
 
 (o) Thornton v. Elli», 15 Beav. (c) Noel r.- Lord Henley, TSvioe, 
 
 193 ; JBUnn v. Bell, 5 De Gex & 241 ; Vickers v. Scott, 3 M. & K. 
 
 Sm. 658 ; 2 De Gex, Mac. & Gor. 775. 500; and see Vic/or v. Harwood, 12 
 
 (6) Sitwell V. Bernard, 6 Ves. Sim. 172 ; GreisleyY. Earl of Ches- 
 
 520; and Entwistle v. Marhland, terjield, 13 Beav. 288; Beanlandy, 
 
 Stuart V. Bruere, cited, lb. 528, Halliwell, 1 C. P. Cooper, t.. Cotten- 
 
 529 ; Griffith v. Morrison, cited ham, 169, note (a). 
 
 1 J. & W. 311 ; Tucker v.. Boswell, {d) 6 Ves. 520. 
 
 5 Beav. 607 ; Kilvington v. Gray, (e) Stott v. Hollingworth, 3 Mad. 
 
 2 S. & S. 396; Parry y. Warring- 161. 
 
 ton, 6 Mad. 155; Stair v. Macgill, (/) Taylor v. JSihhert, 1 J. feW.. 
 
 1 Bligh N. S. 662. 308. 
 
814 
 
 APPLICATION OF INCOME [CH. XXVII. S. 1. 
 
 Where funds are 
 in the state they 
 ought to be. 
 
 Where the 
 proper invest- 
 ment is made 
 before the end 
 of the year. 
 
 Where the 
 funds are not 
 at the testator's 
 death in the 
 state they ought 
 to be. 
 
 tioned this doctrine by their authority. However, Lord Eldon 
 had no intention of laying down any such rule (a), and it has 
 since been unquestionably settled that the tenant for life has an 
 interest in the first year's produce (b), varying, however, 
 according to the circumstances of the case, as will appear from 
 the following distinctions. 
 
 - If a testator desire that his personal estate shall be laid out 
 and invested in Government or real securities (c), or in a pur- 
 chase of lands, with a direction express (d) or implied (e) for 
 the investment thereof in the mean time in Government or real 
 securities, and that the lands to be purchased shall be m trust 
 for A. for life, with remainders over; the produce of the Govern- 
 ment and real securities of which the testator was possessed at 
 the time of his death (these being the very investments con- 
 templated by his wiU), belong from the time of the death to the 
 tenant for life. 
 
 If, during the first year, the conversion directed by the 
 testator is actually made, the tenant for life is also entitled to 
 the produce of the property, in its converted form, from the 
 time of the conversion, as if land be directed to be sold, and 
 the produce invested in Government or real securities (/), or 
 money is directed to be laid out on land {g), the tenant for life 
 is entitled to the dividends or interest in the fitrst case, from 
 the time of the sale and investment,, and to the rents in the 
 latter case from the time of the purchase, though in the course 
 of the first year. 
 
 Where, at the death of the testator, the property is not in 
 the state in which it is directed to be, the tenant for life is, 
 before the conversion, entitled, as the Court has now decided, 
 not to the actual produce, but to a reasonable fruit of the 
 property, from the death of the testator up to the time of the 
 conversion, whether made in the course of the first year or 
 
 («) See Angerstein v. Martin, T. 
 & E. 238; Hewitt v. Morris, lb. 
 244. 
 
 (i) MacphersonY. Macpherson, 16 
 Jur. 847. 
 
 (c) HeweU v. Morris, T. & R. 
 241 ; £a Terriere v. JBulmer, 2 Sim. 
 18. 
 
 (d) Angerstein v. Martin, T. & 
 R. 232. 
 
 (e) Caldecott v. Caldecott, 1 T. & 
 C. Ch. Ca. 312, 737. 
 
 (/ ) La Terriere v. Bulmer, 2 Sim. 
 18 ; Qibso7i V. Bott, 1 Ves. 89. 
 
 {g) See Angerstein y. Martin, 
 T. & E. 240. 
 
CII. XXVII. S. 1.] ACCEUING BEFOEE CONVEESION. 815 
 
 subsequently, as if personal estate be directed to be laid out in 
 Government or real securities, and part of the personal estate 
 consists of bonds, bank stock, &c. (not being Government or 
 real securities), the tenant for life is entitled to the dividends 
 on so much of 3 per cent. Consolidated Bank Annuities as such 
 part of the personal estate, not being Government or real 
 securities, would have purchased at the expiration of one year 
 from the testator's death (a). 
 
 But of course, if it appear from the terms of the will that Discretion 
 the testator intended to give his trustees a discretion as to the by^thelestator. 
 time of conversion,, which discretion has been fairly exercised, 
 and that the tenant for life was to^ have the actual income until 
 conversion, the case must be governed by the testator's inten- 
 tion, and not by the general rule (&). 
 
 In Gibson v. Bott (c), a testator directed his personal estate Gitson v. Bott. 
 to be converted into Government or real securities, and the 
 title of some leaseholds being defective they couH not be sold; 
 and Lord Eldon said, they must be considered as property 
 which it was for the benefit of all parties to retain in specie, 
 and decreed the tenant for life to have interest at 4 per cent, 
 from the death of the testator on the value thereof at that 
 time (d). Ajid so in another case Sir J. Parker, Vice Chancellor, 
 observed that when the property was so laid out as to be secure, 
 and to produce a large annual income, but was not capable of 
 immediate conversion, without loss and damage to the estate, 
 there the rule was not to convert the property, but to set a 
 
 {a) Dimes v. Scott/i Russ. 19S. sonal estate not consisting of Govern- 
 In Douglas v. Congreve, 1 Keen, ment or real seeuiities, on the 
 410 ; the M. E. gave the tenant for assumption, apparently, that the 
 life the interest of the personal case feU. within the principle of 
 estate making interest from the Gibson v. Bott. In Sutherland v. 
 death of the testator ; but in the Coohe, 1 Coll. 503, under special cir- 
 subsequent cases of Taylor v. Clark, cumstances, 4 per cent, on the value 
 1 Hare, 161; saai MorganY. Morgan, was also allowed. 
 14 Beav. 72 ; the authority of Dimes (5) Machie v. Maehie, 5 Hare, 70 : 
 V. Scott was followed. In CaldecoU Wrey v. Smith, 14 Sim. 202 ; Spar- 
 V. CaUecott, 1 Y. & C. Ch. Ca, 312, ling v. Parher, 9 Beav. 524. 
 737, the Court gave the tenant for (c) 7 Ves. 89. 
 life the actual interest of the mort- (rf) See the decree from Reg. Lib. 
 gages as beiug proper investments, Caldecott v. CaldecoU, 1 T. & C,. 
 and 4 per cent, interest on the per- Ch. Ca. 320.. 
 
816 
 
 APPLICATION OF INCOME 
 
 FcH. xxvn. S. 1. 
 
 Bents of devised 
 
 estates. 
 
 Election. 
 
 Who may elect. 
 
 Infante, lunatics, 
 femes covert. 
 
 Power oi feme 
 eovert over 
 money-land. 
 
 value upon it, and give to the tenant for life 4 per cent, on 
 such value, and the residue of the income must then be 
 invested, and the income of the investment paid to the tenant 
 for Hfe, but the corpus must be secured for the remainderman (a). 
 
 If a testator direct his real estate to be sold, and the pro- 
 ceeds to be laid out and invested upon trust for A. for life, with 
 remainders over, the tenant for life is entitled to the rents of 
 the estate from the testator's decease (6) ; and so if the sale be 
 directed on the death of a particular person, the tenant for Ufe 
 is entitled to the rents from the death of that person (c). 
 
 In connection with the subject of conversion, it wUl be proper 
 to introduce a few remarks upon the doctrine of election ; for 
 where land is to be converted into money, or money into land, 
 the notional conversion will subsist only untU some cestui que 
 trust who is competent to elect, intimate his intention to take 
 the property in its original character (d). The Court will not 
 compel a conversion against the will of the absolute owner; for 
 should the conversion be made, he would immediately recon- 
 vert it, and Equity will do nothing in vain (e). 
 
 Upon this subject we shall consider : — 1. What persons 
 are capable of electing ; and, 2. In what manner the act of 
 election may be manifested. 
 
 1. In respect oi personalincapacity, an infant (/), lunatic {g), 
 or feme covert {h), has no power to make election. 
 
 " But although," said Lord Hardwicke, " a feme covert 
 cannot alter the nature of money to be laid out in land by 
 contract or deed, yet if the money be invested in land (and 
 
 {a) Meyer v. Simonsen, 5 De Grex 
 & Sm. 726. 
 
 (6) Casamajor v. Strode, cited 
 Walher v. Shore, 19 Ves. 390; 
 Suteheon v. Mannington, 1 Ves. jun. 
 307, per Cur. 
 
 (c) Fitzgerald v. Jervoise, 5 Mad. 
 25, of wHch the marginal note does 
 not exactly accord with the report 
 itself. 
 
 {d) Harcourt Vi Seymour, 2 Sim, 
 N. S. 45 ; Cookson v. JReay, 5 Beav. 
 22; 12 CI. & Fin. 121; Dixon v. 
 Gayfere, 17 Beav. 433. 
 
 (c) Seeley v. Jago, 1 P. W. 389. 
 
 (/) Carr v. Ellison, 2 B. C. C. 
 56 ; Earlom v. Saunders, Amh. 
 241 ; Thornton v. Eawley, 10 Ves. 
 129 ; Van v. Sarnett, 19 Ves. 102 ; 
 Seeley v. Jago, 1 P. W. 389 ; Pad- 
 bury V. Clark, 2 Mac. & Gor. 298 ; 
 and see Ashby v. Palmer, 1 Mer. 
 301. 
 
 {g) Ashby v. Palmer, 1 Mer. 296. 
 
 {h) Oldham v. Hughes, 2 Atk, 
 452 ; Frank t. Frank, 3 M. & C. 
 171 ; Me Fozard's Trust, 1 Kay & 
 Johns. 233. 
 
CH. XXVII. S. 1.] ELECTION. 817 
 
 sometimes sham purchases have been- made for the purpose) (a),; 
 she may then levy a fine of the land, and give it to her husband 
 or any body else. There is a way, also, of doing this without 
 laying the money out in land, and tha,t is,, by coming into a 
 Court of equity, and consenting to take the money as personal 
 estate ; for upon her being present in court, and being 
 examined [as a feme covert upon a fine is] her consent binds 
 the money articled to be laid out in land as much as a fine at 
 law would the land, and she may dispose of it to the husband 
 or any body else. And the reason of it is this — that at law, 
 money so articled to be laid out in land is considered barely as 
 money till an actual investment, and the equity of this Court 
 alone views it in the light of real estate ; and, therefore, this 
 Court can act upon its own creature, and do what a fine at 
 common law can upon land " (b). And at a later date Lord 
 Hardwicke's views were ratified by express decision (c). 
 
 Now by the 3 & 4 W. 4, c. 74, ss. 40, 71, 77 (cZ), a mar- Fines and Reco- 
 ried woman is enabled, with the concurrence of her husband ^^"^^ " ' 
 and with the formalities required by the Act, to dispose of any 
 estate at law or in equity, or any interest, charge, lien, or 
 incumbrance in or upon lands or money to be laid out in a 
 purchase of lands, or to relinquish or release any power over 
 the same, as if she were a feme sole, so that in the ease of 
 money liable to be laid out in land, a feme covert can, through 
 the medium of the power of disposition conferred by the Act, 
 virtually elect to take the money. 
 
 And the Act enables- a marAed woman not only to dispose gpedai power of 
 of property which, though personal estate in fact, is real ^eJ^Ki^sand 
 estate in equity (as money to be invested in land), but also of Kecoveries Act 
 
 . . over money 
 
 property which is in equity personal estate, provided only it be wMch is an 
 an interest in land,- and this although according to the ordi- ■^tmst miand. 
 nary doctrines of the Court the married woman would, by 
 reason of her interest being reversionary, have no such power 
 of disposition. Thus, where real estate is devised upon, trust 
 for sale in terms amounting to a conversion out and out, and 
 
 [a) See Henleu y.-Wehh, 5. Mad. (c) SinfordY.Bawden,lYes. jiin. 
 
 407. 512. 
 
 (S) Oldham v. Hughes, 2 Atk, {d) Extended to contingent inte- 
 
 453; rests by the 8 & 9 Vict. c. M6, s. 6. 
 
 3 o 
 
818 ELECTION. [cH. xxvn. s. 1. 
 
 a married woman takes a share of the proceeds, she can, unjjer 
 the statute, dispose of her share, even though reversionary, 
 as being an interest in land (a). And it is conceived, that the 
 same principle must apply to the case of a reversionary money 
 legacy raiseable out of land, notwithstanding the doubts enter- 
 tained by Lord Justice (then Vice Chancellor) Knight Bruce, 
 iin the case of Hobby v. Collins (b). 
 Kemainder-men. It has been held that a remainder'man may elect so as to 
 bind the rights " inter se" of his heir and personal repre- 
 sentative, notwithstanding the subsistence of the prior estate. 
 Thus, in Lingen v. Sowray (c). A., on his marriage, agreed 
 to add 700L to the lady's portion of 7001., and the securi- 
 ties for both sums were assigned to trustees, and the money 
 was directed to be laid out in lands to be settled to the 
 use of the husband for life,, remainder to ' the wife for life, 
 remainder to the first and other sons in tail, remainder to the 
 right heirs of the husband. There was no issue of the mar- 
 riage, and 350Z. of the trust-money was called in by the direc- 
 tion of the husband, and placed out upon other securities, and 
 a trust declared, not for the husband and his heirs, but for the 
 husband and his executors and administrators. The husband 
 afterwards died, having devised part of his real estate to his 
 wife, and the residue to J. S., and having bequeathed his 
 personal estate and all his securities for money to his wife. It 
 was debated whether the 2501. ought, as to the operation of the 
 husband's wiU, to be regarded in the light of realty or person- 
 alty. Lord Harcourt said, " M, to the 250Z. which was called 
 in by the testator, and afterwards placed out on securities on a 
 different trust, that shall be taken to be personal estate, foras- 
 much as, there being no issue of the marriage, it was in the 
 power of the husband to alter and dispose of it as against the 
 heir at law, though not as against his wife." But the re- 
 mainder-man can, of course, only elect subject to the right of 
 the owner of the prior estate to call for the actual conversion 
 
 (o) Briggs v. Chamberlain, 1 1 his Essay on the Real Property Sta- 
 
 Hare 69; Tuer v. Turner, 20 Beav. tutes, 240. 
 460. (e) 1 P. W. 172 ; and see Stead v. 
 
 [b) 4 De Gex & Sm. 289 ; and see Newdigate, 2 Mer. 531 ; Gillies 
 
 observations of Lord St. Leonards in v. Longlands, 4 De Gex & Sm. 379. 
 
CH. XXVII. S. 1.] ELECTION. 818 
 
 of the land or money in accordance with the instrument of 
 trust (a) ; and it is conceived that, should this right be insisted, 
 on, the conversion " de facto " would render the intended elec- 
 tion ineffectual. 
 
 Where an estate is directed to be sold, the proceeds to be Election where 
 
 . . an estate is to be 
 
 divided amongst several persons, no one smgly has a right to sold or money is 
 elect that his. own undivid-ed share shall not be disposed of (&), j^,,^^ ^nd several 
 for the other undivided shares will not sell so beneficially in parties are inter- 
 
 *' ested. 
 
 proportion as if the estate were entire (c) ; but if money be 
 directed to be laid out in lands to be settled on A., B,.,- and C, 
 as tenants in common, any one of them may elect to take his 
 own third as money, for two thirds may be invested just as 
 advantageously as the whole sum (<^. 
 
 Sound principle would require that a tenant in tail of lands Tenant in tail 
 
 may elect. 
 
 to be purchased should not be allowed to elect, because the 
 interests of the issue and the remainder -man, who both take by 
 title paramount, would otherwise be prejudiced. But the old 
 rule appears to have been, that tenant in tail might in every case 
 have elected, and on filing a bill would have been entitled to 
 the money (e} ; and the principle upon which the practice was 
 grounded was said to be, that Equity will do nothing in vain, 
 and it were nugatory to direct an actual purchase and settle- 
 ment when the tenant in tail the next moment might dispose 
 of the fee simple. Lord Cowper,. however, in the case of 
 CoVwal V. Shadwell (/), took the distinction,, that where the 
 remainder in fee was not vested in the tenant in tail himself, 
 but was limited over to a stranger, there, as the absolute fee 
 could only be acquired by a recovery, which was a thing of 
 time, and could not be suffered in vacation, the remainder-man 
 should not lose his chance ;. and as in that case the tenant in 
 tail did actually die before the recovery was suffered, it showed 
 
 (a) Gillies v. Longlands, 4 De {d) Seeleyy. Jugo, 1P..W. 389; 
 Grex & Sm. 379. Walker v. Denne, 2 Yes. jun. 182, 
 
 (b) Holloviay v. Madcliffe, 3 Jur, per Lord Loughtorough. 
 
 N.S. 198; Fletcher Y-Ashhurner, 1 B. (e) Cunningham v. Moody, 1 Ves. 
 
 C. C. 500, per Sir T. Sewell ; Beeth 176, per Lord Hardwioke. 
 V. Hah, 2 Moll. 317 ; and see Smith {/) Cited Chaplin v. Horner, 1 
 
 V. Claxton, 4 Mad. 494. P. W. 480. 
 
 (c) Chalmer v. Bradley, 1 J. & 
 W. 59 ; and see Trower v. Knight- 
 ley;,. 6 Mad. 134. 
 
 3 Q 2 
 
83X) 
 
 ELECTION. 
 
 [CH. XXVII. S. 1. 
 
 Lord King's 
 doubts. 
 
 Tenant in tail 
 may elect with- 
 out suit. 
 
 the remainder-man's interest in so glaring a light, that it 
 established the precedent ever afterwards (a). But even then 
 the money would have been decreed to the tenant in tail, 
 provided the remainder-man waived his right and consented to 
 the payment (6). 
 
 In Eyre's case (c) Lord Chancellor King was for extending 
 the same protection to the issue, " I cannot see," he said, 
 " why I should not have the like regard to the issue in tail as 
 for the remainder-man. It is possible the tenant in tail, before 
 he can light on a purchase and settle it, may die, leaving issue, 
 and this is a chance of which I would not deprive such issue." 
 And in Speaker Onslow's case{d)., he declared his adherence 
 to the same opinion, observing, that " the levying of a fine 
 also was a thing of time, there being several offices to pass, 
 and the writ of covenant to be under the Great Seal." But the 
 rule which had been uniformly acted upon before his time (e) 
 appears, notwithstanding his Lordship's authority, to have been 
 revived by his successors (/). 
 
 And the election of the tenant in tail need not necessarily 
 have been made in a suit, but might have been expressed by 
 act in pais, as if tenant in tail with remainder to himself had 
 received the money of the trustee, or if tenant in tail with 
 remainder to a stranger had received it of the trustee with the 
 consent of the remainder-man. Upon this subject Lord Hard- 
 wicke observed, " The Court pursues the rights of parties, and 
 whatever a Court of common law does by a judgment, or Chan- 
 cery by a decree, is in affirmance of those rights, and does not 
 give them a right which they had not before (g). Why does the 
 Court decree the money? Because the parties are entitled 
 
 (o) See Cunningham v. Moody, 
 
 1 Ves. 176; Talbot v. Whitfield, 
 Bunb. 204. 
 
 (6) See Trafford v. Boehm, 3 Atk. 
 440. 
 
 (c) 3 P. W. 13. 
 
 {d) 3 P. W. 14, note (G). 
 
 (e) Benson v. Benson, 1 P. W. 
 130; Short v. Wood, lb. 470; 
 Edwards v. Countess of Warwick, 
 
 2 P. W. 173, admitted. 
 
 (/) Trafford v. Boehm, 3 Atk. 
 447, ^er Lord Hardwioke; Cunning- 
 ham V. Moody, 1 Ves. 176, per 
 eundem ; Holdernesse v. Carmarthen, 
 1 B. C. C. 382, per Lord Thurlow ; 
 and see the preamble of the 39 & 40 
 G. 3, 0. 56. 
 
 {g) And see Earl of Bath v. Earl 
 of Bradford, 2 Tes. 590. 
 
CH. XXVII. S. l.J ELECTION.- 821 
 
 to it. There is,, therefore, no occasion for a decree of the 
 Court to destroy the real quality of the money, unless there be 
 an incapacity of the person, as in the case of a feme covert, who 
 must- first be examined" (a). 
 
 Lord Thurlow, indeed, once said, " If the fund be out- Observation of 
 standing in trustees, and it be necessary to com€ hither in °^ "'^°^' 
 order to obtain it, the money, when obtained, wiU be personal 
 property ; and so it would also, if the trustees pay it without 
 suit. That is, supposing the estate, when purchased, would 
 be a fee simple, for it would he otherwise in case of its being an 
 estate taWQ)). But the concluding remark must have been 
 intended (as Mr. Serjeant Hill, in a note on the passage, has 
 observed (c) ) to apply, not to every tenant in tail, as, not to 
 tenant in tail with remainder to himself in fee, but only to 
 tenant in tail with remainder to a stranger ; for in a subse- 
 quent case, where the tenant in tail had executed an assign- 
 ment of two sums of money directed to be laid out in lands, 
 his Lordship said, "As to the 5001. the assignor was tenant in 
 tail, remainder to a stranger, remainder to himself in fee ; as 
 to the lOOO.Z. he was tenant in tail, with remainder in fee to 
 himself. I am clear, that in regard to the lOOOL he had the 
 absolute dominion over it, having the immediate remainder in 
 fee ; but as to the 6001. I am equally clear the other way, 
 because of the intermediate remainder " (d). 
 
 By the 39 & 40' G. 3, c. 56 (e), the inability of the tenant in 39 & 40i&. 3, 
 tail (with remainders over), of money to. be laid out in the 
 purchase of land to obtain possession of the money, except 
 through the medium of a fictitious purchase (/), was removed. 
 And the Court was empowered on the petition of the first 
 tenant in tail of such money-land, and of the parties (if any) 
 having antecedent estates therein (with a provision for the 
 separate examination of married women), to order the money 
 to be paid to the petitioners or as they should appoint (g). So 
 
 (o) Trafford v. Boehm, 3 Atk. [d) Soldernesse v. Carmarthen, 
 
 4i8; but see Pearson v. Lane, 17 IB. C. C. 382. 
 
 Yes. 106. (e) Extended by 7 G. 4, c. 45. 
 
 (5) Pulteney v. Darlington, 1 B. (/) See Henley v. Wehb, .5 Mad. 
 
 C. C. .236. 407. 
 
 (c) lb. note (a), Lord Henley's edit. {g) See5 Ves. 12, Bote (6)astothe 
 
 0.66. 
 
833 
 
 ELECTION. 
 
 [CH. XXVII. S. 1. 
 
 Fines and Keco- 
 veries Act. 
 
 Whether tenant 
 in tail of money 
 liable to be laid 
 out in land may 
 still elect to take 
 the money. 
 
 that a kind of statutory power of election was thus conferred 
 on tenants in taU. 
 
 Now, by the Fines and Eecoveries Act {a), a tenant in tail 
 may, with the consent of the protector, if any, dispose abso- 
 lutely of the lands entailed at any time, whether in term or 
 vacation, and by the 71st section of the statute (6) it is 
 enacted, that "money to be invested in the' purchase of 
 lands to be settled so that any person, if the lands were 
 purchased, would have an estate tail therein, shall be treated 
 as the lands to be purchased, and the previous clauses of the 
 Act shall apply to such money, as if it were directed to be laid 
 out in the purchase of freehold lands, and such lands were 
 actually purchased and settled." 
 
 Upon the consideration of the late enactments, a doubt 
 suggests itself whether, even at the present day, a tenant id 
 tail may not elect to take in its origiual character money which 
 is liable io be laid out in the purchase of lands, and declare 
 such election either by the iastitution of a suit or by act in 
 pais. It is true that under the 71st clause of the late Act the 
 tenant in tail m^ at any time defeat his issue and the 
 remainder-men by a deed executed with the proper formali- 
 ties; but what is there to prevent him from exercising a 
 power founded upon principles independent of the statute, 
 and so acquiring the fee simple by the mere act of elec- 
 tion ? it may be said that the old rule, which made election 
 a bar to the issue, might have been grounded on this — 
 that, because no fine or recovery -could have been levied or 
 suffered of money (c), the Court, on that account, held election 
 to have the effect of a bar, dest the tenant in tail should lose 
 the power, which the law intended him, of defeating the settle- 
 ment; but that, since by the Fines and Eecoveries Act a tenant 
 dn tail of money may bar his issue and the remainder-man by 
 
 qualification' introduced by the Court 
 in making orders for payment under 
 this Act. 
 
 (ffl) 3 & 4 W. 4, c. 74. 
 
 (b) The preceding section re- 
 peals the 39 & 40 G. 3, c. 56, and 
 -7 a. 4, c. 45. 
 
 (c) See Benson v. Benson, 1 P. 
 W. 130; Edwards v. Countess of 
 Warwick, 2 P. W. 174 ; Mayn- 
 waring, v. Maynwaring, 3 Atk. 
 413. 
 
CH. XXVn. S. l.J ELECTION. 823 
 
 the same formalities as if the lands were actually purchased 
 and settled, the same indulgence ought not now to be 
 shown. But to this it may be answered, that the tenant in 
 tail was allowed to elect, not because the tenant in tail of 
 money had a right to exercise the same powers of ownership 
 as a tenant in tail of lands, but for the purpose of avoiding 
 circuity. Had the former been the principle, the tenant in 
 tail might equally have barred the remainder-man as the issue.; 
 but for the destruction of remainders an actual settlement was 
 necessary, and a sham purchase was often resorted to for the 
 purpose [a). It is, however, clear, that no person being tenant 
 in tail of money to be laid out on land could at the present day 
 be advised, if he would acquire the absolute interest, to dispense 
 with the formalities prescribed by the Fines and Recoveries Act. 
 
 2. The act of election either may be presumed by the Court, '^°'^ election 
 
 may be made. 
 
 or may be expressly declared. 
 
 The presumption may arise from slight circumstances of Presumption. 
 conduct (b). Thus it will be sufficient, where land is to be con- 
 verted into money, if the cestui que trust enter into possession 
 and take the title-deeds into his own custody, for the trustees can- 
 not recover the deeds from the cestui ^que trust, and they cannot 
 sell without them (c), or if the cestui que trust merely keep the 
 estate for a length of time unsold {d) (but in one. case a period Possession of.the 
 of two years was considered not to be a sufficient indication of 
 such an intention (e) ), or, where money is to be turned into 
 land, if the cestui que trust receive the money from the i^eeeipt of the 
 
 ' . -^ "^ .money. 
 
 trustee (/); but not if he merely receive the annual income 
 though for a considerable length of time (g). 
 
 (o) See V. Marsh, cited 301 ; Dixon v. Gay/ere, 17 Beav. 
 
 Chaplin v. Borner, 1 P. "W". 485, 433; ffriesbach y. Fremanth, 17 
 
 note (t) ; Maynwaring v. Mayn- Beav. 314. 
 
 waring, 3 Atk. 413; Henley v. (e) Kirhman v. Miles, 13 Ves. 
 
 Webh, 5 Mad. 407. 338 ; Cookson v. Goohson, 12 CI. & 
 
 (6) See Pulteney v. Darlington, Fin. 121 ; but see Crabtree v. Bram- 
 
 1 B. C. C. 238 ; Van v. Barnett, hie, 3 Atk. 688 ; Inwood v. Twyne, 
 
 19 Ves. 109 ; Bradish v. Oee, Amb. 2 Ed. 148. 
 
 229; Dixon v. Gayfere, 17 Beav. (/) Pulteney y. Lord Darlington, 
 
 433. 1 B. C. C. 238, per Lord Tburlow; 
 
 (c) Davies v. Ashford, 15 Sim. Trafford v. Boehm, 3 Atk. 440; 
 42 ; and see Padbury v. Clark, 2 and see Book v. Worth, 1 Ves. 461. 
 Mac. & Gor. 298. (g) Gillies v. Longlands, 4 De 
 
 [d] See Ashby v. Palmer, 1 Mer. &ex.& Sm. 372, 
 
824 
 
 • ELECTION. 
 
 [CH. XXVII. S. 1. 
 
 Change of secu- 
 rities and trust 
 declared to the 
 "executors." 
 
 Grant of a lease 
 and reservation 
 of rent to the 
 "heirs." 
 
 Election ex- 
 
 How money to be 
 turned into land 
 affected by cestui 
 que trmfB will. 
 
 It was determined by Lord Harcourt that a cestui que trust 
 had divested money of its real quality by causing the securities 
 to be changed, and the trust to be declared to himself and his 
 executors; for this, he observed, was tantamount to saying 
 the money should not go to the heir (a) ; and vice versa, where 
 land was to be converted into money, it was held by Lord 
 Hardwicke, that a lease by the cestui que trust, reserving a rent 
 to her heirs and assigns, was evidence of an intention to con- 
 tinue the property as real estate (6). To constitute an act of 
 election it is not necessary that the person entitled, as for 
 instance, to money to be laid out on land, should know that 
 but for the act of election it would pass as land, but it is 
 sufficient if the Court can collect the intention that with or 
 without such knowledge he meant the money to be dealt with 
 and treated as money (c). 
 
 A person may express his election, even by parol. This, at 
 least, was the opinion of Lord Macclesfield {d}, and apparently 
 was actually decided in the case of Chaloner v. Butcher (e), in 
 which, the husband having declared the money should not be 
 laid out in land, the Court held, that, if the question concerned 
 the right of a third person, the declarations of the husband 
 ought jQot to be admitted ; but, as it was between his personal 
 and real representative, they should be read. And both Lord 
 Thurlow (/), and Lord Eldon (g), seem to have lent their sanc- 
 tion to the same doctrine, so that an obiter dictum of Lord 
 Hardwicke to the contrary {h}, though supported by so illustrious 
 a name, must be considered as overruled. 
 
 Where money bore the notional impress of realty, the testator 
 might have bequeathed it as so much money to be laid out inland, 
 and the money would have passed, though the will was not attested 
 
 (o) Lingen v. Sowray, 1 P. W. 
 172 ; and see Cookson v. Cookson, 
 12 CI. & Pin. 121; Harcourt v. 
 Seymour, 2 Sim. N. S. 12. 
 
 (5) Crabtree v. Bramble, 3 Atk. 
 680, see 688, 689 j and see Ories- 
 bach V. Fremantle, 17 Beav. 
 314. 
 
 ( e ) Harcourt v, Seymour, 2 Sim. 
 X S. 12, see p. 46. 
 
 (d) Edwards v. -Countess of War- 
 wick, 2 P. W. 174. 
 
 (e) Cited Crabtree v. Bramble, 
 3 Atk. 685. 
 
 (/) jPulteney v. Darlington, 1 B. 
 C. C. 237. 
 
 ((?) Wheldale v. Partridge, 8 Ves. 
 236. 
 
 [h) Bradish v. Oee, Arab. 229. 
 
.CH. XXVn. S. 2.] TEUSTEES FOE LUNATICS. 825 
 
 according to the Statute of Frauds {a) ; the will operated first 
 by way of election, and then by way of bequest. Now by the 
 late Wills Act (6) the same formalities are required for the 
 testamentary disposition of both real and personal estate. 
 
 SECTION II. 
 
 THE ACT OF THE TETJSTEE SHALL NOT ALTEE THE CESTUI WE TETJST'S 
 
 ESTATE. 
 
 At law the trustee is the absolute proprietor of the land or Powerofthe 
 fund, and therefore may exercise any control or dominion over ^^ jn^J'uit J 
 it — may convert realty into personalty, or personalty into 
 realty; hut Equity, which regards a trustee as a mere instrument 
 for the execution of the trust, will not permit the interest of the 
 cestui que trust to be affected by any act of misconduct, but, 
 as often as any wrongful conversion is made, will transfer to 
 the new interest the quality and character of the old — will 
 treat real estate as personal, and personal as real, as the 
 circumstances of the case may require. 
 
 Where the cestui que trust is sui juris, every change in the Wiere the cestui 
 nature of the property made without the authority of the bene- |„yjs. 
 ficial owner, must in general be considered a misfeasance; 
 but with respect to lunacy and infancy it is necessary that some 
 distinctions should be taken. 
 
 It has been laid down as the general rule in lunacy, that the Power of the 
 Court will not alter the condition of the lunatic's property to ^c^tidq^fnM^ 
 the prejudice of his successors ; but the maxim must be '^ ^ lunatic. 
 received with the qualification, except it he for the benefit of 
 the lunatic himself {c). The Chancellor takes the advice and 
 assistance of the presumptive next of kin and presumptive 
 heir at law in the care and management of the property [d) ; 
 but through all the cases runs this prevailing principle— that 
 
 (a) See the eases eited, Lechmere (c) Ex parte Orimstone, cited 
 
 v. Earl of Carlisle, 3 P. "W. 221, Oxenden v. Lord Compton,. 4 B. C. 
 
 note (C.) ; and see PuUeney v. Bar- C. 235, note, per Lord Apsley. 
 
 Ungton, 1 B. C. C. 235, 236. (d) Ex parte Phillips, 19 Yes. 
 
 (5) 7 W. 4. & 1 Vict. 0. 26. \2Z, per Lord Eldon. 
 
8S6 
 
 TRUSTEES FOE LUNATICS. [CH. XXVH. S. 2. 
 
 The interest of 
 the lunatic the 
 exclusive objeot. 
 
 Timber out on an 
 estate ex parte 
 patemd applied 
 to relief of an 
 estate ex pai'le 
 maternd. 
 
 Sale of lunatic's 
 real estate. 
 
 Fall of timber. 
 
 the object of attention is exclusively and entirely the interest 
 of the lunatic, without any regard to those who may have 
 eventual rights of succession (a). 
 
 " Nothing," said Lord Loughborough, " would be more 
 dangerous or mischievous than for the Court to consider how 
 it would affect the representatives : there would always be 
 among them an emulation of each other, and their speculations, 
 if the administrator were to engage in them, would mislead his 
 attention, and confine his observation as to the interest of the 
 only person he is bound to protect ; there would be a contiuued 
 running account between the personal and real estates ; the 
 Chancellor would be perpetually looking to the right or left, and 
 the interest of the lunatic would be committed on favour of 
 those who have no immediate interest, and whose contingent 
 interests are left to the ordinary course of events" (b). 
 
 Upon this principle, where a lunatic was seised ex parte 
 paternd of estate A., and ex parte maternd of -estate B., and 
 the latter was subject to a mortgage, the money arising from a 
 fall of timber upon A. was directed to be applied in discharge 
 of the <mortgage upon B. ; and upon a question between the 
 respective heirs it was held, that the representative who suc- 
 ceeded to A. was not entitled to asy recompense from the 
 representative who inherited B. (c). ' 
 
 So, if the lunatic be considerably indebted, and it appears 
 his maintenance would be better provided for, and his advan- 
 tage promoted, by the sale of a real estate inconvenient and 
 iU-conditioned, instead of exhausting the personalty, the Court, 
 on a proper representation of the case, would have no difficulty 
 in making an order to that effect (d). 
 
 So, timber which ought to be cut on a lunatic's estate may 
 be felled by the direction of the Court, and the proceeds may 
 
 (a) Oxenden v. Lord Compton, 
 2 Ves. jun. 72; and 8. C. 4 B. C. 
 C. 233, per Lord Thurlow; and 
 see JEx parte Bromfield, 1 Ves. jun. 
 462 ; Ex parte Orimstone, Arab. 
 708; S. C. cited 2 Ves. jun. 75, 
 note (a;), and 4 B. C. C. 235, note; 
 Bx parte Phillips, 19 Ves. 123 ; 
 Dormer\ case, 2 P, W. 265 ; £x 
 
 parte Chumlep, 1 Ves. jun. 297; 
 Ux parte Baker, 6 Ves. 8. 
 
 (6) Oxenden v. Lord Compton, 
 2 Ves. jun. 72, 73 -,8.0.4: B. C. C. 
 233, 234. 
 
 (c) Ex parte Phillips, 19 Ves. 
 123, per Lord Eldon. 
 
 {d) Ex parte Phillips, 19 Ves. 124, 
 per Lord Eldon. 
 
CH. XXVII. S. 2.] TRUSTEES FOR LUNATICS. 827 
 
 either be applied to the redemption of the land-tax, or payment 
 of debts {a), or any other purpose which the true interest of the 
 lunatic may require ; or if not wanted for any particular pur- 
 pose, will go to the next of kin as personalty, and not to the 
 heir as part of the realty (&). 
 
 Where the lands of the lunatic are in mortgage, and that Personal estate 
 whether they have descended to him subject to the ch80:ge(c), of veal estate. 
 or the debt is the lunatic's own (d), theChancellor, not ex necessi- 
 tate, but feeling it to be prudent when the personal estate can 
 afford to disincumber the real estate (e), will order the requisite 
 sum to be applied; and the next of kin after the lunatic's decease 
 will have no lien upon the real estate for the amount expended. 
 
 So, if it be necessary for the interest of the real estate Action of tres- 
 to bring an action of trespass, resort may be had to the 
 lunatic's personal fund(/). 
 
 And by the same rule the money of the lunatic may be ImproTements. 
 laid out in improvements (g) ; but here the Chancellor must 
 act tanquam bonus pater-familias, taking every opportunity 
 of ameliorating the estate by fair and ordinary means, such 
 as draining, inclosures, &c. {h), erecting a fire-engine for the 
 purpose of working a coal-mine (i), but must not engage in 
 risks and dangerous adventures (k). And of course the per- Necessary ex- 
 
 . penses of real 
 
 sonalty may be drawn upon for necessary expenses, as repairs (i), estate. 
 
 (a) Ex parte PTiillips, 19 Ves. (e) Oxenden v. Lord Compton, 
 
 119; Sevan's case, cited Ex parte 2 Ves. jun. 74, ^er Lord Thurlow. 
 Bromfleld, 1 Ves. jun. 455, 457. (/) Oxenden v. Lord Compton, 
 
 (J) Ex parte Bromfield, 1 Ves. 2 Ves. jun. 72, per Lord Lough- 
 
 jun. 453; 8. C. 3 B. C. C. 510; borough. 
 
 Oxenden v. Compton, 2 Ves. jun. [g] Sergeson v. Sealey, 2 Atk. 
 
 69; 8. C. 4B. C. C. 231; Shelly'' s 414, ^er Lord Hardwioke; Dormer's 
 
 case, cited I Ves. jun. 457 ; Ex case, 2 P. W. 262. 
 parte Phillips, 19 Ves. 124, per {h) See Justice De Grey's argu- 
 
 Lord Eldon, The dictum in Mar- ment in Ex parte Grimstone, cited 
 
 quis of Anandale, v. Marchioness of Oxenden v. Lord Conipton, 2 Ves. 
 
 Anandale, 2 Ves. 384, must be con- jim. 75, note. 
 sidered as overruled. («') Oxenden v. Lord Compton^ 
 
 (c) Dennis v. Sadd, cited Win- 2 Ves. jun. 73. 
 
 Chelsea, v. NorcUffe, 1 Vern. 436 ; {h) Oxenden v. Lord Compton, 
 
 but see Weld v. Tew, Beat. 266. 2 Ves. jun. 73, per Lord Lough- 
 
 [d) Ex parte Grimstone, Kmh. borough. 
 
 706; 8. C. cited Oxenden v. Lord {I) Sergeson v. Sealey, 2 Atk. 
 Compton, 4 B. C. C. 234 ; Dormer's 414, per Lord Hardwicke ; Ex 
 case, 2 P. W. 262. parte Grimstone, Amb, 708 ; 8. C. 
 
828 TRUSTEES FOE LUNATICS. [CH. XXVH. S. 9.. 
 
 fines for renewals of leases, or admissions to copyholds (a)„ 
 But where the committees of a lunatic, who were entitled to, 
 the estate themselves aftet his death, laid out a sum. in pwr- 
 chasing timber for repairs, when they ought to have cut timber 
 on the estate, Lord Hardwicke said, thati having done so 
 merely to serve their own interest, they should make good the 
 disbursement to the lunatic's next of kin (b). 
 Converaion not In the preceding cases the conversion has been for the clear 
 where it is clearly benefit of the lunatic, but in general the Court will not lightly 
 ["nefit/™"*'"' change the condition of the property, but will only act on 
 pressing and urgent occasions (c) : it will interfere with great 
 caution, and do nothing that is unnecessary or uncalled for (d), 
 The Court will not buy and sell for the lunatic (e) ; and, there- 
 fore, if the committee of the lunatic wantonly, and of his own 
 head, lay out money upon land, or turn land into money, the 
 Court will not suffer such fraudulent management to affect the 
 rights of the representatives (/), but will transfer to the heir 
 what ought to have remained real estate, and to the next of 
 kin what ought to have remained personal estate (g). How- 
 ever, if timber be cut down, not by a committee in hreach 
 of his duty, but by a stranger tortiously, then, as there 
 is no abuse of confidence, the heir has no equity, and 
 
 cited Oxenden v. Lord Cempton, jun. 463, and 3 B. C. C. 515, per 
 4 B. C. C. 237, note, per Lord Lord Thurlow. 
 Apsley ; 2 Ves. jun. 72, per Lord [d) Oxenden v. Lord Compton, 
 Loughborougli ; Newport s case, 2 Ves. jun. 76, and 4 B. C. C. 238, 
 cited, lb. ; In re JBadcoek, 4 M. & per Lord Loughborough, 
 Cr. 440. But it was said in this (e) Oxenden v. Lord Compton, 
 case, that "if the money were laid 2 Ves. jun. 73, per Lord Lough- 
 out in a purchase of land, or, what borough; Ex parte Grimstone, eitei 
 was the. same thing, in building a in Oxenden v. Lord Compton, 4 B. 
 farm-house, it would be right that C. C. 235, note, per Lord Apsley ; 
 the sum so laid out should retain its Sergeson v. 8ealey, 2 Atk. 414, per 
 character of personalty. Lord Hardwicke. 
 
 (a) Justice De Grey's argument (/) See Ex parte Bromfield, 1 
 
 in Ex parte Grimstone, ubi supra ; Ves. jun. 462. 
 
 but see Degg's case, cited Oxenden [g) Anon, case, 2 Treem. 114; 
 
 v. Lord Compton, 4 B. C. C. 236, Awdley v. Awdley, 2 Vern. 192; 
 
 note. Marquis of Anandale v. Marchio- 
 
 (6) Ex parte Ludlow, 2 Atk. ness of Anandale, 2 Ves. 384, per 
 
 407. Lord Hardwicke; and see In re 
 
 ,(c) Ex parte EromfieU, ,1 Ves. Badcock, 4 M. & Cr. 440. 
 
CH. XXVn. S. 2.] TRUSTEES FOE INFANTS. 839 
 
 the property of the timber, like a windfall, will belong to the 
 executor (a). 
 
 Next, as to infants. 
 
 In Ex parte Bromfield Lord Thurlow, without having infants distin- 
 
 . . guisned from 
 
 examined the authorities, said he could not distinguish be- lunatics, 
 tween lunatics and infants (&) ; but, when the cause came on 
 again, and he had maturely considered the subject, he never 
 once hinted at the existence of such a doctrine (c) ; and, indeed, 
 until the late Wills Act, there was a very broad distinction 
 between the two cases ; for, if a Iwnatic recovered, which in con- 
 templation of law is always possible, he had precisely the same 
 power of disposition, though by different modes, over one 
 species of property as over the other (d) ; but an infant, while 
 he could 'have bequeathed personal estate under the age of 
 twenty-one, could not have devised a freehold until he had 
 attained that age(«). The Court, therefore, would not allow an 
 infant's estate to be converted from one species of property 
 into another, not from any tenderness to the rights of the 
 representatives, but from a regard to the circumstances and 
 capacity of the infant himself. Should his money have been 
 turned into land, he would have lost a power of disposition 
 which the law permitted him to exercise i should land 
 have been turned into money, he would indirectly have 
 gained a power which the policy of the law had forbidden 
 him(/). 
 
 Upon the same principle, had timber been cut on an infant's Timber cut on an 
 
 . 1 ■ n infant's estate. 
 
 estate, the proceeds, and, it seems, the accumulation of the 
 proceeds (g), would have continued part of the realty, and have 
 
 (a) Anon, ease, cited S!x parte (/) Ware v. FolMU,!! Yes. 218, 
 Bromfield, 1 Ves. jun, 462, and 3 a.niUx parte Phillips, 19 Ves. 122, 
 
 B. C. C. 515, per Lord Thurlow. per Lord Eldon; Ashhurtony. Ash- 
 
 (b) 1 Ves. jun. 461 ; 8. C. 3 B. burton, 6 Ves. 6 ; Sergeson v. Sealey, 
 
 C. C. 515. 2 Atk. 413, and Rooh v. Worth, 1 
 
 (c) Oxenien v. Lord Compton, 2 Ves. 461, per Lord Hardwicke ; 
 Ves. jun. 69; 8. C. 4 B. C. C. 231. Witter v. Witter, 3 P. W. 99; but 
 
 (d) See Ex parte Phillips, 19 Ves. see Earl of Winchelsea v. Norclijfe, 
 123. 1 Vern. 435 ; Inwood v. Twyne, 2 
 
 (e) See Earl of Winchelsea, v. Ed. 152 ; Ex parte Bromfield, 1 
 Norcliffe, 1 Vern. 437, in wMch Ves. jun. 461. 
 
 case the distinction appears first to {g) See Ex parte Bromfield, 1 
 
 have been noticed. Ves. jun. 454. 
 
830 
 
 TRUSTEES FOR INFANTS. 
 
 [CH. XXVII. S. 3. 
 
 Exoneration of 
 infant's real 
 estate out of his- 
 personal estate. 
 
 Kecessasy ex- 
 penses. 
 
 descended to the heir (a). But a distinction was taken in 
 Mason v. Mason (b), (and Sir Thomas Clarke said he allowed 
 it (c), ) between the case of an infant tenant in fee and an infant 
 tenant in tail: that in the former case the proceeds of the 
 timber should be taken as realty, inasmuch as the infant was 
 thus at all events absolutely entitled ; but in the latter case, as 
 the proceeds might, if impressed with the character of realty, 
 become vested in the remainder-man, the Court would treat 
 the fund as personalty, and give it to the infant's executors. 
 
 Agaiu, if an infant's money had been applied to pay off a 
 charge, or redeem a mortgage affecting his real estate, it seems 
 the better opinion (though some old authorities are against it), 
 that the sum so invested would stiU have been looked upon as 
 part of the personalty (d). 
 
 But necessary expenses, though affecting the infant's lands, 
 were allowed to be thrown upon the personal fund, as dis- 
 bursements for repairs («), for keeping up a house, &c. (/). 
 
 Vernon v. 
 Vernon. 
 
 So in Vernon v. Vernon {g), where an estate was devised to 
 an infant in consideration of his paying the sum which the 
 original purchase had cost, it was held, that the amount, being 
 a necessary outlay, had properly fallen upon the personalty, 
 and the next of kin were not entitled to compensation. 
 
 Exception from 
 the general riile. 
 
 There were some cases to which the reason for preserving 
 the original character of the property did not apply. Thus, if 
 
 (a) TuUet v. Ttilleft, 1 Dick. 322; 
 S. C. Amb. 370 ; Mason v. Mason, 
 cited lb. 371 ; Ex parte Phillips, 19 
 Ves. 124,^er Lord Eldon; and see 
 Rooh V. WoHh, 1 Ves. 461 ; but 
 see Ex parte Bromfield, 3 B. C. C. 
 516. 
 
 (5) Vhi supra. 
 
 (c) Tullet V. Tullet, Amb. 371. 
 
 {d) Ex parte Bromfield, 3 B. 0. 
 C. 516, per Lord Thurlow ; Tullet 
 V. Tullet, 1 Dick. 323, per Sir. T. 
 Clarke ; Seys v. Price, 9 Mod. 220, 
 per Lord Hardwioke ; Dowling v, 
 Belton, 1 Flan. & Kelly, 462 ; but 
 
 see 2 Preem. 114, c. 126; Ex parte 
 Grimstone, Amb. 708; Palmes v. 
 Banhy, Pr. Ch. 137 ; Zoach^. Lloyd, 
 cited Awdhy v. Awdley, 2 Vem. 
 192 ; as to Dennis v. Badd, cited 
 lb. 193, see Earl of Winchelseay. 
 NorcUffe, 1 Vem. 436. 
 
 (e) Ex parte Orimstone, cited 
 Oxenden v. Lord Compton, 4 B. G. 
 C. 235, note, per Lord Apsley. 
 
 (/) Ex parte Grimstone, Amb. 
 708, per eimdem. 
 
 {g) Cited in Ex parte Bromfield, 
 1 Ves. jun. 456. 
 
CH. XXVn. S. 2.] TRUSTEES FOR INFANTS. 831 
 
 an infant was seised of a lease for lives ex pdr^e maternd,. and 
 the guardian took a new lease to the infant and his heirs, the 
 substituted lease would not descend in the maternal line, but,, 
 as a new acquisition, would go to the heirs on the part of the 
 father (a) ; but it being perfectly immaterial to the infant 
 himself whether the seisin was in the paternal or maternal 
 line, the representative ex parte maternd had no equity against 
 the representative ex parte paternd. 
 
 Now, by the late^ Wills Act (b) an infant has no greater 
 testamentary power over personal than over real estate, and 
 it would seem,, therefore, that in all cases the principles which 
 have been stated with reference to lunatics must henceforth be 
 regarded as applicable equally to infants. 
 
 (o) Mason v. Day, Pr. Ch. 319 ; (6) 7 W. 4, & 1 V. c. 26. 
 
 Fierson v. Shore, 1 Atk. 480. 
 
CHAPTER XXVIII. 
 
 OF STATUTORY ENACTMENTS FOE. REMEDYING THE INCON- 
 VENIENCES ARISING FROM THE DISABILITY OF THE 
 TRUSTEE, AND OTHER DEFECTS CONNECTED WITH THE 
 STATE OF THE TRUSTEESHIP. 
 
 It frequently happens that the cestui que trust is in 
 equity entitled to call for a conveyance, but from the 
 disability of the trustee, or some other accidental circum- 
 stance, the object of the party cannot by the ordinary course 
 of law be carried into effect. To obviate the prejudice to 
 which in these cases the interest of the cestui que trust might 
 be liable, the legislature has from time to time interposed its 
 aid by remedial statutes. 
 
 7 Anne, i;. 19, The first Act of the kind was the 7 Anne, c. 19, which 
 
 provided for the case of infancy in respect of lands. It was 
 thereby declared that " it should be lawful for infants having 
 estates in lands only in trust for others, or by way of mort- 
 gage, by the direction of the Court of Chancery or Exchequer, 
 by order made on the petition of the cestui que trust, mort- 
 gagor, or other person interested, to convey the said lands as 
 the Court of Chancery or Exchequer should direct." 
 
 Construction of This statute was held to extend neither to constructive 
 
 trusts (a), (except, perhaps, after a decree had established the 
 right (6), ) nor to cases where the infant himself possessed an 
 interest (c), nor where any personal duty was imposed upon the 
 
 (a) Qoodwyn v. Lister, 3 P. W. parte Vernon, 2 P. W. 549 ; Smith 
 
 387 ; Anon, case, cited lb.. 389, note v. Hibhard. 2 Dick. 730. 
 (A) ; Jerdon v. Foster, cited San- (i) Price v. Oneby, cited Fearne's 
 
 ders on Uses, 356, 4tli Edit. ; 8ihes P. "W. 239 ; Hawkins v. Oheen, 2 
 
 V. Lister, 5 Vin. Ab. 541 ; In re Ves. 559. 
 Junaway, 7 Price, 679 ; but see Ex (c) Sawhins v. Oheen, i(bi su- 
 
 the Act. 
 
CH. XXVin.j OLD TRUSTEE ACTS. 833 
 
 trustee {a), though all the cestuis que trust might be willing to 
 concur (b). The Act directing the application to be made by 
 petition, the Court considered such an interlocutory method 
 to indicate an intention of remedying only the plainest cases 
 of trust. 
 
 The next statute was the 4 Geo. 2, c. 10, which provided for i G. 2, c. 10. 
 the disability of lunacy in respect of lands. It was thereby 
 enacted that " it should be lawful for idiots, lunatics, and 
 persons non compos having estates in lands only in trust for 
 others, or by way of mortgage, or for their committees, by the 
 direction of the Lord Chancellor onpetition_to convey the ' 
 lands whereof such idiots, lunatics, or persons non compos , 
 should be seised or possessed on trust or by way of mortgage, 
 as the Lord Chancellor should direct." 
 
 This statute, as it followed the language, so it received the Construction of 
 interpretation of the statute of Anne ; and it was held not to 
 apply to constructive trusts, or to cases where the trustee was 
 concerned in interest, or had any duty to perform (c). Nor did 
 the Act extend to a lunatic who had not been expressly found 
 such by inquisition (d). 
 
 Hitherto the remedial enactments had reference to lands 36 G. 3, u. 90. 
 only, but by the 86 Geo. 8, c. 90, the legislature provided for 
 similar inconveniences in respect of stock. The statute 
 declared, that " when trustees of stock or the personal repre- 
 sentatives of such persons deceased should be out of the juris- 
 diction or not amenable to the process of the Court, or should be 
 bankrupts or lunatics, or should refuse to transfer the stock, or 
 
 pra; &parteSergison,'i:Yea.l4:1; conveyance to the new trustees the 
 
 Hx parte Tutin, 3 V. and B. 149 ; duty as regarded the old trustees 
 
 V. Handcock, 17 Ves. 384, per would cease, and be laid upon others ; 
 
 Lord Eldon ; and see Ex parte Bel- but if there were no appointment of 
 
 lamy, 2 Cox, 422 ; Ex parte Carter, new trustees, then the statute would 
 
 2 Dick. 609. not apply. 
 
 (a) Ex parte Tutin, 3 V. & B. (J) Ex parte Chasteney, 1 Jao. 
 
 149; Riggs v. Syhes, 1 Dick. 400. 56. 
 
 'QMimAttorney-'OeneralY.Pomfret, (c) Ex parte' Currie, 1 J. & W. 
 
 2 Cox, 221, Lord Alvanley held, 642 ; Ex parte Tutin, 3 V. & B. 
 
 that, where new trustees were duly 149. 
 
 appointed, the circumstance of a (d) Ex parte Oillam, 2 Yes. j\m. 
 
 duty to perform would not take the 587 ; and see Ex parte Otto Lewi&, 
 
 ease out of the statute, for by the 1 Ves. 298. 
 
834 LOBD ST. LEdNAEDS' [CH. XXYtll. 
 
 it should be micertain or unknown whether they were living 
 or dead (a), it should be lawful for the Court of Chancery or 
 Exchequer in any cause depending to direct or order a transfer 
 of such stock." 
 
 I & 2 G. 4, This statute also was held not to apply to lunatics who had 
 
 not been found such by inquisition (6) ; a defect which, how- 
 ever, was afterwards remedied by 1 & 2 Geo. 4, c. 114. 
 6 Gr. 4, 0. 74. The enactments of the preceding statutes were all consoli- 
 
 dated and amended by the 6 Geo. 4, c. 74, and provision was 
 further made for the case of a trustee possessing an interest, 
 or having a duty to perform ; but still the Court had no juris- 
 diction where the trust was constructive (c), though it seems 
 the bill originally contained such a clause, but Lord Redesdale 
 objected to it strongly, and it was struck out {d). 
 
 II G. 4, & 1 W. This statute was afterwards repealed, and the provisions of 
 
 4, 0. 60. .... 
 
 it, with material alterations, additions, and improvements, were 
 re-enacted by Lord St. Leonards' Act, the 11 G. 4, & 1 W. 4, 
 c. 60. This last statute has also since been repealed, but as 
 its enactments must still be referred to in the case of titles 
 derived under it, the leading provisions together with the more 
 important decisions upon them will be shortly stated. 
 Lunatics. The third, fourth, and fifth sections related exclusively to 
 
 lunatics, idiots, persons of unsound mind, and persons in- 
 capable of managing their affairs (e), who were trustees (/) 
 or mortgagees. By the third and fourth sections, the com- 
 mittee of the estate ig) of a lunatic, idiot, or non-compos. 
 
 (a) It is almost unnecessary to (e) See In, re Wakeford, 1 Jones 
 
 observe, that in the case of infancy & Lat. 2 ; In re Jones, 6 Jut. 545 ; 
 
 no remedy was needed in respect of Walker, 1 Cr. & Ph. 147. 
 
 stock ; for if the executor of a trus- (/) A decree for sale having 
 
 tee happened to be an infant, admi- been made in a creditor's suit, the 
 
 nistration might have been granted tenant for life (a lunatic) was held 
 
 to a stranger durante minoritafe, by the effect of the decree to have 
 
 (5) See Sylva v. Da Costa, 8 Ves. become a trustee withiu the Act ; He 
 
 316 ; Simms v. Naylor, 4 Ves. 360 ; Milfield, 2 Phill. 254 ; 5 Hare, 538. 
 
 West V. Ayles, ITurn. & Euss. And see Thomas v. Owynne, 9 Beav. 
 
 330. 275 ; and the cases referred to at 
 
 (c) King v. Turner, 2 Sim. 549 ; note (e), p. 839. 
 
 Dew V. Clarke, 4 Russ. 511 ; In re {g) Not an ad interim committee ; 
 
 Moody, Taml. 4. Re Poulton, 1 Mao. & Gor, 100. 
 
 .{d) Dew V. Clarke, 4 Russ. 514. 
 
CH. xxvin.] 
 
 TRUSTEE ACT. 
 
 835 
 
 might, by direction of the Lord Chancellor (a), convey the 
 lands (b) or transfer the stock ; and by the fifth section, 
 ,where the lunatic had not been found such by inquisition, and 
 so there was no committee, the Lord Chancellor might appoint 
 a person to make the conveyance or transfer ; but not if any 
 sum of money exceeding 7001. was payable to the lunatic (c). 
 
 The sixth section remedied the disability of infancy in .Infents. 
 respect of lands {d) vested in infants upon trust or by way of 
 mortgage (e), and enabled them to convey under the direction 
 of the Court, such conveyance to be as valid as if the iofants 
 were adult (/). 
 
 The eighth section remedied sundry other inconveniences in Fxeeiioias. 
 
 (o) The Lord Chancellor having 
 jurisdiction in respect of lunatics 
 and idiots, not as presiding over a 
 court of equity, but by virtue of an 
 authority specially delegated to him 
 by the Crown; a Vice-Chancellor 
 cotdd neither direct the reference to 
 the Master in the first instance, nor 
 make the final order ; In re Shor- 
 rochs, 1 M. &C. 31, overruling -(iwore. 
 case, 5 Sim. 322 ; In re Mount, 
 12 L. J. N. S. Ch. 95. So, what 
 had been found in another Court, as 
 the Exchequer, could not be adppted 
 by the Lord Chancellor, but a new 
 reference must have been directed. 
 In re Prideaux, 2 M. & C. 640. 
 
 (5) Bengal government notes were 
 lands as deiined by the Act; Re 
 Dyce Somhre, 1 Mac. & Gor. .101. 
 
 (c) See Be Sandford, 2 Hall. & 
 Tw. 137. 
 
 {d) In the construction of former 
 Acts, it was held that lands in the 
 colonies. Ex parte Fenniliteau, 2 
 Dick. 569; Ex parte Bosanquet, 
 lb. 540; Bx parte Br osser, 2 B. C. 
 C. 325 ; and in the territories of the 
 East India Company, Ex parte 
 Anderson, 5 Ves. 240 ; and in Ire- 
 land, Evelyn v. Forster, 8 Ves. 96 ; 
 were included. By sections 26 and 
 29 of this Act its provisions were 
 expressly extended to lands abroad 
 
 ■within the Queen's dominions ; but 
 lands abroad out of the Uueen's 
 dominions were not within the 
 statute. Price v. Bewhurst, 8 Sim. 
 617. 
 
 (e) See Prendergast v. Eyre, LI. 
 & G. t. Sugd. 11; Be Kent, 9 Sim. 
 501 ; Ex parte Ommaney, 10 Sim. 
 298 ; Be Barry, 2 Jones & Lat. 1 ; 
 Peyton v. M'Bermott, 6 Ir. Eq. 
 Eep. 220; Goddard v. Maccmlay, 
 6 Ir. Eq. Rep. 221. 
 
 (/) As the conveyance of an infant 
 under the. Act would only be as efieo- 
 tual as if he were adult, it was neces- 
 sary to see that the conveyance would 
 be efiectual were the infant of age. 
 Thus, before the abolition of fines 
 and recoveries, had the trustee de- 
 vised the estate to an infant in tail, 
 the conveyance must have been by 
 .recovery ; Ex parte Johnson, 3 Atk. 
 559 ; Ex parte Smith, Amb. 624. 
 So, if the infant had been a feme 
 covert, the conveyance must have 
 been by fine ; Ex parte Maire, 3 
 Atk. 479 ; Ex parte Bowes, 3 Atk. 
 164. When fines and recoveries 
 were abolished, the assurance must 
 have been attended with the forma- 
 lities required by the Fines and 
 Recoveries Act; See Badcliffe v. 
 Eccles, 1 Keen, 130; Penny v. 
 Pretor, 9 Sim. 135. 
 
 3.H 2 
 
836 
 
 LOED ST. LEONARDS 
 
 [CH. xxvni. 
 
 the case of freeholds (that is, of freeholds in interest, whether 
 of freehold or copyhold tenure) (a) ; and it was thereby enacted, 
 that where any person seised of land (&) upon any trust (c) 
 
 (a) The aeoond section defined 
 " lands" to include real property of 
 any tenure. But as to copyholds 
 see Queen v. Pitt, 10 Ad. & Ell. 
 272. 
 
 (b) An estate was devised to the 
 use of the poor of a parish, audit 
 did not appear in whom the legal 
 estate was vested, and the case was 
 held not to be within the Act ; At- 
 torney- General v. Handles, 8 Beav. 
 185. But see JRe Gore's Cliarity, 
 4 Drur. & W. 270. 
 
 (c) It was at first held, that this 
 did not include a complicated trust ; 
 Hx parte Merry, 1 M. & K. 677 ; 
 but the 12th section authorising 
 the Court, where it should be proper, 
 to direct a bill to be filed to establish 
 the right, it was afterwards ruled 
 that the Court had a discretion of 
 making an order in such a trust 
 upon an ex parte applica:tion ; In re 
 Be Clifford, 2 M. & K. 624, 820. 
 
 So it was originally the opinion 
 of the Court, that "trust" did not 
 include a mortgage ; In re Goddard, 
 1 M. & K. 25 ; JSx parte Payne, 6 
 Sim. 645; In- re Stanley, 5 Sim. 
 320 ; In re Dearden, 3 M. & K. 508 ; 
 and see Prendergait v. Eyre, Lloyd 
 & Goold, t. Sugden, 11. But the 
 Escheat and Forfeiture Act (4 & 5 
 W. 4, c. 23, s. 2) declaring, that 
 " where any person seised of any 
 land upon any trust or by way of 
 mortgage died without an heir, it 
 should be lawful for the Court of 
 Chancery to appoint a person to 
 convey in like manner as was pro- 
 vided" (by the 11 G. 4, & 1 W. 
 4, c. 60), "in case such trustee 
 or mortgagee had left an heir and it 
 was not known who was such heir," 
 it was held, as the legislature could 
 best interpret its own provisions, 
 that the 8th section of the Act did 
 
 extend to a mortgage ; Ex parte 
 Whitton, 1 Keen, 278 ; In re Stan- 
 ley, 7 Sim. 170 ; In re Wilson, 8 
 Sim. 393. 
 
 A supplementalAot was afterwards 
 passed (1 & 2 V. c. 69), the efi'eot of 
 which was, that for the time to come 
 the relief was confined to the case of 
 a mortgagee dying seised without 
 having had possession, and where the 
 mortgage money should have been or 
 should be paid ; and the word trust, 
 in the 8th section of Lord St. Leo- 
 nards' Act, was restricted from being 
 construed to comprise a mortgage ; 
 Green v. Solden, 1 Beav. 207 ; 
 Spunner v. Walsh, 10 Ir. Eq. Eep. 
 214. As the statute recited only the 
 8th section of Lord St. Leonards' 
 Act, it is presumed it was not meant 
 to repeal the previous sections re- 
 lating to mortgages, and apparently 
 the Master of the Rolls was of this 
 opinion ; see Green v. Solden, ubi 
 supra. It is remarkable that the 
 decisions of the Vice-Chancellor of 
 England, In re Williams, 9 Sim. 
 642, and In re Thompson, 12 Sim. 
 392, though the latter at least was 
 correct if the mortgagee was never in 
 possession, appear to have been made 
 without reference to the 1 & 2 Vict, 
 c. 69. 
 
 A mortgagor against whom a.decree 
 for sale was taken by an equitable 
 mortgagee, became thereby a trustee 
 for sale, and if he went out of the 
 jurisdiction or was of unsound mind 
 the Court appointed a person in his 
 place to execute a conveyance for 
 giving efiect to the sale ; King v. 
 Leach, 2 Hare, 57 ; Sarfield v. 
 Rogers, 8 Jur. 229; and see Hood 
 V. Hall, 14 Jur. 127. 
 
 And when the mortgage money had 
 been paid, the heir of the mortgagee 
 was a trustee for the mortgagor, and 
 
CH. XXVIII.] 
 
 TRUSTEE ACT. 
 
 837 
 
 sliould be out of the jurisdiction or not amenable to the process of 
 the Court, or it should be uncertain, where there were several 
 trustees, which of them was the survivor, orit should be uncertain 
 whether the trustee last known to have been seised {a) as afore- 
 said was living or dead,. or if known to be dead it should not be 
 known who was his heir (6), or if any trustee seised as aforesaid, or 
 the heir of any such trustee, should neglect or refuse to convey 
 such lands for the space of twenty-eight days next after a proper 
 deed for making such conveyance should have been tendered for 
 his execution by, or by an agent duly authorised by, any person 
 entitled to- require the same (c), it should be lawful for the Court 
 to appoint a person in the place of the trustee or heir to 
 convey, such conveyance to be as effectual as if the trustee or 
 heir had made and executed the same. 
 
 The ninth section remedied certain inconveniences relating Chattels real. 
 to chattels real, and enacted that where any person possessed 
 of land for a term of years upon trust (d) should be out of the 
 jurisdiction or not amenable to the process of the Court, or it 
 
 a petition for a reconveyance should 
 have been presented not by the 
 executors of the mortgagee, but by 
 the mortgagor ; In re Manifold, 4 
 Hare, 308. 
 
 {a) Gy. if this was applicable to 
 the seisin of the husband where he 
 and his wife were seised in right of 
 the wife ; see Moore v> Vinten, 12 
 Sim. 161. 
 
 (6) See In re Bishop Gore's Clia- 
 rities, 2 Conn. & Laws. 411. 
 
 (e) The tender must have been 
 made by "some person entitled to 
 reqtiire a conveyance." What would 
 amount to such a tender was 
 often a. question. A person duly 
 nominated a new trustee under a 
 power for that purpose was entitled 
 to require a conveyance to give effect 
 to the appointment; In re law, 4 
 Beav.509. And if the Court decreed a 
 sale with a direction that all necessary 
 parties should join in the conveyance 
 that converted the owner of the estate 
 into a trustee for the purposes of the 
 
 decree, and if a conveyance settled 
 by the Master had been tendered to 
 him, and he neglected or refused to 
 execute it for twenty-eight days, the 
 Court, on the petition of the pur- 
 chaser or other person interested, 
 ordered a person to convey in the 
 place of the party so neglecting or 
 refusing; Warhurton v. Vaughan, 
 4 Y. & C. 247 ; BiUing v. Wehh, 
 1 De Gex & Sm. 716 ; Rohinson v. 
 Wood, 5 Beav.. 246. Note, The 
 refusing trustee need not and ought 
 not to have been served with the 
 petition ; Se Burntree Building So- 
 ciety, 16 Sim. 296 ; and see In re 
 Bradburne, 12 L. J. N. S. Ch. 353. 
 {d) In a. foreclosure suit by an 
 equitable mortgagee of leaseholds, 
 the plaintiff having obtained a decree 
 for sale, the defendant,, the mort- 
 gagoi', was held to have been thereby 
 converted into a trustee for the plain- 
 tiff ; King v. Leach, 2 Hare, 57; and 
 see Be Milfield, 2 PhUl. 254. 
 
838 LORD ST. LEONAEDS' [CH. XXVin. 
 
 should be uncertain whether the trustee last known to have been 
 possessed as aforesaid should be living or dead (a), or if any 
 trustee as aforesaid, or the executor of any such trustee, should 
 neglect or refuse, &c. (as ia the former clause), it should be lawful 
 for the Court to appoint a person to make a vicarious assign- 
 ment or surrender, such assignment or surrender to be as valid 
 as if made by the trustee or executor. 
 Stock, &o; The tenth section related to inconveniences in respect of 
 
 stock, and enacted, that where any person in whose name as a 
 trustee or executor (either alone or together with the name of 
 any other person^ or in the name of whose testator (whether as 
 a trustee or beneficially) (b), any stock should be standing, or 
 any other person who should otherwise have power to transfer, 
 or joia with any other person in transferring, any stock to 
 which some other person should be beneficially entitled, 
 should be out of the juri'sdiction or not amenable to the process 
 of the Court (c), or it should be uncertain whether such person 
 was living or dead, or if any such trustee or executor or other 
 person should neglect or refuse{d) to transfer such stock, or 
 receive and pay over the dividends thereof to the person entitled 
 thereto or to any part thereof respectively, for the space of thirty- 
 
 (a) The words in the preceding D. applied to one executor to prove, 
 
 clause, " where it should he uncer- who refused, and the other was out 
 
 tain, where there were several trus- of the jurisdiction. Held to be 
 
 tees, which of them was the sur- within the Act ; Ex parte Sagger, 
 
 vivor," were here omitted; for in 1 Beav. 98 ; and see Coc^eK v. Pm^A, 
 
 respect of chattels the personal re- 6 Beav. 293. From the words "ia 
 
 presentatives of hath the trustees the name of whose testator," it was 
 
 might assign, or if there were no ruled that the clause did not apply to 
 
 such representatives, administration the case of a trustee dying intestate ; 
 
 might be taken out to both. It was Re Iiunris Charity, 15 Sim. 464. 
 
 not intended to provide by the Act (c) Where a trustee (one of the 
 
 for any case which could be reme- plaintiffs in a suit) commanded a 
 
 died in any other mode ; see In re merchant vessel, and was on his 
 
 Anderson, L. & G. t. Sugd. 28. voyage to India, it was held he was 
 
 (J) A person was an executor not out of the jurisdiction within 
 
 within the meaning of this clause the meaning of the Act ; Hutchinson 
 
 before probate, if he had not re- v. Stephens, 5 Sim. 498; and see 
 
 nounced ; see Ex parte Winter, 5 Ex parte Dover, 5 Sim. 500. 
 
 Euss. 284. (d) Eefusing to transfer for a just 
 
 A testator gave a sum of consols cause was of course no ground for 
 
 to A., B., and C, in trust for D. for an application to the Court ; Pepper 
 
 life. AU. the trustees died, and the v. Tuchey, 2 Jones & Lat. 95 ; Re 
 
 survivor appointed two executors. Molony, ib. 391. 
 
CH. XXVin.] TRUSTEE ACT. 839 
 
 one days after request (a) in writing by the person entitled as 
 aforesaid (b), the Court might appoint a person to transfer 
 the stock, or receive and pay over the dividends, such transfer, 
 receipt, or payment to be as effectual as if made by such 
 trustee, executor, or other person. 
 
 The eleventh section determined the mode of application. Mode of applica- 
 by declaring that every direction or order to be made under the 
 Act should be signified either by an order made in any cause 
 depending in the Court (c), or upon petition in the lunacy or 
 matter (d) ; and where the order was made on petition, 
 declared who, according to the circumstances of the case, should 
 be the petitioner. 
 
 The fifteenth section provided, that the Act should extend to Cases of trustees 
 trustees having an interest or having a duty to perform, and est, and of 
 the sixteenth and seventeenth made special provision for ^pecifio perform- 
 certain cases of specific performance. 
 
 The eighteenth section extended the provisions of the Act Cases of con- 
 
 . . structive trust. 
 
 to every case of a constructive trust or ot a trust arismg or 
 resulting by implication of law, but where the alleged trustee 
 had or claimed a beneficial interest, no order was to be made 
 until after it had been declared by the Court of Chancery, in 
 a suit regularly instituted in such Court,, that such person 
 was a trustee (e).. And cases of election . and partition were 
 expressly excepted. 
 
 (a) An order of tlie Court coiild {d) The order could not have been 
 
 not be construed to be the request made upon motion, instead of peti- 
 
 of a party ; Madge v. Riley, 3 Y. & tion, where there was no lis pendens ; 
 
 C. 425. Evelyn v. Forster, 8 Ves. 96 ; Baynes 
 
 [h) See Re Law, 4 Beav. 509 ; v. Baynes, 9 Ves. 462 ; and see 
 
 Goekell v. Pugh, 6 Beav. 293 ; and Anon. 1 T. & C. 75. 
 
 note (e), p. 837, supra. (e) The various orders to convey, 
 
 (c) Where a suit was depending, &o.,.made under the preceding see- 
 the order might have been made on tions, in oases of decrees for sale in 
 the decree without a petition ; Miller suits by mortgagees and. creditors, 
 v. Knight, 1 Keen, 129 ; Broom v. must be viewed as deriving their 
 Broom, 3 M. & K. 443 ; Walton v. force from this section ; see Pren- 
 Merry, 6 Sim. 328 : overruling dergast v. Eyre, LI. & G. t. Sugd. 
 Fellowes v. Till, 5 Sim. 319 ; Pryth- 11 ; Warburton v. Vaughan, 2 T. 
 arch V. Eamrd, 6 Sim. 9. The & C. 247 ; King v. Leach, 2 Hare, 
 order was also sometimes made on 57 ; Jackson v. Milfield, 5 Hare, 
 motion subsequently to the decree ; 538. From the last case, and Ri 
 Callaghan. v., Egan, 1 Drury & Milfield, 2 PhiU. 254, it appears 
 Walsh, 187. that an express declaration in the. 
 
84:0 THE TRUSTEE ACT, ]850. [CH. XXVIH. 
 
 Headiam's Act. By the Trustee Act, 1850 (13 & 14 Viet. c. 60), and 1 & 2 
 Vict. c. 69, the 1 W. 4, c. 60, and 4 & 5 W. 4, c. 23, were 
 repealed, and their provisions consolidated and extended. 
 The chief feature of the Act, in connection with the subject of 
 this chapter, was the authority given to the Court to devest the 
 legal estate out of the person from whom a conveyance might 
 be desired, and vest it in the proper person or persons by the 
 mere order of the Court itself, now familiarly known as a 
 vesting order. Additional facilities were also created for 
 dealing with shares in public companies, and " choses in 
 action " held upon trust. 
 
 The provisions of this Act having been found defective in 
 
 some respects, they were again extended by 15 & 16 Vict. c. 55. 
 
 These two Acts, with the decisions of the Court upon the 
 
 construction of the different clauses, will be found in externa 
 
 at the end of the Treatise. 
 
 decree of the fact of trusteeship was jurisdiction the Act cannot apply; 
 not necessary. Of course if a sale Calvert v. Godfrey, 6 Beav. 97. 
 he directed hy the Court without 
 
CHAPTER XXIX. 
 
 PLEADING AND PRACTICE IN REFERENCE TO THE LAW OF 
 
 TRUSTS. 
 
 Undee this head we propose considering, First, The neces- 
 sary parties to suits relating to trusts; Secondly, The order 
 and manner in which trustees and cestuis que trust ought to 
 sue or defend ; Thirdly, Distringas ; Fourthly, Compulsory 
 payment Luto Court ; Fifthly, Receivership ; Sixthly, Costs of 
 suit. 
 
 SECTION I. 
 
 OP NECESSAET PAETIES. 
 
 It will be more convenient, first, to state the general prac- 
 tice, and then to mention the modifications introduced by 
 statutory enactment and the orders of the Court. 
 
 Suits in equity affecting trusts are either between strangers 
 on the one hand, and the persons interested in the trust on 
 the other; or between the persons interested in the trust 
 inter se. 
 
 I. In suits by or against strangers it is a general rule (unless General rule In 
 
 suits by or 
 
 some enactment or order of the Court make an exception) that against stmngers. 
 all the trustees and cestuis que trust, who together constitute 
 but one interest, must be made parties (a). 
 
 Thus where a mortgage is made to A. in trust for B., the 
 
 (a) Bifield v. Taylor, 1 Moll. 198, 1 B. & B. 184, per Lord Manners. 
 jper Sir A. Hart ; Adams v. St. Leger, 
 
842 
 
 NECESSAET PARTIES TO 
 
 [CH. XXIX. S. 1. 
 
 One cestui gue 
 trust alone can- 
 not foreclose or 
 redeem. 
 
 Mortgagee 
 coming to fore- 
 close and mort- 
 gagor coming tO' 
 redeem must 
 make all cestuis 
 que trust of the 
 equity of redemp- 
 tion and mort- 
 gage money 
 parties. 
 
 Legal termor a 
 necessary party. 
 
 latter cannot file a foreclosure bill without making A. a party, 
 who on redemption would be the person to convey the legal 
 estate {a). And, in the case of a contract to convey to A. in 
 trust for B., the latter cannot sue for specific performance 
 without A., to whom the conveyance of the legal estate, if 
 at all, will be decreed (6). 
 
 So, one of several cestuis que trust cannot file a bill of 
 foreclosure (c) or redemption (ci) without briaging before the 
 Court the other cestuis que trust who are interested iu the 
 mortgage or equity of redemption. 
 
 So a mortgagee could not foreclose without making aU the 
 cestuis que trust, claiming under the mortgagor, parties (e) ; and 
 a mortgagor could not file a bill to redeem without bringing 
 before the Court all the cestuis que trust interested in the 
 mortgage (/). However, it was observed by Lord Hardwicke 
 that " where a mortgagee, who had a plain redeemable interest, 
 made several conveyances upon' trust in order to entangle the 
 affairs, and render it difficult for the mortgagor or his repre- 
 sentatives to redeem, there it was not necessary that the plaintiff 
 should trace out all the persons who have an interest in such 
 trust to make them parties " {g}. 
 
 If A. grant an annuity to B., and vest a term in C. to secure 
 it, A. cannot file a bill against B. to set aside the annuity 
 without making C. a party, for A. might have to institute 
 another suit against C. to get the legal estate, and then B. 
 (who would again be a necessary party) would be doubly 
 vexed (h). 
 
 (a) Wood V. Williams, 4 Mad. 186 ; 
 SeottY. Nicoll, 3 EUSS..476; Hichens 
 V. Kelly, 2 Sm. & Gif. 264. 
 
 (J) Cope V. Parry, 2 J. & W. 
 538 ; Hohson v. Staneer, 9 Mod. 83. 
 
 (c) Palmer v. Lord Carlisle, 1 S. 
 & S. 423 ; Lowe v. Morgan, 1 B. C. 
 C. 368. Note,. The decree in Mont- 
 gomerie v. Marquis of Bath, 3 Ves, 
 360, was made without opposition, 
 though it is not expressed (see 1 S. 
 & S. 425) to have been made by con- 
 sent. 
 
 {d) Palmer v. Lord Carlisle, 1 S. 
 & S. 425, per Sir J. Leaoh; Henley 
 v. Stone, 3 Beav. 355. 
 
 (e) Calverley v. Phelp, 6 Mad. 
 229 ; and see Wilton v. Jones, 2 T. & 
 C. Ch. Ca. 244 ; Thomas y. Dunning, 
 5 De Gex. & Sm. 618 ; Anderson v. 
 Stather, 2 Coll. 209. 
 
 (/) Osborne y. Fallows, 1 R, & M. 
 741 ; Whistler v. Webh, Bunb. 53; 
 Tates Y. Hambh/, 2 Atk. 237 ; Brew 
 V. Harman, 5 Price, 319; Wethe- 
 rell V. Collins, 3 Mad. 266. 
 
 {g) Yates Y. Hamhly, 2 Atk. 237 ; 
 and see Osborne v. Fallows, 1 E. & 
 M. 743. 
 
 (h) Bromley v. Holland, 7 Ves. 3, 
 p. 11, 12 ; and see Butler v. Pren- 
 dergast, 2 B.. P. C. 170. 
 
trustees for 
 creditors. 
 
 CH. XXIX. S. 1.] SUITS RESPECTING TRUSTS. 843 
 
 It was laid down by Lord Redesdale, that " Trustees of real Error in Lord 
 estate for payment of debts or legacies might sustain a suit, Treatise as to 
 either as plaintiffs or defendants, without bringing before the 
 Court the creditors or legatees for whom they were trustees, 
 which in many cases would be almost impossible, and the rights 
 of creditors or legatees would be bound by the decision of the 
 Court against the trustees " {a). But in Harrison y. Steward- 
 son Q)), V. C. Wigram, upon this passage being referred to, 
 observed " that it was impossible to say the practice of the 
 Court was in conformity with the passage which had been 
 cited," and he held, in the case before him, in which the deed 
 was for the benefit of twenty-one scheduled creditors, and only 
 three were before the Court, that it was necessary to make all 
 the creditors parties." 
 
 Again, it was also said by Lord Redesdale, that " persons Similar error as 
 haying demands prior to the creation of a trust, might enforce absolute power 
 those demands against the trustees without bringing before the "^ disposition. 
 Court the persons interested under the trust, if the absolute 
 disposition of the property was vested in the trustees ; but if 
 the trustees had no such power of disposition, as in the case 
 of trustees to convey to certain uses, the persons claiming the 
 benefit of the trust must also be parties. Persons having 
 specific charges on the trust property in many cases were also 
 necessary parties, but this would not extend to a general trust 
 for creditors or others whose demands were not distinctly 
 specified in the creation of the trust, as their number, as well 
 as the difficulty of ascertaining who might answer a general 
 description, might greatly embarrass a prior claim against a 
 trust property (c). But it is apprehended that an absolute 
 power of disposition in the trustees was not sufficient to dis- 
 pense with the cestvAs que trust, and that in all cases persons 
 having specific charges must have been parties, and that even 
 creditors must not have been omitted as parties altogether, but 
 must have been represented by a few. Assignees of bankrupts 
 and insolvents, however, although quasi trustees, were com- 
 
 (a) Mitf. Bq. PI. 174, 4 Ed". Burning, 5 De G. & Sm. 618. 
 
 (5) 2 Hare, 530; and see Holland (c) Mitf. Eq. PI. 176, 4 Ed".. 
 V. Baker, 3 Hare, 68; Tlwmas v. 
 
844 NECESSARY PAETIES TO [CH. XXIX. S. 1. 
 
 petent to sue or sustain a suit without the presence of the 
 creditors. 
 
 Suits for Fspecifio In suits for the specific performance of a contract, or to have 
 er ormance. .^ cancelled, upon any ground, the general rule is that the 
 parties to the contract are the only parties to the suit, and 
 therefore if trustees enter into a contract, not as the agents of 
 their cestuis que trust but as principals (though the property of 
 the cestuis que trust is in fact concerned), they may sustain a 
 suit either as plaintiffs or defendants without the presence of 
 the cestuis que trust. And not only is it unnecessary, but in 
 many cases would be highly improper, to make the cestuis qw 
 trust parties (a). But where persons sustaining a fiduciary 
 character enter into a contract not as principals, but on behalf 
 and as the agents of other parties, those other parties as the 
 principals and not their agents are the proper persons to sue (h). 
 
 Case of marriage In marriage articles the husband and wife and their issue 
 ^° ^^' are all purchasers for valuable consideration, and parties to 
 
 the contract, and therefore if any agreement had been made in 
 articles with trustees, they alone could not have filed a bill for 
 specific performance without bringing the cestuis que trust 
 before the Court, for the latter being also in fact parties to the 
 contract, if the bill of the trustees were dismissed, might after- 
 wards fide themselves another bill against the defendant for 
 the like purpose (c). 
 
 Representative Where several persons have united in constituting another 
 
 stitutedf ™ their representative in a matter for all purposes, there it seems 
 such representative may sue or be sued in the absence of the 
 cestui que trust (d). But the intention to constitute such a 
 representative must clearly appear. For trustees are not 
 themselves owners of the property ; they are in a sense agents 
 for the ovmers in executing the trusts, but they are not con- 
 stituted agents for the purpose of defending the owners against 
 the adverse claims of third parties (e). 
 
 (o) TFood V. White, 4 M. & C. 184 ; Hook v. Kmnear, 3 Sw. 417, 
 
 460; Keon v. Magawly, 1 Dru. & note; /SmaK v.^toootf, Tounge, 457. 
 
 War. 400; Tasher v. Small, 3 M. & C. (c) Kirk v. Clark, Pr! Ch. 275. 
 
 63; Humphreys v. Hollis, Jao. 73; {d) Vernon v. Blackerly, 2 Atk. 
 
 Waheman v. Duchess of Rutland, 145 ; Bifield v. Taylor, 1 Moll. 193 ; 
 
 3 Ves. 233, 504. S. C Beat. 91. 
 
 (J) Douglas v. Horsfall, 2 S. & S. (e) Hollared ^f. Baker, 3 Hare, 72. 
 
CH. XXIX. S. 1.] SUITS EESPECTING TRUSTS. 845 
 
 II. Where the suit is between the parties interested in the Suits by parties 
 trust inter se, the rule (where no enactment or order of the " inter se" 
 Court dispenses with it) equally prevails that all the trustees 
 and all the cestms que trust must be before the Court. 
 
 1. As to trustees. In suits by cestuis que trust, praying In suits by ccs- 
 relief agaiast their trustees, it is necessary as a general rule against their 
 to make all the <:o-trustees parties {a), on the ground that as ^"ttr are tec*^s^- 
 eaeh co-trustee was liable to the cestuis que trust, a multiplicity sary parties. 
 of suits for the same matter might be avoided, and that the 
 accounts might not be taken twice over; and also that the 
 Court may, if possible, do justice to one defendant by a decree 
 over against a co-defendant (6), and it is the plaintiff's duty so 
 to frame his suit that complete justice may be done without 
 throwing it on the defendant to file a cross bill (c). But it is 
 to be remembered that a decree between co-defendants must 
 always be founded on the proofs in the cause, upon the issue 
 between the plaintiff and the co-defendants, for though one 
 defendant may read against a co-defendant the proofs by the 
 plaintiff as having been examined agaiast all the defendants, 
 he cannot read the answer of a co-defendant [d). 
 
 It commonly happens that, in a suit by a cestui que trust for -^^^ the same 
 relief against the trustees for a breach of trust, the merits of J-'^o^s^ equities 
 
 ° between them 
 
 the case as between the co-defendants are not sufficiently elicited cannot he 
 to authorise the Court to adjust the equities between them, but 
 they are left to institute a future suit inter se for the purpose 
 of obtaining a contribution, or otherwise working out the rehef 
 to which they are entitled. They must nevertheless have been 
 all made parties to the original suit, for although the Court 
 would make no decree between them, it would proceed as far 
 
 (a) Munch v. Cocherell, 8 Sim. Walker v. Preswioh, 2 Ves. 622'; 
 
 219 ; Perry v. Knott, 4 Beav. 179 ; Latouche v. Dunsany, 1 Soli. & Lef. 
 
 and see In Re Chertsey Market, 6 137, 2 Soh. & Lef. 690 ; Farquhar- 
 
 PiicejilSiAttorney-Generalr.Nev;- son v. Seton, 5 Unas. 45 ; Conry y.. 
 
 ~bury Corporation, C. P. Cooper's Kep. Caulfield, 2 B. & B. 255. 
 1837—38,77; Wilson n.. Brough- (c) See Jones v. Jones, 3 Atk. 112; 
 
 ton, cited ib. 78 ; but see Walker v. Shipton v. Rawlins, 4 Hare, 623, 
 
 Symonds, 3 Sw. 75 ; Tarleton v. 624. 
 
 Hornby, 1 T. & C. 336 ; Humberstone {d) Eccleston v. Skelmersdale, 1 
 
 V. Chace, 2 T. & C. 213 ; Attorney- Beav. 396 ; and see Cottingham v. 
 
 General v. Wilson, Cr. & Ph. 28. Shrewsbury, 3 Hare, 627 ; Lennard 
 
 (6) See Jones V. Jones, 3 Atk. 112; v. Curzon, 1 De Grex & Sm. 350. 
 
846 
 
 NECESSAEY PARTIES TO 
 
 [CH. XXIX. S. 1. 
 
 Quasi-trustee a 
 necessary party. 
 
 Stranger who has 
 dealt with trust 
 fund without 
 notice not a 
 necessary party. 
 
 Nor purchaser 
 for Talue. 
 
 Kule different in 
 cases of mere 
 breach of trust 
 and those of 
 "delictum." 
 
 as it could by declaring the joint liability, and settling the 
 amount of it by accounts taken in the presence of all; and 
 then in a future suit instituted for contribution or other relief, 
 the Court might make its decree upon the basis of the amount 
 so ascertained (a). 
 
 If co-trustees commit a breach of trust and a third party 
 reaps the benefit, he must also, as a quasi-trustee, be made a 
 defendant, since he is liable to be sued by the cestui que trust, 
 and the equities between himself and the co-trustees ought to 
 be settled so far as is practicable (&). 
 
 If a trustee transfer a fund improperly to a stranger without 
 consideration and without notice, and the stranger transfer it 
 over either for no consideration or for a valuable consideration 
 not paid to himself, the intermediate assignee need not be 
 made a defendant, for not having had any notice of the trust 
 he cannot be sued personally on the ground of liability, and 
 not having derived any benefit from it there is no property in 
 his hands to be specially attached (c). 
 
 Of course, wherever the trust estate passes to a purchaser 
 for valuable consideration without notice, it is unnecessary to 
 make such purchaser a party. 
 
 If a person invested with a fiduciary character be guilty, not 
 of a mere breach of trust or non-performance of a civil obliga- 
 tion, but of a tort or delictum (d), that is, a fraudulent (e) or 
 wrongful (/) act, the remedy might always have been pursued 
 against that person only, without making those who confede- 
 rated with him also parties (g). " In cases of this kind," 
 observed Lord Cottenham, " where the liability arises from the 
 wrongful act of the parties, each is liable for all the conse- 
 
 (a) See Perry v. Knott, 4 Beav. 
 180. 
 
 (b) Burt V. JDennet, 2 B. C. C. 
 225 ; Perri/ v. Knott, 4 Beav. 1Y9 ; 
 
 5 Beav. 297 ; Consett v. Bell, 1 T. 
 
 6 C. Ch. Ca. 569. 
 
 (c) Harrison v. Pryse, Bam. 
 324; Knye v. Moore, 1 S. & S. 
 61. 
 
 {d) See Lingard v. Bromley, 1 V. 
 &B. 117. 
 
 (e) SieeSeddon v. Connell, 10 Sim. 
 86. 
 
 (/) &6e. Attorney- Generaly. Wil- 
 son, 1 Cr. & Ph. 28. 
 
 {g) Attorney-General v. Wilson, 
 1 Cr. & Ph. 1 ; Seddon v. Connell, 
 10 Sim. 68, see p. 86 ; Walburn v. 
 Ingilby, 1 M. &K. 77; and see Charity 
 Corporation y. Sutton, 2 Atk. 406 ; 
 Attorney- General v. Brown, 1 Sw. 
 265. 
 
CH. XXIX. S. l.j SUITS EESPECTING TRUSTS. 847 
 
 quences, and there is no contribution between them, and each 
 case is distinct, depending upon the evidence against each 
 party. It is therefore not necessary to make all parties, who 
 may more or less have joined in the act complained of, nor 
 would any one derive any advantage from their being all made 
 defendants, because as the decree would be general against all 
 found to be guilty of the charge, it might be executed against 
 any of them " (a). The cases to which this doctrine has been 
 applied, have been where corporators deserting their duty have 
 made a fraudulent alienation of the corporate property, or 
 certain members of a company have been the means of in- 
 veigling strangers by fraudulent misrepresentations. 
 
 It is not necessary to bring before the Court the representa- Eepre&entatives 
 
 ,. e j_ , 1 l_^ t •^^ • _p tit of trustee "wlio 
 
 tives 01 a trustee who, as the bill is framed, had no concern y^^ j,o interest 
 with the matters in question in the suit (6). In some cases i^o* necessary 
 
 '■ ' parties. 
 
 the plaintiff has been allowed to proceed in the absence of 
 the representative of a co-trustee, by waiving all relief which 
 could not be granted in the absence of such representative (c). 
 
 A person need not be made a party who has merely been Nor a tmstee 
 named a trustee but has disclaimed {d). ^ " '^° ^™^" 
 
 And the suit may proceed so far as it can in the absence of Nor a trustee 
 
 ,. «,..,..,, T out of the juris- 
 
 a trustee who is out oi the jurisdiction («), or cannot be com- , diction. 
 peUed by the utmost process against him to appear to the 
 bill (/) ; or if it be proved to the Court that diligent search 
 and inquiry has been made after him to serve him with process, 
 and that he cannot be found (g). 
 
 Where a trustee has died insolvent, it is not necessary in a TSTor representa- 
 suit that under other circumstances would cast a liability upon insolvent trustee. 
 the estate of the trustee, as for having joined in a breach of 
 
 (o) Attorney- General v. Wilson, Ca. Ab. 167; Walleyv. Whalley, 1 
 
 1 Cr & Ph. 28. Vern.487; Cowstady. Cely, Pr. Ch. 
 
 (6) Glass V. Oxenham, 2 Atk. 83. 
 121 ; Routh V. Kinder, 3 Sw. 144, (/) Butler v. Prendergast, 2 B. P. 
 
 note ; Slater y. Wheeler, 9 Sim. 156 ; C. 170. 
 Beattie v. Johnstone, 8 Hare, 169. {g) See 3. 49 of tlie Trustee Act, 
 
 (c) Selyard v. Harris, 1 Eq^. Ca. 1840, re-enacting s. 24 of 11 G. 4, & 
 
 AL. 74 ; Moon v. Blake, 1 Moll. 284. 1 W. 4, c. 60, s. 24 ; and see Moore 
 
 {d) Wilkinson v. Parry, 4 Euss. v. Vinten, 12 Sim. 161 ; Heath v. 
 
 274; BichardsonY.Hulbert,lAmt. PerauaZ, 2 Bq. Ca. Ab. 167; S. C. 
 
 65 ; Creed v. Creed, 2 Hog. 215. 1 P. W. 683 ; Walley v. Whalley, 1 
 
 (e) See Morrill v. Lawson, 2 Eq. Vern. 487. 
 
848 
 
 NECESSARY PARTIES TO 
 
 [CH. XXIX. S. 1. 
 
 Nor trustee of an 
 outstanding term. 
 
 Nor trustee of a 
 mere equity. 
 
 Nor a trustee 
 wlio has assigned. 
 
 Nor a trustee 
 "wlio is a mere 
 agent. 
 
 Anomalous case. 
 
 trust, to bring his personal representative before the Court (a). 
 But a trustee, if otherwise a necessary party, cannot be dis- 
 pensed with as a party during his lifetime, on the ground that 
 he is in insolvent circumstances, for the embarrassment may 
 be only temporary, and he may eventually be able to discharge 
 the debt (6). 
 
 In siiits between parties for the adjudication of their rights 
 to an estate, it is not necessary to have the presence of a mere 
 trustee of an outstanding term (c) , 
 
 An intermediate trustee of a mere equity need not, except 
 under special circumstances (d), be made a party. Thus A., the 
 cestui que trust of a fund of which the legal estate is in B., 
 assigns his interest to C. in trust simply for D. ; here D. may 
 sue B. for the fund without making C. -a party (e). 
 
 A trustee who has -assigned his interest over to a new trustee, 
 need not be a party. Thus where A. was trustee for B. for 
 securing an annuity, and B. assigned the annuity to C, and A. 
 assigned- the term to D., it was of course not necessary in a 
 suit to set aside the annuity to make A. a party (/). 
 
 Where a person mortgaged his reversionary interest in stock, 
 and then assigned it to trustees by a voluntary instrument 
 upon trust for payment of his debts, it was held the trustees 
 were not necessary parties to a foreclosure suit, the deed being 
 defeasible at any moment, and the trustees the mere agents of 
 the mortgagor {g). 
 
 It has been said that sometimes bills have been brought by 
 a cestui que trust without making the trustee a party, upon the 
 principle of the cestui que trust undertaking for the trustee, who 
 has no personal interest, that he should conform to what decree 
 should be made Qi). But this must be regarded as an anomaly. 
 
 (a) Seddon Y. Connell, 10 SiiR. 85; 
 Madox V. Jackson, 3 Atk. 406 ; but 
 see Haywood v. Ovey, 6 Mad. 113. 
 
 (5) See Thorpe v. Jachson, 2 Y. 
 & C. 560, 563 ; Haywood v. Ovey, 6 
 Mad. 113. 
 
 (c) Brookes v. Burt, 1 Beav. 106. 
 
 {d) Scully V. Scully, 3 It. Eq. 
 Hep. 494. 
 
 (e) Head v. Teynham, 1 Gox, 57; 
 
 Munch V. Cockerell, 8 Sim. 219 ; and 
 see Malone v. Qeraghty, 2 Conn. & 
 Laws. 249 ; Wliittle v. Halliday, 2 
 Conn. & Laws. 430 ; Horrocks v. 
 Ledsam, 2 Coll. 208. 
 
 (/) Bromley Y. Holland, 7 Ves. 11 ; 
 and see Kjvye v. Moore, 1 S. & S. 
 65 ; Reed v. O'Brien, 7 Beav. 32. 
 
 [g] Slade v. Bigg, 3 Hare, 35. 
 
 (A) Kirk Y. Clark, Pr. Ch. 275. 
 
CH. XXIX. S. l.J SUITS RESPECTING TRUSTS. 849 
 
 If a bill be filed against several trustees but does not seek TrasteeBhip 
 to charge them personally, on the death of one, the trusteeship ^""^^«^- 
 survives, and the representatives of the deceased trustee need 
 not be brought before tke Court [a]-; and the representative of 
 a deceased trustee who was not a party to the breach of trust 
 complained of,, and on whose death the trust-fund devolved on 
 the sm-viving trustee, need not be made a defendant to a suit 
 for recovering amends for the breach of trust against the sur- 
 viving trustee (b). 
 
 If a person entitled to a share of a fund standing in the One of two 
 names of trustees make a new settlement and appoint new tiustTes may be- 
 trustees, who commit a breach of trust in which the old trustees ^'^^'^• 
 are also implicated, the cestuis que trust under the last settle- 
 ment may have relief, in respect of the breach of trust, 
 against the new trustees without making the old trustees 
 parties (c). 
 
 2. It was necessary until recently to have all the cestuis All cestui que- 
 que trust before the Court, in order that the rights of all parties parties^^T"^^ 
 interested might be ascertained, so that future litigation might s^"®'^*! ™'^- 
 be excluded, and that the trustee might not be afterwards 
 harassed for having obeyed the order of the Court (d!)i But 
 the general rule was and is subject to numerous exceptions. 
 
 If a cestm que trust was abroad, the Court might proceed Cestui que trmt- 
 without him if he was merely a passive party, and the disposi- 
 tion of the property was in the power of those before the 
 Court (e). But if the primary object of the suit be to affect 
 the right of the absent cestui que trust, as in a bill for equitable 
 execution against his estate, the Court wiU not make a decree 
 behind his back, even though the legal iMerest may be vested 
 in some of the defendants (/). In one case liberty was reserved 
 to make alterations in the decree apparently that the absent 
 
 (a) London Gas Light Company Upson y. Gatty, 6 Hare, 26; Sanne 
 
 V. Spottiswoode, 14 Beav. 271. v. Stevens, 1 Yem. 110. 
 
 (6) Simes v. Byre, 6 Hare, 137. (e) Rogers v. Linton, Bimb. 200 ; 
 
 (c) ilf'(?acAe«v.-Dew, 16Beav.84. and see Willats v. Bushy, 5 Beav. 
 
 {d) Pyncent v. Pyncent, 3 Atk. 193. 
 
 571 ; Adams v. St. Leger, 1 B. & B. (/) Browney. Blount, 2 R; & M. 
 
 181 ; Court v. Jeffery, 1 S. & S. 83 ; see Holmes v. Bell, 2 Beav. 
 
 105; Manning y. Thesiger, Tih.im; 298; Felly. Brown, 2 B. C. C. 
 
 Joslingy. Karr,Z'&ea.y.'iS6; Morril 276; Willats y. Busby, 5 Beav. 
 
 V. Lawson, 2 Eq. Ca. Ab. 167 ; Phil- 193. 
 
 3 I 
 
850 
 
 NECESSAEY PARTIES TO [CH. XXXX. S. 1. 
 
 Cestui que trust 
 standing out 
 process. 
 
 Or assigning his 
 interest. 
 
 Ca^e of a cestui 
 que trust of an 
 aliquot sliare of 
 a fund. 
 
 cestui que trust might, if so advised, apply by potition to have 
 the decree amended (a). In another case where one of the 
 cestm que trusts was abroad and could not be found, the Court, 
 though the right of that cestui que trust was involved, directed 
 a conveyance of the estate, but without prejudice to any right 
 or interest which might be claimed by that cestui que trust (b). 
 
 A suit might proceed in the absence of a cestui que trust if 
 process was made against him to a sequestration, and he could 
 not be compelled to appear (c). 
 
 If a cestui que trust assign his interest over, the original 
 cestui que trust need not be a party to a suit instituted by the 
 assignee (d). 
 
 A cestui que trust, entitled to a distinct aliquot share of an 
 ascertained fund, might file a bill against the trustee of the 
 fund for the transfer of that share without making the cesbuis 
 que trust of the residue of the fund parties (e). But where a 
 plaintiff was entitled to an aliquot share not in an ascertained 
 and existing fund, but in one for which the defendant was liable 
 to account, he must have made the persons entitled to the 
 other aliquot shares parties (/). And it has been observed that 
 suits for aliquot shares, without making the other persons 
 interested parties, are not to be encouraged as being iacon- 
 ve'nient {g). 
 
 Exceptional 
 cases. 
 
 Suit to recover a 
 trust found. 
 
 III. Certain exceptional cases depending upon considerations 
 equally applicable to suits between the trust estate on the one 
 hand, and strangers on the other, and to suits between the 
 trustees and cestuis que trust, inter se, remain to be considered. 
 
 Where a breach of trust has been committed, it is competent 
 to one or more of the trustees at any time to institute a suit 
 against the person liable to make good the fund without making 
 
 {a) Attorney- General v. Bailiol 
 College, 9 Mod. 407 ; see 409. 
 
 (b) Willats V. Bushy, 5 Beav. 193. 
 
 (c) Downs V. Thomas, 7 Ves. 
 206 ; Phillips v. Duke of Bucking- 
 ham, 1 Vern. 228. 
 
 {d) Goodson v. ElUsson, 3 Russ. 
 583. 
 (e) Smith v. Snow, 3 Mad. 10; 
 
 Hutchinson v. Townsend, 2 Keen. 
 675 ; Hughson v. Cookson, 3 T. & 
 C. 578; Perry v. Knott, 5 Beav. 
 293. 
 
 (/) Lenaghan v. Smith, 2 Phil. 
 301 ; Alexander v. Mullins, 2 R. & 
 M. 568. 
 
 {g) Hutchinson v. Townsend, 2 
 Keen. 678, per Lord Langdale. 
 
CH. XXIX. S. 1.] SUITS BESPECTING TRUSTS. 851 
 
 the cestvAs que trust parties. It may be objected, that, as a suit 
 by the cestms que trust would also clearly lie in such a case, 
 the defendant would thus be liable to be twice vexed for the 
 same matter. However, the rule from its great convenience 
 has been repeatedly recognised, and may be considered 
 established {a). 
 
 Where the cestuis que trust are so numerous a body that the where cestuis 
 suit could not possibly, or at aU events conveniently, proceed, tremXnumer- 
 if all were required to be parties, the Court wiU, in accordance °^> ^°™^™?y„ 
 
 sue on behalf of 
 
 with its ordinary practice where numerous parties have a all. 
 common interest, permit some of the cestuis que trust to sue on 
 behalf of the rest and as their representatives (b). 
 
 So where eestvis que trust are exceedingly numerous, a small So some ma^ 
 number may be made defendants as representatives of the rest behalf, &o, 
 for the purpose of binding their rights (c).. But in such cases 
 if all the cestuis que trust be not parties, the trustees must 
 be so {d). In many cases the plaintiff cannot have complete 
 relief in the absence of the general body, as where they ought 
 all to join in a conveyance; but even here if the plaintiff 
 proceed against a few as defendants, the Court will go as far as 
 it can by binding the rights of all in equity (e). 
 
 In order to enable some to sue on behalf of themselves and Requisites to 
 
 _ . „ , . . , entitle some to 
 
 others, it must appear that the relief sought is m its nature sue on behalf, &c.. 
 beneficial to all those whom the plaintiif undertakes to 
 
 (a) Franco v. Franco, 3 Ves. 75 ; Dock Company, 11 Sim. 327; Brom- 
 
 May V. Selhy, 1 T. & 0. Ch. Ca. 235 ; Uy v. Smith, 1 Sim. 8 ; Walworth v. 
 
 Bridget v. Hames, 1 Coll. 72 ; Nolle Solt, 4 M. & C. 619 ; Attorney- 
 
 V. Meymott, 14 Beav. 471 ; Peaks General v. Heelis, 2 S. & S. 67 ;: 
 
 v. Ledger, 4 De Gex & Sm. 137 
 Groom v. Booth, 1 Drewry, 567 
 Sorsley' v. Fawcett, 11 Beav. 565 
 Chancellor v. Moreoraft, ib. 262 
 
 Taylor v. Salmon, 4 M. & C. 134. 
 
 (e) Adair v. New River Com- 
 pany, 11 Ves. 429, see pp. 443, 444, 
 445 ; City of London v. Richmond, 
 
 Hughes v.. Key, 20 Beav. 395; Bay- 2 Vem. 421 ; Meux v. Malthy, 2 Sw„ 
 nard-v. Woolley, ib. 583. 277; Bunnett Y.Foster, 7 Beav. 540; 
 
 (J) Chancey v. May, Pr. Cb. 592 
 Manning v. Thesiger, 1 S. & S. 106 
 Weld V. Bonham, 2 S. & S. 91 
 Survey v. Harvey, 4l Beav. 215 
 
 Harvey v. Harvey, 4 Beav. 215, 
 5 Beav. 134 ; Milbank v. Collier, 1 
 CoU. 237. 
 
 {d) Holland v. Baker, 3 Hare, 68. 
 
 and see Lloyd v. Loaring, 6 Ves. (e) Meux v. Maltby, 2 Sw. 285 ; 
 
 773 ; Cockhurn v. Thompson, 16 and see Powell v. Wright, 7 Beav.. 
 Ves. 321 ; Hiehens v. Congreve, 4 449, 450. 
 Russ. 562; Preston v. Grand Collier 
 
 3 I 2 
 
853 
 
 NECESSAEY PABTIES TO [CH. XXIX. S. 1. 
 
 What number 
 sufficient to dis- 
 pense with 
 necessity for 
 making all 
 parties. 
 
 represent (a). And the frame of the suit must not involve 
 any matter of contest between the plaintiff and the parties 
 represented by him inter se (6). 
 
 What number was large enough to induce the Court to 
 dispense with the rule requiring all to be made parties has 
 never been exactly defined. It was held in one case that 
 where the cestms que trust were twenty, they ought all to be 
 brought before the Court (c). But in two other cases where the 
 original cestuis que trust were twenty-seven and twenty-six in 
 number respectively, and bills were filed 20 and 17 years 
 respectively after the dates of the respective deeds of trust 
 praying performance of the trusts, it was held that some of the 
 cestuis que trust could maintain the suits on behalf of them- 
 selves and all others (d). 
 
 SOth Order of 
 Augnst, 1841. 
 
 Decisions on the 
 30th Order. 
 
 IV. The practice of the Court has now been considerably 
 varied by certain special enactments, and by the General Orders 
 of the Court which we proceed to consider. 
 
 By the 30th Order of 26th August, 1841, it was provided 
 that in all suits concerning real estate, which is vested in 
 trustees by devise who were competent to seU and give dis- 
 charges, such trustees should represent the persons beneficially 
 interested in the real estate, in the same manner as executors 
 and administrators represent the persons beneficially interested 
 in the personal estate. 
 
 Upon the construction of this clause it was held that 
 devisees in trust for sale, subject to a charge of debts, being 
 also executors, though without an express power of signing 
 receipts, were within the meaning of the Order (e). But that it 
 
 {a) Jones v. Del Rio, cited At- 
 torney- General v. Heelis, 2 S. & S. 
 76 ; 8. C. T. & E. 297 ; Gray v. 
 Chaplin, 2 S. & S. 267; see 272; 
 Bainlrigge v. Burton, 2 Beav. 539 ; 
 Long V. Yonge, 2 Sim. 385 ; Rich- 
 ardson v. Larpent, 2 T. & C. Ch. 
 Ca. 507. 
 
 (5) Evans v. Stokes, 1 Keen, 24 ; 
 JBainbrigge v. Burton, 2 Beav. 539 ; 
 Richardson v. Larpent, 2 T. & C. 
 Ch. Ca. 507; Newton v. Earl of 
 
 Egmont, 4 Sim. 574 ; 5 Sim. 130 ; 
 see 137. 
 
 (c) Harrison v. Stewardson, 2 
 Hare, 533. The bill in this case was 
 by a judgment creditor claiming 
 priority over the cestuis que trust 
 and praying a sale. 
 
 (d) Smart v. Bradstock, 7 Beav. 
 500 ; Bateman v. Margerison, 6 
 Hare, 496. 
 
 (e) Savory v. Barber, 4 Hare, 
 125. 
 
CH. XXIX. S. 1.] SUITS EESPECTING TRUSTS. 853 
 
 did not apply where the trustees had not an absolute power 
 of sale but only with the consent of another person {a), or 
 where the trust for sale was not immediate, but to be exercised 
 on the death of a tenant for life (6), or where the equitable 
 estate only, and not the legal estate, was vested in the trustees 
 by the will(c). Where the trustees took the estate in the 
 manner required by the Order, they sufficiently represented 
 the interests of the cestuis que trust in adverse suits between 
 strangers on the one hand, and the privies to the trust on the 
 other (d). But where the suit was one for the adjustment of 
 the rights of the cestuis que trust, inter se, as a suit for the 
 general administration of a testator's estate, the order did 
 not apply («); though legatees whose legacies were charged 
 merely on real estate devised so as to faU within the order 
 were not necessary parties (/). 
 
 The 32nd Order of 26th August, 1841, declares that a plain- 32nd Order of 
 tiff having a joint and several demand against several persons, ' 
 
 either as principals or sureties, may sue without bringing 
 before the Court all the persons liable, but may proceed against 
 one or more of the persons severally liable. 
 
 This order has been construed to embrace within it, and Decisions on the 
 
 32nd Order. 
 
 mdeed was introduced expressly to meet the case of co-trustees 
 concurring in a breach of trust (</), and it applies to indi- 
 vidual members of a public body of trustees as well as to 
 private trustees (h). But although it may not be necessary to 
 have before the Court all the co-trustees who joined in the 
 breach of trust, the order does not dispense with the necessity 
 of making the representatives of a person who was the principal 
 in the breach of trust, and reaped the benefit of it, parties to 
 
 [a] Lloyd v. Smith, 13 Sim. 457. (/) Osborne v. Foreman, 2 Hare, 
 
 (6) Cox V. Barnard, 5 Hare, 666 ; Ward v. Bassett, 5 Hare, 179. 
 
 253. {g) See Kellaway v. Johnson, 5 
 
 (c) Turner v. Hind, 12 Sim. Beav. 319; Attorney - General v. 
 
 414. Corporation of Leicester, 7 Beav. 
 
 {d) Osborne Y. Foreman, 2 Kara, 176; Strong v. Strong, 18 Beav. 
 
 659; Ward Y. Bassett, 5 Haxe, XIQ; 408; Norris v. Wright, 14 Beav. 
 
 and see Miller v. Kuddlestone, 13 310 ; Perry v. Knott, 4 Beav. 179 ; 
 
 Sim. 468 ; Wilton v. Jones, 2 T. & 5 Beav. 293. 
 
 C. Ch. Ca. 244. {h) Attorney- General \. Pearson, 
 
 (e) Jones v. How, 7 Hare, 270 ; 2 Coll. 581. 
 Miller v. Huddlestone, 13 Sim. 467. 
 
854 NECESSARY PARTIES TO [CH. XXIX. S. 1. 
 
 the suit (a). And a cestwi que trust under a will cannot file a 
 bill against a surviving executor for a general admiaistration 
 of the estate, including relief in respect of a breach of trust 
 committed by the defendant and a deceased executor, without 
 making the personal representative of the deceased co-executor 
 a party (6). And where a biU is originally filed on the basis 
 of making all the co-trustees liable, the plaintiff cannot after- 
 wards, upon one of the trustees dying (c), or becoming bank- 
 rupt (d), waive relief against the estate of that trustee, and go 
 on against the other trustees only. And in one case where the 
 bill sought to make several trustees liable, and the plaintiff 
 by examining some of them as witnesses, had precluded 
 himself from obtaining a decree against those so examined, 
 the Court would not under the order make a decree against 
 the rest (e). 
 New rules as to By 15 & 16 Vict. c. 86, s. 42, rule 1, any residuary legatee, 
 
 parties under ■' > ; > j j e, > 
 
 the 15 & 16 Vict, or next of kin, may have a decree for the administration of the 
 ' ■ ■ personal estate, without making the other residuary legatees or 
 next of kin parties. By rule 2, any person interested in a 
 legacy charged upon or to be paid out of the proceeds of real 
 estate, may have a decree for administration of the estate 
 without serving the other persons interested. By rule 3, any 
 residuary devisee or heir may have the like decree without 
 serving any co-residuary devisee or co-heir. By rule 4, any 
 one cestui que trust may have a decree for administration of 
 the trust without serving the other cestuis que trust (/). By rule 
 5, in suits for protection of property pending litigation, and in 
 matters of waste, one person may sue on behalf of all others 
 having the same interest. By rule 6, any executor, adminis- 
 trator, or trustee may obtain a decree for administration against 
 any one legatee, next of kin, or cestui que trust. But by rule 7, 
 the Court in the above cases may require any other persons 
 
 (o) Perry v. Knott, 4 Beav. 179 ; (c) London Gas Light Company 
 
 5 Beav. 297 ; Shipton v. Rawlins, v. Spottiswoode, 14 Beav. 264. 
 
 4 Hare, 619 ; Jesse v. Bennett, 2 {d) Fussell v. Elwin, 7 Hare, 29. 
 
 Jur. W. S. 964, 6 De Gex, Mao. & (e) Attorney- General v. Bew, 3 
 
 Gor. 609. De Gex & Sm. 488. 
 
 (J) JBiggs v. Penn, 4 Hare, 469 ; (/) Jones v. James, 9 Hare, 
 
 SallY. Austin, 2 Coll. 571. Append. Lsxx. 
 
CH. XXIX. S. l.J SUITS RESPECTING TRUSTS. 855 
 
 to be made parties. And by rule 8, in all the foregoing cases, 
 the decree when made must be served on all the persons 
 who, according to the practice of the Court at that time, and 
 independently of the Act, would be necessary parties. 
 
 By rule 9, in all suits concerning real or personal estate Eule 9. 
 vested in trustees under a will, settlement, or otherwise, such 
 trustees shall represent their cestms que trust in the same 
 manner as executors or administrators represent the persons 
 beneficially interested in the personal estate. But the Court 
 may direct the cestms que trust to be made parties. 
 
 It is to be observed upon these rules, that although in a General working 
 large proportion of cases the old difficulties as to parties are 
 removed down to the hearing, yet rule 8 still renders a reference 
 to the old practice necessary, though at a different stage of the 
 cause. 
 
 Rule 9 is much more comprehensive than the 80th Order of Decisions on 
 26th August, 1841, as it comprises trustees appointed not only 
 by a will but by any instrument, and is not confined to trustees 
 for sale merely, but extends to all trustees in whom the estate 
 is vested. It has been held under this rule that trustees 
 can sufficiently represent their cestuis que trust even in 
 redemption {a) and foreclosure suits (&). But it is discre- 
 tionary with the Court whether the cestuis que trust shall 
 or not be made parties. "Where the trustees fiU the double 
 character of executors and devisees in trust of the mortgagor, 
 and thus may be supposed to have funds applicable for the 
 purpose of redeeming, the Court is disposed to dispense with 
 the presence of the cestuis que trust (c) ; but where the trustees 
 are trustees of a settlement merely (d), or where the Court for 
 other reasons views the trustees as inadequate representatives, 
 it refuses to adjudicate in the absence of the cestuis que trust (e). 
 And where a bill was filed by a settlor to set aside a settlement 
 as ha%T.ng been fraudulently obtained by the trustees, it was 
 
 (a) Stansfield-v.Sobson, 16 'Bea,Y. (c) Hanman v. Riley, 9 Hare, 
 
 189. Append, xl. 
 
 (i) Sale V. Kitson, 3 De Grex, Mao. (d) Goldsmid v. Sionehewer, 9 
 
 & Gor. 119; Hanman v. Hiley, 9 Hare, Append, xxxviii. 
 Hare, Append, xl. (e) Cropper v. Mellersh, 1 Jur. 
 
 N. S. 299. 
 
856 OF THE OEDEE AND MANNER [CH. XXIX. S. 2. 
 
 held that the trustees (one of whom was entitled beneficially 
 under the settlement to one -twelfth of the trust fund, subject 
 to a life interest in the plaintiff), could not be treated as 
 sufficiently representing the cestms que trust for the purposes 
 of the suit (a). 
 
 By the 47th section of the same Act any creditor or person 
 interested under the will may apply at chambers for an order of 
 administration where the whole real estate is by devise vested 
 in the trustees, who are empowered to sell, and authorised 
 to sign receipts for the rents and profits and produce of 
 sale (&). 
 
 By the 51st section the Court may adjudicate upon questions 
 in the presence of some only of the parties interested (c), and as 
 to a portion only of the trust restate {d), and without taJdng the 
 accounts. 
 
 SECTION II. 
 
 OF THE OEDEE A-ND MAlOfEE IN WHICH THE TEITSTEES AND CHSTT7IS WE 
 lETJST OITGHT TO APPEAE ITPON THE EECOED, AS WSETHEE JOINTLY 
 OR SETEEAILT AS PLAINTHTS OE DEFENDANTS. 
 
 In a contest between the trust on the one hand, and a 
 stranger on. the other, the trustees and cestuis que irMsJ represent 
 but one interest, and costs must not be multiplied unneces- 
 sarily by the severance of them in the suit. 
 
 It was said by Sir Anthony Hart, that a cestui que trust about 
 Sir A. Hart's *° ^^® ^^^ ^^^' o^g^^ to ^Pplj to his trustee to allow Ids name to 
 statement of the be used as a co-plaintiff. This (he said) the trustee is bound to 
 
 proper course. 
 
 comply with upon being indemnified against costs. Should the 
 trustee refuse, he would be departing from his duty, and in such 
 a case would not he entitled to his costs when made defendant, 
 in consequence of his refusal. But where no application 
 is made to the trustee to permit his name to be used as 
 co-plaintiff, he is in no default, and the cestui que trust would 
 
 (a) Bead v. Prest, 1 K. & J. 183. (c) See Doody r. Higgins, 9 Hare, 
 
 (6) See the decisions on the 30th Append, xxxii. 
 order of August, 1841, the language {d) Prentice y. Prentice, 10 Hare, 
 
 of which is similar, p. 852, supra. Append, xxii. 
 
CH. XXIX. S. 2.] OP SUING AND DEFENDING. 857 
 
 be bound to pay the costs of the trustee for his unreasonable 
 negligence in not having required the trustee to be co- 
 ■ plaintiff (a). And where there is a just ground of suit, it is 
 the duty of a trustee to allow himself to be made a co- 
 plaintiff (&). 
 
 Upon the same principle, where a trustee and cestui que Trustee and 
 trust are made defendants in the same right,, as they have an ought to 'ot^k. 
 identity of interest they ought not to split the defence, and file defence. 
 separate answers (c) ; not that a trustee and his cestui que trust 
 can be compelled to join in their defence {d) ; but if they do not 
 they wiU be mulcted in costs, as only one set of costs will be 
 decreed against the plaintiff (e). 
 
 In suits between trustees and cestuis que trust, inter se, In smts •' iruer 
 it is equally the rule .that all the cestuis que trust in the same Tt'I^Z^'^^T 
 interest should sue as co-plaintiffs (/) ; or if the bill is by a i^terest^shouid 
 
 ■^ ^■' ' ■' join as plaintiffs., 
 
 trustee that he should join his co-trustees with him, unless 
 there be some special circumstance demanding a severance. 
 
 So, as a general rule, in. suits of every description, joint Trustees shonld 
 trustees should make a joint defence, and if they put in sepa- ^ ^° i°™ -?' *• 
 rate answers, one set of costs only wiU be allowed, which, if^ 
 they be equally ha, fault, will be apportioned amongst them (g).^ 
 But if there be two trustees, and one be willing to join, and the« 
 other refuse, who afterwards puts in an answer, and shows no 
 reason for his refusal, the single costs allowed will be given ' 
 exclusively to the trustee who expressed a willingness to 
 join (Ji). And where two trustees severed in their defence one 
 of whom was charged vsdth misconduct, the Court held that 
 the innocent trustee was justified in severing, and while allowing 
 one set of costs gave the whole of them to him (i). However, 
 
 (a) Reade v. Sparhs, 1 Moll. 8, Soman v. Hague, X Moll. 14 ; Oal- 
 
 11; but i6e Browne v. Lockhart, 10 way v. Butler, 1 Moll. 13. 
 
 Sim. 426. (/) See noshing v. Nieholls, 1 Y. 
 
 (J) Hughes v. Keg, 20 Beav. 395. & C. Ch. Ca. 478. 
 
 (c) Reade v. Sparhs, 1 Moll. 10, {g) Nicholson v. Falhiner, 1 MolL 
 
 12, per Sir A. Hart ; Woods v. 559, per Sir A. Hart ; Gaunt v. 
 
 Woods, 5 Hare, 229 ; Farr vi Taylor, 2 Beav. 34Y, per Lord Lang- 
 
 Sheriffe, 4 Hare, 528. dale. 
 
 {d) Van Sandau v. Moore, 1 Russ. {h) Young v. Scott, 1 Jones' Ir. 
 
 441; reversing yS. 0. 2 S. & S. Exci. 71 ; andsee ^ifornsy-G^mej-o^ 
 
 509. v. Cuming, 2 T. & C. Ch. Ca. 156. 
 
 (e) Cuddy y. Waldron, 1 Moll. 14; (i) Webh v. WeU, 16 Sim. 55. 
 
858 
 
 DISTEINGAS. 
 
 [CH. XXIX. S. 3'. 
 
 "Bow feme covert 
 cestui que trust 
 should sue and 
 defend. 
 
 where the Court sees there is a substantial reason for it, as 
 where one trustee has a personal interest which conflicts with 
 his duty as trustee, or where one can admit facts which the 
 other believes not to be true (a), or where the co-trustees reside 
 at such a distance from each other that a joint answer is 
 impracticable (6), or where other special grounds exist (c), the 
 several trustees will be allowed to put in separate answers, and 
 each will be allowed his full costs. 
 
 A feme covert entitled to her separate use cannot join her 
 husband as co-plaintiff, but must sue by her next friend, making 
 her husband a defendant, who, under such circumstances, will 
 be entitled to his costs {d) ; and if she be made a defendant in 
 respect of such an interest, she should obtain an order to 
 defend separately (e). But the mere fact of a feme covert living 
 apart from her husband, does not entitle her to appear sepa- 
 rately at the costs of a trust estate under administration, where 
 the interest which she claims is not settled to her separate 
 use(/). 
 
 SECTION III. 
 
 Danger to whicli 
 stock, &c., ex- 
 posed, in conse- 
 quence of legal 
 title only being 
 recognised. 
 
 OF BISTEnfGAS. 
 
 In the case of stock transferable in the hooks of the Bank of 
 England, and also in the case of the stock and shares of many 
 other public companies, no obligation exists on the part of the 
 bank or public company to look beyond the title of the legal 
 holder. The modern form of legislative enactment on the 
 subject is usually to the effect that the company " shall not be 
 
 {a) Gaunt v. Taylor, 2 Beav. 346. 
 
 (J) Aldridge v. Westbrook, 4 Beav. 
 212 ; Dudgeon v. Cormley, 2 Conn. 
 & Laws. 422 ; Nicholson v. Falkiner, 
 1 Moll. 560; Wiles v. Cooper, 9 Beav. 
 294 ; but see Farr v. Sheriffe, 4 
 Hare, 528. 
 
 (c) Anon, case, cited Barry v. 
 Woodham, 1 Y. & C. 538 ; Nicholson 
 V. Falkiner, 1 Moll. 555, see 560; 
 Reade v. Sparkes, 1 Moll. 10, per 
 
 Sir A. Hart ; Kampf v. Jones, C. 
 P. Cooper's Eep. 1837—38, 13; 
 and see Walsh v. Dillon, 1 MolL 
 13. 
 
 (<^) Thorhy v. Yeats, 1 T. & C. 
 Ch. Ca. 438. 
 
 (e) See Norris v. Wright, 14 
 Beav. 303 ; and p. 633, supra. 
 
 (/) Oareyv. Whittingham,6Beav. 
 270 ; and see Barry v. Woodham, 1 
 Y. & C. 538. 
 
CH. XXIX. S. 3.] DISTMNGAS. 859 
 
 bound to see to the execution of any trust, whether express, 
 implied, or constructive " (a). Where, therefore, property of 
 this description is held upon trust, the interests of the cestui 
 que trust are peculiarly liable to be endangered by the dis- 
 honesty of the trustee ; and, indeed, but for the means of pro- 
 tection now about to be explained, would be almost entirely 
 at his mercy. 
 
 The distringas was originally a process of the equity side Origin of the 
 (now abolished) of the Court of Exchequer for compelling tringas. 
 the appearance of a corporation to a bill filed, but formerly it 
 was a common practice, more particularly in any emergency, 
 to issue a subpoena before the bill was actually on the file. 
 When, therefore, a party sought to restrain a transfer of stock, 
 before he filed the bill against the holder of the stock and 
 the bank (who were then necessary parties), to prevent any 
 mischief in the interim he served process immediately on the 
 secretary of the bank to appear to the bill. But as the form of 
 distringas gave no information as to the stock to be restrained, 
 the distringas was accompanied with a notice in writing, which 
 specified the stock, and required the bank not to permit the 
 transfer. The effect of this was, that if the holder of the stock 
 applied to the bank to make a transfer, the bank immediately 
 forwarded a notice to the party issuing the distringas, that 
 unless he actually filed a bill, and obtained and served an 
 injunction before a certain day, they should permit the transfer 
 to be made. 
 
 The 4 Anne, c. 16, s. 22, declared that no subpoena or other Practice con- 
 process for appearance should issue until after the bill was standing"* Anne 
 
 filed; and the 39 & 40 G. 8. c. 36, enabled suitors to obtain an «■ l^and 39&40 
 
 • ■ , • , , ■ , G. 3, c. 36. 
 
 injunction against the bank, without makmg the bank a party. 
 
 However, in practice the distf-ingas still continued to be served 
 
 on the bank, and the same attention was paid to it in not 
 
 allowing a transfer. 
 
 The convenience of the distringas was so sensibly felt, from Process trans- 
 
 the frequent necessity of laying an embargo upon stock at a eery on the '*"' 
 
 moment's notice, that when the 5 Vict. c. 5, abolished the ^°^^^°'^ of tlie 
 
 Equity- 
 equity side of the Exchequer, it was thought expedient to Excheijuer. 
 
 (a) 8 Vict. c. 16, s. 20. 
 
860 
 
 DISTRINGAS. 
 
 [CH. XXIX. S. 3. 
 
 Additional 
 remedy given ty 
 5 Viet. c. 5, s. 4. 
 
 Practice nnder 
 the 4th section. 
 
 Transfer of the 
 old Writ of 
 Distringas. 
 
 transfer the process to the Court of Chancery, and enlarge the 
 remedy. 
 
 Accordingly, by section 4 of the Act referred to, it was by 
 way of additional remedy enacted, that " it should be lawful for 
 the Court of Chancery, upon the application of any pa/rty inte- 
 rested, by motion or petition, in a summary way, without hill 
 filed, to restrain the Bank of England or other company, 
 whether incorporated or not, from permitting the transfer of 
 any stock in the public funds, or any stock or shares in any 
 public company,, or from paying any dividend or dividends 
 due or to become due thereon ; and every order of the Court 
 upon such motion or petition should specify the a/mount of the 
 stock, or the particular shares to be affected thereby, and the 
 name or names of the person or persons, body politic or corpo- 
 rate, in which the same should be standing." 
 
 An application to the Court under this section must be 
 founded upon an affidavit verifying the special grounds upon 
 which it proceeds {a). And when the order has been made, as 
 it was not the intention of the Legislature to do more than 
 protect the stock until the party could assert his right in the 
 ordiuary way, if the opposite party move to dissolve the injunc- 
 tion, and the Court sees that there has been great neglect on 
 the part of the person who obtained the order, and that any 
 extension of time would be oppressive to the party restrained, 
 it will not as of course give further time for filing the biU. (6). 
 When a bUl has been filed, and an answer put in, and the 
 defendant moves to discharge the restraining order, the plaiatiff 
 may file affidavits in opposition to the answer, and is not con- 
 fined to the merits disclosed in the answer (c). 
 
 By section 5 of the Act it is thus enacted " In the place and 
 stead of the Writ of Distringas, as the same has been heretofore 
 issued from the Court of Exchequer, a Writ of Distringas in 
 the form set out ia the schedule to the Act shall be issuable 
 from the Court of Chancery, and shall be sealed at the subpoena 
 
 (a) Ux parte Field, 1 Y. & C. Ch. 
 Ca. 1 ; Me Marquis of Hertford, 1 
 Hare, 586. 
 
 (h) In re Marquis of Hertford, I 
 Hare, 584. See same case, 1 PMl 203. 
 
 ,(c) In re Marquis of Hertford, 1 
 Phil. 203. See now 15 & 16 V. c. 
 86, s. 59. 
 
CH. XXIX. S. 3.] DISTRINGAS. 861 
 
 office, and the force and effect of such writ, and the practice 
 under or relating to the same, shall be such as is now in force 
 in the said Court of Exchequer ; Provided, nevertheless, that 
 such writ, and the practice under or relating to the same, and 
 the fees and allowances in respect thereof, shall be subject to 
 such orders and regulations as may, under the provisions of 
 this Act, or of any other Act now in force, or under the general 
 authority of the Court of Chancery, be made with reference to 
 the proceedings and practice of the Court of Chancery." 
 
 In the schedule to the Act, the form of the writ is as follows : Form of new 
 " Victoria, &c., to the Sheriffs of London greeting. We com- ^"*" 
 mand you that you omit not, by reason of any liberty, but tbat 
 you enter the same, and distrain the Governor and Company 
 of the Bank of England by aU their lands and chattels in your 
 bailiwick, so that they, or any of them, do not intermeddle 
 therewith until We otherwise command you; and that you 
 answer us the issue of the said lands, so that they do appear 
 before us in our High Court of Chancery on the day of , 
 
 to answer a certain bill of complaint lately exhibited against 
 them and other defendants before us in our said Court of 
 Chancery by complainant; and further, to do 
 
 and receive what our said Court shall then and there order 
 in the premises, and that you then leave there this writ. 
 Witness &c." 
 
 The Act, as we have seen, empowered the Court to regulate Orders of the 
 
 ,•, ,. i? ii. J- J • J J • J • Court of Chau- 
 
 the practice oi the distringas, and orders were issued m conse- ^gry regulating 
 quence to the following effect : — practice. 
 
 1. That any person claiming to be interested in any stock Writ, 
 transferable at the Bank of England may by his solicitor prepare 
 
 a writ of distringas in the form set out in the schedule to 
 the Act, and present the same for sealing at the subpoena 
 office (a). 
 
 2. That such person must, before the writ is sealed, leave at Affidavit. 
 the subpoena office an affidavit sworn by him or his solicitor, 
 
 in the following form (&) : — 
 
 (a) 1 Order of 17 Nov. 1841, 3 1841, correcting the form of affidavit 
 
 Beav. ixxiii. at the foot of the Orders of the 17 
 
 (6) 2 Order of 17 Nov. 1841, 3 Nov. 1841, ib. xxxviii. 
 Beav. zxxiii; and Order of Dee. 10, 
 
862 
 
 DISTRINGAS. 
 
 [CH. XXIX. S. 3. 
 
 Form of 
 
 Affidarit. 
 
 Discharge of 
 ■writ. 
 
 Eifect of service 
 of writ. 
 
 Affidavit to be 
 filed. 
 
 Present practice 
 as to obtaining 
 and serving writ. 
 
 " A. B." (the name of the party or parties in whose behalf 
 the writ is sued out) " v. the Governor and Company of the 
 Bank of England." 
 
 " I , of ■ , do solemnly swear, that, 
 
 according to the best of my knowledge, information, and belief, 
 I am" (or if the affidavit is made by the solicitor, "A. B. of 
 
 ■ •, is) beneficially interested in the stock hereinafter 
 
 particularly described, that is to say" (here specify the amount 
 of the stock to be affected by the writ, and the name or names 
 of the person or persons, or body politic or corporate, in whose 
 name or names the same shall be standing). 
 
 3. That such writ of distringas, and all process thereunder, 
 may be discharged by order of the Court, to be obtained, as of 
 course, by the party on whose behalf the writ was issued ; and 
 to be obtained upon the application by motion or petition of 
 any other person claiming to be interested in the stock sought 
 to be affected. And power is given to the Court to deal with 
 the costs as may seem just (a). 
 
 4. " That the bank having been served with such writ of dis- 
 tringas, and a notice not to permit the transfer of the stock in 
 such notice and in the said affidavit specified, or not to pay the 
 dividends thereon, and having afterwards received a request 
 from the party or parties in whose name or names such stock 
 shall be standing, or some person on his or their behalf, or 
 representing him or them, to allow such transfer, or to pay 
 such dividends, shall not by force, or in consequence of such 
 distringas, be authorised without the Order of the Court to 
 refuse to permit such transfer to be made, or to withhold pay- 
 ment of such dividends for more than eight days after the date 
 of such request" (b). 
 
 5. That the patentee of the subpoena office shall cause the 
 affidavit to be filed and registered at the office of the clerk of 
 the affidavits (c). 
 
 The present course, therefore, is this. The solicitor of the 
 party seeking the distringas prepares a writ of distringas in 
 
 (a) 3 Order of 17 Nov. 1841, 3 
 Beav. xxxiv. 
 (J) 4 Order, ib. xxxiv. 
 
 (c) 5 Order of same date, 3 Beav. 
 xxxiv. 
 
CH. XXIX. S. 3.] DISTRINGAS. 863 
 
 the form required by tlie Act, and the party or his solicitor 
 swears an affidavit in the form required by the general order. 
 The writ and affidavit are then taken to the subpoena office, the 
 former to be sealed, and the latter to be left for filing. A 
 notice in writing is then prepared that the bank is not to 
 permit the transfer of the stock or payment of the dividends 
 upon which the restraint is sought, and the distringas and notice 
 are then served on the secretary of the bank. The result is, 
 that when the holder of the stock requests a transfer of the 
 stock or payment of the dividends, the bank immediately 
 forwards a notice to the party who issued the distringas, that 
 unless he file a bill and obtain and serve an injunction within 
 eight days from the date of such request, the transfer or pay- 
 ment will be made; The party must, of course, be then upon 
 the alert to file a bill and obtain and serve the injunction 
 before the eight days have expired. 
 
 Between the remedy given by the 4th section and that given Distinctions 
 by the 5th section of the Act, the following distinctions exist, between remedies 
 
 •' _ ' _ ° under the 4th & 
 
 The former applies not merely to stock in the funds, but to 6th sections of 
 stock and shares of public companies, whether incorporated or 
 not; while the latter (whether intentionally or not may be 
 doubted) is, by the joint effect of the schedule to the Act of 
 Parliament and of the orders of the Court of Chancery before 
 referred to, confined to stock transferable at the Bank of Eng- 
 land. Again, the distringas under the 6th section may be, and 
 is in fact, frequently obtained,^ not from any fear of immediate 
 danger, but as a general safeguard merely (a) ; whereas a special 
 case must be made in order to obtain a restraining order 
 under the 4th section (6). It is, indeed, much to be regretted 
 that this extremely useful process should be limited in its 
 application to stock in the public funds and government 
 annuities. 
 
 As respects stock in the funds, the distringas under the 5th Both remedies 
 section, and the restraining order under the 4th section, may afailaWe m the 
 both occasionally be resorted to should circumstances require 
 it ; for the adoption of either remedy is not an election of the 
 
 (a) See Utty -v. Bridges, 1 Y. & C. (6) Kote (o), p. 860, supra^ 
 
 Ch. Ca. 486. 
 
864 COMPTJLSOEY PAYMENT INTO COUET. [CH. XXIX. S. 4. 
 
 one to the exclusion of the other (a). " The 4th clause," said 
 Sir J. Wigram, " was intended for interim purposes to protect 
 stock until the party claiming it should have an opportunity 
 of asserting his rights by bill in the ordinary way, an oppor- 
 tunity often wanting from the facility with which that species 
 of property is transferred from hand to hand, and which the 
 common distringas, preserved by the 5th section, does not in aU 
 cases afford. A distringas remains [qu. restrains] only at the 
 discretion of the bank. The restraining order, which the 4th 
 section enables the Court to grant, is imperative ; it continues 
 so long as the Court sees fit to direct, and can only be discharged 
 in the mean time upon the application of the parties interested. 
 Cases might arise in which from the discovery of new matter 
 after a distringas had issued, or from the bank peremptorily, 
 but erroneously refusing to notice a distringas, or perhaps from 
 other causes, the party who obtained that writ might notwith- 
 standing, upon a full disclosure of the facts in a case of merits 
 and urgency, entitle himself to a restraining order under the 
 4 th section" (6). 
 
 SECTION IV. 
 
 OF COMPriSOET tATMENT INTO cotnaT. 
 
 General rule. The rule as laid down by Lord Eldon, and which has ever 
 
 since been acquiesced in, is, that to caU for payment of money 
 into Court, " the plaintiff must either be solely entitled to the 
 fund or have acquired in the whole of the fund such an in- 
 terest, together with others, as entitles him on his own behalf, 
 and the behalf of those others, to have the fund secured in 
 Court " (a). It is not indispensable that the plaintiff should be 
 the person exclusively interested; but if he have a partial 
 interest, it is enough, provided all the other persons interested 
 
 (a) In re Marquis of Hertford, 1 (o) Freeman v. Fairlie, 3 Mer. 
 
 fiare, 584 ; 1 Phil. 129. 29 ; and see Dubless v. Flint, 4 M. 
 
 (6) In re Marquis of Hertford, 1 & C. 502; M'Hardy v. Hitchcock, 
 
 Hare, 590. 11 Beav. 11. 
 
CH. XXIX. S. 4.] COMPULSOEY PAYIMENT INTO COUET. B65 
 
 in the fund are before the Court (a), and the Court may and 
 occasionally will make orders for payment into Court, although 
 some of the persons interested in the money are not before 
 it (6). And where, under the new practice, the other persons 
 interested are not necessary parties to the suit, payment into 
 Court may be obtained without service on them of the notice 
 of motion (c) ; but where the cestuis que trust had been served 
 with a copy of a bill for the appointment of new trustees 
 which prayed a transfer to the new trustees, the Court held 
 that they must be served with notice of a motion to transfer 
 the fund into Court {d). 
 
 If the defendant admits himself to be a trustee, but it Haintiffmay 
 
 , move upon a pos- 
 
 remains to be ascertained whether he is a trustee for the plain- sible title. 
 tiff or for other parties, the plaintiff may move upon his 
 possible title, where all persons are before the Court among 
 whom there will be found some one who is entitled (e). " In a 
 contest as to the title to any particular property," said Lord 
 Cottenham, " the Court will, in some cases, take possession of 
 the subject-matter of the contest for security until it adjudi- 
 cates upon the right. Such cases generally arise when the 
 property is in the hands of stakeholders, factors, or trustees 
 who do not themselves claim any title to it. In ordering 
 money into Court under such circumstances, the Court does 
 not disturb the possession of any party claiming title, or direct 
 a payment before the liability to pay is established (/)." Occa- 
 sionally, where the fund is clear, and is divisible between- the 
 plaintiff and defendant in certain proportions, the Court has 
 ordered the defendant to pay into Court the share only of the 
 plaintiff (^). 
 
 The merits upon which the motion is founded must be SedZtd^^ 
 
 admitted by the defendant's answer, and no evidence to this missions in de- 
 fendant's answer. 
 
 (a) WJiitmarsh v. Robertson, 4 (rf) LcwelUn v. Cobhold, 1 Sm. & 
 
 Beav. 26 ; Bartlett v. SartUtt, 4 Giff. 572. 
 
 Hare, 631 ; but see Ross v. Ross, 12 («) See Bolder v. Banh of Eng- 
 
 Beav. 89. land, 10 Ves. 355; but see oases 
 
 (J) Wilton V. mil, 2 De Gex. note (c), p. 865. 
 
 Mac. & Gor. 807. (/) Richardson v. Banh of Eng- 
 
 (c) Marryat v. Marryat, 23 L. land, 4 M, & C. 171. 
 
 J. Ch. 876. {g) Rogers v. Rogers, 1 Anst. 
 
 174 ; see Score v. Ford, 7 Beav. 336.. 
 
866 
 
 COMPDLSOEY PAYMENT INTO OOUET. [CII. XXIX. S. 4. 
 
 Answer should 
 contain an ad- 
 mission of pro- 
 bable title. 
 
 Payment into 
 Court must be 
 upon the footing 
 of an equity 
 alleged by the 
 biU. 
 
 Not necessary 
 that fund should 
 be actually in de- 
 fendant's hands. 
 
 effect can be adduced aliunde {a). Thus, if money be standing in 
 the joint names of several persons, as of three trustees, it cannot 
 be ordered into Court on the admission of the specific sum by 
 one, though the others admit that a sum is standing in 
 their joint names, and the plaintiff offers to read affidavits 
 sworn by them, from which the amount of the sum would 
 appear (b). 
 
 And it would seem that not only must the plaintiff be able 
 to read from the answer an admission of the defendant's 
 receipt of the money, but also an admission of his own title, 
 or probable title, e. g. as next of kin, heir-at-law, &c., and that 
 if the defendant ignores the plaintiffs title, the money will 
 not be ordered into Court (c). 
 
 The plaintiff cannot ask for payment of money into Court 
 upon the footing of an equity not alleged by the bill, but only 
 stated by the answer. Thus, where the plaintiff filed a bill 
 claiming one-fifth of the residuary estate of a testator asking 
 relief, as in a case of an open account, and the defendant by 
 his answer stated a deed amounting to a settlement of account 
 under which he admitted a sum to be due from him, it was 
 held that the plaintiff could not without amending his biU 
 obtain payment into Court of the sum so admitted to be 
 due (cZ). 
 
 It is not necessary that the defendant should acknowledge 
 the fund to be in his hands at the time of the answer ; for if 
 he admit that he once actually received it, and state that he 
 afterwards applied it in a way not authorised by the trust, the 
 Court will fasten upon the receipt and not allow him to dis- 
 charge himselfbypleading a breach of duty ; as if a trustee admit 
 that he had a fund in his hands, but says that he afterwards 
 
 (a) Beaumont v. Meredith, 3 V. 
 & B. 181, per Lord Eldon ; Richard- 
 son V. Bank of England, 4 M. & C. 
 171, 175, per Lord Cottenham ; 
 JDuUess V. Flint, 4 M. & C. 502 ; 
 Black V. Creighton, 2 Moll. 554, 
 per Sir A. Hart ; and see Green v. 
 Pledger, 3 Hare, 171. The 59th 
 sect, of the 15th & 16th Vict. c. 86, 
 directing the defendant's answer to 
 be viewed merely as an affidavit 
 
 in motions for injunction or receiver, 
 &o., does not touch motions for 
 payment into Court. 
 
 (J) Boschetti v. Power, 8 Beav. 
 98. 
 
 (c) DuUess V. Flint, 4 M. & C. 
 502; M'Hardg v. Hitchcock, 11 
 Beav. 73. 
 
 {d) Protidfoot V. Hume, 4 Beav. 
 476. 
 
CII. XXIX. S. 4.] COMPULSOEY PAYMENT INTO COURT. 8fi7 
 
 sold it out and did not re-invest it (a), or paid it away im- 
 properly {b), or lent it on personal (c) or other security (d), not 
 within the terms of the trust. And no attention will be paid 
 to the objection that the bill was for the very purpose of 
 securing the fund, and therefore that the money ought not 
 to be ordered into Court until the decree (e). 
 
 But if an executor (and the rule must apply equally to a Payments not 
 trustee) admits in his answer that he has received a specific answer may be 
 sum, but adds tliat he has made payments, the amount whereof V'^f^^^ ^y ^^' 
 he does not specify, in respect of the testator's estate, the 
 Court will allow him to verify by affidavit the amount of the 
 payments properly made, and will order him to pay in the 
 actual balance (/). 
 
 Payment of money into Court is, in general, confined to the Payment of 
 
 money into 
 
 cases of a defendant's admission of actual possession of the Com-t not ordered 
 fund, or of a receipt not followed by any subsequent legal dis- ^^^^ <,£ circum- 
 eharge, and is not ordered upon a mere admission of facts stances sho-wing 
 from which a liability may be inferred {g). Thus, if a 
 defendant admit that he has had a fund in his hands from a 
 certain time, and it clearly appears from the answer that he is 
 liable and wiU be decreed at the hearing to pay interest ; j^et 
 the Court will not order him to pay interest on motion (/i), 
 unless he also admit that he has actually made interest, which 
 amounts to a receipt (i). 
 
 The case of Bothwell v. Bothwell (k) is no exception to the Eothweii v. 
 
 llotliwell. 
 
 (a) Wiglesworth v. Wiglesworth, (e) See Mothwell v. Rofhwell, 2 
 
 16 Beav. 272 ; PhilKpo v. Munnings, S. & S. 217 ; Wtjatt v. Sharratt, 
 
 2 M. & C. 309; and see Meyer v. 3 Beav. 498; CollisY. Collis, 2 Sim. 
 
 Montriou, 4 Beav. 346 ; Fatter v. 365. 
 
 Jackson, 6 Beav. 424. (/) Anon. 4 Sim. 359 ; and see 
 
 (6) See Scott v. Becker, 4 Price, Proudfoot v. Hume, 4 Beav. 476 j 
 
 350 ; Meyer v. Montriou, 4 Beav. Poy v. Gibbon, 4 Hare, 65. 
 
 343 ; Nohes v. iSeppings, 2 Phill. {g) See Richardson v. Bank of 
 
 19. . England, 4 M. & C. 174; Peacham 
 
 (c) Vigrass v. Binfield, 3 Mad. v. Baw, 6 Mad. 98. 
 
 62 ; Collis v. Collis, 2 Sim. 365 ; (A) Wood v. Downes, 1 V. & B. 
 
 Roy V. Gibbon, 4 Hare, 65. 50. 
 
 {d) Wyatt V. Sharratt, 3 Beav. (?) Freeman v. Fairlie, 3 Mer. 
 
 498 ; Costeker v. Ilorrox, 3 Y. & 43 ; see Wood v. Downes, 1 V. & 
 
 C. 530 ; Jlinde v. Blake, 4 Beav. B. 50. 
 
 597; Bourne v. Mole, 8 Beav. (k) 2 8. &S. 217 ; see Richardson 
 
 177. V. Sank of England, 4 M. & C. 174. 
 
 3 K 2 
 
808 
 
 COMPULSORY PAYMENT INTO CO0KT. [CH, XXIX. S. 4. 
 
 Special case of a 
 trustee who is a 
 debtor to his 
 trust estate. 
 
 Pay m cut into 
 Court at the 
 hearing. 
 
 rule, for there the defendant had covenanted with the trustees 
 of his marriage settlement to pay 850L within twelve months 
 from the marriage; and the covenant not having been per- 
 formed, the children filed a bill against their parents and 
 the trustees to have the money raised ; and defendant admitting 
 " that the 850Z. had not been got ill, but that it was still in his 
 han^s," the Court ordered the payment into Court, not on the 
 admission of the debt, but " that it was still in Ms hands." 
 
 However, in some cases the Court orders payment into Court 
 upon motion of what is apparently a mere debt ; as where an 
 executor or trustee admits himself to owe a debt to the estate he 
 represents, for here the person to pay and the person to receive 
 being the same, the Court assumes that what ought to have 
 been done has been done, and orders the payment, not as of a 
 debtby a debtor, but as of monies realised in the hands of the 
 executor or trustee (a). Thus where A., B., and C. were 
 appointed executors of a will, of whom A. and C. alone proved, 
 and A. and B. were appointed trustees, and a bill was filed by 
 A. for the administration of the trusts of the will, and B. by 
 his answer admitted that he and his partner G. B. were 
 indebted to the testatrix at the time of her decease, and that 
 part of the assets had been lent to the partnership by C, and 
 that the partners had paid some of the testatrix's debts, and 
 that the sum of 1137L 7s. lO^d. was due from the partnership 
 to the estate on the balance of accounts, the Court held, not- 
 withstanding B.'s assertion to the contrary in his answer, that 
 he must be deemed to have acted, and ordered him to pay the 
 debt due from his co-partner and himself into Court (&). 
 
 The Court will occasionally make an order for payment into 
 the Court at the hearing of the cause "ex debito justitio'," 
 though it might have hesitated to do so upon an interlocutory 
 application by motion ; as where a plaintiff having only a 
 remote contingent interest in a fund claims at the hearing to 
 have the fund brought into Court (c). And now that under 
 
 (a) Richardson v. Bank of Eng- 
 land, 4 M. & C. 174, per Lord 
 Cottenham. 
 
 (5) White V. Barton, 18 Beav. 
 192. 
 
 (c) Governesses^ Institution v. 
 Rushridger, 18 Beav. 467. 
 
CH. XXIX. S. 5.] EECEIVEESHIP. 869 
 
 the new practice any material circumstances not in issue may 
 be brought before the Court by affidavit at the hearing, an 
 order for payment into Court will be made at the hearing, if 
 proper, without any notice of motion for that purpose {a). 
 
 The time to be given for payment of money into Court will Time allowed for 
 
 1 1 ii • f 1 ■ TO • 1 ■ payment into 
 
 depend on the circumstances of the case. It it be money m Court, 
 the defendant's hands, it will be ordered in forthwith, and an 
 immediate transfer may be directed of stock standing in the 
 defendant's name ; but in the latter case it will be borne in mind, 
 that during certain periods of the year the transfer books are 
 closed. Where the defendant had improperly lent a sum on 
 personal security, but no insolvency was suggested or any danger 
 as to the money, the Court ordered it to be paid in on or before 
 the first day of the following term (6). In another case, where 
 the defendant had lent 820Z. upon a mortgage not authorised by 
 the trust, the Court allowed six weeks, with liberty to apply 
 for further time if the circumstances should then warrant the 
 indulgence (c). 
 
 Where a distringas or injunction has been previously ob- Distringas. 
 tained against the transfer of the stock, the Court orders the 
 transfer into Court to be made, " notwithstanding the distringas 
 or injunction." 
 
 SECTION V. 
 
 OP EECEIVEESHIP. 
 
 As the cestuis que trust or parties beneficially interested in i!«ceiver will be 
 
 appointed at 
 
 an estate are in equity the owners of it, should they all concur instance of all 
 
 •.. ,. J. . 1 xi X i i ii ihe cestuis que 
 
 m an application tor a receiver and the trustee consent, the ^,.„s^ 
 Court will at any time make the order {d). But the usual 
 recognisances will not be dispensed with (e). 
 
 (o) Isaacs v. Weather stone, 10 {d) Brodie v. Barry, 3 Mer. 695 ; 
 
 Hare, Appendix, xxx. Beaumont v. Beaumont, cited lb. 
 
 (6) Vigrass v. Binfield, 3 Mad. 696 ; see Browell v. Beid, 1 Hare, 
 
 62 ; and see Hinde v. Blahe, 4 Beav. 436. 
 
 597; Boi/r. Gibbon, 4: Haxe, G5. {e) Manners v. Furze, 11 Beav. 
 
 (c) Wi/att v. Sharratt, 3 Beav. 30 ; Tylee v. Tylee, 17 Beav. 583. 
 498 ; Score v. Ford, 7 Beav. 333. 
 
870 
 
 EECBIVERSPIIP. 
 
 [CH. XXIX. S. 5. 
 
 Where executrix 
 a feme covert, 
 and husband 
 abroad. 
 
 Also where And as each cestm que trust is entitled to have the fund pro- 
 
 of misconduct or P^rly protected, a receiver will be granted at his instance if it 
 ba^ra^t"& ^^^ ^^ shown that the trustee has been guilty of misconduct, 
 waste, or improper disposition of the trust estate (a), or that 
 the fund is in danger from his being in insolvent circum- 
 stances (&), or a bankrupt (c), or that one trustee has miscon- 
 ducted himself, and the other consents to the order (d), or is 
 incapacitated from actiag (e), or that the executor is a person 
 of bad character, drunken habits, and great poverty (/). 
 
 And a receiver has been appointed where the executrix was a 
 feme covert, and the husband, besides being in indifferent 
 circumstances, was out of the jurisdiction, for in such a case, 
 said the Court, if the executrix waste the assets or refuse 
 payment, the party aggrieved had no remedy, as the husband 
 must be joined in the action (g). 
 
 And a receiver has been ordered when four trustees had 
 been named in a will and one died, and another was abroad, 
 and the third had scarcely interfered in the trust, and the fourth- 
 submitted to a receiver by his answer (h). In another case the 
 three trustees disagreed, and a receiver was appointed (i). The 
 order was taken by arrangement between the parties, but the 
 Court had previously expressed its opinion that, unless the 
 trustees could agree, a receiver must be appointed. And the 
 Court will grant a receiver at the instance of the cestui que 
 trust, when the single trustee is, or all the trustees are, out of 
 the jurisdiction (k). 
 
 But the Court is not in the habit of granting a receiver, and 
 
 Receiver where 
 trust estate un- 
 protected. 
 
 Receiver not 
 granted on slight 
 grounds. 
 
 (a) Anon. 12 Ves, 5, jier Sir W. 
 Grant ; and see Middleton v. Dods- 
 well, 13 Ves. 266 ; Howard v. Pa- 
 pera, 1 Mad. 142 ; Richards v 
 Perkins, 3 Y. & C. 299 ; Evans v. 
 Coventry, 5 De G. M. & G. 911. 
 
 (5) Scott V. Pecker, 4 Price, 
 346; Mansfield v. Shaw, 3 Mad. 
 too ; and see Anon. 12 Ves. 4 ; Mid- 
 dleton V. Dodswell, 13 Ves. 266 ; 
 Savers v. Havers, Barn. 23. 
 
 (e) Gladdon v. Stoneman, 1 Mad. 
 143, note ; Langley v. Hawk, 5 
 Mad. 46. 
 
 [d) Middleton v. Sodswell, 13 
 Ves. 266. 
 
 {e Painhrigge v. Plair, 3 Beav. 
 421. 
 
 (/) PvereU v. Prythergch, 12 
 Sim. 367, 368. 
 
 (<7) Taylor v. Allen, 2 Atk. 213. 
 
 [h) Tidd y. Lister, 5 Mad. 429. 
 
 (0 Bay V. Croft, May 2, 1839, 
 M. 11. 
 
 (k) Noad V. Packhouse, 2 Y. & 
 C. Ch. Ca. 529; Smith v. Smith, 10 
 Hare, App. Ixxi. 
 
CH. XXIX. S. 5.] EECEIVEESHIP. ^''1 
 
 SO taking the administration out of the hands of the trustees, 
 the natural curators of the estate, upon very slight grounds (a). 
 Thus it is no sufficient cause for a receiver that one of several 
 trustees has disclaimed (b), or is inactive, or gone abroad (c). 
 Nor is it a sufficient cause that trustees are in mean (not insol- 
 vent) circumstances {d), or being trustees for sale have let the 
 purchaser into possession before they have received the 
 purchase money, for the Court will not necessarily infer this to 
 be misconduct (e). 
 
 When a receiver is appointed under the authority of the Receiver not dis- 
 
 /-,.,. •i/'ni n !• ft • ■ 1 "liarged at the 
 
 Court, he is appointed tor the benefit ot all parties interested, mere instance of 
 and therefore will not be discharged merely on the application ourinrMs^'ap- 
 of the party at whose instance the order was made (/). pointment. 
 
 However, when a receiver had been appointed on the appli- Special case. 
 cation of the plaintiff, the tenant for life, on the ground of the 
 misconduct of one of the trustees and the incapacity of the 
 other, and afterwards three new trustees were appointed by 
 the Court, who, on a motion by the plaintiff to discharge the 
 receiver, undertook to receive the rents and pass their accounts 
 half-yearly before the Master, in the same way as a receiver, 
 the Court said it was not proposed to deprive one party of the 
 protection of the receiver, but merely to substitute the trustees 
 in his place ; that the tenant for life ought not unnecessarily 
 to be charged wrbh the costs of a receiver ; that it was not 
 intended to put the owner in possession ; that if any objections 
 were shown to the trustees the application would be refused, 
 but in the absence of such objections it was a reasonable 
 request, and the order for discharging the receiver was 
 made (g). 
 
 (a) See Middleton v. Dodswe.ll, thornthwaite v. Mussell, 2 Atk, 126. 
 
 13 Ves. 268 ; Barkley v. Lord Reay, In Havers v. Havers, Barn. 23, the 
 
 2 Hare, 306. Court considered misapplication pro- 
 
 (6) Srowell v. Reid, 1 Hare, 434; table, 
 
 but see Tait v. Jenkins, 1 T. & C. (e) BroweUy. Reid, 1 Hare, 434. 
 
 Ch. Ca. 492. (/) Bainhrigge v. Blair, 3 Beav. 
 
 (c) Brotoell v. Beid, 1 Hare, 435, 423, per Lord Langdale. 
 
 per Sir J. Wigram. [g) Bainhrigge v. Blair, 3 Beav. 
 
 [d) Anon. 12 Ves. 4 ; Howard y. 421, 423, 424; and see Poole v. 
 Papera, 6 Mad. 142 ; and see Ha- Frcinhs, 1 Moll. 80. 
 
872 
 
 SECTION VI. 
 
 OP COSTS OP SUIT. 
 
 Costs as between j_ ^g between Strangers on the one hand, and trustees and 
 
 trustees and ° 
 
 strangers. cestvAs que trust on the other. 
 
 In these cases, the trustee is on no better footing than 
 any ordinary plaintiff or defendant, for the circumstances of 
 the trust cannot be allowed to affect the interest of a third 
 person (a). 
 
 Costs where Thus on a bill by a stranger for specific performance of a 
 
 trustees cannot 
 
 make a title. contract, the vendor or trustee for sale must, if he cannot 
 make a title, pay the costs of the suit agreeably to the general 
 rule (6). 
 
 Trnstee made a g^ where trustees or executors are brought before the Court 
 
 detendaut as a ° 
 
 necessary party, as necessary parties by a stranger, if the trustees or executors 
 contest the claims of the plaintiff, and the plaintiff recover 
 in the suit, they are not entitled to their costs ; but if they 
 submit the point to the Court, they will be decreed their 
 costs (c). 
 
 Plaintiff failing jf a plaintiff fail in his suit, but stands in so hard a case 
 
 in nis suit not 
 
 necessarily bound that he ought not to pay any costs, the Court will not oblige 
 
 a°trust^.^ ^ ° ^^^ to PEi-y the costs of a defendant because he happens to 
 
 sustain the character of trustee (d). In a ^ill of foreclosure 
 
 against the mortgagor and his trustee to bar dower, the trustee 
 
 is not entitled to his costs as against the mortgagor (e). 
 
 Trustee has costs Where the bill of a stranger is dismissed with costs, a 
 
 as between party ° 
 
 and party only, trustee, who is a defendant, will not, as is usual between 
 trustee and cestui que trust, be ordered his costs as between 
 attorney and client, but only as between party and party (/). 
 
 Costs in oredi- jf g, creditor file a bill against an executor for payment of a 
 
 tor s suit. ° . -^ "^ 
 
 debt, the rule which prevails at law is not also the rule of 
 equity, viz., that if the creditor recover he shall be entitled to 
 
 [a) Burgess \. Wheats, 1 Ed. 251, {d) Brodie v. St. Paul, lb. 326, 
 
 per Lord WortHngton. see 334. 
 
 (i) IJdwards v.Sarmy, Coop. 4cO; (e) Horrochs v. Ledsam, 2 Coll. 
 
 and see Hill v. Magan, 2 Moll. 460. 208. 
 
 (c) Rasliley v. Masters, 1 Vea. (/) Mohun v. Mohtm, 1 Sw. 201. 
 jun. 201, see 205. 
 
OH. XXIX. S. 6.] COSTS OF TRUSTEES. 873 
 
 his costs de.bonis testatoris, and if there be none, then de bonis 
 propriis of the executor ; for the consideration of costs in 
 equity rests entirely in the discretion of the Court {a). 
 
 As the law formerly stood, if the assets were not sufficient Executor (though 
 
 not so formerly) 
 
 to cover both the debt and the costs, the executor was not now held entitled 
 decreed to pay costs (6), unless he had misconducted himself, as preference to the 
 by having satisfied simple contract debts in preference to debts P'™*''*'- 
 upon specialty (c). But he was not entitled to retain his own 
 costs out of the assets in preference to the claims of the plain- 
 tiff {(T). And if a bill had been filed by a specialty creditor, and 
 the specialty debt had exhausted the personal assets, the ex- 
 ecutor could not have claimed to be reimbursed out of the real 
 estate to the prejudice of the testator's heir (e) : for the executor, 
 it was said, should have considered the risk before he applied 
 for the probate (/). But now the practice is that the executor 
 shall have his own costs in the first place, even as against the 
 plaintiff, for the Court will not take the fund out of his hands 
 until his costs are paid (g). „ 
 
 II. Of costs as between trustees and cestuis que trust, inter se. Trustee entitled 
 The general rule is that a trustee shall have his costs of suit general ^e. 
 awarded him at the hearing either out of the trust estate, or to 
 be paid by his cestui que trust {h). And if there be a fund 
 under the control of the Court (but in general not other- 
 
 (a) Twisleton v. Thelwel, Hard. 119; Humphrey v. Morse, 2 Atk. 
 
 165; Uvedale v. Uhedale, 3 Atk. 408. 
 
 119; h\i.t see Davy v. Sei/s,M.os. 204. [g) Bennet v. Going, 1 Moll. 529 ; 
 
 (6) Twisleton v. Thelwel, ubi su- Tipping v. Power, 1 Hare, 405 ; 
 
 pra : Morony v. Vincent, 2 Moll. Ottley v. Qilby, 8 Beav. 603 ; Tan- 
 
 461. ner v. Baneey, 9 Beav. 339. 
 
 (e) Jefferies v. Harrison, 1 Atk. (A) 1 Eq. Ca. Ab. 125, note (a) ; 
 
 468; 2i^A. see Bennett Y. Atthins, 1 Hall y. Hallet, 1 Cox, 141, per 
 
 Y. & C. 247; Wilkins v. Hunt, HjoidiThxaloYi; Attorney-General y. 
 
 2 Atk. 151. City of London, 3 B. C. C. 171; 
 
 {d) Humphrey v. Morse, 2 Atk. Norris v. Norris, 1 Cox, 183 ; 
 
 408 ; Sandys v. Watson:, 2 Atk. 80 ; Sammes v. Hickman, 2 Ves. jun. 
 
 and see Adair v. Shaw, 1 Sch. & 38, per Lord Chief Baron Eyre ; 
 
 Lef. 280. Rashley v. Masters, 1 Ves. jun. 201; 
 
 (e) Uvedale v. Uvedale, 3 Atk. Roche v. Hart, 11 Ves. 58; Ma- 
 
 119 ; and see If^ash v. Billon, 1 plett v. Pocock, Eep. t. Finch, 136. 
 
 Moll. 237. Landen v. Green, Barn. 389 ; Tay- 
 
 (/) See Uvedale v. Uvedale, 3 Atk. lor v. Glanville, 3 Mad. 176, &e. 
 
874 
 
 COSTS OF TRUSTEES. 
 
 [CH. XXIX. S. 6. 
 
 Trustee not 
 appearing. 
 
 Decree passed. 
 
 Disclaimer, 
 
 wise (a)), he will have his costs as between solicitor and 
 client (6). If it appear upon the pleadings or the Court be 
 otherwise satisfied that the trustee has sustained charges and 
 expenses beyond the costs of suit, the Court will at the same 
 time order him his costs, charges, and expenses properly 
 incurred. If the trustee be a solicitor, the Court will not 
 declare that the trustee shall have his costs out of pocket only, 
 but wiU give him his costs as between solicitor and client in 
 the usual way, and leave it to the taxing officer to deal with the 
 effect of the order (c). 
 
 Even where the trustee did not appear at the hearing, and a 
 decree nisi was made against him, and the trustee set down 
 the cause again, and prayed to have his costs of the suit upon 
 his paying the costs of the day, Lord Kenyon said, " The 
 payment of the costs of the day makes the trustee rectum 
 in curia; and as. he would most unquestionably have been 
 entitled to his costs if he had appeared at the original hearing, 
 so he now stands in the same situation, and is therefore 
 entitled to his costs." (d) 
 
 But if the decree has been passed, a trustee who has 
 omitted to ask for his costs at the hearing cannot have 
 the cause re-heard upon the subject of costs only, and cannot 
 obtain an order for payment of his costs upon presenting a 
 petition (e). 
 
 If a person named as trustee be made defendant to a suit, 
 and by his answer disclaim the trust, the bill will be dismissed 
 as against him with costs (/) ; but hot with costs as between sdlicitor 
 and client ; for, having refused to accept the office, he stands 
 in the light of any ordinary defendant {g) ; and if his answer 
 be unnecessarily long, he will only be allowed the reasonable 
 costs of a disclaimer (h). 
 
 (a) Edenhorough v. Archbishop of 
 Canterbury, 2 Euss. 112; but see 
 Attorney -General v. Cuming, 2 Y. 
 & C. Ch. Ca. 155. 
 
 (6) Mohun V. Mohun, 1 Sw. 201, 
 per Sir T. Plumer ; Moore v. Frowd, 
 3 M. & C. 49, per Lord Cottenham. 
 
 (c) York V. Brown, 1 Coll. 260. 
 
 (d) JVorris v. Norris, 1 Cox, 183. 
 
 (e) Colman v. Sarell, 2 Cox, 206. 
 (/) Sickson v. Fitzgerald, 1 Moll. 
 
 14. 
 
 (g) Norway v. Norway, 2 M. & 
 K. 278, OYeviuling SherrattY.Sent- 
 ley, 1 R. & M. 655. 
 
 (/j) Martin v. Persse, 1 Moll. 146. 
 
CH. XXIX. S. 6.] , COSTS OF TRUSTEES. 875 
 
 If a person be a trustee of a deed void as against creditors, 
 or on other grounds, he is entitled to his costs if the plaintiff 
 by praying a conveyance by the trustee elect to treat him in 
 that character (a). But if the deed contain a false recital, 
 for the purpose of misleading bond fide creditors, the trustee, 
 on a bill to set it aside, will not have his costs (6). 
 
 2. If any particular instance of misconduct, or a general Suit originated 
 
 ,,..»,. . .by tbe trustees 
 
 dereliction of duty m the trustee (c), or even his mere caprice misconduct. 
 and obstinacy (d), be the immediate cause why the suit was 
 instituted, the trustee, on the charge being substantiated 
 against him, must pay the costs of the proceedings his own 
 improper behaviour has occasioned. And where two executors 
 had kept large balances in their hands for a great length of 
 time, and one of them had become insolvent, the Court decreed 
 eaeh of them to be liable for the costs of the whole suit (e). 
 
 But where a bill was filed charging the trustee with a where miscon- 
 breach of trust both as to realty and personalty, and the charge ia^paj.^™™'' "" ^ 
 failed as to the former but succeeded as to the latter, the 
 Court said, it was scarcely possible to suppose that the trustee 
 should be permitted to have his costs, but it would be in- 
 justice to make him pay the whole costs, as one part of the bill 
 had failed (/). 
 
 (a) Snow V. Sole, Y. C. of Eng- v. Stacpoole, 4 Dow. 209 ; Crackelt 
 
 land, Maroli 8, 1845. v. Bethime, 1 J. & "W. 586 ; Baher 
 
 {h) Turquand v. Knight, 14 Sim. v. Carter, 1 Y. & C. 252, per Lord 
 
 643. Abinger, C. B. ; Side v. Haywood, 
 
 (tf) Attorney- General v. Sohert, 2 Atk. 120; Wilson v. Wilson, 2 
 
 Eepr t. Finch, 259; Ewrl Powlet Keen, 249; Attorney-Oeneral v. 
 
 V. Serbert, 1 Ves. jufl. 297 ; Oaf- Wilson,, 1 Or. & PkU. 1 ; I^se v. 
 
 frey v. Darby, 6 Ves. 488; Little- Kingdon, 1 Coll. 184. 
 
 hales V. Gascoyne, 3 B. C. C. 73; {d) Taylor v. Glannlle, 3 Mad. 
 
 AshburnhamY. Thompson, 13 Ves. 178, per Sir J. Leach j Jones v. 
 
 402 ; Hide v. Saywood, 2 Atk.. Lewis, 1 Cox, 199 ; IJarl of Sear- 
 
 126; Adams v. Clifton, 1 Russ. borough y. Parker, I Y^s.^nn. 2&T ; 
 
 297; MosleyY. Ward, 11 Ves. 581; Kirby v. Mash, 3 Y. & C. 295; 
 
 Piety Y. Stace, 4 Ves. 620 ; Seers Thorby v. Yeats, 1 Y. & C. Ch. Ca. 
 
 V. Hind, 1 Ves. jnn. 294 ; Fell v. 438 ; Hampshire v. Bradley, 2 ColL 
 
 Lutwidge, Barn. 319, see 322; 34; Pe»/oW v. JBomcA, 4 Hare, 271; 
 
 Brown v. How, Barn. 354, see 358 ; and see Burrows v. Greenwood, 4 
 
 Sheppard v. Smith, 2 B. P. C. 372 ; Y. & C. 251. 
 
 Haberdashers' Company v. Attorney- (e) Littlehales v. Gascoyne, 3 B. 
 
 General, 2 B. P. C. 370 ; Franklin C. C. 73. 
 
 V. Frith, 3 B. C. C. 433 ; Whistler (/) Poeock v. Beddington, 5 Ves. 
 
 v. Newman, 4 Ves. 129 ; Stacpoole 800. 
 
876 
 
 COSTS OP TRUSTEES. 
 
 [CH. XXIX. S. 6. 
 
 Setting aside a 
 purchase by 
 trustees, and 
 absence of fraud. 
 
 Mistake or slight 
 neglect of the 
 trustee. 
 
 Administration 
 suit mainly 
 caused by a 
 breach of trust. 
 
 Misconduct of 
 the trustee dis- 
 covered in the 
 progress of the 
 suit. 
 
 Costs of dis- 
 cussing a 
 doubtful point 
 of law. 
 
 Trustees for sale had purchased in the name of a trustee at 
 an undervalue, but without any imputation of fraud, and by 
 auction. As to so much of the suit as related to calling upon 
 the trustees to submit to a resale, and the directions conse- 
 quential thereon, the Court gave relief against the trustees 
 with costs ; but as to the accounts that must have been taken 
 had the sale been unimpeachable, the trustees were allowed 
 their costs (a). 
 
 If the suit was occasioned by the mistake, or some slight 
 neglect of the trustee, the Court will content itself with not 
 giving him costs (6), or will punish him with payment of part 
 of the costs only (c), or will even give him his costs (d). 
 
 And where a suit was mainly occasioned by the breach of 
 trust of a trustee, though he was decreed to pay the costs up to 
 the hearing, yet he was held entitled to his subsequent costs 
 relating to the ordinary taking of the accounts (e). 
 
 3. If the bill filed did not originate from any necessity of 
 inquiring into the conduct of the trustee, but in the course of 
 the proceedings instituted upon other grounds, it appears the 
 trustee has in some particular instance been guilty of a breach 
 of trust, the Court will not award against the trustee the costs 
 of the whole cause, but only of so much of it as connects itself 
 with his misconduct, and as to the rest of the suit will allow 
 him his costs (/). 
 
 An executor, instead of accumulating a fund as directed by 
 the will, had improperly kept the balance in his hands ; but, as 
 the amount of costs had in great measure been occasioned by 
 the inquiry what rule the Court ought to adopt with respect to 
 
 (o) Sanderson v. Walker, 13 Ves. 
 601. 
 
 (b) 0' Callagan v. Cooper, 5 Tes. 
 117; Mousley Y. Carr, 4 Beav. 49; 
 Attorney-Oeneral Y. Drapers' Com- 
 pany, lb. 71 ; Devey v. Thornton, 9 
 Hare, 222. 
 
 (c) East V. Ryal, 2 P. W. 284. 
 {d) Taylor v. Tahrum, 6 Sim. 
 
 281 ; Flanagan v. Nolan, 1 Moll. 
 84 ; Travers t. Townsend, lb. 496 ; 
 Attorney-General v. Caius College, 
 
 2 Keen, 150 ; Bennett v. Attkins, 
 1 T. & C. 247 ; Fitzgerald v. 0' Fla- 
 herty, 1 Moll. 347; Attorney- Gene- 
 ral v. Drummond, 2 Conn. & Laws. 
 98 ; Royds v. JRoyds, 14 Beav. 54. 
 
 (e) Hewett v. Foster, 7 Beav. 348. 
 
 (/) Tehbs V. Carpenter, 1 Mad. 
 290, see 308 ; Newton v, Bennet, 1 
 B. C. C. 359; Pride v. Fooks, 2 
 Beav. 430 ; Heighington v. Grant, 
 1 PhUl. 600. 
 
CH. XXIX. S. 6.] COSTS OF TRUSTEES. 877 
 
 the computation of interest, it was thought hard under the 
 
 circumstances to fix the executor with payment of costs even 
 
 relatively to the breach of trust ; and therefore the Court gave 
 
 no costs (a). 
 
 As to One part of the suit, the trustee ought from his mis- Costs to be paid 
 
 conduct to have paid the costs, and, as to another, to have reoeWed in part 
 
 been allowed his costs; and the Court by a kind of com- ^y t^ie trustee. 
 
 promise, left each party to pay his own costs (&). 
 
 Where the breach of trust is trivial, the Court may overlook Trivial mis- 
 conduct, 
 it altogether, and give the trustee his whole costs (c). 
 
 4. If a trustee have a private interest of his own separate Trustee insti- 
 
 ... 11. -ITT • tutiug a suit for 
 
 and independent trom the trust, and oblige the cestui que trust tis private ends. 
 
 to come into a Court of equity merely to have some point 
 
 relating to the trustee's private interest determined at the 
 
 expense of the trust, that is such a vexatious proceeding in 
 
 the trustee, that, for example's sake, he will be decreed to pay 
 
 the costs of the whole suit(i). 
 
 5. If on a bill for an account the defendant says in his Trustee falsely 
 answer he believes the plaintiff is considerably indebted to plaintiff's 
 him, and after a long investigation it proves the defendant is '''*™^- 
 considerably indebted to the plaintiff, the trustee, thus daring 
 
 the plaintiff to his account, will be decreed to pay the costs (e). 
 And if the balance be in favour of the trustee, but far below 
 what he had stated in his answer, he will not be entitled to 
 have his costs (/), or at least not the costs of the account 
 itself (c/). 
 
 A trustee will be fixed with costs if he wilfully misstate the Trustee mis- 
 accounts {h), or if, by any chicanery in his answer, he keep the accounts. 
 cestui que trust from a true knowledge of the accounts (i), or 
 even if he have kept the accounts in a very confused 
 
 (o) Maphael v. Boehm, 13 Ves. (e) Parrot v. Trehy, Pr. Ch. 254. 
 
 592. (/) Attorney- Oeneral v. Brewers' 
 
 (b) Newton v. Bennet, 1 B. C. C. Company, 1 P. W. 376. 
 
 362. (g) Fozier v. Andrews, 2 Jones & 
 
 (c) Fitzgerald v. Pringle, 2 Moll. Lat. 199. 
 
 634 ; Bailey v. Gould, 4 Y. & C. (A) 8heppard v. Smith, 2 B. P. C. 
 
 221, see 225; Knott v. Cottee, 16 372; anA. see Flanagan \ . Nolan, 1 
 
 Beav. 77 ; Cotton v. Clarh, 16 Beav. Moll. 86. 
 
 134_ (j) Avery v. Osborne, Barn. 349 ; 
 
 (d) Henley v. Philips, 2 Atk. 48. Reech v. Kennegal, 1 Ves. 123. 
 
R78 
 
 COSTS OP TRUSTEES. 
 
 [CH. XXIX. S. (5. 
 
 Corporatiou 
 pleading igno- 
 rance falsely. 
 
 Corporation 
 suppressing 
 documents. 
 
 Trustee setting 
 up title of his 
 
 Executor deny- 
 ing relationship 
 of next of kin. 
 
 Costs where in- 
 terest given 
 against execu- 
 tors. 
 
 manner (a). And an executor will be liable to pay costs if he 
 deny assets, and tbe contrary be established against him (h). 
 
 Where a corporation filling the character of trustees for a 
 grammar school by their answer pleaded ignorance of the claims 
 of the charity, and the information was afterwards elicited 
 from the documents scheduled to their answer, as the Court 
 inferred from such conduct a disposition to obstruct and defeat 
 the ends of justice, the corporation was decreed to pay the 
 costs of the suit (c). 
 
 And a corporation similarly circumstanced was punished in 
 the same manner where, the Court having directed the pro- 
 duction of certain documents, it was afterwards discovered 
 that a very material one had been suppressed (d). 
 
 6. The costs of the suit will be cast upon the trustee, if, in his 
 answer, he set up a title of his own, and make an ill defence (e) ; 
 and he will nt)t be allowed to have his costs if he set up any 
 trust different from what it actually is (/). 
 
 An executor sued by the next of kin had put the plaintiffs to 
 the proof of their relationship, and, the fact not admitting 
 a doubt, the executor was fixed with the costs of the 
 inquiry (gf). 
 
 7. It was laid down as a rule by Lord Thurlow, that " where 
 he was obliged to give interest against executors as a remedy 
 for a breach of trust, costs against them must follow of 
 course ; " Qi) but Sir W. Grant said, " that was a proposition 
 to which he was not quite prepared to accede, as there might 
 be many cases in which executors must pay interest, which 
 would not be cases for costs ;" (i) and the existence of any 
 
 (a) Norhury v. Calheck, 2 Moll. 
 461. 
 
 (6) Sandys v. Watson, 2 Atk. 80. 
 
 (c) Attorney - General v. East 
 Retford, 2 M. & K. 35. 
 
 {d) Borough of Hertford v. Foor 
 of same Borough, 2 B. P. C. 377. 
 
 (e) Loyd v. Spillet, 3 P. W. 344 ; 
 Bayly v. Powell, Pr. Ch. 92 ; Willis 
 V. Hiscox, 4 M. & C, 197 ; Attorney- 
 General V. Drapers^ Company, 4 
 Beav. 67 ; Attorney - General v. 
 
 Chrisfs Hospital, lb. 73 ; Irwin v. 
 Sogers, 12. Ir. Eq. Rep. 159. 
 
 (/) Ball V. Montgomery, 2 Ves. 
 jun. 191, see 199. 
 
 {g) Loicson v. Copeland, 2 B. C. C. 
 156. 
 
 (A) Seers v. Hind, 1 Ves. jun. 
 294 ; and see Franhlin v. Frith, 3 
 B. C. 0. 433; Mosleyy. Ward, 11 
 Ves. 581. 
 
 (i) Ashhurnham v. Thompson, 13 
 Ves. 404. 
 
CH. XXIX. S. 6.] COSTS OF TRUSTEES. 
 
 such rule has since been denied (a) ; and where the trustee has 
 not misconducted himself, but on a cestui que trust's bill against 
 him for an account has been decreed to pay costs, he has been 
 allowed his general costs of suit, excluding the costs incurred 
 in taking the account in which the trustee failed (fc). The 
 meaning of Lord Thurlow probably was, that where the suit 
 was occasioned by the misconduct of the trustee, and the 
 charge against him was shown to be well founded by the 
 Court's fixiug him with interest, the costs of the suit in that 
 case would be consequential upon the relief (c). 
 
 [a] Tehbs v. Carpenter, 1 Mad. (6) Fozier v, Andrews, 2 Jones & 
 
 308; Woodhead v. Marriott, C. P. Lat. 199. 
 
 Cooper's Rep. 1837-38, 62; Hoi- (c) Ben Mosley v. Ward, 11 Yea. 
 
 gate v. Hatvorth, 17 Beav. 259. 582. 
 
 879 
 
TRUSTEE ACT, 1850. 
 
 13° & 14° VicToEi^, Cap. 60. 
 
 An Act to consolidate and amend the Laws relating to the Conveyance 
 and Transfer of Real and Personal Property vested in Mortgagees 
 and Trustees. SthAugmt, 1850. 
 
 11 Gr. 4, & 1 W. Whereas an Act was passed in the first year of the reign of His 
 
 c. 
 
 late Majesty King William the Fourth, intituled " An Act for amend- 
 ing the Laws respecting Conveyances and Transfers of Estates and 
 Fimds vested in Trustees and Mortgagees, and for enabling Courts 
 of Equity to give effect to their Decrees and Orders in certain cases ;" 
 And whereas an Act was passed in the fifth year of the reign of His 
 
 4&5W. 4. c. late Majesty King William the Fourth, intituled "An Act for the 
 Amendment of the Law relative to the Escheat and Forfeiture of Iteal 
 and Personal Property holden in trust :" And whereas an Act was passed 
 in the second year of the reign of Her present Majesty, intituled "An 
 
 1 & 2 Vict. 0. 69. Act to remove Doubts respecting Conveyances of Estates vested in 
 Heirs and Devisees of Mortgagees :" And whereas it is expedient that 
 the provisions of the said Acts should be consolidated and enlarged : 
 Be it therefore enacted by the Queen's most excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, that all proceedings under the said Acts or any 
 of them commenced before the passing of this 'Act may be proceeded 
 with under the said recited Acts, or according to the provisions of 
 this Act, as shall be thought expedient, and, subject as aforesaid, that 
 the said recited Acts shall be and the same are hereby repealed : 
 PROVIDED ALWAYS, that the several Acts repealed by the said 
 recited Acts shall not be revived, and that such repeal shall only be 
 on and after this Act coming into operation. 
 
THE TRUSTEE ACT, 1850. 881 
 
 II. And whereas it is expedient to define the meaning in which Interpretation ol 
 
 terms. 
 certain words are hereafter used : It is declared that the several 
 
 words hereinafter named are herein used and applied in the manner 
 
 following respectively; (that. is to say,) 
 
 The word " lands " shall extend to and include manors, messuages, 
 tenements, and hereditaments, corporeal and incorporeal, of 
 every tenure or description, whatever may be the estate or in- 
 terest therein : 
 
 The word " stock " shall mean any fund, annuity, or security 
 transferable in books kept by any company or society estab- 
 lished or to be established, or transferable by deed alone, or by 
 deed accompanied by other formalities, and any share or interest 
 therein (a) : 
 
 The word " seised " shall be applicable to any vested estate for 
 life or of a greater description, and shall extend to estates at law 
 and in equity (6), in possession or in futurity, in any lands : 
 
 The word " possessed " shall be applicable to any vested estate less 
 than a life estate, at law or in equity, in possession or in expec- 
 tancy, in any lands : 
 
 The words "contingent right," as applied to lands, shall mean a 
 contingent or executory interest, a possibility coupled with an 
 interest, whether the object of the gift or hmitation of such 
 interest or possibility be or be not ascertained, also a right of 
 entry, whether immediate or future, and whether vested or 
 contingent : 
 
 The words " convey " and " conveyance," applied to any person, 
 shall mean the execution by such person of every necessary or 
 suitable assurance for conveying or disposing to another lands 
 whereof such person is seised or entitled to a contingent right, 
 either for the whole estate of the person conveying or disposing, 
 or for any less estate, together with the performance of all for- 
 malities required by law to the validity of such conveyance, in- 
 cluding the Acts to be performed by married women and tenants 
 in tail in accordance with the provisions of an Act passed in 
 the fourth year of the reign of His late Majesty King William 
 the Fourth, intituled An Act for the Abolition of Fines and 3 & 4 W. 4, c. 
 
 (a) See Re Angela, 5 De Gex & Sm. equities of the parties are bound by the 
 278. order for sale ; Re Williams's Estate, 
 
 (b) In suits where all parties bene- 5 De Gfex & Sm. 515. And see the 
 iicially interested are before the Court, analogous case under the prior Act, 
 it is sufficient for the purchaser to take a Ooddard v. Macaulay, 6 Ir. Eq. Rep. 
 conveyance of the legal estate, for the 221. 
 
 3 L 
 
882 THE TRUSTEE ACT, 1850. 
 
 Recoveries, and the substitution of more simple modes of Assur- 
 ance (a), and including also surrenders and other acts which a 
 tenant of customary or copyhold lands can himself perform pre- 
 paratory to or in aid of a complete assurance of such customary 
 or copyhold lands (h) : 
 
 The words " assign " and '' assignment " shall mean the execution 
 and performance by a person of every necessary or suitable deed 
 or act for assigning, surrendering, or otherwise transferring lands 
 of which such person is possessed, either for the whole estate of 
 the person so possessed or for any less estate : 
 
 The word " transfer " shall mean the execution and performance of 
 every deed and act by which a person entitled to stock can trans- 
 fer such stock from himself to another : 
 
 The words " Lord Chancellor " shall mean as well the Lord Chan- 
 cellor of Oreat Britain as any Lord Keeper or Lords Commis- 
 sioners of the Great Seal for the time being : 
 
 The words " Lord Chancellor of Ireland " shall mean as well the 
 Lord Chancellor of Ireland as any Keeper or Lords Commis- 
 sioners of the Great Seal of Ireland for the time being : 
 
 The word " trust " shall not mean the duties incident to an estate 
 conveyed by way of mortgage (c) ; but, with this exception 
 the words " trust " and " trustee " shall extend to and include 
 implied and constructive trusts (c?), and shall extend to and 
 include cases where the trustee has some beneficial interest or 
 estate in the subject of the trust, and shall extend to and include 
 the duties incident to the office of personal representative of 
 a deceased person : 
 
 The word "lunatic" shall mean any person who shall have been 
 found to be a lunatic upon a commission of inquiry in the nature 
 of a writ de lunatico inqairendo : 
 
 The expression " person of unsotmd mind" shall mean any person 
 not an infant, who, not having been found to be a lunatic, shall 
 
 (ffl) See Powell v. Matthews, 1 Jur. least where tlie alleged trustee may pos- 
 
 N. S. 973. sibly dispute the trust, the constructive 
 
 (5) See Rowley v. Adams, U BeaT. trust must first have been declared by 
 
 130. the decree of the Court ; so that the 
 
 (c) As to the question upon the 1 W. 4, infant heir of a vendor who has died in- 
 c. 60, whether the word "«r»s*" included testate having contracted to sell real 
 a "mortgage," see note (c), p. 836, estate in his life time, is not a construo- 
 suprd,. tive trustee for the purchaser unless so 
 
 (d) A vendor, after a contract, has declared by decree. Be Carpenter, 1 
 been held to be a trustee of shares in a Kay, 418 ; Re Burt, 9 Hare, 289. Se 
 joint-stock bank for the purchaser ; Re Wise, 5 De Gex & Sm. 415, is distin- 
 Angelo, 5 De Gex & Sm. 278. But in guishable ; and see Properfs Pwchase, 
 cases of real estate, if not generally, at 22 L. J. Ch. 948. 
 
THE TRUSTEE ACT, 1850. 883 
 
 be incapable from infirmity of mind (as) to manage his own 
 affairs : 
 
 The word "devisee" shall, in addition to its ordinary signification, 
 mean the heir of a devisee and the devisee of an heir, and generally 
 any person claiming an interest in the lands of a deceased person, 
 not as heir of such deceased person, but by a title dependent 
 solely upon the operation of the laws concerning devise and 
 descent : 
 
 The word " mortgage " shall be applicable to every estate, interest, 
 or property in lands or personal estate which would in a court of 
 equity be deemed merely a security for money : 
 
 The word " person " used and referred to in the masculine gender 
 shall include a female as well as a male, and shall include a body 
 corporate : 
 
 And generally, unless the contrary shall appear from the context, 
 every word importing the singular number only shall extend to 
 several persons or things, and every word importing the plural 
 number shall apply to one person or thing, and every word 
 importing the masculine gender only shall extend to a female. 
 
 III. And be it enacted, that when any lunatic or person of unsound Lord Chancellor 
 mind shall be seised or possessed of any lands upon any trust or by estates of lunatic 
 
 way of mortgage, it shall be lawful for the Lord Chancellor (b), trustees and 
 J ^ ^ ' W) mortgagees ; 
 
 intrusted by virtue of the Queen's sign manual with the care of the 
 
 persons and estates of lunatics, to make an order that such lands be 
 vested in such person or persons in such manner and for such estate 
 as he shall direct ; and the order shall have the same effect as if the 
 trustee or mortgagee had been sane, and had duly executed a convey- 
 ance or assignment of the lands in the same manner for the same 
 estate (c). 
 
 (a) See cases under the 1 W. 4, c. 60, a trustee, the trust estate or the cestui 
 lie Wakeford, 1 Jones & Lat. 2 ; Be que trust must bear the costs of the pro- 
 Zones, 6 Jur. 545; He WalTcer, 1 Or. & ceedings under the Act. Ifhe tea mort- 
 Ph. 147. S'ajree, the costs will, as a general rule 
 
 (6) It was doubted whether the Lords (though this result is contrary to prin- 
 
 Justices, though they are in fact intrusted oiple), come out of the lunatic's estate, 
 
 under the Queen's sign manual with the Re Wheeler, 1 De Gex, Mac. & Gor. 436. 
 
 care &c. of lunatics, had power to exer- But where, on the face of the mortgage 
 
 cise the jurisdiction given by the Act to deed, the lunatic mortgagee is a trustee 
 
 the Lord Chancellor intrusted &c. Re for a third party, the costs must fall on 
 
 Waugk's Trust, 2 De Gex, Mac. & Gor. the mortgagor. Re Lewes, 1 Mac. & Gor. 
 
 279 ; Re Pattinson, 21 Law J. Ch. 280. 23. Secus, if the mortgagor have no 
 
 See now the 15 & 16 Tiot. c. 87, s. 15, notice of the fact that the lunatic is a 
 
 removing the doubt, and the 11th section trustee. Re Townsend, 1 Mao. & Gor. 
 
 of the Extension Act. 686. And see under 1 W. 4, c. 60, Re 
 
 (c) Under this section (and it is con- Townsend, 2 Phil. 348, and cases there 
 
 ceived that the same principle applies to cited, 
 the 4th & 6th sections), if the lunatic be 
 
 3 L 2 
 
884 
 
 THE TEUSTEK ACT, 1850. 
 
 may convey con- 
 tingent rights. 
 
 Lord Chancellor 
 may transfer 
 stock of lunatic 
 trustees and 
 mortgagees. 
 
 Power to transfer 
 stock of deceased 
 person. 
 
 Court of Chan- 
 cery may convey 
 estates of infant 
 trustees and 
 mortgagees. 
 
 IV. And be it enacted, that when any lunatic or person of unsound 
 mind shall be entitled to any contingent right in any lands upon any 
 trust or by way of mortgage, it shall be lawful for the Lord Chancellor, 
 intrusted as aforesaid, to make an order wholly releasing such lands 
 from such contingent right, or disposing of the same to such person or 
 persons as the said Lord Chancellor shall direct ; and the order shall 
 have the same eifect as if the trustee or mortgagee had been sane, 
 and had duly executed a deed so releasing or disposing of the con- 
 tingent right. 
 
 V. And be it enacted, that when any lunatic or person of unsoimd 
 mind shall be solely entitled to any stock or to any chose in action 
 upon any trust or by way of mortgage, it shaU be lawful for the Lord 
 Chancellor, intrusted as aforesaid, to make an order vesting in any 
 person or persons the right to transfer such stock, or to receive the 
 dividends or income thereof, or to sue for and recover such chose in 
 action, or any interest in respect thereof; and when any person or 
 persons shall be entitled jointly with any lunatic or person of unsound 
 mind to any stock or chose in action upon any trust or by way of 
 mortgage, it shall be lawful for the said Lord Chancellor to make an 
 order vesting the right to transfer such stock, or to receive the 
 dividends or income thereof, or to sue for and recover such chose in 
 action, or any interest in respect thereof, either in such person or 
 persons so jointly entitled as aforesaid, or in such last-mentioned 
 person or persons together with any other person or persons the said 
 Lord Chancellor may appoint. 
 
 VI. And be it enacted, that when any stock shaU. be standing in 
 the name of any deceased person whose personal representative is a 
 lunatic or person of unsound mind, or when any chose in action shall 
 be vested in any lunatic or person of unsound mind as the personal 
 representative of a deceased person, it shall be lawful for the Lord 
 Chancellor, intrusted as aforesaid, to make an order vesting the right 
 to transfer such stock, or to receive the dividends or income thereof, 
 or to sue for and recover such chose in action or any interest in 
 respect thereof, in any person or persons he may appoint. 
 
 VII. And be it enacted, that where any infant shall be seised or 
 possessed of any lands upon any trust or by way of mortgage, it shall 
 be lawful for the Court of Chancery to make an order vesting such 
 lands in such person or persons in such manner and for such estate as 
 the said court shall direct (a) ; and the order shall have the same 
 
 (a) It is now settled, notwithstanding 
 the doubts entertained at first (see Ke 
 
 Soward's Estate, 5 De Gex & Sm. 435), 
 that the Court will make an order, vest- 
 
THE TRUSTEE ACT, 1850. 885 
 
 effect as if the infant trustee or mortgagee had been twenty-one years 
 of age, and had duly executed a conveyance or assignment of the 
 lands in the same manner for the same estate (a). 
 
 VIII. And be it enacted, that where any infant shall be entitled to Contingent rights 
 any contingent right in any lands upon any trust or by way of mort- g^^j mortgagees, 
 gage, it shall be lawful for the Court of Chancery to make an order 
 
 wholly releasing such land from such contingent right, or disposing of 
 the same to such person or persons as the said court shall direct ; and 
 the order shall have the same effect as if the infant had been twenty- 
 one years of age, and had duly executed a deed so releasing or 
 disposing of the contingent right. 
 
 IX. And be it enacted, that when any person solely seised or pos- Court of Chan- 
 sessed of any lands upon any trust (6) shall be out of the jurisdiction the estate of a 
 of the Court of Chancery, or cannot be found, it shall be lawful for trustee out of the 
 
 jurisdiction of 
 
 the said court to make an order vesting such lands in such person or the court, 
 persons in such manner and for such estate as the said court shall 
 direct ; and the order shall have the same effect as if the trustee had 
 duly executed a conveyance or assignment of the lands in the same 
 manner and for the same estate. 
 
 X. And be it enacted, that when any person or persons shall be Court may make 
 seised or possessed of any lands jointly with a person out of the juris- ^tere^neraoifs 
 
 diction of the Court of Chancery, or who cannot be found, it shall be ^^^ seised of 
 
 ^ Tii-i lands jointly with 
 
 lawful for the said court to make an order vesting the lands m the parties out of 
 
 person or persons so jointly seised or possessed, or in such last- J^^^iMi^ioo "i 
 
 mentioned person or persons together with any other person or 
 
 persons, in such manner and for such estate as the said court shall 
 
 direct ; and the order shall have the same effect as if the trustee out 
 
 of the jurisdiction, or who cannot be found, had duly executed a 
 
 conveyance or assignment of the lands in the same manner for the 
 
 same estate (c). 
 
 XI. And be it enacted, that when any person solely entitled to a Contingent rights 
 
 of trustees. 
 
 ing an estate on a purchase to the uses the estate of the infant, irith the consent 
 
 commonly called the uses to har dower ; of the tenant for life, will har the entail 
 
 but will not incorporate a declaration that and remainders over. Powell t. Matthews, 
 
 no woman shall be entitled to dower, this 1 Jur. N. R. 973. Seethe Interpretation 
 
 being no part of the conveyance. The Clause as to the words "Convey," and 
 
 woman, therefore (if married on or be- "Conveyance." 
 
 fore Jan. 1, 1834), would be entitled to (5) An heir who takes the trust estate 
 
 dower. Re Lush's Estate, 5 De Gex & by the disclaimer of the trustees, is a 
 
 Sm. 435 ; Davey v. Miller, 17 Jur. 908. trustee within the section ; Wilks v. 
 
 So an order has been made to vest the Groom, 6 De Gex, M. & Gr. 205. 
 legal estate in the devisees of a mort- (c) As to the doubts entertained respect- 
 
 gagor, subject to a charge created by his ingthe effect of theconoludingwoi'ds of this 
 
 will. Re EUerthorpe, 18 Jur. 669. section and their solution, see Re Watts' s 
 
 (a) Tenant for life with remainder to Settlement, 9 Hare, 106; Flyer's Trust, 
 
 an infant in tail. A vesting order as to ib. p. 220; Smith-v. Smith, 3 Drewry, 72. 
 
886 THE TRUSTEE ACT, 1850. 
 
 contingent right in any lands upon any trust shall be out of the juris- 
 diction of the Court of Chancery, or cannot be found, it shall be 
 lawful for the said court to make an order wholly releasing such lands 
 from such contingent right, or disposing of the same to such person 
 or persons as the said court shall direct ; and the order shall have the 
 same effect as if the trustee had duly executed a conveyance so 
 releasing or disposing of the contingent right. 
 
 Court may make ■jjjj_ ^^ ^g -^ enacted, that when any person jointly entitled with 
 
 order m cases ' j r j j 
 
 where persons any other person or persons to a contingent right in any lands upon 
 
 with others out ^^7 trust shall be out of the jurisdiction of the Court of Chancery or 
 
 of the junsdic- cannot be found, it shall be lawful for the said oouit to make an order 
 
 tion of the court ' ' 
 
 to a contingent disposing of the contingent right of the person out of the jurisdiction, 
 
 ° ■ or who cannot be found, to the person or persons so jointly entitled as 
 
 aforesaid, or to such last-mentioned person or persons together with 
 
 any other person or persons ; and the order shall have the same effect 
 
 as if the trustee out of the jurisdiction, or who cannot be found, had 
 
 duly executed a conveyance so releasing or disposing of the contingent 
 
 right. 
 
 When it is un- XIII. And be it enacted, that where there shall have been two or 
 
 certain which of 
 
 several trustees more persons jointly seised or possessed of any lands upon any trust, 
 and it shall be uncertain which of such trustees was the survivor, it 
 shall be lawful for the Court of Chancery to make an order vesting 
 such lands in such person or persons in such manner and for such 
 estate as the said court shaU direct ; and the order shall have the 
 same effect as if the survivor of such trustees had duly executed a 
 conveyance or assignment of the lands in the same manner for the 
 same estate. 
 
 XIV. And be it enacted, that where any one or more person or 
 
 the last trustee persons shall have been seised or possessed of any lands upon any 
 
 trust, and it shall not be known, as to the trustee last known to have 
 
 been seised or possessed, whether he be living or dead, it shall be 
 
 lawful for the Court of Chancery to make an order vesting such lands 
 
 in such person or persons in such manner and for such estate as the 
 
 said court shall direct ; and the order shall have the same effect as if 
 
 the last trustee had duly executed a conveyance or assignment of the 
 
 lands in the same manner for the same estate. 
 
 When trustee XV. And be it enacted, that when any person seised of any lands 
 
 dies without an 
 
 heir. upon any trust shall have died intestate as to such lands without an 
 
 heir, or shall have died and it shaE. not be known who is his heir or 
 
 devisee, it shall be lawful for the Court of Chancery to make an order 
 
 vesting such lands in such person or persons in such manner and for 
 
 was the survivor. 
 
 When it is un- 
 certain whether 
 
THE TRUSTEE ACT, 1850. 887 
 
 such estate as the said court shall direct ; and the order shall have 
 the same effect as if the heir or devisee of such trustee had duly 
 executed a conveyance of the lands in the same manner for the same 
 estate. 
 
 XVI. And be it enacted, that when any lands are subject to a Contingent right 
 contingent right in an unborn person or class of unborn persons who trustee. 
 upon coming into existence would in respect thereof become seised or 
 
 possessed of such lands upon any trust, it shall be lawful for the Court 
 of Chancery to make an order which shall wholly release and discharge 
 such lands from such contingent right in such unborn person or class 
 of unborn persons, or to make an order which shall vest in any person 
 or persons the estate or estates which such unborn person or class of 
 unborn persons would upon coming into existence be seised or pos- 
 sessed of in such lands. 
 
 XVII. And be it enacted, that where any person jointly or solely Power to convey 
 seised or possessed of any lands upon any trust shall, after a demand refusing trustee, 
 by a person entitled to require a conveyance or assignment of such 
 
 lands, or a duly authorised agent of such last-mentioned persons, have 
 stated in writing that he will not convey or assign the same, or shall 
 neglect or refuse to convey or assign such lands for the space of 
 twenty-eight days next after a proper deed for conveying or assigning 
 the same shall have been tendered to him by any person entitled to 
 require the same, or by a duly authorised agent of such last-mentioned 
 person, it shall be lawful for the Court of Chancery to make an order 
 vesting such lands in such person or persons in such manner and for 
 such estate as the said coiirt shall direct ; and the order shall have 
 the same effect as if the trustee had duly executed a conveyance or 
 assignment of the lands in the same manner for the same estate (a). 
 
 XVIII. And be it enacted, that where any person jointly or solely Power to convey 
 entitled to^ contingent right in any lands upon any trust shall, after g° titled to con- 
 a demand for a conveyance or release of such contingent right by a tingent right, 
 person entitled to require the same, or a duly authorised agent of 
 
 such last-mentioned person, have stated in writing that he wUl not 
 convey or release such contingent right, or shall neglect or refuse to 
 convey or release such contingent right for the space of twenty-eight 
 days next after a proper deed for conveying or releasing the same 
 shall have been tendered to him by any person entitled to require 
 the same, or by a duly authorised agent of such last-mentioned person, 
 
 (a) This and the following section have pendent on "demand" and on "refusal, 
 been repealed by the Extension Act (see or neglect," substituted, 
 sect. 2), and a simpler enactment de- 
 
888 THE TRUSTEE ACT, 1850. 
 
 it shall be lawful for the Court of Chancery to make an order releasing 
 or disposing of such contingent right in such manner as it shall direct; 
 and the order shall have the same effect as if the trustee so neglecting 
 or refusing had duly executed a conveyance so releasing or disposing 
 of the contingent right. 
 Power to convey XIX. And be it enacted, that when any person to whom any lands 
 morteasee. have been conveyed by way of mortgage shall have died without 
 
 ■ having entered into the possession or into the receipt of the rents and 
 profits thereof, and the money due in respect of such mortgage shall 
 have been paid to a person entitled to receive the same, or such last- 
 mentioned person shall consent to an order for the reconveyance of 
 such lands (a), then in any of the following cases it shall be lawful for 
 the Court of Chancery to make an order vesting such lands in such 
 person or persons in such manner and for such estate as the said court 
 shall direct ; that is to say. 
 
 When an heir or devisee (5) of such mortgagee shall be out of the 
 
 jurisdiction of the Court of Chancery (c), or cannot be found : 
 When an heir or devisee of such mortgagee shall, upon a demand 
 by a person entitled to require a conveyance of such lands or a 
 duly authorised agent of such last-mentioned person, have stated 
 in writing that he will not convey the same, or shaR not convey 
 the same for the space of twenty-eight days next after a proper 
 deed for conveying such lands shall have been tendered to him by 
 a person entitled as aforesaid (d), or a duly authorised agent of 
 such last-mentioned person : 
 When it shall be uncertain which of several devisees of such mort- 
 gagee was the survivor : 
 When it shall be uncertain as to the survivor of several devisees of 
 such mortgagee, or as to the heir of such mortgagee whether he 
 be living or dead : i 
 
 When such mortgagee shall have died intestate as to such lands, 
 and without an heir, or shall have died and it shall not be 
 known who is his heir or devisee : 
 
 (o) The personal representative of a (c) See Hutchinson v. Stephens, 5 Sim. 
 
 mortgagee who has not taken possession 498 ; Ex parte Dover, ib. 600, decided 
 
 may obtain an order vesting the legal on the 1 W. i, c. 60. 
 estate, which has descended to the heir, (d) See note (c), p. 837, for the deci- 
 
 In him, notwithstanding the word "re- sions on the 8th section of the 1 W. 4, 
 
 conveyance " points in strictness to a >;. 60, the words of which are nearly the 
 
 conveyance to the mortgagor. JRe Boden's same. As to the instrument to be ten- 
 
 Trmt, 1 De Qex, Mac. & Gor. 67 ; dered in the case of copyholds, see Rowley 
 
 9 Hare, 820 ; overruling Meyrick's Es- v. Adams, 14 Beav. 130, where the 
 
 tate, 9 Hare, 116. question arose upon the 17th section, 
 
 (5) See the interpretation clause, giving since repealed, 
 an extended meaning to the word 
 "devisee." 
 
THE TRUSTEE ACT, 1850. ^89 
 
 And the order of the said Court of Chancery made in any one of the 
 foregoing cases shall have the same effect as if the heir or devisee or 
 surviving devisee, as the case may be, had duly executed a conveyance 
 or assignment of the lands in the same manner and for the same estate. 
 
 XX. And be it enacted, that in every case where the Lord Power to appoint 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, shall, TOnvey" to certain 
 under the provisions of this act, be enabled to make an order having ''^^^■ 
 the effect'of a conveyance or assignment of any lands, or having the 
 effect of a release or disposition of the contingent right of any person 
 or persons, bom or unborn, it shall also be lawful for the Lord 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, as the 
 case may be, should it be deemed more convenient, to make an order 
 appointing a person to convey or assign such lands, or release or 
 dispose of such contingent right ; and the conveyance or assignment, 
 or release or disposition, of the person so appointed (a), shall, when in 
 conformity with the terms of the order by which he is appointed, have 
 the same effect, in conveying or assigning the lands, or releasing or 
 disposing of the contingent right, as an order of the Lord Chancellor, 
 intrusted as aforesaid, or the Court of Chancery, would in the par- 
 ticular case have had under the provisions of this act ; and in every 
 case where the Lord Chancellor, intrusted as aforesaid, or the Court 
 of Chancery, shall, under the provisions of this act, be enabled to 
 make an order vesting in any person or persons the right to transfer 
 any stock transferable in the books of the Governor and Company of 
 the Bank of England, or of any other company or society established 
 or to be established, it shall also be lawful for the Lord Chancellor, 
 intrusted as aforesaid, or the Court of Chancery, if it be deemed more 
 convenient, to make an order directing the secretary, deputy secretary, 
 or accountant-general for the time being of the Governor and Com- 
 pany of the Bank of England, or any officer of such other company or 
 society, at once to transfer or join in transferring the stock to the 
 person or persons to be named in the order ; and this act shall be a 
 full and complete indemnity and discharge to the Governor and Com- 
 pany of the Bank of England, and all other companies or societies, 
 and their officers and servants, for all acts done or permitted to be 
 done pursuant thereto. 
 
 (o) The conveyance should contain a have considered that the execution, ty the 
 
 recital showing that it is made in obedi- person appointed to convey, of a deed 
 
 ence to the order of the Court, and should purporting to be the conveyance of the 
 
 be executed by the person appointed to trustee who refused, would, with a mere 
 
 convey in his own name ; though the late reference in the attestation clause to the 
 
 Vice-Chancellor of England, in a case order appointing the person to convey, be 
 
 arising upon the 1 W. 4, c. GO, seems to sufficient. Ex parte Foley, 8 Sim. 395. 
 
./. 
 
 890 THE TRUSTEE ACT, 1850. 
 
 As to lands in XXI. And be it enacted, that as to any lands situated within the 
 
 ancaster an duchy of Lancaster or the counties palatine of Lancaster or Durham, 
 it shall be lawful for the Court of the Duchy Chamber of Lancaster, 
 the Court of Chancery in the county palatine of Lancaster, or the 
 Court of Chancery in the county palatine of Durham, to make a like 
 order in the same cases as to any lands within the jurisdiction of the 
 same courts respectively as the Court of Chancery has under the 
 provisions hereinbefore contained been enabled to make concerning 
 any lands ; and every such order of the Court of the DucKy Chamber 
 of Lancaster, the Court of Chancery in the county palatine of iam- 
 caster, or the Court of Chancery in the county palatine of Durham, 
 shall, as to such lands, have the same effect as an order of the Court 
 of Chancery : provided always, that no person who is anywhere within 
 the limits of the jurisdiction of the High Court of Chancery shall be 
 deemed by such local courts to be an absent trustee or mortgagee 
 within the meaning of this act. 
 When trustees of XXII. And be it enacted, that when any person or persons shall be 
 jurisdiction. jointly entitled with any person out of the jurisdiction of the Court of 
 
 Chancery (a), or who cannot be found, or concerning whom it shall be 
 uncertain whether he be living or dead, to any stock or chose in action 
 upon any trust (b), it shall be lawful for the said court (c) to make an 
 order vesting the right to transfer such stock, or to receive the 
 dividends or income thereof, or to sue for or recover such chose in 
 action, or any interest in respect thereof, either in such person or 
 persons so jointly entitled as aforesaid, or in such last-mentioned 
 person or persons together with any person or persons the said court 
 may appoint ; and when any sole trustee (d) of any stock or chose ia 
 action shall be out of the jurisdiction of the said court, or cannot be 
 found, or it shall be uncertain whether he be living or dead, it shall 
 be lawful for the said court to make an order vesting the right to 
 transfer such stock, or to receive the dividends or income thereof, or 
 
 (o) Where the trustee out of the juris- shaw, 2 De Gex, Mao. & Gor, 900. 
 diction is incapacitated from lunacy or (c) If the Court be asked to transfer 
 
 infancy, the power of the Court must be the stock to new trustees appointed under 
 
 sought for in the sections applicable to a power, it must first be satisfied of the 
 
 cases of lunatics and infants, and not in fitness of the persons proposed, and all 
 
 this section. Consequently, in a case parties interested must be served. Jie 
 
 arising before the Extension Act (see 3rd MaynarWs Settlement, 16 Jur. 108i. 
 section), the Court had no , authority to (d) A. and- B. being trustees, the 
 
 make a vesting order with respect to Master found that it was uncertain 
 
 stock held by an infant trustee out of the whether A. was living or dead, but that 
 
 jurisdiction. Cramer v. Cramer, 5 De B. was living. Afterwards B. died. 
 
 Gex & Sm. 312. Held, that A. was not a sole trustee 
 
 (6) The husband of an executrix is a within the meaning of the 22nd section, 
 
 trustee within the Act. £cc parte Brad- Re RoMdaiPs Will, 1 Drewry, 401. 
 
THE TRUSTEE ACT, 1850. 891 
 
 to sue for and recover such chose in action, or any interest in respect 
 thereof, in any person or persons the said court may appoint. 
 
 XXIII. And be it enacted, that where any sole trustee (a) of any Wlien trustee of 
 stock or chose in action shall neglect or refuse to transfer such stock, traSfer^"^''^ *" 
 or to receive the dividends or income thereof, or to sue for or recover 
 
 such chose in action, or any interest in respect thereof, according to 
 the direction of the person absolutely entitled thereto (5), for the 
 space of twenty-eight days next after a request in writing (c) for that 
 purpose sha"Il have been inade to him by the person absolutely entitled 
 thereto, it shall be lawful for the Court of Chancery to make an order 
 vesting the sole right to transfer such stock, or to receive the dividends 
 or income thereof (d), or to sue for and recover such chose in action, 
 or any interest in respect thereof, in such person or persons as the 
 said court may appoint (e). 
 
 XXIV. And be it enacted, that where any one of the trustees of When one of 
 any stock or chose in action shall neglect or refuse to transfer such ^f^g^ock refuses 
 stock, or to receive the dividends or income thereof, or to sue for or t° transfer or re- 
 recover such chose m action according to the directions of the person over dividends, 
 absolutely entitled thereto, for the space of twenty-eight days next 
 
 after a request in writing for that purpose shall have been made to 
 him or her by such person, it shall be lawful for the Court of Chancery 
 to make an order vesting the right to transfer such stock, or to receive' 
 the dividends or income thereof, or to sue for and recover such chose 
 in action, in the other trustee or trustees of the said stock or chose in' 
 action, or in any person or persons whom the said court may appoint 
 jointly with such other trustee or trustees. 
 
 XXV. And be it enacted, that when any stock shall be standing in When stock is 
 the sole name of a deceased person, and his or her personal representa- name^of a"de- * 
 tive shall be out of the jurisdiction of the Court of Chancery, or "eased person. 
 cannot be found, or it shall be uncertain whether such personal 
 
 (a) Sole trustee may mean the -whole obey the order of the Court was not 
 number of the co-trustees. See inter- -within this section ; Mackenzie v. Mac- 
 pretation clause. Jie Sartnall, 5 De hemie, 5 De Grex & Sm. 338. And so it 
 Gex & Sm. 111. -was mider 1 W. 4, u. 60 ; see note (a), 
 
 (b) A tenant for life is not a person p. 839. But see now sect, i of the 
 absoltOehj entitled -within the meaning of Extension Act pro-riding for this case, 
 the Act, except, perhaps, for the purpose (d) The Court cannot, under this sec- 
 of an application limited to the income tion, make any order as to dividends 
 only, nor is one of two trustees ; Mac- accrued due subsequently to the date of 
 kenzie v. Mackenzie, 5 De Gex & Sm. request. Jie Hartnall, 5 De Gex & Sm. 
 338; more fully reported 16 Jur. 723. 111. See now sect. .4 of Extension Act. 
 But persons duly appointed new trustees (c) The recusant trustee need not be 
 are "absolutely entitled;" Ex parte served under this and the following sec- 
 Russell, X Sim. N. S. 404 ; Baxter's tion. Baxter's Will, 2 Sm. & Giff. 
 Will, 2 Sm. & Giff. Append, v. App. v. ; and see cases under 1 W. 4, 
 
 (c) The case of a trustee refusing to c. 60, note (c), p. 837. 
 
892 THE TRUSTEE ACT, 1850. 
 
 representative be living or dead, or such personal representative shall 
 neglect or refuse to transfer such stock, or receive the dividends or 
 income thereof, according to the direction of the person absolutely 
 entitled thereto, for the space of twenty-eight days next after a 
 request in writing for that purpose shall have been made to him by 
 the person entitled as aforesaid, it shaU be lawful for the Coiui; of 
 Chancery to make an order vesting the right to transfer such stock, 
 or to receive the dividends or income thereof, in any person or persons 
 whom the said coiu^ may appoint. 
 Effect of an XXVI. And be it enacted, that where any order shall have been 
 
 legaTright to * made under any of the provisions of this act vesting the right (a) to 
 transfer stock. any stock in any person or persons appointed by the Lord Chancellor, 
 intrusted as aforesaid, or the Court of Chancery, such legal right shall 
 vest accordingly, and thereupon the person or persons so appointed 
 are hereby authorised and empowered to execute aU deeds and powers 
 of attorney, and to perform aU acts relating to the transfer of such 
 stock into his or their own name or names or otherwise, or relating to 
 the receipt of the dividends thereof, to the extent and in conformity 
 with the terms of such order; and the Bank of England, and aU 
 companies and associations whatever, and aU persons, shall be equally 
 bound and compellable to comply with the requisitions of such person 
 or persons, so appointed as aforesaid, to the extent and in conformity 
 with the terms of such order as the said Bank of England, or such 
 companies, associations or persons, would have been bound and com- 
 pellable to comply with the requisitions of the person in whose place 
 such appointment shall have been made, and shall be equally in- 
 demnified in complying with the requisition of such person or persons 
 so appointed as they would have been indemnified in complying with 
 the requisition of the person in whose place such appointment shall 
 have been made ; and after notice in writing of any such order of the 
 Lord Chancellor, intrusted as aforesaid, or of the Court of Chancery, 
 concerning any stock, shall have been given, it shah not be lawful for 
 the Bank of England, or any company or association whatever, or any 
 person having received such notice, to act upon the requisition of the 
 person in whose place an appointment shall have been made in any 
 matter whatever relating to the transfer of such stock, or the payment 
 of the dividends or produce thereof. 
 Effect of an order XXVII. And be it enacted, that where any order shall have been 
 ves ing ega made under the provisions of this act, either by the Lord Chancellor, 
 
 (a) See note (6) p. 896, infra, and sect. 6 of the Extension Act. 
 
THE TEUSTEE ACT, 1850. 893 
 
 intrusted as aforesaid, or by the Court of Chancery, vesting the legal figM in a chose 
 
 right to sue for or recover any chose in action or any interest in 
 
 respect thereof in any person or persons, such legal right shall vest 
 
 accordingly, and thereupon it shall be lawful for the person or persons 
 
 so appointed to carry on, commence and prosecute, in his or their own 
 
 name or names, any action, suit or other proceeding at law or in 
 
 equity for the recovery of such chose in action, in the same manner 
 
 in all respects as the person in whose place an appointment shall 
 
 have been made could have sued for or recovered such chose in action. 
 
 XXVIII. And be it enacted, that whensoever, under any of the Effect of an order 
 provisions of this act, an order shall be made, either by the Lord lands orappoint- 
 
 ChanceUor, intrusted as aforesaid, or the Court of Chancery, vesting ™^ ^"^ person to 
 
 ■^ ° convey copyhold 
 
 any copyhold or customary lands in any person or persons, and such lands. 
 
 order shall be made with the consent (a) of the lord or lady of the 
 
 manor whereof such lands are holden, then the lands shall, without 
 
 any surrender or admittance in respect thereof, vest accordingly ; and 
 
 whenever, under any of the provisions of this act, an order shall be 
 
 made either by the Lord Chancellor, intrusted as aforesaid, or the 
 
 Court of Chancery, appointing any person or persons to convey or 
 
 assign any copyhold or customary lands, it shall be lawful for such 
 
 person or persons to do all acts and execute aU instruments for the 
 
 purpose of completing the assurance of such lands (6) ; and aU such 
 
 acts and instruments so done and executed shall have the same effect, 
 
 and every lord and lady of a manor, and every other person, shall, 
 
 subject to the customs of the manor and the usual payments, be 
 
 equally bovmd and compellable to make admittance to such lands, 
 
 and to do aU other acts for the purpose of completing the assurance 
 
 thereof, as if the persons in whose place an appointment shall have 
 
 been made, being free from any disability, had duly done and executed 
 
 such acts and instruments. 
 
 XXIX. And be it enacted, that when a decree shall have been made ^]^^^ ^ decree is 
 
 by any court of equity directing the sale of any lands for the payment ™*^<^ ^"^ ^^]^ °* 
 
 ircdii 6Su3iTi6 top 
 of the debts (c) of a deceased person, every person seised or possessed payment of debts. 
 
 of such lands, or entitled to a contingent right therein, as heir, or 
 
 (a) There appears to he a conflict he- (b) See form of order appointing a 
 
 tween the practice in the different hranches person to complete the assurance of a 
 
 of the Court upon the question whether a copyhold estate. Se Hey's Will, 9 Hare, 
 
 Testing order will be made imthout the 221. 
 
 lord's consent, "valeat qucmtvm ;" see (c) A sale for payment of cos<s of suit 
 
 Re Flitcroft, 1 Jur. N. S. 418, cor. was not within this Act; Weston v. 
 
 T. C. Wood ; Cooper v. Jones, 2 Jur. Filer, 5 De Gtex & Sm. 60S. But see 
 
 N. S. 59, cor. V. C. Stuart. The con- now sect. 1 of the Extension Act, and 
 
 sent need not be by appearance in Court ; Wahe v. Wajce, 17 Jur. 545. 
 Ayles T. Oox, 17 Beav. 585. 
 
894 
 
 THE TRUSTEE ACT, 1850. 
 
 Court to declare 
 what parties are 
 trustees of lauds 
 comprised iu any 
 suit, and as to 
 the interests of 
 persons unborn. 
 
 Power to make 
 directions how 
 the right to 
 transfer stock, to 
 be exercised. 
 
 under the will of such deceased debtor, shall be deemed to be so seised 
 or possessed or entitled, as the case may be, upon a trust within the 
 meaning of this act ; and the Court of Chancery is hereby empowered 
 to make an order wholly discharging the contingent right, under the 
 will of such deceased debtor, of any unborn person (a). 
 
 XXX. And be it enacted, that where any decree shall be made 
 by any court of equity for the specific performance of a contract 
 concerning any lands (5), or for the partition (c) or exchange of 
 any lands, or generally when any decree shall be made for the convey- 
 ance or assignment of any lands {d), either in cases arising out of the 
 doctrine of election or otherwise, it shall be lawful for the said court 
 to declare that any of the parties to the said suit wherein such decree 
 is made are trustees of such lands or any part thereof, within the 
 meaning of this act, or to declare concerning the interests of unborn 
 persons who might claim under any party to the said suit, or under 
 the will or voluntary settlement of any person deceased who was 
 during his lifetime a party to the contract or transactions concerning 
 which such decree is made, that such interests of tmbom persons are 
 the interests of persons who, upon coming into existence, would be 
 trustees within the meaning of this act, and thereupon it shall be 
 lawful for the Lord Chancellor, intrusted as aforesaid, or the Coui"t of 
 Chancery, as the case may be, to make such order or orders as to the 
 estates, rights and interests of such persons, bom or unborn, as the 
 said court or the said Lord Chancellor might under the provisions' of 
 this act make concerning the estates, rights and interests of trustees 
 born or unborn. 
 
 XXXI. And be it enacted, that it shall be lawful for the Lord 
 Chancellor, intrusted as aforesaid, or the Court of Chancery, to make 
 declarations and give directions concerning the manner in which the 
 right to any stock or chose in action vested under the provisions of 
 this act shall be exercised ; and thereupon the person or persons in 
 whom such right shall be vested shall be compellable to obey such 
 
 (a) Wood V. Beetlestone, 1 Kay & 
 John. 213. 
 
 (6) See Ex parte Mornington, 4 De 
 Gex, Mac. & Gor. 537. 
 
 (c) In a partition suit, instead of 
 giving an infant entitled to a share a day 
 to show cause, the Court may declare 
 him a trustee of such parts of the pro- 
 perty as are allotted to other parties. 
 Bowra v. Wright, i De Gex & Sm. 265. 
 
 {d) In a foreclosure suit by an equit- 
 able mortgagee, a decree had been made 
 for payment, or, in default, for fore- 
 
 closure and conveyance iy the mortgagor 
 of the legal estate. The mortgagor made 
 default. The Court refused, on motion 
 to make the order of foreclosure abso- 
 lute, to add a declaration that the mort- 
 gagor was a trustee for the mortgagee, 
 and said that a separate application must 
 be made ; Smith v. Boncher, 1 Sm. & 
 Giff. 72. As to the necessity for an 
 express declaration in terms, see the 
 cases on sect. 18 of the 1 W. 4, c. 60 ; 
 note (e), p. 83' 
 
THE TRUSTEE ACT, 1850. 
 
 895 
 
 directions and declarations by the same process as that by which other 
 orders under this act are enforced. 
 
 XXXII. And be it enacted, that whenever it shall be expedient (a) 
 to appoint (6) a new trustee or new trustees, and it shall be found 
 inexpedient, difficult (c) or impracticable so to do without the assist- 
 ance of the Coiu-t of Chancery, it shall be lawful for the said Court 
 of Chancery to make an order appointing a new trustee or new trus- 
 tees, either in substitution for or in addition to any existing trustee 
 or trustees (d). 
 
 XXXIII. And be it enacted, that the person or persons who, upon 
 the making of such order as last aforesaid, shall be trustee or trustees, 
 shall have all the same rights and powers as he or they would have 
 had if appointed by decree in a suit duly instituted. 
 
 XXXIV. And be it enacted, that it shall be lawful (e) for the said 
 Court of Chancery, upon making any order for appointing a new 
 •trustee or new trustees, either by the same or by any subsequent 
 order, to direct that any lands subject to the trust shall vest in the 
 person or persons who upon the appointment shall be the trustee or 
 trustees, for such estate as the court shall direct ; and such order 
 
 Power to court 
 to make order 
 appointing new 
 trustees. 
 
 Powers of new 
 trustees. 
 
 Power to court 
 to vest lands in 
 new trustees. 
 
 (a) If one of the trustees be a lunatic, 
 so that the estate cannot he got from him 
 without the aid of the Court, though 
 there is a power of appointment of new 
 trustees, in such a case the Court will 
 appoint a new trustee and make the Test- 
 ing order. He Davies, 3 Mac. & Gor. 
 278. So where one of the two trustees 
 appointed by a wOl is an infant, the 
 Court deems it expedient to appoint a 
 trustee in his place. lie Porter's Trust, 
 2 Jur. N. S. 349. 
 
 (5) The Court cannot, under the Act, 
 remove a trustee who is willing to act. 
 Se Jlodson's Settlement, 9 Hare, 118 ; 
 lie Hadley, 5 De Gex & Sm. 67. And 
 in a case where one of two trustees was 
 residing out of the jurisdiction, but it 
 did not appear whether such residence 
 was likely to be permanent, the Court 
 refused to appoint a new trustee in his 
 room. iJe Mats, 16 Jur. 608. 
 
 (c) See Be Hwmphrifs Estate, 1 Jur. 
 N. S. 921, where the parties having the 
 power of appointing new trustees were 
 resident in India. 
 
 {d) The decisions were in conflict 
 whether under this section the Court 
 could appoint new trustees in a, case 
 where there was no existing trustee, Vice 
 Chancellor Parker holding the affirma- 
 tive ; Se Tyler's Trust, 5 De Grex & Sm. 
 56 ; and Vice Chancellor Turner the nega- 
 tive ; Se Hazeldine, 16 Jur. 853. And 
 
 see Re Frost's Settlement, 15 Jur. 644. 
 All doubt for the future was removed by 
 the 9th section of the Extension Act. 
 
 The Court, in appointing new trustees 
 under this section, does not limit itself 
 necessarily to the number named in the 
 original instrument of trust. Thus it 
 has appointed two instead of one ; Twn- 
 stall's Wm, 4 De Gex & Sm. 421. JBut 
 it never appoints' a single trustee where 
 there were originally more than one ; 
 unison's Trust, 2 Jut. N.S. 62; Porter's 
 Trust, 2 Jut. N. S. 349. 
 
 As to the parties to be served, see 
 note, (5), p. 897, infra. 
 
 In addition to evidence of the neces- 
 sary facts to bring the case within the 
 Act, the Court, before appointing trus- 
 tees, requires evidence by affidavit of the 
 fitness of the proposed trustees, and a 
 written consent by the trustees to act; 
 Battersby's Trust, 16 Jur. 900. 
 
 (e) The late Vice Chancellor Parker 
 was indisposed to make a vesting order 
 in cases where a conveyance could be 
 had ; Langhorn v. Langhorn, 21 L. J. 
 Ch. 860. But it is clear that the Court 
 has power to make, and according to the 
 present practice it frequently does make, 
 vesting orders, even where there is no 
 incapacity in the person seised or pos- 
 sessed of the legal estate to convey to the 
 new trustees ; Re Manning's Trust, Kay, 
 App. xxviii. 
 
896 
 
 THE TRUSTEE ACT, 1850. 
 
 Power to court 
 to Test right to 
 sue at law in 
 new trustees. 
 
 Old trastees not 
 to be discharged 
 from liability. 
 
 Who may apply. 
 
 Power to go 
 before the master 
 in the first 
 instance. 
 
 shall have the same effect as if the person or persons who before 
 such order were the trustee or trustees (if any) had duly executed 
 all proper conveyances and assignments of such lands for such 
 estate (a). 
 
 XXXV. And be it enacted, that it shall be lawful for the said 
 Court of Chancery, upon making any order for appointing a new 
 trustee or new trustees, either by the same or by any subsequent 
 order, to vest the right to call for a transfer of any stock (6) subject 
 to the trust, or to receive the dividends or income thereof, or to sue 
 for or recover any chose in action, subject to the trust, or any interest 
 in respect thereof, in the person or persons who upon the appointment 
 shall be the trustee or trustees. 
 
 XXXVI. And be it enacted, that any such appointment by the 
 court of new trustees, and any such conveyance, assignment, or 
 transfer as aforesaid, shall operate no further or otherwise as a dis- 
 charge to any former or continuing trustee than an appointment of 
 new trustees under any power for that pm-pose contained in any 
 instrument would have done. 
 
 XXXVII. And be it enacted, that an order, under any of the 
 hereinbefore contained provisions, for the appointment of a new trustee' 
 or trustees, or concerning any lands, stock, or chose in action siibject 
 to a trust, may be m.ade upon the application of any person bene- 
 ficially interested in such lands, stock, or chose in action, whether 
 under disability or not, or upon the application of any person duly 
 appointed as a trustee thereof (c) ; and that an order under any of 
 the provisions hereinbefore contained concerning any lands, stock, or 
 chose in action subject to a mortgage, may be made on the apphcation 
 of any person beneficially interested in the equity of redemption, 
 whether under disability or not, or of any person interested in the 
 monies secured by such mortgage. 
 
 XXXVIII. And be it enacted, that when any person shall deem 
 himself entitled to an order under any of the provisions hereinbefore 
 contained, either from the Lord Chancellor, intrusted as aforesaid, or 
 from the Coiu-t of Chancery, it shall be lawful for him to exhibit 
 
 (a) The Court has jurisdiction to divest 
 the whole estate from the continuing and 
 incapacitated trustee, and to vest it in 
 the new body of trustees (including the 
 continuing trustees), as joint tenants ; 
 Smith Y. Smith, 3 Drewry, 72, overruling 
 Ee Wattes Settlement, 9 Hare, 106 ; 
 Jie Ph/er, ib. 220. 
 
 (6) The Court had no power under this 
 section to vest the right to the stock it- 
 
 self, but only the right to call for a 
 transfer ; and an order professing to vest 
 the right to the stock was accordingly 
 discharged. Re Smyth's Settlement, 4 De 
 Gex & Sm. 499. But see now sect. 6 of 
 the Extension Act. 
 
 (c) As to the proper person to petition 
 in the case of sales by the Court, see 
 Rowley v. Adams, 14 Beav. 130 ; Ayles 
 V. Cox, 17 Beav. 584. 
 
TRUSTEE ACT, 1850. 897 
 
 before any one of the masters of the High Court of Chancery a 
 statement of the facts whereon such order is sought to be obtained, 
 and adduce evidence in support thereof; and if such evidence shall 
 be satisfactory to the said master, he shall, at the request of the 
 person adducing such evidence, give a certificate under his hand of 
 the several material facts foimd by him to be true, and of his opinion 
 that such person is entitled to an order in the form set forth in such 
 certificate (a). 
 
 XXXIX. And be it enacted, that any person who shall have Power to petition 
 obtained such certificate may apply by motion to the Court of Chan- ^ord Omn^llor 
 eery, or to the Lord Chancellor intrusted as aforesaid, for an order to 
 the effect set forth in such certificate, or for such other order as such 
 person may deem himself entitled to upon the facts found by the 
 master. 
 
 XL. And be it enacted, that any person or persons entitled in Power to present 
 manner aforesaid to apply for an order from the said Court of Chan- gj,gj. instance 
 eery, or from the Lord Chancellor intrusted as aforesaid, may, should 
 he so think fit, present a petition in the first instance to the Court 
 of Chancery, or to the Lord Chancellor intrusted as aforesaid, for 
 Such order as he may deem himself entitled to, and may give evidence 
 by affidavit or otherwise in support of such petition before the said 
 Court, or the Lord Chancellor intrusted as aforesaid, and may ^ serve 
 such person or persons with notice of such petition as he may deem 
 entitled to service thereof (6). 
 
 XLI. And be it enacted, that upon the hearing of any such motion what may le 
 or petition it shaU be lawful for the said Court, or for the said Lord p^^j;"^""" 
 Chancellor, should it be deemed necessary, to direct a reference to one 
 of the masters in ordinary of the Court of Chancery to inquire into 
 any facts which require such an investigation, or it shall be lawful for 
 the said Court or for the said Lord Chancellor to direct such motion 
 or petition to stand over, to enable the petitioner or petitioners to 
 adduce evidence or further evidence before the said Court, or 
 before the said Lord Chancellor, or to enable notice or any further 
 notice of such motion or petition to be served upon any person or 
 persons. 
 
 XLIL And be it enacted, that upon the hearing of any such Conrt may dis- 
 
 (o) This and the folio wing section have 636; Ee Sloper, 18 Beav. 5P6 ; iJe 
 
 ceased to be of any use since the abolition Fellows' Settlement, '2 Jur. N. S. 62. 
 
 of the office of Master. And the old trustees (if any) must appear ; 
 
 (6) In petitions for the appointment ot Re Sloper, ubi siipra. But in special 
 
 new trustees, all the cestwls que trust cases the Court relaxes the rule. Be 
 
 ought, as a general rule, to be served. Smyth's Settlement, 2 De Gex &Sm. 781. 
 lie Richards' Trust, 5 De Gex & Sm. 
 
 3 m 
 
898 
 
 TEUBTEE ACT, 1850. 
 
 miss petition, 
 with or without 
 costs. 
 
 Power to make 
 aa order in a 
 cause. 
 
 Orders made by 
 the Court of 
 Chancery, 
 founded on cer- 
 tain allegations, 
 to be conclusive 
 evidence of the 
 matter contained 
 in such allega- 
 tions. 
 
 Trustees of. 
 charities. 
 
 motion or petition, whether any certificate or report from a master 
 shall have been obtained or not, it shall be lawful for the Court, or 
 the Lord Chancellor, intrusted as aforesaid, to dismiss such motion or 
 petition, with or without costs, or to make an order thereupon in con- 
 formity with the provisions of this Act. 
 
 XLIIl. And be it enacted, that whensoever in any cause or matter, 
 either by the evidence adduced therein, or by the admissions of the 
 parties, or by a report of one of the masters of the Court of Chan- 
 cery, the facts necessary for an order under this Act shall appear to 
 such Court to be sufficiently proved, it shall be lawful for the said 
 Court, either upon the hearing of the said cause or of any petition or 
 motion in the said cause or matter, to' make such order under this 
 Act (a). 
 
 XLIV. And be it enacted, that whenever any order diaU be made 
 under this Act, either by the Lord Chancellor intrusted as aforesaid, 
 or by the Court of Chancery, for the purpose of conveying or assign- 
 ing any lands, or for the purpose of releasing or disposing of any 
 contingent right, and such order shall be founded on an allegation of 
 the personal incapacity of a trustee or mortgagee, or on an allegation 
 that a trustee or the heir or devisee of a mortgagee is out of the 
 jurisdiction of the Court of Chancery or cannot be found, or that it 
 is uncertain which of several trustees, or which of several devisees of 
 a mortgagee, was the survivor, or whether the last trustee, or the heir 
 or last surviving devisee of a mortgagee, be living or dead, or on an 
 allegation that any trustee or mortgagee has died intestate without 
 an heir, or has died and it is not known who is his heir or devisee, 
 then in any of such cases the fact that the Lord Chancellor intrusted 
 as aforesaid, or the Court of Chancery, has made an order upon such 
 an allegation shall be conclusive evidence of the matter so alleged in 
 any Court of law or equity upon any question as to the legal validity 
 of the order : Provided always, that nothing herein contained shall 
 prevent the Court of Chancery directing a reconveyance or re-assign- 
 ment of any lands conveyed or assigned by any order under this Act, 
 or a redisposition of any contingent right conveyed or disposed of by 
 such order ; and it shaU be lawful for the said Court to direct 
 any of the parties to any suit concerning such lands or contingent 
 right to pay any costs occasioned by the order under this Act, when 
 the same shall appear to have been improperly obtained. 
 
 XLV. And be it enacted, that it shall be lawful for the Lord 
 
 (a) See Wood v. Beetlestone, 1 Kay & Johns, 213. 
 
TRUSTEE ACT, 1850. 891) 
 
 Chancellor intrusted as aforesaid, or the Court of Chancery, to 
 exercise the powers herein conferred for the purpose of vesting any 
 lands, stock, or chose in action in the trustee or trustees of any 
 'charity or society over which charity or society the said Court of 
 Chancery would have jurisdiction upon suit duly instituted (a), 
 whether such trustee or trustees shall have been duly appointed by 
 any power contained in any deed or instrument, or by the decree 
 of the said Court of Chancery, or by order made upon a petition 
 to the said Court imder any statute authorising the said Court to 
 make an order to that effect in a summary way upon petition. 
 
 XL VI. And be it enacted, that no lands, stock, or chose in action No escheat of 
 vested in any person upon any trust or by way of mortgage, or any ^p°^f '„ Y^"^ 
 profits thereof, shall escheat or be forfeited to her Majesty, her heirs mortgage. 
 or successors, or to any corporation, lord or lady of a manor, or other 
 person, by reason of the attainder or conviction for any offence of 
 such trustee Or mortgagee, but shall remain in such trustee or mort- 
 gagee, or survive to his or her co-trustee, or descend or vest in his or 
 her representative, as if no such attainder or conviction had taken 
 place (6). 
 
 XLVII. And be it enacted, that nothing contained in this Act Act not to pre- 
 shaU prevent the escheat or forfeiture of any lands or personal estate fo^eiture^of °'^ 
 
 vested in any such trustee or mortgagee, so far as relates to any tenefioial inter- 
 est. 
 beneficial interest therein of any such trustee or mortgagee, but sach 
 
 lands or personal estate, so far as relates to any such beneficial 
 
 interest, shall be recoverable in the same manner as if this Act had 
 
 not passed (c). 
 
 XLVIII. And be it enacted, that where any infant or person .(ssf Money of infants 
 
 unsound mind shall be entitled to any money payable in discharge of ^ngound^mind to 
 
 any lands, stock, or chose in action conveyed, assigned, or transferred te paid into 
 
 under this Act, it shall be lawful for the person by whom such money 
 
 is payable to pay the same into the Bank of England, in the name 
 
 and with the privity of the accountant-general, in trust in any cause 
 
 then depending concerning such money, or, if there shall be no such 
 
 cause, to the credit of such infant or person of unsound mind, subject 
 
 to the order or disposition of the said Court ; and it shall be lawful 
 
 for the said Court, upon petition in a summary way, to order any 
 
 (a) See now 16 & 17 Vict. u. 137, ss. cheat and Forfeiture Act. See now sec- 
 
 28, 32. Ee Dmienport's Charity, i De tion 8 of the Extension Act, giving the 
 
 Gex, Mac. & Gor. 839; and seep. 718, Court power to appoint new trustees in 
 
 siqira. the place of persons convicted of felony. 
 
 (6) This section is a re-enactinent (c) This is a re-enactment of sect. 5 
 
 almost verbatim of section 3 of the Es- of the Escheat and Forfeiture Act. 
 
 3 M 2 
 
900 
 
 TEUSTEE ACT, 1850. 
 
 Court may make 
 a decree in the 
 absence of a 
 trustee. 
 
 Powers of the 
 master. 
 
 Costs may be 
 paid out of the 
 estate. 
 
 money so paid to be invested in the public funds, and to order pay- 
 ment or distribution thereof, or payment of the dividends thereof, as 
 to the said Court shall seem reasonable ; and every cashier of the 
 Bank of England who shall receive any such money is hereby required' 
 to give to the person paying the same a receipt for such money^ and 
 such receipt shall be an effectual discharge for the money therein 
 respectively expressed to have been received. 
 
 XLIX. And be it enacted, that where in any suit commenced or to 
 be commenced in the Court of Chancery it shall be made to appear 
 to the Court by affidavit that diligent search and inquiry has been 
 made after any person made a defendant, who is only a trustee, to 
 serve him with the process of the Court, and that he cannot be found, 
 it shall be lawful for the said Court to hear and determine such 
 cause, and to make such absolute decree therein against every person 
 who shall appear to them to be only a trustee, and not otherwise 
 concerned in interest in the matter in question, in such and the same 
 manner as if such trustee had been duly served with the process of 
 the Court, and had appeared and filed his answer thereto, and had 
 also 'appeared by his counsel and solicitor at the hearing of such 
 cause : Provided always, that no such decree shall bind, affect, or in 
 anywise prejudice any person against whom the same shall be made, 
 without service of process upon him as aforesaid, his heirs, executors, 
 or administrators, for or in respect of any estate, right, or interest 
 which such person shall have at the time of making such decree 
 for his own use and benefit, or otherwise than ' as a trustee as 
 aforesaid. 
 
 L. And be it enacted, that when any person shall, under the pro- 
 visions of this Act, apply to one of the masters of the Court of Chan- 
 cery in the first instance, and adduce evidence, for the purpose of 
 obtaining the certificate of such master as a foundation for an order 
 of the said Lord Chancellor intrusted as aforesaid, or the said Court 
 of Chancery, it shall be lawful for the said master to order service of 
 such application upon any person, or to dismiss such application, and 
 to direct that the costs of any persons consequent thereon shall be 
 paid by the person making the same ; and aU orders of the master 
 under this Act shall be enforced by the same process as orders of the 
 Court made in any suit against a party thereto. 
 
 LI. And be it enacted, that the Lord Chancellor intrusted as afore- 
 said, and the Com-t of Chancery, may order the costs and expenses of 
 and relating to the petitions, orders, directions, conveyances, assign- 
 ments and transfers to be made in pursuance of this Act, or any of 
 
TRUSTEE ACT, 1850. 901 
 
 them, to be paid and raised out of or from the lands or personal 
 estate,. or the rents or produce thereof, in respect of -which the same 
 respectively shall be made, or in such manner as the said Lord Chan- 
 cellor or Court shall think proper (a). 
 
 LII. And be it enacted, that upon any petition being presented Commission con- 
 under this Act to the Lord Chancellor intrusted as aforesaid, concern- of'^soiTdmi'nd 
 ing a person of unsound mind, it shall be lawful for the said Lord 
 Chancellor, should he so think fit, to direct that a commission in the 
 nature of a writ de lunatko inquirendo shall issue concerning such 
 person, and to postpone making any order upon such petition until a 
 return shall have been made to such commission. 
 
 LIIL And be it enacted, that upon any petition under this Act Suit may be 
 being presented to the Lord Chancellor intrusted as aforesaid, or to '^"'^''*^'i- 
 the Court of Chancery, it shall be lawful for the said Lord Chan- 
 cellor, or the said Court of Chancery, to postpone making any order 
 upon such petition until the right of the petitioner or petitioners 
 shall have been declared in a suit duly instituted for that pur- 
 pose (6). 
 
 LIV. And be it enacted, that the powers and authorities given by Powers of Court 
 
 this Act to the Court of Chancery in England shall extend to all lands "^ Chancery to 
 
 '' ° extend to pro- 
 
 and personal estate within the dominions, plantations, and colonies perty in the 
 
 belonging to her Majesty (except Scotland). ""^ °"^^' 
 
 LV. And be it enacted, that the powers and authorities given by Powers given to 
 
 this Act to the Court of Chancery in England shaU and may be exer- ^eTlf ^°" 
 
 cised in like manner and are hereby given and extended to the Court exercised by 
 
 of Chancery in Ireland with respect to all lands and personal estate Ireland. 
 
 in Ireland. 
 
 LVI. And be it enacted, that the powers and authorities given by Powers of Lord 
 
 this Act to the Lord Chancellor of Great Britain intrusted as afore- junaCT to extend 
 
 said, shall extend to all lands and personal estate within any of the *» tlie colonies. 
 
 dominions, plantations, and colonies belonging to her Majesty (except 
 
 Scotland and Ireland) (c). 
 
 (a) See, as to the costs of an infant tation, declared that certain costs incurred 
 
 trustee, Ex parte Cant, 10 Vesey, 554 : under the Act should, with interest at 4 
 
 and as to those of an infant mortgagee, Ex per cent., form a charge on the inherit- 
 
 parte Ommwney, 10 Sim. 298 ; Uiltown ance. 
 
 T. Trimhleston, 1 Fl. & Kelly, 328 : the (6) Thus a suit was directed where a 
 
 first case decided under the 7 Anne c. 19, father purchased in the name of his son, 
 
 the two latter under the 1 W. 4, c. 60. but without intending an advancement, 
 
 As to the costs of a hunatic trustee or and the Court refused to declare the son, 
 
 mortgagee, see note (c), p. 883, supra. who was a lunatic, a trustee for his 
 
 The costs of applications for the ap- father without a suit. CoUinson v. Col- 
 
 pointment of new trustees come out of linson, 3 De Gex, Mao. & Gor. 409 ; and 
 
 the corpus of the trust fund. Re Pel- see Re Burt, 9 Hare, 289. 
 lows' Settlement, 1 Jur. N. S. 62 ; Re (c) The Lord Chancellor of Great 
 
 Pidkam, 15 Jur. 69 ; Ex parte Davits, Britain, sitting in lunacy, has no juris- 
 
 16 Jur. 882. And in the last-named diction over lands in Ireland. Re Davies, 
 
 case the Court, though after some hesi- 3 Mae. & Gor. 278. 
 
902 
 
 TRUSTEE ACT, 1850. 
 
 Powers of Lord 
 Chancellor in 
 lunacy may be 
 exercised by 
 Lord Chancellor 
 of Ireland with 
 respect to lands 
 in Ireland. 
 
 Short title. 
 
 Commencement 
 of Act. 
 
 Act may be 
 amended, &c. 
 
 LVII. And be it enacted, that the powers and authorities given by 
 this Act to the Lord Chancellor of Great Britain intrusted as afore- 
 said, shall and may be exercised in like manner by and are hereby 
 given to the Lord Chancellor of Ireland intrusted as aforesaid, with 
 respect to aU lands and personal estate in Ireland. 
 
 LVIII. And be it enacted, that in citing this Act in other Acts 
 of Parhament, and in legal instruments and in legal proceedings, 
 it shaU be sufficient to use the expression " The Trustee Act, 1850." 
 
 LIX. And be it enacted, that this Act shall come into operation on 
 the first day of November, one thousand eight hundred and fifty. 
 
 LX. And be it enacted, that this Act may be amended or repealed 
 by any Act to be passed in this session of Parliament. 
 
TRUSTEE EXTENSION ACT, 1852. 
 
 15° & 16° ViCTOEiiE, Cap. 55. 
 
 An Act to extend the Provisions of "The Trustee Act, 1850." 
 [ZQth June, 1862.] 
 
 Whereas it is expedient to extend the provisions of the Trustee 
 Act, 1850 : Be it therefore enacted hy the Queen's most excellent 
 Majesty, by and with the advice and consent of the Lords Spiritual 
 ,and Temporal, and Commons, in this present Parliament assembled, 
 and by the authority of the same. 
 
 I. That when any decree or order shall have been made {a) by any Court of Chan- 
 Court of equity directing the sale of any lands for any purpose what- an'^rde/for* "^ 
 
 ever, (6) every person seised or possessed of such land, or entitled to a Testing the 
 
 estate, in lieu of 
 contingent right therein, being a party to the suit or proceeding in conveyance by a 
 
 which such decree or order shall have been made, and bound thereby, afte/a decree^or 
 
 or being otherwise bound by such decree or order, shall be deemed to order for sale. 
 
 be so seised or possessed or entitled (as the case may be) upon a trust 
 
 within the meaning of the Trustee Act, 1850 ; and in every such case 
 
 it shall be lawful for the Court of Chancery, if the said Qawt shall 
 
 think it expedient for the purpose of carrying such sale into effect, to 
 
 make an order vesting such lands or any part thereof, for such estate 
 
 as the Court shall think fit, either in any purchaser (c) or in such 
 
 (o) A decree made before the passing (c) Where lands are sold in several lots 
 
 of this Act is within the operation of this to different purchasers, the purchasers 
 
 clause, TFdifce t. Wake, 17 Jur. TiS. of the different lots may join in one peti- 
 
 (6) The 30th section of the Trustee tion, Rowley t. Adams, 14 Beav. 130. 
 
 Act, 1850, applied only to decrees di- The purchaser is the proper person to 
 
 reeling a sale for the payment of deto / apply, .ij/^es t. Cox, 17 Bear. 684; but 
 
 and consequently where the decree for the plaintiffs and purchaser may join if 
 
 sale had been made in order to provide a they think fit, Emdey v. Adams, ubi 
 
 fund available for payment of costs, the supra. 
 
 Court had no power to mate a vesting The costs of the petition fall upon 
 
 order, Weston v. PUer, 5 De Gex & Sm. the vendor, Ayles v. Cox, ubi swpra. 
 608. This enactment remedies the in- 
 convenience. 
 
904 
 
 TRUSTEE EXTENSION ACT, 1853. 
 
 Power to make 
 an order for 
 Testing the 
 estate, on re- 
 fusal or neglect 
 of a trustee to 
 convey or release. 
 
 Power to make 
 ■an order for the 
 transfer or 
 receipt of divi- 
 dends of stock in 
 name of an in- 
 fant trustee. 
 
 On neglect to 
 
 other person as the Court shall direct ; and every such order shall 
 have the same effect as if such person so seised or possessed or en- 
 titled had been free from all disability, and had duly executed all 
 proper conveyances and assignments of such lands for such estate. 
 
 II. That sections numbered seventeen and eighteen in the Queen's 
 Printer's copy of the Trustee Act, 1850, be repealed; and in every 
 case where any person is or shall be jointly or solely seised or pos- 
 sessed of any lands or entitled to a contingent right therein upon any 
 trust, and a diemand shall have been made upon such trustee by a 
 person entitled to require a conveyance or assignment of such lands, 
 or a duly authorised agent of such last-mentioned person, requiring 
 such trustee to convey or assign the same, or to release such contin- 
 gent right, it shall be lawful for the Comrt of Chancery, if the said 
 Court shall be satisfied ' that such trustee has wilfully refused or 
 neglected to convey or assign the said lands for the space of twenty- 
 eight days after such demand, to make an order vesting such lands 
 in such person, in such manner and for such estate as the Court 
 shall direct, or releasing such contingent right in such manner as 
 the Court shall direct ; and the said order shaU have the same effect 
 as if the trustee had duly executed a conveyance or assignment of 
 the lands, or a release of such right, in the same manner and for the 
 same estate {a). 
 
 III. That when any infant shall be solely entitled to any stock 
 upon any trust, it shall be lawful for the Court of Chancery to make 
 an order vesting in any person or persons the right to transfer such 
 stock, or to receive the dividends or income thereof ; and when any 
 infant shall be entitled jointly with any other person or persons 
 to any stock upon any trust, it shall be lawful for the said Court 
 to make an order vesting the right to transfer such stock, or to 
 receive the dividends or income thereof, either in the person or per- 
 sons conjointly entitled with the infant, or in him or them together 
 with any other person or persons the said Court may appoint (6). 
 
 IV. That where any person shall neglect or refuse to transfer any 
 
 (a) Under the 17th & 18th sections of 
 the Trustee Act, 1850, the power of the 
 Court arose only upon written refusal to 
 convey, or neglect or refusal so to do 
 after tender of a proper deed. The 
 former contingency was of rare occur- 
 rence, and considerable difficulty was 
 often experienced in bringing the case 
 within the terms of the latter. See as 
 to copyholds, Rowley v. AdaTns, 14 
 Beav. 130. See notes on section 23 of 
 
 Trustee Act, 1850, and note (c), p. 837, 
 mpra. 
 
 (6) In Cramer v. Cramer, 5 De Gex 
 & Sm. 312, Tice-Chancellor Parker held 
 that the Trustee Act, 1850, having con- 
 ferred no general power in the case of an 
 infant trustee of stock, the Court had 
 no authority to make a vesting order with 
 regard to stock held by an infant trustee 
 out of the jwrisdiction. Hence this 
 enactment. 
 
TRUSTEE EXTENSION ACT, 1852. 905 
 
 stock or to receive the dividends or income thereof, or to sue for or transfer stock for 
 
 recover any chose in action, or any interest in respect thereof, for ^^ ^ 'maAe 
 
 the space of twenty-eight days next after an order of the Court of Testing right to 
 ^ J 6 J W transfer m such 
 
 Chancery for that purpose shall have been served upon him, (a) it person as the 
 
 shall be lawful for the Court of Chancery to make an order vesting ""^j^t 
 
 all the right of such person to transfer such stock, or to receive the 
 
 dividends or income thereof, or to sue for and recover such chose 
 
 in action, or any interest in respect thereof, in such person or persons 
 
 as the said Court may appoint. 
 
 V. When any stock shall be standing in the sole name of a deceased On like neglect 
 
 by executor, 
 person, and his personal representative shall refuse or neglect to trans- similar order 
 
 fer such stock or receive the dividends or income thereof for the space ™^y *'* ™*^^- 
 
 of twenty-eight days next after an order of the Court of Chancery 
 
 for that purpose shall have been served up6n him, it shall be lawful 
 
 for the Court of Chancery to make an order vesting the right to 
 
 transfer such stock, or to receive the dividends or income thereof, in 
 
 any person or persons whom the said Court may appoint. 
 
 VI. When any order being or purporting to be under this Act, Bank of England 
 or under the Trustee Act, 1850, shall be made by the Lord Chan- to comply with 
 ceUor intrusted as aforesaid, or by the Court of Chancery, vesting ™* orders, 
 the right to any stock, or vesting the right to transfer any stock, 
 
 or vesting the right to call for the transfer of any stock, in any pep- 
 son or persons, in every such case the legal right to transfer such 
 stock shall vest accordingly ; (6) and the person or persons so ap- 
 pointed shall be authorised and empowered to execute all deeds and 
 powers of attorney, and to perform all acts relating to the transfer 
 of such stock into his or their own name or names, or otherwise, 
 to the extent and in conformity with the terms of the order ; and 
 the Bank of England, and all companies and associations whatever, 
 and aU persons, shall be equally bpund and compellable to comply 
 with the requisitions of such person or persons so appointed as afore- 
 said, to the extent and in conformity with the terms of such order, 
 as the said Bank of England, or such companies, associations, or 
 persons would have been bound and compellable to comply with the 
 requisitions of the person in whose place such appointment shall 
 have been made. 
 
 VII. That every order made or to be made, being or purporting Indemnity to 
 
 (a) See the case of Mackenzie v. (5) See the decision in Smyth's Settle- 
 
 MacTcemie, 5 De Gex & Sm. 338 ; and ment, i De Gex & Smale, 499, -which 
 
 of Be Hartmdl, 5 De Gex & Sm. 11 1 ; doubtless was the cause of this and the 
 
 the decisions in which probably suggested next following section, 
 this clause. 
 
906 TEUSTEE EXTENSION ACT, 1852. 
 
 Bank beiI com- to be made under this or the Trustee Act, 1850, by the Lord Chan- 
 
 HSiUlPS HO 
 
 oteying. ceUor intrusted as aforesaid, or by the Court of Chancery, and duly 
 
 gassed and entered, shall be a complete Indemnity to the Bank of 
 
 England, and all companies and associations whatsoever, and all 
 
 persons, for any act done pursuant thereto ; and it shall not be 
 
 necessary for the Bank of England, or such company or association 
 
 or person, to inquire concerning the propriety of such order, or 
 
 ■whether the Lord Chancellor intrusted as aforesaid, or the Court of 
 
 Chancery had jurisdiction to make the same. 
 
 Power to appoint VIII. That when any person is or shall be jointly or solely seised 
 
 lieu of persons ^^ possessed of any lands or entitled to any stock upon any trust, 
 
 convicted of a^^ gi^cii person has been or shall be convicted of felony, it shall be 
 
 lawful for the Court of Chancery, upon proof of such conviction, to 
 
 appoint any person to be a trustee in the place of such convict, and 
 
 to make an order for vesting such lands, or the right to transfer such 
 
 stock, and to receive the dividends or income thereof, in such person 
 
 to be so appointed trustee ; and such order shall have the same effect 
 
 as to lands as if the convict trustee had been free from any disability 
 
 and had duly executed a conveyance or assignment of his estate and 
 
 interest in the same. 
 
 Power to the I-^- That in aU cases where it shall be expedient to appoint a new 
 
 Court to appoint trustee, and it shall be found inexpedient, difficult, or impracticable 
 new trustees _ r ! > r 
 
 where there is no SO to do without the assistance of the Court of Chancery, it shall be 
 exia ing ms ee. jg^^^ f^j. ^jjg g^j^j Court to make an order appointing a new trustee 
 
 or new trustees, whether there be any existing trustee or not at the 
 
 time of making such order (a). 
 
 Chancellor may X. In every case in which the Lord Chancellor intrusted as afore- 
 
 ^p'^intment o7 ^^^^ ^^ jurisdiction under this Act, or the Trustee Act, 1850, to 
 
 trustees, without order a conveyence or transfer of land or stock, or to make a vesting 
 
 that it should he order, it shall be lawful for him also to make an order appointing 
 
 made in Chan- ^ new trustee or new trustees, in like manner as the Court of 
 eery, &e. ' 
 
 Chancery may do in like cases, without its being necessary that 
 
 the order should be made in Chancery as well as in Limaoy, or 
 
 be passed and entered by the registrar of the Court of Chancery. 
 
 As to powers XI. That all the jurisdiction conferred by this Act (6) on the Lord 
 
 trasteT^ththe Chancellor, intrusted by virtue of the Queen's sign manual with the 
 
 care of lunatics, care of the persons and estates of lunatics, shall and may be had, 
 
 (a) See note (d) p. 895, supra, as to were, as respects the jurisdiction con- 
 
 the douht which led to this enactment. ferred by the Trustee Act, 1850, removed 
 
 (6) See Re Waugh's Trust, 2 De Gex, by the 15 & 16 Vict. c. 87, s. 15 (date 
 
 Mao. & Gor. 279. Re Pattinson, 21 of Koyal Assent, 1st July, 1852). 
 L. J., Ch. 280. The doubts there raised, 
 
TEUSTEK EXTENSION ACT, 1852. 907 
 
 exercised, and performed by the person or persons for the time being 
 intrusted as aforesaid. 
 
 XII. That this Act shall be read and construed according to the Act to be con- 
 definitions and interpretations contained in the second section of the ^^tee Act 
 Trustee Act, 1850, and the provisions of the said last-mentioned Act l^^O. 
 (except so far as the same are altered by or inconsistent with this Act) 
 
 shall extend and apply to the cases provided for by this Act, in the 
 same way as if this Act had been incorporated with and had formed 
 part of the said Trustee Act, 1850. 
 
 XIII. That every order to be made under the Trustee Act, 1850, All orders^made 
 
 or this Act, which shall have the effect of a conveyance or assignment ^^ j^ggg „j. 
 
 of any lands, or a transfer of any such stock as can only be transferred "''^ ■*"*> *" ^ 
 
 chargeable with 
 by stamped deed, shall be chargeable with the like amount of stamp the same stamp 
 
 duty as it would have "been chargeable with if it had been a deed „ "n^el^?**^ "^ 
 
 executed by the person or persons seised or possessed of such lands, 
 
 or entitled to such stock; and every such order shall be duly stamped 
 
 for denoting the payment of the said duty. 
 
APPENDIX. 
 
 No. I. , 
 Strode r. Winchester. Supra, p. 7 1 . 
 
 The following is a brief note of the case from the Registrar's Book : No. I. 
 
 Ferdinando John Paris, being desirous of leaving his fortune to 
 Lucy Naomi Strode, but without the knowledge of her husband, who 
 had married her against the wishes of the testator, fixed upon Eliza- 
 beth Gough, the mother of the said Mrs. Strode, to be the sole trustee, 
 and acquainted her therewith, and received a solemn promise from her, 
 that she would take care of every thing for the separate use of her 
 daughter. Paris, by his will, gave all his real and personal estate to 
 Mrs. Gough, and made her sole executrix ; and by a paper writing, 
 which bore even date with and accompanied the wiQ, he addressed 
 Mrs. Gough as follows : — "1 have given you the whole of what I 
 have in the world, and I wish I had more to give in the same way. 
 You know the unhappy reason why I could not leave you a partner 
 in the donation, but I greatly trust you wiU answer my often declared 
 design and intention, and therefore would not fetter you with any 
 trust, nor with any co-executor ; and I beg you to answer my purpose 
 most efifectually, in full opinion whereof I have made my wiU in this 
 manner, relying on your fidelity therein. One of my motives to this 
 disposition is, the promise I made to my late wife in her last moments 
 to take the best care I could of you and yours. I have other motives 
 also, from your own great care and trouble taken for me ; and, lastly, 
 the great and true regard which I have for yourself and that dear girl, 
 who was my wife's favourite. Do not disappoint my expectation of 
 you." A mass of evidence was read relative to the intentions of the 
 testator, and the conduct and the declarations of Mrs. Gough, and 
 the Court decreed, " that by virtue of the last wiU of the testator, and 
 the letter accompanying the will, and the evidence in the cause, the 
 devisee was and ought to be deemed a trustee of the real and personal 
 estate, for the separate use and benefit of Mrs. Strode." — Beg. Lib. 
 1766, B. fol. 515. 
 
 No. II. 
 
 Abbot V. Lee. Supra, p. 189, 797. 
 
 " The substance of the plaintifif's bill appeared to be, that George No. II. 
 
 Cuthbert, the testator, having issue two sons, William and Edward, 
 and two daughters, Jane and Mary, did, about May, 1681, make his 
 
910 APPENDIX. 
 
 Ko. II. will, and therein, amongst other things, did devise to Ms daughter 
 
 Jane 660Z., and to his daughter Mary the like sum of 5501., and 
 directed that those sums should be laid out by his executors in a 
 purchase of lands, at the discretion of his executors, within one year 
 after his decease, for the use of his said daughters and the heirs of 
 their bodies lawfully to be begotten ; and in case either of his 
 daughters should die before marriage, that then 1501. of her money, 
 or in case the money be laid out in lands, then lands of the value of 
 1502., out of her share of the lands so purchased, shovdd go to the 
 surviving sister, and the other 400J. to his sons, equally to be divided 
 between them and their heirs ; and the said George Cuthbert, by 
 his said will, did also devise unto his said sons all the lands in his 
 said will particularly mentioned ; and in case his sons died without 
 issue, then he devised those lands to his daughters and the survivor 
 of them and their heirs ; and he gave the use of his household goods 
 to his wife, and after her decease the same were to be divided 
 amongst his children, at the discretion of his executors ; and of his 
 will he made Jane his wife (now the wife of William Leach), and the 
 defendant Lee, executrix and executor, in trust for his said sons and 
 daughters. That after his decease, the executors executed the will, 
 and possessed themselves of the real and personal estate, but did not 
 lay out any part of the money in a purchase of lands. That both 
 the sons, and Jane, one of the daughters, died iu their minority im- 
 married, and the plaintiff married Mary, the surviving daughter, who 
 also died without issue ; and the plaintiff took out letters of adminis- 
 tration to her, and thereby became entitled to her legacy of 5501., 
 and to 150J. of Jane's legacy. That the defendant Cuthbert pretends 
 that he is entitled to aU the estate, both real and personal, of the said 
 George Cuthbert, as his next heir at law, by the words of the said 
 will, and that the defendant Lee ought to account to him, and not to 
 the plaintiff. Wherefore, to have a discovery and an account of the 
 testator Cuthbert's estate, and that the defendants, the executors, 
 may account for and pay to the plaintiff the several legacies devised 
 to the said Mary by the will of the said G. Cuthbert, and the plain- 
 tiff be relieved, is the scope of the bill. Whereto the counsel for the 
 defendant WiUiam Cuthbert insisted that the defendant WiUiam 
 Cuthbert by his answer confessed the will, and that the testator's 
 sons and daughter Jane died unmarried, and that Mary, the plaintiff's 
 wife, died without issue, and he beUeved the plaintiff was her adminis- 
 trator, but not entitled to her legacy, for that he the said defendant 
 was entitled to her legacy, for that he the said defendant is entitled 
 to the 1100?. given to Jane and Mary, he being heir at law to the 
 testator and to his children ; and that if the llOOJ. had been laid out in 
 lands, as it ought to have been, then the same would have descended to 
 him, and that therefore he claims the same, but submits to the 
 judgment of the Court whether the plaintiff be entitled to any part 
 thereof. Whereupon, and upon long debate of the matter, and hearing 
 of what was insisted by counsel on either side, and upon producing of 
 an order made in the said cause, whereby it was ordered that the 
 plaintiff might proceed to hear the cause against the defendant Lee only 
 without prejudice in regard the defendant Leach and his wife, though 
 duly served with process to appear, yet had not appeared, but sat in 
 contempt to a serjeant-at-arms, and were insolvent and could not be 
 found, the Court declared, that the 550J. legacy devised to Mary, and 
 
APPENDIX. 911 
 
 150J. of Jane's legacy, did belong unto the plaintiff as administrator to Nq. II. 
 
 his wife, and that the defendant Cuthbert had not any right or title to 
 
 the same as heir at law to George Cuthbert or his children, or otherwise ; 
 
 and doth therefore think fit and so order and decree, that the 
 
 defendant Lee do account, &c. (the usual order), and out of the 
 
 money which shall appear to be in the said defendant's hands, upon 
 
 such accovmt, the said defendant is hereby ordered and decreed to 
 
 pay unto the said plaintiff the aforesaid sums of 650L and 150!., or 
 
 so much thereof as the same shall amount unto." — Beg. Lib. 1689, 
 
 A. f. 177. 
 
 No. III. 
 
 Cogan v. Stevens. Supra, p. 189. 
 
 November 24th, 1835. 
 
 Sir Christopher C. Pepys, Master of the Rolls, — "This case involves No. III. 
 a question of great and general importance, and of principles which 
 might be supposed to be of very general application ; and so it woidd 
 appear to be from the circumstance of several cases having come before 
 me since the argument of the cause, involving the same question ; and 
 yet it appears I am called on to give the first judicial opinion on the 
 subject. The question is simply, whether, when a testator directs 
 money to be invested in land for certain purposes, some of which are 
 lawful and take effect, but others fail and become void, the property so 
 given, after satisfying the lawful purposes, belongs to the next of kin. or 
 to the heir of the testator. The testator, Lewis Stevens, by his will, 
 dated at Lisbon, 11th July, 1789, after describing himself as a native 
 of Exeter, and enumerating the particulars of his property, which he 
 stated to amount to 100,000Z. sterling, proceeds thus : — ' As to the 
 disposal of those worldly goods which I leave behiad me, my order 
 is, that after my funeral expenses are paid, and all my just debts, and 
 24,000 milreis to my dearly beloved wife, Mary Biyanna Bulkely, now 
 Stevens, that the sum of 30,0001. sterling be laid out immediately by 
 my executors hereunder mentioned, in the purchase of an estate or 
 estates in the county of Devon or Cornwall, the income of which shall 
 belong to my widow dviring her natural Ufe. And after her decease the 
 said income shall belong to my dear brother WUliam, or his children 
 lawfully begotten ; and if he dies without children, the said income 
 shall belong to my brother Jedediah and his children lawfully begotten ; 
 and if he dies without issue, then this income shall belong to my 
 brother John James and his children lawfully begotten ; and if he dies 
 without children, then this income shall belong to my dear sister 
 Philadelphia and her children lawfully begotten ; and if she dies without 
 children, then the income of this estate or estates, which shall be 
 purchased and always run in my name, shall be employed in the 
 establishment of a charity school for boys in the city of Exeter, for 
 the purpose of teaching them to read, write, and cypher, and foreign 
 languages, which boys shall be natives of the counties of Devonshire 
 or Cornwall. And I hereby order my executors to purchase this 
 estate or estates in my name, and register the same, and this my 
 determination, in proper places, that the Chamber of Exeter may 
 take charge thereof in default of the regular succession above men- 
 tioned, and erect the school as hereby directed, which school shall be 
 
912 
 
 APPENDIX. 
 
 No. III. " called Stevens's Charity School ; and the regulations for its establish- 
 ment I leaye to the said Chamber of Exeter, and my cousins Charles 
 and Joseph Lyne, if they survive, with orders to set immediately 
 about this useful establishment.' He then gave certain pecimiary 
 legacies, and the residue of his fortune he gave and bequeathed in 
 the following manner, dividing the same into fifteen parts. He gave 
 three-fifteenths to his brother WUliam, three-fifteenths to Jedediah, 
 three-fifteenths to John James, three-fifteenths to Philadelphia, two- 
 fifteenths to his cousin Charles Lyne, and one-fifteenth to Joseph 
 Lyne. Then after the above-mentioned disposition was made, they 
 were to receive and divide as the money came in, as his aflfairs went 
 on liqiiidating ; and he nominated his executors, his brothers William 
 and Jedediah, and his cousin Charles Lyne, or in default of either of 
 his said brothers, he nominated his brother John James, and in 
 default of his cousin Charles Lyne, he nominated his cousin Joseph 
 Lyne ; and he declared that what he left should be divided out in 
 full, as it was liquidated ; and if any of the executors refused taking 
 charge of the executorship, his share should be forfeited to the benefit 
 of the others ; that if any of his brothers or sisters should die before 
 him, or either (rf his two cousins should die before him, that then the 
 share of the deceased should be divided among the remaining five 
 heirs of the residue. The wiQ was proved by Jedediah Stevens ia 
 1795, by John James Stevens in 1826, and afterwards by Charles 
 Lyne, who took the name of Stevens, and is now the personal repre- 
 sentative of the testator. The SOfiOOl. never was laid out in the 
 purchase of land : it was invested in the public funds, and now con- 
 sists of 30,996 J. in the four per cents., of which fund the testator's 
 widow received the dividends untU her death, which took place in 
 1827, before which event all the devisees had died without issue, 
 WiUiam in 1803, Jedediah the same year, Philadelphia in 1824, and 
 John James in 1826, so that upon the death of the tenant for life 
 aU the limitations as to the estate to be purchased by the 30,OOOJ. 
 prior to the direction of establishing the school at Exeter have failed, 
 and the question is, who is now entitled to the 30,000!. — ^the 
 plaintiff, who, on the reference made at the hearing of the cause, is 
 found to be the heir, or the defendant, who claims it as part of the per- 
 sonal estate of the testator in the event which has happened ? Upon 
 principle, and upon analogy to several well-established rules in equity, 
 it would appear that there is no doubt as to the proper solution 
 of this question. The only difficulty arises from some few cases 
 or dicta of the Judges, which it is impossible to reconcile with 
 these principles or these rules ; and some of the cases proceed from 
 authority so high, that, if not absolutely binding on the Court, 
 they ought at least to make it extremely cautious in pronouncing any 
 judgment inconsistent with them. If a testator devises land for 
 purposes altogether illegal, or which altogether faU, the heir-at-law 
 takes it as undisposed of. If a testator gives personal property for 
 purposes altogether illegal, or which altogether fail, the next of kin 
 takes it, as in the case of an intestacy, as undisposed of. If a tes- 
 tator devises lauds for purposes which are in part illegal, or which 
 partially faU, or which require part only of the lands devised, the 
 heir takes so much of the land as is undisposed of, and which was 
 destined for the purpose, which by law cannot, or in fact does not, 
 take effect, and so much as is not required for the purposas of the 
 
APPENDIX. 913 
 
 will ; and tliis' whether the land be actually sold or not. But here, No. III. 
 it is said, the analogy between the cases of land and money ceases, 
 and that if a testator directs money to be laid out in the purchase of 
 land for purposes which are partly illegal, or which partially fail, the 
 next of kin has no such interest in the money, as cannot be applied to the 
 purposes of the will ; but if there are purposes legal and feasible which 
 require the investment, the next of kin are excluded. And why are 
 they to be so excluded ? The proposition assumes the property in. ques- 
 tion, that is, a portion of the interest in the property, is not disposed of 
 by the will, and the law gives to the next of kin all the personalty not 
 disposed of. Is it from any incapacity in the next of kin to take 
 property which exists in the form of land 1 That cannot be. In equity 
 money may be considered as land, or land as money, according to cir- 
 cumstances. A man who has agreed to sell his land, and dies intestate, 
 dies seised of the land — ^his property exists as land — it descends as land 
 to the heir. The next of kin, so far from being incapable of succeeding 
 to property that exists in the form of land, are entitled to the purchase 
 money to be paid in lieu of the land so contracted to be sold. So it is 
 with respect to mortgages in fee, of which the mortgagee dies seised, so 
 that it cannot be that his next of kin are to be excluded, because the 
 property exists in the form of land. But if there be this' difficulty in 
 stating why the next of kin are to be excluded, there is at least as much 
 difficulty in showing how the heir at law may be entitled, as regards the 
 personalty. The proposition assumes the property was personalty of the 
 testator at the moment of his death, and there was no seisin in him of 
 any thing of any inheritable quality. Can the heir, as such, inherit 
 what never was inheritable ? Can he take from the ancestor what the 
 ancestor never had ? It cannot be necessary to pursue this any further. 
 If the heir cannot take, as such, there is then one other character in 
 which he can take : he must claim under the will. Doubtless an heir 
 may take as devisee in such a case, but then he must show from the will 
 itself a gift in his favour. He must show an intention that in the 
 events which have happened, the heir should take ; but this supposition 
 the proposition itself excludes, because it assumes an intention to bestow 
 the whole benefit on others ; and there is not in this case, or in the case 
 supposed, any intention expressed, or to be implied, as to the destination 
 of the property in the event of the disposition made not taking effect. 
 If indeed an heir claims as such, he is not defeated by the intention to 
 disinherit, if manifestly any such intention for any reason fails to take 
 effect. I am now considering the claim of the heir, not by virtue of 
 that title which the law gives to him of inheriting all the property 
 not effectually given away, but as a devisee under the wiR — ^but as the 
 person designated by this testator as his devisee, and in the event that 
 has happened. If the testator was simply to direct an investment of a 
 sum in land, and declare no trust in it, the heir might with some plausi- 
 bility contend the testator could have had no other object but to create 
 or add to his real estate, and that it might be enjoyed in that line by 
 whom that description of property is by law inheritable. But it is obvious, 
 when the particular purpose of the investment is declared, and the 
 particular persons are specified, as alone the objects of the testator's dis- 
 position, there is no place for any such contention. If, under such 
 circumstances, the heir were to take as devisee, he would take in 
 defiance of all the rules by which the rights of other persons claiming 
 as devisees are regulated. He would take not only without any words 
 
 3 N 
 
914 APPENDIX. 
 
 No, III. of gift, or any expression of intention in his favour, but against the true 
 intent that others and not he should have the whole interest in the pro- 
 perty. If the devise of personalty for a piirpose, part of which fails, be to 
 be considered as a devise to the heir to the extent and as far as the object 
 fails, why is not a devise of land to be converted into money for purposes 
 which partially fail to be considered as a devise to the next of kin to the 
 extent of the failing of the first object of the gift ? The same expressions 
 may be used in both instances ; and yet in one the legal successor to 
 land is to take, yet in the other the legal successor to money is to be 
 excluded. Under the circumstances, and for these reasons, had the case 
 come before me to be decided on principle and on authority independent 
 of two or three cases to which I shall particularly refer, I should not 
 have felt any difficulty in deciding against the claim of the heir. It 
 remains to be considered whether I am bound by these cases to decide in 
 his favour. An observation was made by Mr. Pemberton at the hearing, 
 which removes much of the difficulty which would otherwise have arisen 
 from the cases, namely, that no authority of an earlier date than Achroyd 
 v. Smithson ought to have much weight with me. The force of this obser- 
 vation will be felt, on adverting to what Lord Thurlow says in deciding 
 that case. He says, ' I used to think, when it was necessary for any 
 purpose of the testator's disposition to convert the land into money, that 
 the undisposed land would be personalty.' Now this is precisely the 
 argument used as to the conversion of money into land by Mr. Hodgson ; 
 and here I cannot but observe, that this subject of conversion has given 
 rise to two of the ablest arguments ever addressed to any Court — ^that 
 by Lord Bldon on the one side ia Achroyd v. Smithson, and that by 
 Mr. Hodgson on the other, in the present case — an argument, which 
 has, since it has been delivered, been frequently mentioned at the bar 
 in terms of the highest praise, and in which I gladly avail myself of this 
 opportunity to express my entire concurrence. In that argument it 
 was necessarily admitted, if all the purposes of a devise failed, the 
 whole belongs to the heir (gu. next of kin). But it was contended, that 
 if the purposes are to be in part executed, and so that the right to 
 have such an investment of money in land eflfectually existed in any 
 one to answer such partial purpose, that the land so purchased, after 
 answering such partial purpose, belongs to the heir. So thought Lord 
 Thurlow, as to lands directed to be sold, before the argument in Achroyd 
 V. Smithson-. No wonder, then, that there should be found before that 
 time traces of authority in favour of the heir's claim to money, as there 
 was of the next of kin's claim to land : but the exclusion of the latter 
 is now too well settled to be disputed, and the argument for the heir 
 rests on a supposed diflference between the two. But no such difference 
 was supposed to exist before Achroyd v. Smithson : why then should it 
 exist now ? If there be any substantial difference in principle, let it 
 prevail, but if in principle there be no distinction, are not the decisions 
 in Achroyd v, Smithson and the subsequent cases of higher authority 
 than any decision which may have taken place before the principle was 
 so thoroughly discussed and established as it was in that case ? In 
 deciding in favour of the next of kin, I am following the principle of 
 Achroyd v. Smithson, and maintaining that uniformity of decision as to 
 the conversion of land into money, and of money into land, which was 
 supposed to exist before that time. The case of Lechmere v. Lord 
 Carlisle, (a) was cited for the heir ; but this and all other cases in which 
 
 (a) 3 P. W. 211. 
 
APPENDIX. 915 
 
 the conversion was in the lifetime of the testator, I consider as not No. III. 
 bearing upon the case. Indeed, in one view, these cases may be 
 thought to bear against the claim of the heir. They proceed on this — 
 that whereas, by the obligation to convert money into land in the life- 
 time of the settlor, the money had become land iu the ancestor, 
 whenever the property was so situated the heir was held entitled to it. In 
 the present case, the heir claims that which unquestionably was personalty 
 at the moment of the death of the ancestor. Of the other cases cited 
 for the heir, some were in support of his right as such claiming by in- 
 heritance, others in support of his claim as devisee. I will consider the 
 latter class first. Smith v. Claxton (a), which does not appear to me to 
 have much application. There land was directed to be sold for purposes, 
 some of which failed : it was decided that the heir took what was not 
 required for the purposes of the wiU ; and the only question was, whether 
 he took it as money or as land. This has no bearing on the question, 
 whether in this case the heir or the next of kin of the testator are 
 entitled. There the observations of Sir John Leach may be material, 
 when some other of his decisions are to be observed upon hereafter. He 
 says, ' The heir at law is entitled because the real estate was land at 
 the devisor's death, and this part of the produce is an interest in that 
 land not effectually devised, and which therefore descends to the heir. 
 It is for this reason that the produce of an estate which the devisor 
 directs to be sold can never be strictly part of his personal estate. If a 
 devisor directs such produce to be paid to his executors,, and applied as 
 part of his personal estate, the executors take it as devisees. '^ Amphlett 
 V. Pa/tke (6) came before the same learned Judge first. He thought 
 the case came within the authority of Dmrowr v. MotUvcc (c), and 
 Mallabar v. Mallabar (d), and expressed his regret he was there bound 
 to decide, that in that case, as the real estate was directed to be sold, 
 and the proceeds were directed to be taken as part of the personal estate, 
 and to- be applied, together with his personal estate, in paying personal 
 legacies, a gift of the residue of the personal estate passed, by the death 
 of the legatee, a legacy arising from the real estate. He says, ' It is 
 only from deference to these two cases that I arrive at the conclusion in 
 this case, that the testatrix had in her view the improbable intention, 
 that the monies arising from the sale of the real estate should, for pur- 
 poses not foreseen by her, have the same quality as if at her death they 
 had been part of her personal estate.' Sir John Leach adhered to this 
 opinion when the case was brought before him in 1827, as reported 4 
 Bussell, 75 ; but Lord Brougham reversed this decree, and decided in 
 favour of the heir. "Whatever may be the right decision in Amphlett v. 
 Parke, the circumstances are so different from the present case, that it 
 cannot be considered as bearing upon it. In that case the question was, 
 whether the proceeds of the real estate, which were destined to the 
 lapsed legacies, passed under the residuary clause. In the present case 
 there is no residuary clause, but the heir claims under a direction to 
 purchase land for purposes which faU. Fhillips v. FUllips (e) comes 
 nearest to the present. In that case there was a devise of land for sale 
 and a direction that the proceeds should be deemed to be paxt of the 
 personal estate, and should be subject to the disposition afterwards 
 made of the personal estate. The proceeds of the sale and the personal 
 
 (a) i Madd. 484. (d) Cas. t. Talb. 78. 
 
 (6) 1 Sim. 275. (e) IM. &K. 649. 
 
 (c) 1 Yes. 390; 
 
 ^ 3 N 2 
 
916 APPENDIX. 
 
 No III estate were then given to trustees to pay the debts and legacies, and the 
 
 residue of the proceeds and of the personal estate was to be divided 
 into fifths, to be paid to five residuary legatees. The death of one of 
 them occasioned a lapse as to one-fifth. The question was, whether so 
 much of it as arose from the proceeds of the land belonged to the heir 
 or next of kin. Sir John Leach thought the next of kin entitled, rest- 
 ing his judgment on cases which had decided that the residuary clause 
 might pass what was intended for legacies which lapsed or could not be 
 carried into effect, considering the provision of the will before him as 
 amoimting to a direction, that the proceeds of the real estate should be 
 considered as personal, not only for the purposes of the will, but for 
 purposes never contemplated by the testator. To support that decision 
 on his own principles, he must have considered the will as amounting to 
 a direction that the proceeds of the land should be appKed not only to 
 the purposes of the will, but, iu the event of any of those purposes 
 failin g, for the nest of kin. It forms no part of the present purpose 
 to consider whether that case can be supported on principle, or on 
 any preceding authority. It is sufficient to observe, that it professes 
 to be founded on a direction, that the proceeds of all the land should 
 be deemed to be part of his personal estate, and it was merely a 
 construction put on such a bequest : in the present case there is no 
 direction that the money to be invested should be deemed to be part 
 of the testator's real estate. If there had not been such a direction in 
 Phillips V. PhilUps Sir John Leach states that the rule established in 
 Ackroyd v. Smithson would have prevailed. His judgment, there- 
 fore, in that case is no authority for the claim of the heir in t is. 
 In the next case of Jessopp v. Watson (a) he decided in favour of 
 the heir, because he did not find in the will an expression equivalent 
 to a direction that the proceeds of the real estate should for aU pur- 
 poses be considered as if it had been personal estate at his death. 
 On principle, therefore, the heir has not the authority of that learned 
 Judge, because it cannot be said in this will there are any expressions 
 equivalent to a direction that the money to be invested should be 
 considered as if it had been real estate at the time of the testator's 
 death. In Robinson v. Knight (b) the testator directed land to be 
 purchased, and that it should be settled, after a previous limitation, 
 to the use of his own right heirs, and the question was between the heir 
 at law and the residuary devisee. This was a mere question of con- 
 struction between the parties, each of whom had upon the will sufficient 
 terms of gift, whereas in the present case there is an absence of any terms 
 of gift in favour of either of the contending parties. In support of the 
 claim of the heir as such, not as devisee, the case of JSayford v. Ben- 
 lows (c) was cited, not on account of the point decided, which was merely 
 that, under the will, the residuary legatee took clear of debts, which 
 were held to be payable out of the real estate, but for the sake of certain 
 expressions used by Lord Cowper in giving judgment. He says, ' If a 
 sum of money could be devised in trust to be laid out in land, and the 
 uses to which the land shoiild go be not declared, if the money thus 
 devised be considered as land, why should not the benefit of the money 
 go to the heir at law as a resulting trust ? ' It is on this, in the first 
 place, to be observed, that this was not a point in the case, but the 
 expression is merely a dictwm. The decision was in 1716, and therefore 
 
 (a) 1 M. & K. 665. (6) 2 Eden. 155. (c) Ambl. 682. 
 
APPENDIX. 917 
 
 long before Achroyd v. Smithson, which was in 1^80 ; and Lord Cowper No. III. 
 throughout considered the rule as to money directed to be laid out in 
 land, and land directed to be sold, as identically the same. Had he 
 therefore considered the rule as to the proceeds of land directed to be 
 sold to be as it was established in Achroyd v. Smithson, he could not 
 have used this expression as to money directed to be iuvested in land. 
 It is also to be observed, no case is cited as bearing on the proposition 
 alluded to in the judgment. The case of Leslie v. The Duke of Devon- 
 shire (a) is that which creates the greatest difficulty. In that case the 
 testator, by deed, created a trust of 60,000?., which he had on mortgage, 
 and certain freehold leases and leases for years. The-60,000i. were to 
 be laid out ia land, to be settled as to part on certain uses to his son 
 and two daughters, and their children (it failed with them, all dying 
 without issue), the ultimate remainder to Joyce Leslie in fee. As to 
 certain other parts, to certain other uses to his widow and children, which 
 failed, and with ultimate remainder to Thomas Lyster in fee. And as 
 to 8,500Z., part of the 60,0001., due on a particular mortgage, and his 
 freehold leases and leases for years, on trust, to secure certain annuities 
 to his daughters, and the fee of the land to be purchased by the 8,600Z., 
 and the absolute interest in the freehold leases to his son. In this deed 
 there was reserved a power of revocation ; and the testator by his wiU 
 revoked the grant of two leases for years, and of a mortgage, part of the 
 60,000?., but not part of the 8,500?., and he charged his annuities to 
 his daughters on the 8,500?. mortgage, and another of 6,700?., not 
 included in the settlement ; and he introduced another annuity to 
 another person ; and then directed, that the said annuities being paid, 
 the surplusage of interest of the two mortgages, or of the rents of the 
 land to be purchased, should be paid to his son for Ufe, and then should 
 be settled in trust, after the manner, and under the same conditions, 
 limitations, and restrictions, as his other estates were directed to be 
 settled. All the testator's children died without issue, but the son 
 devised aU his real and personal estate to his wife ; she died intestate as 
 to her real estate, and the Duke of Devonshire, who was her heir, and 
 who derived his title from the testator's son, claimed the 8,500?. and 
 the 6,700?. To support this claim, it was endeavoured to show the 
 testator's son had been entitled to these sums as real estate. It was 
 immaterial whether he was entitled under the deed, as devisee imder the 
 wiU, or as heir. His counsel made three points : first, whether the gift 
 was void, and, as such, went to the personal representative ; secondly, 
 whether it was to be divided into portions between the classes of devisees ; 
 and, thirdly, whether it went to the third class, that is to say, to the 
 son in fee ; and they insisted on the third of these propositions. It is 
 to be observed, that they did not claim it as having vested in the son 
 as heir, on the supposition of the devise being void for uncertainty, 
 although that would have been equally maintainable, but seemed to 
 assiune, if the devise was void, then the personal representative would 
 take the mortgages, and, if the decision had been merely in favour of 
 the Duke's claim as deriving title through the heir of the testator, it 
 would obviously have been referred to the ground taken in argument by, 
 his counsel, and would have been no authority in support of the claim 
 of the heir in the present case ; but, according to Mr. Brown's report of 
 the judgment. Lord Kenyon took no notice of the point urged, but 
 
 (a) 2 B. C. C. 187. 
 
918 APPENDIX. 
 
 No. III. decided in favour of the title of the heir, on the ground of intestacy, 
 and this without time taken for consideration, without any one case 
 being cited, or any argument addressed to that question. Possibly Lord 
 Kenyon's view of' the question was mistaken by the reporter : as it 
 stands, it appears to be an authority for the claim of the heir. The 
 character of the Judge entitles every decision of his to the highest respect, 
 but in this case the circumstance above mentioned detracts from the 
 authority of the opinion expressed. The case of Tregomwell v. Sydrni^ 
 Tw/rn (a) was also much relied on ; but that case also is applicable only on 
 account of certain observations of Lord Redesdale, and not from the 
 decision itself. The testator devised land in strict settlement, subject to 
 a certain trust for raising 20,000!., which were directed to be laid out in 
 the purchase of land to be settled to certain uses, which were void, as 
 being too reiuote ; and the decision was, that the 20,000J. belonged to 
 the heir. This decision does not touch the present question ; that was not 
 personalty directed to be invested in land, but land first directed to be 
 converted into money and re-invested into land, and all the purposes for 
 which this was to be done having failed, the heir took the land so directed 
 to be converted into money. Lord Redesdale does not advert to this 
 circumstance, but is made to say, ' It has been established in many cases, 
 that where land is directed to be turned into money, or money is directed 
 to be laid out in land, both shall be considered as that species of pro- 
 perty into which they are directed to be converted. Considering the 
 20,0002. as land, the disposition not being capable of being carried into 
 effect, who is to take ? The heir at law must take. If the testator had 
 directed 20,0002. to be paid out of the personal estate, and lands to be 
 purchased, these lands, on failure of the intended purpose, would go to 
 the heir at law ; the personal representative could not .take, as the money 
 was converted into land.' It is to be observed. Lord Redesdale, in this 
 observation, considers the same rale as applicable to the conversion of 
 land into money as money into land, and yet the observation he makes 
 as to the latter, if applied to the former, would be directly at variance 
 with Aekroyd v. Smithson. Unquestionably, however, if Lord Redesdale 
 did use this expression, the heir at law in this case has his high authority 
 in support of the proposition for which he contends. But I can consider 
 them only as dicta, there being other and better grounds to support that 
 judgment. The case of Fletcher v. (Jhapman{b) has been considered as 
 conclusive in favour of the claim of the heir. It is so treated in Mr. 
 Jarmari's edition of Powell on Devises, vol. ii. p. ^4, and was -so argued 
 in this case. If I considered that case as a distinct decision of the point 
 in question, I should, as the decision of the House of Lords, have felt 
 bound by its authority. That case, therefore, required my most anxious 
 consideration, and I have had the Registrar's Book examined, for the 
 purpose, if possible, of throwing some light on the report. The par- 
 ticulars of that case, as taken from the Registrar's Book, are as follows : — 
 George Goodman, the testator, by his will directed 1,000L to be invested 
 in the purchase of lands, to be so settled as that WiUiam Goodman, his 
 nephewi should have an estate therein for his Kfe only, and in case 
 William Goodman did not do such acts as should be necessary whereby 
 to limit the said land so to be purchased as that he might only have an 
 estate for life therein, and likewise to bar himself of aU other claims and 
 demands in, unto, or out of the estate of George Goodman, then he 
 
 (o) 3 Dow. 19i. (5) S B. P. C. Toml. ed. 1. 
 
APPENDIX. 919 
 
 devised to the said William 40J. only. Jane, tlie testator's widow, was No. III. 
 his administratrix. She paid William G-oodman SOOl. on account of the 
 1,000Z., and advanced him 200!., which two sums he laid out ia the 
 purchase of land, and then died, ■ leaving two children, George, who 
 afterwards died, and the defendant, Jane Fletcher, both at that time 
 infants. The defendant Cockerell was the guardian of these children, 
 and on their behalf entered into an agreement with Jane, the adminis- 
 tratrix of the testator, by which it was arrajiged that the 2001. advanced 
 by her to William should go in further part of the 1,0002., and she 
 shoidd pay to Cockerell the remaining 500!., which was accordingly 
 paid, whereon he conveyed certain land to Jane, the administratrix, and 
 to the defendant Newton, as a security that the 300?., the 200!., and 
 500!. should be laid out and settled according to the intent of the 
 testator. Elizabeth, the late wife of the plaintiff, Thomas Chapman, 
 was the heir at law of the testator, and the other plaintiff, Roger, was 
 Thomas Chapman's son. Jane, the administratrix of the testator, died, 
 and there is no statement in the pleadings as to any representation of 
 the testator's estate having been obtained after her death. The plaintiffs 
 were the surviving husband of the heiress of the testator, and his son, 
 and the defendants were Newton, the trustee, and Cockerell {who had 
 entered into the arrangement, and who had received the 700!., and who 
 was also administrator to William Goodman), and Jane, the only sur- 
 viving child of WiUiam Goodman ; and the object of the bill was, to 
 have it declared the 1,000!., or the land purchased with it, belonged to 
 Ehzabeth, the heiress of the testator, as against the children of William 
 Goodman. On the part of the defendant Cockerell, it was insisted the 
 whole administration to the testator had been granted to Gabriel Good- 
 man, with Jane : he died in the lifetime of Jane, and they had agreed 
 the testator's debts and legacies should be paid, and to that end the 
 securities in writing concerning his personal estate should be deposited 
 in the hands of the defendant Newton. He then stated a suit, after the 
 death of William Goodman, to which Elizabeth Chapman, the heiress of 
 the testator, was party, in which a decree was made in 1680, to take 
 accounts of the testator's estate. He then stated the estate so conveyed 
 by Cockerell to Jane, as administratrix to the testator, had been settled 
 on Jane and George, the two children of William Goodman ; the other 
 part of the 1,000!. had been invested on mortgage ; and insisted that 
 Jane Fletcher, the only surviving child of William Goodman, was entitled. 
 The defendant Newton, by his answer, represented himself solely as a 
 trustee of the land conveyed by Cockerell, and submitted to act as the 
 Court should direct. By the decree it was declared, that, the testator 
 having declared that William Goodman should have an estate for Hfe 
 only, the 1,000!., or land purchased therewith, belonged to the testator's 
 heir at law, and not to the children of William Goodman. It directed 
 the payment of the 7001. received by Cockerell from Jane, the adminis- 
 tratrix of the testator, and an account, and payment of the rents of 
 three-fifths of the land purchased by William Goodman, and a conveyance 
 of the three-fifths, and the other two-fifths of the rents of this land to be 
 paid to the defendant, Jane Fletcher ; the plaintiff, Thomas Chapman, 
 to have the whole of the 700!., and the interest of three-fifths of the 
 land, for his life, and afterwards to his son, the other plaintiff. It is 
 quite clear, in this case, there was no contest between the real and 
 personal representative of the testator, George Goodman. There was no 
 personal representative before the Court. It was said in the argument 
 
920 APPENDIX. 
 
 No. in. in the case now before me, that Newton represented in fact the personal 
 estate, because it had been assigned to him. There is no trace of this in 
 the pleadings of record : it is undoubtedly stated in CockereE's answer, 
 that by articles in 1773, it was agreed between Jane, the widow, and 
 Gabriel, the administrator of th« testator, the testator's debts and legacies 
 should be paid, and to that end the securities and writings concerning 
 his personal estate should be deposited in the hands of the defendant 
 Newton. This was only to insure the arrangements between the parties, 
 and gave Newton no interest in the property ; and he does not claim 
 any. From this decree the child of William Goodman appealed, and 
 Chapman, representing the heir of the testator, was respondent. It is 
 reported in 3 B. P. C. 1. But here, also, it is obvious there was no 
 question between the real and personal representative of the testator. 
 Jane, his administratrix, had paid the 1,000?., and no person repre- 
 senting his personal estate was in any way a party to the contest. It is 
 a case in which the heir was declared entitled to the money directed to 
 be laid out in land, not to any declared purpose which failed, but for the 
 limited interest, that is, for the life of William Goodman ; but it is not 
 a decision that, even in that case, the heir was entitled against the 
 personal representative. No such case was made by the pleadings, or 
 argued, or decided, and, there being no party to raise that question, this 
 case therefore decides nothing as to the present matter in contest. 
 Greaves v. Gase, as reported 1 Vesey, jun., 548, would appear to be an 
 authority for the heir, but in the report of the same case, 2 Cox, 301, it 
 is stated the plaintiflf was both heir at law and next of kin, and therefore 
 entitled in one character or the other : it was not discussed in what 
 character he took, and the point decided was a different one. Many 
 cases were cited against the claim of the heir, but as they were either to 
 establish general principles, which I do not consider in dispute, or with 
 reference to the point in the case, to which the opinion I have formed 
 on this particular point makes it needless for me to advert, I do not 
 think it necessary to examine them in detail. I may observe, no case 
 was cited against the heir in which the point now contended for by Tiim 
 was directly raised and decided. It was argued, indeed, that Abbot v. 
 Lee (a) was precisely this case : but it appears the decision, although 
 against the testator's heir, was not in favour of his personal representa- 
 tive, but gave the 550J. and 150J. to the representative of Mary, the 
 legatee, considering that her interest in these sums was absolute. There 
 are, however, some of the cases cited for the defendant, which, although 
 not precisely the case before me, are most important, as showing, that 
 when the whole object of the bequest of money to be converted into 
 land fails, the personal representative is entitled, and as showing the 
 question of conversion of money into land, and land into money, has by 
 the highest authority been considered as regulated by the same rules. 
 Such are the cases of Bobinson v. Taylor (6), Townley v. Bedwell (c), 
 besides others, to which I need not refer. The result of the whole 
 authorities seems to be, that before Ackroyd v. Smithson no distinction 
 was recognised between the doctrine as applicable to a conversion of 
 money into land, or land into money — that as to both an opinion 
 prevailed, that when a conversion was necessary, and part of the object 
 failed, the unappropriated proceeds belonged to that representative on 
 whom the law cast that description of property in which such proceeds 
 
 (o) 2 Vem. 284. ,(i) 2 B. C. C. 595 ; 1 T«s. j-un. 45. (c) 6 Ves. 194. 
 
APPENDIX. 921 
 
 were found to exist. This, as to land converted iato money, was No. III. 
 corrected in Achroyd v. Smithson; but no case has occurred in which the 
 point has been argued and determined as to money converted into land. 
 I say argued and determined, because, if determined in LesUe v. The 
 Duke of Devonshire and Fletcher v. Chapman, it certainly was not argued ; 
 but there are undoubtedly dida of very eminent Judges, since that time, 
 which seem to show an impression on their mind, that the principle of 
 Achroyd v. Smithson was not to be applied to a conversion of money into 
 land. Those learned Judges had not the benefit, which I have had, of 
 hearing the point fully and most ably argued ; and having, after the 
 fullest consideration, come to the conclusion that that principle does 
 apply to the present case, and as I am not bound by any of the autho- 
 rities to maintain a distinction which was not originally supposed to 
 exist, and which cannot be maintained in reason, and which, therefore, 
 if maintained, would be a reproach to the law as it stands, I feel myself 
 fully justified in preserving the uniformity of the rule, as applicable to 
 the two cases, by deciding against the claim of the plaintiff ; and I may 
 be allowed to express some satisfaction in finding I am not compelled by 
 authority to hold that any heir should take, as such, what had no 
 inheritable quality, but was pure personal estate, at the time of the 
 ancestor's death, or that, as devisee, he should take that which was never 
 destined for him, but was in most unquestionable terms given to another. 
 One other point was made for the heir, to which now I will very shortly 
 aUude. It was said, as the testator had directed the estate should be 
 purdiased and remain in his name, his heir must have been a trustee of 
 it, and, if it had been so purchased and so vested in the heir, there 
 would be no equity on the part of the next of kin, as against the heir, 
 to convert this land into money. That proposition fails in all its parts : 
 there is nothing to show the heir is to be a trustee : the heir might 
 indeed have borne a diBferent name : if he had been a trustee, he would 
 have held it as a trustee, and not as heir. And the rule, that there are 
 no equities between representatives, would have had no application ; and 
 if it had, it would have been fatal to the claim of the heir, who now 
 seeks, after all the purposes of the wUl are answered, to convert to his 
 own benefit, against the next of kin, what was money at the testator's 
 death, and has ever since so remained. The argument of John James 
 Stevens, the plaintifi', rests on the supposition that the 30,000Z. ought 
 to be considered as land as between the real and personal representative ; 
 and as my judgment is against the validity of such claim, the biU must 
 be dismissed, but without costs. I have some reluctance in refusing to 
 give the defendants the costs, because, in general, I think that those 
 who try the experiment of a claim should pay the expenses of it if they 
 fail, however reasonable the ground may have been for trying it ; but 
 this question is so involved in difficulty, from what has taken place and 
 been said in Courts of equity at diflferent times, and arises so much from 
 the act of the testator, from whom both claim, that I think it fair each, 
 party should bear their own costs," 
 
923 APPENDIX. 
 
 No. IV. 
 
 Supra, p. 568. 
 
 Appomimient of new Trustee of Stock. 
 
 No. IT. This Indenture, made the day of between E. F. of 
 
 and G. his wife (the donees of the power), of the first part ; 
 A. B. of (the continuing 1/rvstee), and C. D. of (the 
 
 reti/ri/ng trustee), of the second part, and I. K. of (the new 
 
 trustee), of the third part : Whereas, by an indenture of settlement 
 bearing da;te the day of , and made or expressed to be made 
 
 between, <fec., being th« settlement made in contemplation of the mar- 
 riage then intended and soon afterwards solemnized between the said 
 E. F. and G., his wife, after reciting that a sum of I. Three per Cent. 
 Consolidated Bank Annmties had been transferred into the joint names 
 of the said A. B. and C. D. in the books of the Governor and Company 
 of the Bank of England, It was witnessed, that for the consideration 
 therein mentioned, it was thereby agreed and declared, that the said 
 A. B. and C. D., and the survivor of them, and the executors, admi- 
 nistrators, and assigns of such survivor, should stand possessed of and 
 interested in the said sum of I. Three per Cent. Consolidated Bank 
 
 Annuities, upon trust, from and after the solemnization of the said mar- 
 riage, to pay the dividends, interest, and annual produce thereof unto 
 the said E. P. ajid his assigns, for his Ufe, and after his decease, unto 
 the said G. P. and her assigns, for her life, and after her decease, upon 
 the trusts therein particularly mentioned for the benefit of the issue of 
 the said marriage ; and by the said indenture now in recital it was pro- 
 vided (recite power of appointment of new i/rustees Ivmited to E. F. ami G. 
 his wife, and the usual d/i/recUon for transfer of the trust fund, and 
 declaration as to the powers of trustees) : And whereas the said C. D. is 
 desirous of being discharged from the trusts of the said indenture, and 
 the said E. F. and G., his wife, are desirous of appointing the said I. K. 
 to be a trustee in the place of the said C. D. ; And whereas the said 
 sum of I. Three per Cent. Consolidated Bank Annuities is intended 
 
 to be forthwith transferred by the said A. B. and C. D. into the joint 
 names of the said A. B. and I. K. in the books of the Governor and 
 Company of the Bank of England : Now this indenture witnesseth, that 
 in pursuance of the said desire on the part of the said E. P. and G., his 
 wife, and by force and virtue and in exercise and execution of the power 
 or authority by the said recited indenture limited to the said E. P. and 
 G. his wife, and of every other power or authority in anywise enabling 
 them or either of them in this behalf, they, the said E. P. and G. his 
 wife, do and each of them doth by this deed or instrument in writing 
 sealed and delivered by them in the presence of and attested by the 
 two credible persons whose names are hereupon indorsed as witnesses to 
 the sealing and delivery hereof by the said E. P. and G. his wife (a), 
 nominate and appoint the said I. K. to be a trustee in the place of the 
 said C. D. for the purposes of the said indenture, or such of them as 
 are now subsisting and capable of taking eflfect ; And it is hereby agreed 
 
 {a) The instrument executing the power must of course be in conformity with the 
 terms of the power. 
 
APPENDIX. 923. 
 
 and declared that the said A. B. and I. K., and the survivor of them, No. IV. 
 
 and the executors, administrators, and assigns of such survivor, shall 
 
 stand and be possessed of and interested in the said sum of I. 
 
 Three per Cent. Consolidated Bank Annuities, when and so soon as the 
 
 same shall have been transferred into the joint names of the said A. B. 
 
 and I. K., and of and in the dividends, interest, and annual produce 
 
 thereof, upon and for the trusts, intents, and purposes, and with, under, 
 
 and subject to the powers, provisoes, agreements, and declarations in 
 
 and by the said indenture of settlement expressed and declared of and 
 
 concerning the same or such of the said trusts, intents, and purposes, 
 
 powers, provisoes, agreements, and declarations as are now subsisting and 
 
 capable of taking effect. In witness, <fea 
 
 No. V. 
 
 Supra, p. 668. 
 
 Appoimiment of mew Trustee of Chattels. 
 
 This Indenture, made the day of , between A. B. of No. Y. 
 
 (the survvcviig trustee) of the first part ; E. F. of (party 
 
 leneficially interested and sui juris (a) ) of the second part ; G. H. 
 of (new trustee) of the third part ; and I. K. of , 
 
 (providonal trustee) of the fourth part. [Recite creation of trust of 
 chattels, real or personal, in favour of E. F. for life, with Ivmitations 
 over, and a jpower of anointment of new trustees to the continuing or 
 surviving i/rustee, by deed or writmg under ha/nd and seal, with the usual 
 direction for the transfer of the trust estate, and the declaration as to 
 powers.^ And whereas the said C. D. departed this life on or about the 
 day of , leaving the said A. B. his co-trustee him 
 
 surviving ; and whereas the said A. B. is desirous of appoiating the 
 said Gr. H. to be a trustee of the said recited indenture, in the place of 
 the said C. D. deceased : Now this indenture witnesseth, that in pur- 
 suance of such desire, and by force and virtue, and in exercise and 
 execution of the power or authority by the said recited indenture limited 
 to the said A. B., and of every other power or authority in any wise 
 enabling hiTn in this behalf, he the said A. B. {with the full consent and 
 approbation of the said E. F., testified by his being a party to, and 
 executing these presents) doth by this deed or writing under his hand 
 and seal, nominate and appoint the said G. H. to be a trustee in the 
 place of the said C. D., deceased, for the purposes of the said indenture 
 or such of them as are now subsisting and capable of taking effect. And 
 this indenture fvirther witnesseth, that in pursuance of the direction in 
 this behalf in the said recited indentiu:e contained, he the said A. B. 
 (with the full consent and approbation of the said E. P. testified as 
 aforesaid) doth bargain, sell, and assign unto the said I. K., his 
 executors and administrators, all and singular (desorihe the chattels, real 
 or personal, with the proper a/ppurtenarvces), and all the estate, <fec. To 
 have and to hold the said (chattels, real or personal) unto the said I. K., 
 his executors and administrators, (or iox all the residue and remainder 
 now to come and unexpired of the said term of years) upon trust, 
 
 (a) Though not a idonee of the power, sui juris, may propei-ly join in the ap- 
 any party benefidally interested, who is pointment. 
 
924 APPENDIX. 
 
 No. V. and to the intent that the said I. K,, his executors or administrators, 
 
 may forthwith assign the same {or hereditaments for all the residue of 
 the said term) unto the said A. B. and G. H., their executors, adminis- 
 trators, and assigns, upon and for the trusts, intents, and purposes, and 
 with, under, and subject to the powers, provisoes, agreements, and 
 declarations, in and by the said recited indenture expressed and declared, 
 of and concerning the same or such of the said trusts, intents, and 
 purposes, powers, provisoes, agreements, and declarations as are now 
 subsisting and capable of taking effect. In witness, (fee. 
 
 Be,-assigwme,nt to he indorsed. 
 
 This Indenture made, (fee, between the within named I. K. of the 
 one part, and the within named A. B. and Gr. H. of the other part, 
 Witnesseth, that in pursuance of the trust in the within written inden- 
 ture in this behalf contained, he the said I. K. doth bargain, sell, and 
 assign unto the said A. B. and G. H., their executors, administrators, 
 and assigns, all and singular {the chattels, real or personal, with their 
 appv/rtenances) by the within written indenture assigned to the said 
 I. K., his executors and administrators, and aU. the estate, &c. To have 
 and to hold all and singular {the chattels, real or personal, vMh the appur- 
 tenances) unto the said A. B. and G. H., their executors, administrators, 
 and assigns, {or for all the residue and remainder now to come and 
 unexpired of the said term of years,) upon and for the trusts, 
 
 intents, and purposes, and with, under, and subject to the powers, 
 provisoes, agreements, and declarations in and by the within written 
 indenture expressed and declared of and concerning the same {or here- 
 ditaments) or such of the said trusts, intents, and purposes, powers, 
 provisoes, agreements, and declarations, as are now subsisting, and capable 
 of taking effect. In witness, (fee. 
 
 Some add a covenant by I. K. against wicumhrances. 
 
 No. VI. 
 
 Svpra, p. 669. 
 
 Appovniment of new Trustee of Freeholds hy single Deed. 
 
 No. VI. TMs Indenture, made the day of , between A, B. of 
 
 {survimng trustee) of the first part ; E. F. of , 
 
 {party heneficially interested) of the second part ; G. H. of , 
 
 {relessee to uses) of the third part ; and I. K. of {new 
 
 trustee) of the fourth part. [iJeciie corweyance of freehold estates unto- 
 and to the use of A. B. and G. D. , and their heirs, upon the trusts therein 
 mentioned, with a power of appoirotment of new trustees to the continuing 
 or survvning trustee, and the usual direction for transfer of the estate and 
 declaration as to powers.^ And whereas the said C. D. departed this, 
 life on or about the day of , leaving the said A. B. his 
 
 co-trustee him surviving. And whereas the said A. B. is desirous of 
 appointing the said I. K. to be a trustee of the said recited indenture in 
 the place of the said 0. D. deceased. Now this indenture witnesseth, 
 that in pursuance of such desire, and by force and virtue, (fee. [Insert 
 appointment %y A. B., of I. K., to he trustee in the place of 0. D., as in 
 Appendix, No. F.] And this indenture further witnesseth, that in 
 
APPENDIX. 925 
 
 pursuance of the direction in this behalf in the said recited indenture No. TI. 
 
 contained, the said A. B. (with the full consent and approbation of the 
 
 said E. F. testified as aforesaid) doth by these presents grant and release 
 
 unto the said I. K. and his heirs, all and singular [describe the freeholds 
 
 with their appurtenances^, and the reversion, <kc., and aU the estate, <ko., 
 
 To have and to hold the said {freeholds with their appwrtemaiMes) unto 
 
 the said I. K. and his heirs, to the use of the said A. B. and I. K., 
 
 their heirs and assigns, upon and for the trusts, intents, and purposes, 
 
 and with, under, and subject to the powers, provisoes, agreements, and 
 
 declarations, in and by the said recited indenture expressed and declared 
 
 of and concerning the same, or such of the said trusts, intents, and 
 
 purposes, powers, provisoes, agreements, and declarations as are now 
 
 subsisting and capable of taking effect. In wiiaiessj &c. 
 
 No. VII. 
 
 Supra, 669. 
 
 Appointment of new Trustee of Freeholds hy two- Deeds. 
 
 This indenture, made the diay of , between A. B. No. VII. 
 
 of , (continuing trustee), and 0; D. of , (retiring 
 
 trustee), of the first part ; E. F. of , and Gr. his wife 
 
 (tencmts for life) of the second part ; I. E. of , (new 
 
 trustee) of the third part ; and L. M. of , (provisional 
 
 trustee) of the fourth part. Whereas, by indentures of lease and release, 
 bearing date respectively, &c., and made or expressed to be made 
 between, <fcc., (being the settlement made in contemplation of the 
 marriage then intended, and soon afterwards solemnized, between the 
 said B. F. and G. his wife) for the consideration therein mentioned, (fee. 
 [JJecife release to A. B. and 0. D. and their heirs, to the use of E. F. and 
 6. S. sucoessiveVy for life, with remainders over, and power of appoint- 
 ment of new trustees to the surviving or continuing trustee, with the 
 consent of E. F. and G. H., during their lives, &e.'\ And by the said 
 indenture of release and settlement now in recital, it was provided, that 
 in case the said A. B. and C. D. , or either of them, or any trustee to be 
 appointed as thereinafter mentioned, or their or any of their heirs should 
 die, or be desirous of being discharged from, or refuse, or decline, or 
 become incapable to act in the trusts thereby declared before the same 
 should be fully executed, it should be lawful for the said A. B. and 
 C. D., and the survivor of them, and the executors and administrators 
 of such survivor, with the consent and approbation of the said E. F. and 
 G. H., during their lives, and of the survivor of them, during his or her 
 Ufe, and, after the death of such survivor, at their or his sole discretion, 
 by any writing or writings under their or his hands and seals, or hand 
 and seal, to nominate and appoint any other person or persons to be a 
 trustee or trustees in the place of the trustee or trustees so dying, or 
 desirous of being discharged from, or refusing, declining, or becoming 
 incapable to act as aforesaid ; and that, upon such nomination and 
 appointment, the said trust estates shoidd, with all convenient speed, be 
 conveyed and assured in such manner that the same might be legally and 
 effectually vested in such new trustee jointly with the surviving or 
 continuing trustee ; or, in case there should' be no surviving or continuing 
 trustee, then in such new trustee or trustees only, to, for, and upon the 
 
926 APPENDIX. 
 
 No. ¥11. uses, trusts, intents, and purposes thereinbefore expressed and declared 
 of and concerning the same ; and it was thereby declared, that every 
 such new trustee should in all things act in the said trusts, and with the 
 same powers and authorities as if he had been originally appointed a 
 trustee by the said indenture of release and settlement now in recital. 
 And whereas the said C. D. is desirous of being discharged from the 
 trusts of the said indenture of release and settlement, and the said 
 A. B. is desirous, with the consent of the said E. F. and G. his wife, of 
 appointing the said I. K. to be a trustee in the place of the said C. D. : 
 Now this indenture witnesseth, that in pursuance of such desire on the 
 part of the said A. B., and by force and yirtue, and in exercise and 
 execution of the power or authority in that behalf limited to him by the 
 said indenture pf release and settlement, and of every other power or 
 authority in anywise enabling Tiim in this behalf, he the said A. B., with 
 the consent and approbation of the said E. P. and G. his wife (testified 
 by their respectively being parties to and executing these presents), doth 
 by this deed or writing under his hand and seal, nominate and appoint 
 the said I. K. to be a trustee in the place of the said C. D. for the 
 purposes of the said indenture of release and settlement, car such of them 
 as are now subsisting and capable of taking effect. And this indenture 
 further witnesseth, that in pursuance of the direction in this behalf con- 
 tained in the said indenture of release and settlement, and by force and 
 virtue, and in exercise and execution of the power or authority by the 
 same indenture for this purpose given to the said A. B. and C. D., or 
 either of them, and of every other power or authority in anywise 
 enabling them or either of them in this behalf, they the said A. B., and 
 0. D. do and each of them doth by these presents revoke, determine, 
 and make void all and every the uses, trusts, intents, purposes, powers, 
 provisoes, agreements, and declarations in and by the said indenture of 
 release and settlement limited, expressed, declared, and contained, and 
 now subsisting and capable of taking effect, of or concerning the freehold 
 estates and hereditaments hereinafter described or referred to, and of and 
 concerning their rights, members, and appurtenances, and do and each 
 of them doth direct, limit, and appoint that the same freehold estates 
 and hereditaments, with their appurtenances, shall henceforth go, remain, 
 and be to the use of the said L. M. , and his heirs, upon the trust and to 
 the intent hereinafter expressed. And this indenture further witnesseth, 
 that in further pursuance of the direction in the said indenture of release 
 and settlement, in this behalf contained, the said A. B. and C. D. do and 
 each of them doth by these presents, grant and release unto the said 
 L. M., and his heirs, all and singular (the freehold hereditaments), and all 
 other, if any, the hereditaments and premises comprised in the said 
 indenture of release and settlement, with their rights, members, and 
 appurtenances, and the reversion, <fec., and all the estate, &c. To have 
 and to hold the said (freehold hereditaments), and all and singular other 
 the premises hereby released or intended so to be, with their rights, 
 members, and appurtenances unto the said L. M. and his heirs, to the 
 use of the said L. M. and his heirs, upon the trust and for the intent 
 hereinafter expressed. And it is hereby agreed and declared, between 
 and by the parties hereto, that the said hereditaments and premises 
 hereinbefore mentioned or referred to, with their appurtenances, are 
 hereinbefore appointed and released to the use of the said L. M. and his 
 heirs upon trust, that the said L. M. or his heirs may forthwith convey 
 the same hereditaments and jaremises, with their appurtenances, unto 
 
APPENDIX. ^27 
 
 the said A. B. and I. K., and their heirs, to the uses upon and for the No. VII. 
 trusts, intents, and purposes, and with, under, and subject to the 
 powers, provisoes, agreements, and declarations, to, upon, for, with, 
 under, and subject to which the said hereditaments and premises, with 
 their appurtenances, would now, under and by virtue of the said 
 indenture of release and settlement, stand and be limited, or subject, 
 in case this present indenture had not been executed, and the said I. K. 
 had been originally made a relessee to uses, in and by the said indenture 
 of release and settlement, instead of the said C. D., and accordingly the 
 name of the said I. K. had in the said indenture been inserted through- 
 out, instead of the name of the said C. D. [Covenant by C JD. agamat 
 mcimibrancesJ] In witness, ifeo. 
 
 Beeonveyance to be indorsed.. 
 
 This Indenture made the day of , between the 
 
 within named L. M. of the one part, and the within named A. B, and 
 I. K. of the other pait, Witnesseth, that in pursuance of the trust in 
 the within written indenture in this behalf contained ; he the said L. M. 
 doth by these presents, grant and release unto the said A. B. and I. K., 
 and their heirs, all and singular the hereditaments and premises, by the 
 within written indenture appointed and released to the use of the said 
 L. M. and his heirs, with their rights, members, and appurtenances, and 
 aU the estate, <fec. To have and to hold the said hereditaments, and 
 premises hereinbefore released, or intended so to be, unto the said A. B. 
 and I. K., and their heirs, to the uses, upon and for the trusts, intents, 
 and purposes, amd with, under, and, subject to the powers, provisoes, 
 agreements, and declarations, to, for, upon, with, under, and subject to 
 which the same hereditaments and premises would now, under, and by • 
 virtue of the within recited indenture of release and settlement stand 
 and be limited or subject, in case the within written indenture, and 
 these presents had not been executed, and the said I. K. had been 
 originally made a relessee to uses, and trustee in and by the said within 
 recited indenture of release and settlement, instead of the within named 
 C. D., and accordingly the name of the said I. K. had in the same 
 indenture been inserted throughout, instead of the name of the said 
 C. D. In witness, &c. 
 
 Some add a eovenant by I. K. against inoiMnbrances. 
 
 No. VIII. 
 
 Sands V. Nugee, supra, p. 533. 
 
 July 6th, 1836. 
 
 The Duke of Roxburgh, by wUl dated November 5th, 1803, gave all No. VIII, 
 his estates, real and personal, to John Wanchope * and James Dundas 
 upon trust to seU, <fec., " with full power to each of the trustees before 
 named or to be named by the testator, who should accept of the trust 
 to name and appoint any other person he pleased to succeed himself in 
 the trust thereby created after his own decease, and also to the said 
 
 * Qu,. Wauchope. 
 
928 APPENDIX. 
 
 No. VIII. nominees to name other persons to succeed to them respectively in the 
 said trust after their death, and that from time to time, and at all times 
 coming, aye, and until the trust should be completely executed, and the 
 purposes thereof fulfilled. And also with power to the said trustees 
 named or to be named by the testator, or to be assumed, as said was, 
 accepting and surviving, or their quorum aforesaid, to assume and 
 appoint any person or persons they pleased as joint trustees in the trusts 
 thereby granted in place of any foimer trustee or trustees named or to 1)6 
 named by the testator, and assumed as aforesaid, who should decline to 
 accept, or who should leave Britain or go abroad, or who should have 
 deceased without naming a successor or successors to himself or them- 
 selves in the trust thereby created, and which trustees so to be assumed 
 should have as full and ample power as was given to the trustees thereby 
 appointed." 
 
 The Duke, a short time before his death, executed a; deed of instruc- 
 tions in the nature of a codicil, in which he gave certain directions as 
 to the application of the proceeds of the sale, and died in March, 1804. 
 
 Mr. Dundas disclamed both as trustee and executor. Mr. Wanchope 
 took out probate, and acted as trustee, and, in 1829, died, having, by 
 wUl, dated in 1823, appointed John Spottiswoode, David Robertson, 
 and Warren Hastings Sands to succeed him in the trusts of the Duke's 
 vrill, and devised and bequeathed to them all the trust estates. 
 
 Spottiswoode and Bobertson disclaimed, and Sands alone proved 
 Wanchope's will, and acted in the trusts. 
 
 Sands put up certain premises to auction, and by the sixth condition 
 of sale, it was provided that "every purchaser should accept and be 
 satisfied with a conveyance from the trustee then acting in the execution 
 of the trusts of the said will and codicil by the latter of which it was 
 ' declared that purchasers should be effectually discharged and secured by 
 the conveyances, releases, or discharges of such trustee." 
 
 Mr. Nugee became the purchaser, and signed the agreement, but 
 afterwards objected to the title, on the ground, in the words of the joint 
 opinion of two eminent conveyancers, "that the devise in the will of 
 John Wanchope to three trustees was not a valid exercise of the power 
 which authorised each of the trustees to appoint any other person he 
 pleased to succeed himself in the trusts thereby created after his own 
 decease, and that the power which followed, to appoint any person or 
 persons they pleased as joint trustees, did not apply to the case which 
 had happened. That the purchaser was not bound by the sixth condi- 
 tion of sale to accept and be satisfied with a. conveyance from the acting 
 trustee under the will of John Wanchope as the trustee then acting in 
 the execution of the trusts of the wiU and codicil ; for it could not be 
 intended to exclude the purchaser from objecting that the party was not 
 a trustee authorised to act in the trusts." Sands filed a biU for specific 
 performance ; and, the Master having reported that a good title could be 
 made "according to the contract," the defendant excepted to the report. 
 Nugee was a willing purchaser ; and the point arising upon the power 
 was suggested to the Court without being argued. The Vice-OhanceUor 
 was of opinion that Sands had been duly appointed under the power, and 
 overruled the exception, with costs. 
 
APPENDIX. 929 
 
 No. IX. 
 
 Supra, p. 707. 
 Cases on Gifts to Helations. 
 
 In Thomas v. Hole (a) a testator gave 500J. "to the relations of Eliza- No. IX. 
 
 beth Hole, equally to be divided between them ;" and Lord King deter- 
 mined, that, as the testator had directed the sum to be divided equally 
 among them, he could not direct an unequal distribution, and so decreed 
 the brothers and nephews of Elizabeth Hole to take per capita. 
 
 In Stamp v. Goohe (6) there occurs a dictum of Lord Kenyon which 
 appeaxs to mihtate against this construction. " If the testator," said 
 his Lordship, "had given to his next of kin, and stopped there, the 
 statute would be the rule to go by ; and although the nephews and 
 nieces are not in fact so near as sisters, yet the fund would have been 
 distributable per stirpes according to the statute." But the question to 
 which his Lordship's attention was directed was, whether an only child 
 of a deceased brother, and an only child of a deceased sister, should, per 
 stirpes, represent their deceased parents, or should be excluded altogether 
 in favour of brothers and sisters of the testator still living, and who, as 
 next or nearest of kiu, would more nearly answer the description in 
 the will. 
 
 In Phillips V. Oarth (c), where the expression was also " next of kin," 
 a different construction prevailed. A testator gave his residuary estate 
 to his executors, "to be equally divided by them to and amongst his 
 next of kin, share and share alike :" and Mr. Justice BuUer held the 
 words "next of kin" to mean the kinsmen within the statute (d), and 
 distributed the fund amongst the brothers and nephews per capita. 
 Here, as in Thomas v. Bole, was the qualification " equally to be 
 divided ;" but Mr. Justice BuUer did not ground his judgment upon 
 that circumstance, but upon what he considered the established practice 
 of the Court. " Those," he said, " must take whom the statute has 
 pointed out ; but the question is, in what shares : if it had pleased the 
 Court originally to say the next of kin should take in the same manner 
 as under the statute, I should not have objected to it ; for it seems to 
 me they should take per stirpes;" and then he cited a case, to prove 
 that distribution per capita was a point which the Comi; had now settled. 
 Why he should have thought the objects might originally have taken ^er 
 stirpes he does not declare,, but he afterwards added a very substantial 
 reason why they should not, for "it is agreed," he said, "if the 
 testator had given to his next of kin by name, they must have taken per 
 capita ; then the question is, whether calling them next of kia is not 
 equal to naming them." 
 
 It was observed by Sir J. Leach upon one occasion, that Lord Eldon 
 had disapproved of the distribution made in Phillips v. Oarth ; but this 
 remark will, upon reference to the passage alluded to, be fovmd to be 
 whoUy destitute of foundation. • A testator had given the residue of his 
 estate " to be divided among his next of kin, as if he bad died intestate." 
 The widow claimed to be one of the next of kin, and it was argued for 
 
 (a) Gas. t. Talb. 251. (d) ITpon this point the case has been 
 
 (6) 1 Cox, 236. overruled by Elmsley t. Yowng, 2 M. & 
 
 (c) 3B. C. C. 6i. K. 780. 
 
 S 
 
930 APPENDIX. 
 
 No. IX. her, that otherwise there would be no meaning in the words "as if he 
 
 had died intestate ;" but Lord Eldon answered the argument by saying, 
 " There is another construction (that will give a meaning to these words). 
 I always had great doubt upon the case before Mr. Justice BuUer, who 
 thought those who were to take per stvrpes as well as those taking per 
 capita were included (in the expression ' next of kin'). Lord Thurlow 
 doubted that upon this very technical reasoning, to which his Lordship 
 was much addicted iu the construction of these iustruments, that ' next 
 of kin' being the only description (iu the will) without the addition, 
 which is in the statute, of those who represent them, the children of the 
 deceased brothers and sisters ought not to take under that bequest. It 
 is very difficult to say they would not have taken imder this wiU (which 
 contaias the words ' as if I had died intestate ') : my construction being 
 that the next of kin should take the whole, as they would take under an 
 intestacy " (a). The meaning of the passage therefore appears to be 
 simply this, "I do not admit the argument for the wife, that the 
 expression ' as if I had died intestate' would otherwise be nugatory ; but 
 for those words I think brothers and sisters only would take, notwith- 
 standing the decision to the contrary in Phillips v. Garth : with the 
 addition of those words, my construction of the will is, that nephews 
 and nieces would be entitled equally with the nearest of kin " (6). 
 
 We cannot cite a higher authority upon this subject than the opinion 
 of Lord Thurlow. " The term ' relations,' " observed his Lordship, 
 ' ' must be confined to the statute ; but the Court has said in the same 
 moment, that the claimants shall not always take in the proportions of the 
 statute, but as the testator had directed ; as where there have been 
 brothers and brothers' sons, these last took not hy representation, but per 
 capita " (c). 
 
 And in conformity with this dictum was decided by his Lordship the 
 case of Rayner v. Mowbray {d). A testator devised an estate to A. upon 
 trust to seU and ' ' to divide and pay the proceeds to and among all and 
 every such person or persons who should appear to be related to the 
 testator, share and share alike." The testator left three sisters surviving 
 and five nieces, the daughters of a deceased sister, and Lord Thmlow 
 directed the distribution to be made among the eight next of kin per 
 capita (e). 
 
 In Pope, V. Whitcombe (/), whieh was heard before Sir W. Grant, a 
 testator gave the residue of his estate to his wife for life, and directed 
 her to dispose thereof (in an event which occurred) "amongst the testa- 
 tor's relations in such manner as she should think fit." The wife died 
 without having executed the power, and the next of kin at the testator's 
 death were a brother and two nephews. The Court, says the reporter, 
 decreed one moiety to the brother, and the other to the representatives 
 of the nephews. The authority of so great a lawyer as Sir W. Grant 
 would almost have decided the question ; but, on reference to the Eegis- 
 trai^s book, it appears a very diflferent order was made. The two nephews 
 had died in the lifetime of the widow, and at her death the only surviving 
 next of kin of the testator was the brother. The brother died and 
 
 (a) Gnrrich'Y. Lord Camden, 14 Tes, (e) For the mode of distribution 17111011 
 
 385. does not appear in the report, see fieg. 
 
 (6) And see Wright t. Atleyns, Coop. Lib. B. 1791, fol. 183. 
 
 119. (/) 3 Mer. 689. See Finch v. Hoi- 
 
 (c) Green V. Howa/rd, I B. 0. C. 33. Ivngsworth, 21 Beav. 112; 2 Sug. Pow. 
 
 {d) 3 B. C. C. 234. 650, 6th Edition. 
 
APPENDIX. 931 
 
 appointed executors, and the Court decreed tlie residuary estate "to the No. IX. 
 
 executors of the brother, the next of kin of the testator." Pope v. 
 Whitcombe therefore is no authority upon the point in discussion. 
 
 The bequest in Hinckley v. Maclarens (a) was, that the testator's 
 property " should be equally divided among his next of kin," and Sir 
 John Leach directed the distribution among the next of kin to be made 
 per stirpes. A similar decree was afterwards made by him in the case of 
 ElmsUy v. Young (6). But the decision in these two cases was directly 
 contradictory to Thomas v. Sole, Bayner y. Mowbray, and Phillips v. 
 Garth. His Honour seems not to have been apprised of the point deter- 
 mined in the two former cases ; and, with respect to Phillips v. Garth, 
 he laboured under the erroneous impression, that Lord Bldon had 
 expressed his disapprobation of that case. In Withy v. Mangles, 
 4 Beav. 358, 10 01. <fe Tin. 216, the limitation of personal property, was 
 on the death of E. M,, to her "next of kin." B. M. died, leaving a 
 father, mother, and a child, and it was held that they took as joint 
 tenants (1). 
 
 No. X. 
 
 Allen V. Sayer, supra, p. 720. 
 
 "The substance of the plaintiff's bill appeared to be, that Thomas No. X. 
 
 Brooke, Gent. , deceased, was in his lifetime seised in fee of a certain 
 messuage or tenement called Drewes, and of several lands and tene- 
 ments thereunto belonging, lying in the parish of Wanting ; and was 
 also seised of a certaia parcel of land and meadow in Sutton Courtney, 
 in the county of Berks, of the yearly value of IQl. per annum : and, 
 having no issue of his body (the plaintiff being his near kinsman), 
 did make his last will and testament in writing, and after his mother's 
 and wife's decease did thereby bequeath all his real estate whatsoever, in 
 the county of Berks or elsewhere (his debts being first paid), unto the 
 plaintifii his heirs and assigns for ever, lawfully to be begotten ; and, 
 for want of such issue, to the use of Joseph Brooke, his heirs, (fee. ; and 
 did give unto his mother the sum of SOL per annum, for her life, to be 
 paid her out of his lands called Blackcrofts, and did (inter alia) give 
 unto John Collins, and his imcle Robert Brooke, all his said real estate, 
 together with his two horses, a colt, and com in the barn, on trust that 
 they should (if occasion should be) not only sell the said hay and horses 
 towards the payment of his debts, but should also sell his shop of wares 
 for and towards the same, together with his lands at Sutton and High- 
 garden aforesaid, in case his personal estate was not sufficient to pay his 
 debts ; and made his wife and another executrixes of his said wiU. That 
 
 (a) 1 M. & K. 27. (b) 2 M. & E. 82. 
 
 (1) Two cases usually cited upon this sutject have been omitted as in-elevant to 
 the point. In Masters v. Hooper, i B. C. C. 207, the testator left two nephews 
 and two nieces, and two great-nephews and a great-niece, and, as there is no repre- 
 sentation under the statute beyond brothers' and sisters' children, the great-nephews 
 and great-niece were excluded, and the distribution was made per capita among the 
 nephews and nieces. Keg. Lib. 1792. B. fol. 209. In Lovmdes v. Stone, i Ves. 
 649, a testator gave the residue of his property "to his next kin or heir at law, 
 whom he appointed his executor." By "next kin or heir at law" was evidently 
 intended some individual ; but, as there was no one to answer the description, the 
 result was an actual intestacy. The case does not appear in Reg. Lib. 
 
 3 2 
 
933 APPENDIX. 
 
 No. X. shortly after making the said -will the said T. Brooke died much indebted, 
 
 more than his personal estate would amount to pay, by means whereof 
 his wife did, as the executrix, refuse to act or intermeddle with the 
 real (qu. personal) estate ; and thereupon Anne Brooke, grandmother of 
 the plaintiff, took upon her the burthen of the said will, and thereby 
 became entitled and entered into the personal estate of tlie said testator, 
 and out of her own estate, and otherwise, paid all the debts of the said 
 testator ; and about June, 1688, the said Anne died. That the said 
 plaintiff, on the death of his grandmother, entered on the lands called 
 Blackcrofts, and, as he is advised, ought to have held the said messuage 
 called Drewes, and all other the real estate of the said T. Brooke, and to 
 have received the rents thereof accrued after the death of the said Anne 
 the elder, his debts being paid out of his personal estate, and profits of his 
 personal estate, and otherwise. That Peter Sayer, about June, 1688, did 
 
 enter into the house of one Gamon, where after the death of the 
 
 said Anne Brooke, the deeds, writings, (fee. , of the estate of the said T. 
 Brooke lay locked up in an iron chest, and did carry away the said chest, 
 and possessed himself of all deeds, writings, (fee. that were thereio. And 
 the said Peter Sayer, on the death of the said T. Btooke, did enter into the 
 lands called Sutton lands, and "prevailed with the defendant, Curtis, the 
 tenant thereof, to pay his rent to him, on giving him a bond to save hitn 
 harmless ; and the said Anne the elder, being aged, did not in her Ufetime 
 make any effectual prosecution for recovery thereof ; but the plaintiff is well 
 entitled thereto by the will of the said Anne (qii. T. Brooke), and ought 
 to have an account of the profits thereof siuce her death. That the 
 said P. Sayer, observing that Collins and Brooke, in whom the estate 
 in law of the said Sutton lands was vested, would not act, and the 
 said plaintiff being then an infant of ten years of age, and his grand- 
 mother aged, and not willing to be engaged in a suit for the recovery 
 thereof, the said Peter having gotten into possession as aforesaid, did, 
 together with Elizabeth his wife, levy a fine sv/r conuzance, &o., and 
 did by some deed declare the use of such fine to be to him and his heirs ; 
 and afterwards proclamations were had according to the statute, and 
 after five years passed, and no claim made within that time by the said 
 trustees, whereby, at law, the plaintiff cannot have his remedy, the 
 defendant threatening to set up the fine and nonclaim. That the said 
 plaintiff ought to be relieved against such fine and nonclaim, the same 
 beiag a breach of trust in the trustees in not making entry before per- 
 mitting five years to pass after such fine. That in case the plaintiff 
 cannot have satisfaction out of the estate of the said P. Sayer, yet, that 
 the defendant, Curtis, the tenant of the said Sutton lands, ought to be 
 accountable for the profits by him received since the death of the said 
 testator, T. Brooke, for that he was acquainted with the plaintiffs 
 grandmother's title, and for that purpose took security from the said 
 P. Sayer to pay his rent to him. Therefore, that the witnesses to the 
 will of the said T. Brooke may be examined in perpetua/m rei memo- 
 riam, and to discover the deeds of the lands given by the will, and 
 what other the said P. Sayer took out of the iron chest ; and that the 
 same, and all other deeds, may be delivered to the plaintiff ; and that 
 the said defendants may account for the profits of the said Sutton lands 
 received since the death of the said T. Brooke ; and that the fine 
 and nonclaim may be set aside ; and that the defendants may dis- 
 cover the personal estate of the said Peter Sayer (1), and what settle- 
 
 (1) He ba'l died before the till was filed. 
 
APPENDIX. 933 
 
 ment the said Peter Sayer made of his real estate towards the payment No. X, 
 
 of his debts, and to be relieved, is the scope of the bill. Whereunto 
 the counsel for the defendants (the infant children of Peter Sayer and 
 the trustees for the children, and Curtis, the tenant) insisted that 
 Margaret Brooke, the infant's great-great-grandmother, was, about thirty 
 years since, seised in fee of the said Sutton lands, whereby the same 
 (inter alia) after the death of the said Margery, descended unto Richard 
 Brooke great-grandfather of the defendants, the infants ; and the said 
 Richard Brooke being seised in fee of the said premises, and having 
 several children, viz., Richard, his eldest son, who died without issue, 
 Thomas, the second sou, under whom the plaintiff claims, and Margaret 
 and Ann, his two daughters, the said Richard, on a treaty of marriage with 
 Margaret, his eldest daughter, to one John Keepe, did agree to settle the 
 lands in question (inter alia) upon the said Margaret, and the issue of her 
 body ; and accordingly articles of agreement were executed between 
 William and John Keepe on their part, and the said Richard Brooke on his 
 part, whereby the said Richard did covenant to settle the reversion and 
 inheritance of all the lands on the death of Jennings, the tenant thereof by 
 courtesy, which descended to him from the said Margery, upon the said 
 Margaret for her Ufe, remainder to the heirs of her body, or the issue of 
 that marriage ; and in pursuance of the said articles the said Richard did, 
 by his indenture, settle the said premises on the said Margaret and her 
 issue accordiogly. That the said marriage soon after took effect, and 
 the said Margaret had issue Elizabeth Keepe, the only daughter and 
 heir, who about 1676 married the said Peter Sayer. That about the 
 year 1665 the said John Keepe died, and afterwards the said Margaret 
 his wife died, whereby the premises descended unto the said Elizabeth, 
 and the said P. Sayer, being so entitled m right of his said wife, did, 
 after the death of the said Jennings, which happened about eighteen years 
 since, enter into the said Sutton lands with other the said Margaret's 
 estates, and, the said Peter being in possession, they did, in 1678, let 
 the Sutton lands to the defendant Curtis, for five years, at 4:1. per annum, 
 and gave him a bond of 2001. for his quiet enjoyment thereof That the 
 said Peter Sayer and his wife did, in Easter Term, 1678, levy a fine as 
 in the bUl, and that they held the same for five years, without any claim 
 made by the plaiatiff, and that the said plaintiff, secundo Gul. et Marice, 
 brought an ejectment against the said- Peter Sayer, and the defendant 
 Curtis, for the recovery of the premises, and brought the same to trial 
 at the Berkshire assizes, and set up a title under the wiU of the said 
 Thomas Brooke, and, after a full hearing, a verdict passed in affirma- 
 tion of the said Peter's title ; and the said Peter, being minded to 
 provide for the defendants Elizabeth, and Peter, and John, did, by 
 deeds of lease and release, convey the said Sutton lands unto the said 
 defendants Elizabethi, the grandmother, Moses Slade, William Button, and 
 Antony Leaver, their heirs and assigns, in trust for himself for Ufe, and 
 after his decease to sell the same, and the money thereby raised to be 
 equally divided amongst his said younger children ; and by virtue of the 
 said deeds the said defendants, the trustees, do stand seised .of the said 
 premises in trust for the defendants, the three younger children of the 
 said Peter, who died about 2nd February, 1691. And the said defendants 
 insist on the said marriage articles, fine, and nonclaim, verdict, and con- 
 tinued possession, in bar of the plaintiff's title to the said lands. And 
 the counsel for the defendant, Richard Brooke, insisted, that he by hin 
 answer saith, he is the surviving trustee named in the said T. Brooke's 
 
934 APPENDIX. 
 
 No. X. will, and that he never acted therein, and disclaims all interest of, in, or 
 
 into the said lands in question, and is ready and willing to convey and 
 assign his interest therein, as the Court shall direct, being indenmified 
 by the decree of the Court for so doing. Whereupon, and upon long 
 debate of the matter, and reading the will of T. Brooke, the articles 
 between John and William Keepe and Eichard Brooke, dated the 19th 
 December, 1656, and the proofs taken in the cause, and hearing what 
 was insisted on by counsel on aU. sides, this Court declared, that the said 
 fine and nonclaim ought not to incur against the plaintiff, who was then 
 an infant, and doth therefore think fit, and so order and decree, that a 
 perpetual injunction be awarded to stay the defendants, the trustees of 
 the said Peter Sayer, and all claiming under him, from proceeding at 
 law for the said Sutton lands ; and that the defendant, Eobert Brooke, 
 the surviving trustee named in the said T. Brooke's will, and the trustees 
 of the said Peter Sayer deceased, do convey the said Sutton lands 
 unto the plaintiff and his heirs, or unto whom he or they shalL appoint, 
 and for so doing they are hereby indemnified ; and that the said defend- 
 ants do come to an account before Roger Meredith, Esq. , for the profits 
 of- the said premises received by them or the said Peter Sayer deceased, in 
 taking of which account the said Master is to make unto the said 
 defendants all just allowances ; and what upon the said accoimt shall 
 appear to be due to the plaintiff for the rents and profits of the said pre- 
 mises received as aforesaid, the said defendants are hereby ordered and 
 decreed to pay the same unto the plaintiff, or imto whom he shall 
 appoint ; but the defendants Jonathan Sayer, Leaver, and Button, are to 
 be charged no further in reference to the profits received by the said 
 Peter Sayer deceased, than they have assets of the said Peter. And it 
 is further ordered and decreed, that the defendants do deliver to the 
 plaintiff the deeds and writings of all the lands that belonged to the 
 said T. Brooke, not comprised in the said articles." Reg. Lib. 1699, 
 A. f. 502. 
 
INDEX. 
 
 ABATEMENT. 
 
 of a trust, 621 
 ABATOR. 
 
 not bound by a use, 3 
 ABROAD. See Bankeuptot (Assignment), Jueisdiotion 
 
 Lands abroad {within the Queen's dominions) within Lord St. Leonards' 
 
 Trustee Act, 835, note (d). See Trustee Act, 1850, s. 54, 56, 901 
 Parties to suit as to c. q. t. abroad, 849; as to trustee abroad, 847 
 Personal estate abroad, trust of enforced in equity, 46 
 Real estate abroad, equities of how far enforced, 47, et sec[. 
 
 account of rents, foreclosure, injunction against taking pos- 
 session, relief against fraudulent couTeyanoe, sale, 48 
 trusts of, when enforced, 53 
 Receiver appointed where trustees all out of jxirisdiction, 870 ; see 871 
 Residence of c. q. t. abroad, 432, 453 
 
 of trustee abroad, 40; new trustees appointed, 711 ; see 576 
 ACCEPTANCE of trust. See Disclaimer 
 Compellable, is not, 232 
 Duties consequent on, 243, 244 ; and see 238 
 
 trustee must not rely on co-trustee, 243 
 
 must inform himself of state of trust, 244 
 should have inventory of chattels, 244 
 How made bt Executor (see Executor) by voluntary interference with 
 assets, 241 
 
 e. g. assigning lease, bringing action, selling assets, ib. 
 
 (unless conduct can be clearly explained, 242) 
 
 by proving will, 239, 240 
 
 executor of executor administering to one testator must to the 
 
 other, 234 
 who is also trustee cannot prove, and renounce trusts, even of 
 
 real estate, 240 
 may claim legacy, though he renounce, 234 
 How MADE BT TRUSTEE : (1) by signing deed ; (2) by declaration ; (3) by 
 acting, 237 
 
 What etc^s constitute, 239, et seq. 
 
 by deed, 238 ; trustee should see to recitals, ib. 
 
 when presumed, 237, 242 ; not necessarily from taking possession 
 
 of trust deed, 241 
 trustee of two trusts by same instrument having accepted one, 
 
 deemed to have accepted the other, 240 
 provable by parol, 243 
 Made, after being, trust cannot be renounced, 289 
 Mistake, person assuming character of trustee by, accountable, 244 
 
 ACCIDENT. 
 
 no excuse for trustee, if it occur during misfeasance, 766 
 
 ACCORD. 
 
 no bar without satisfaction, 737 
 ACCOUNT. See Abroad, Allowance, Wilpul Default 
 
 Decree for merely, not within 1 & 2 Vict. 110, s. 18, 667, note {a) 
 form of, 752, and see 765, 766 
 
936 'INDEX. 
 
 ACCOUNT— cortJmwA 
 
 Laches, where plaintiff guilty of, restricted to filing of bill, 751, 756, note 
 
 account barred by between partners, 742 
 Of Mesne Rents and Pboeits. See Mesne Eents and Profits 
 
 extent of iu charities, 786, et seq. ; constructive trusts, 750, 752, 
 note (1) ; express trusts, 752, note (1) ; :see as to ignorance of 
 trustee, 761 ; and as to his mistake, 790 
 Settled opening against solicitor trustee, 5S0 
 Trustee, against, who has purchased trust estate, 466 
 who has renewed lease, 224 
 ACCOUNTANT. 
 
 may be employed by trustee, 556 
 ACCOUNTS. 
 
 whether c. q. t. may claim copies of, 599 ; see 428 
 trustee should keep, of expenses, &o., 559, 599 
 
 fixed with costs where confused, or if trustee misstate or suppress, 877, 878 
 ACCUMULATION. See Dubation, Conversion (2), Thellusson Act 
 
 Application of income before corwersion where accumulation directed, 813 
 
 et seq. 
 Trust roB, must not lead to a, perpetuity, 110 
 
 bad, if possibly exceeding lawful limits. 111, 112 
 but no danger of perpetuity where rents applicable as vested 
 interest de anno in annum, 111 
 ACKNOWLEDGMENT. See Fines and Rbcovekibs Act 
 
 What may prove trust, 63, 64 
 ACQUIESCENCE. See Time 
 
 Breach op trust in, its effect, 775, et seq., see 769 
 Feme covert not bound by, 471, 777 
 
 secus as to separate use vfithout restraint, 471, 777 
 qu. with restraint, 778 
 fluctuating body by, as creditors or parishioners, 777 ; see 471 
 infant, not bound by, 471, 777 
 Constructive trusts in case of, 224 
 
 purchase in names of stranger, 207 
 Direct or indirect, 737 
 Distinguished from waiver, ib. 
 In improper loan, by receiving interest, 776 
 Requisites of, 777, 778 
 
 Stat, op Limitation, does not interfere with its effect in equity, 743 
 ACT OF PARLIAMENT. See Bill in Parliament, Parliament 
 ACTING. 
 
 Trustee, meaning of expression, 578, 591 
 
 every trustee who has accepted of&ce must be, 298 ; and see 243, 
 415, 449, 612 
 ACTION. 
 
 Beoucht as to trust estate, must be in trustee's name, 18, 269, 591 ; see 275 
 c. Q. T. giving indemnity, may require trustee to lend his name to, 718 ; 
 see 591 
 
 not where against purchaser without notice from trustee, 719 
 Trespass of, on lunatic's realty defrayed out of his personalty, 827 
 Trustee may bring, without having by writing accepted office, 243 
 
 must not bring, &c., after decree, without sanction of Court, 524 
 ADMINISTRATION. See Assets, Bond 
 Durante minobitatb, 834, note (a) 
 
 Letters of, how obtained after succession of intestacies, 468, 469 
 Mortgagee, how he proves in administration suit, 485 
 Order at chambers, 866 
 
 Separate property of feme covert under her will, 642 
 ADMINISTRATOR. See Executor ; Eelinquishmeht (representative), Trustee 
 Act, s. 6 
 on same footing as to receipts as executors, 316 
 de bonis non, 262 
 how far safe to deal with administrator after interval from intestate's 
 
 dijath, 458 
 not properly a trustee upon renunciation of executor trustee, 240 
 
INDEX.' 937 
 
 ADMISSION. 
 
 To CoBTHOLDS (see Copyholds, Customakt Freeholds), effect of, 249 
 Fine to be paid by trustee, 272 
 
 , at what rate where co-trustees, 272 
 how raised, 272, 402 
 Of debt, trustees for creditors cannot make after accounts taken by Court, 
 
 622 
 Op tedst by defendant, 72 ; see 63 
 ADULT. See Advancement, Infant 
 ADVANCEMENT. 
 
 Capital out of, of infant's legacy, 518 
 if no limitation over, 519 
 
 or where cross limitations among children, 519 
 power of, whether authorised by executory trust silent as to 
 powers, 164, note (d) ; see 165 
 On purchase, in name of child, &c., 207, et seq. 
 
 child as to, where adult, 212, 213; infant, 209, 212 
 joint names in, of father and child, 209 
 of stranger and child, 210 
 
 (but stranger guatenus his estate is trustee for father) ib. 
 Nature oe Provision 
 
 as to copyholds for lives, successive, 210 ; see 214 
 personal estate, doctrine applies to, 216 
 partial or reversionary estate, id. 209, 212 
 
 whether doctrine applies, (1) where child already provided for, 
 211 ; (2) where father continues in possession, 212, 213 
 Presumed, may be, for daughter, grandchild, illegitimate child, nephew, wife, 
 216 
 and semble even for stranger where purchaser in loco parentis, ib. 
 Presumption, what evidence rebuts on part of child, 214 
 whether parol declaration by father, 214, 215 
 * rebutted by fact that son ia a solicitm; 216 
 
 Purchase money, if not paid, a debt from the parent, 216 
 ADVANTAGE. See Claim, Lease 
 
 Trustee shall not derive erom trust, 318, et seg. 
 
 as by buying up debts, from game on trust estate, presenting to 
 
 living, being receiver, trading, &c., 318, 319 
 application of rule (1) to attorney, auctioneer, broker, commission 
 agent, factor, solicitor, 319, 320 ; (2) to executor, guardian, 
 trustee, &c., 319, 320, 321 
 charity lease should not contain covenant for lessor's private 
 advantage, 505 
 
 trustee cannot seek aid of equity for his own benefit, 323 
 may assert his legal right, semble, 324 
 Whether trustee may have on failure of o. q. t. See Failure of c. q. t. 
 ADVERTISEMENTS by trustees selling by auction, 422 
 ADVICE OF COUNSEL, 234, 366, 595 
 ADVOWSON. See Presentation. 
 
 Survivorship of, between co-trustees, 300 
 
 Trust of, for parishioners, see Parishioners; and see 107 note (g), and 
 
 19 & 20 Vict. c. 50, authorising sale of, ib. 
 Trust to present to within six months after vacancy, 527 
 Trustee presents, but must observe direction of c. q. t., 269 and 318 
 AFFIDAVIT. See Payment into Court (compulsory), Trustee Act 
 
 Material facts not in issue brought by, before tbe Court at hearing, 869 
 Necessary for distringas under 6 Vict. c. 6, s. 5, 861, 862 
 
 restraining orders under 5 Vict. o. 5, s. 4, 860 
 Trustees by, under Trustee Relief Act, 376, note (6), 378, note (a), 379 
 " AGENCY. 
 
 deed of," 483 
 AGENT. 
 
 Accountable to trustees only, not to c. q. t., 226, 561 
 
 unless quasi-trustee deriving personal benefit, 459 ; by accepting 
 delegation of trust, or fraud, 226, 562 
 Auctioneer is agent for vendor and purchaser, 427; how after completion, ib. 
 Executor, acting by direction of, 459 
 
938 INDEX. 
 
 AGENT — continued. 
 
 Lease, agent of trustee may not renew for- his own benefit, 220, 225 
 Lien, agent has not any upon trust estate for charges, 561 
 
 though trust be to pay expenses in first instance, ib. 
 Pabty to suit, when necessary as, 844, 848 
 PuEOHASE BY, in his own name not provable by parol to be for another, 
 
 unless part of consideration paid by employer, 204 ; see Denial 
 Secueitt, need not give, 295 
 Teustee, after disclaimer may be, 235 
 
 may employ on proper occasions, 556 
 
 e. g. accountant, attorney, bailiff, collector of rents, 556 ; -of debts, 
 
 557 
 paying to, should see that authority is genuine, 372 
 
 • how authority may be given, ib. 
 for sale, cannot buy as agent for another, 462 
 may employ agent, 422 
 but not to buy for himself, 462 
 AQREEMEN'T. See Cohteaot 
 
 Value foe, to charge lands possessed at particular time, or to settle 
 particular estate or property acquired during coverture, raises implied 
 trust, 173, 174 
 VoLUHTAET, under seal, its effect, 93, 94, and see note (/) 
 ALIEN. 
 
 Chattels peesonal, alien enemy cannot hold, 28 
 
 alien friend may, and may create trust, ib. 
 Devise to, and to British subject, upon trust, 39 
 Husband, not entitled to c%rtesy of trust lands, 621 
 
 Lands : may acquire lands loy purchase but not by descent or operation of 
 law, 28 
 purchasing, may hold until office found, ib. 
 cannot sue nor be sued touching lands, 39 ; see Trust, inf. 
 Peooeeds 'of sale of real estate, may take, 43, 807 
 Teust, how far he can create, 28 
 
 as to real estate, cannot compel its execution in his favour, 43 ; 
 
 but see note (c) 
 forfeitable to crown, without previous inquisition, 43, 132, 677 
 distinction between trusts ^er/ecfed and in fieri, 43 
 ALIENATION. 
 
 Chaeitt estates, of. See Chaeities (Alienation) 
 
 Fetteebd by tbusts, generally cannot be, 132 
 
 Limitation until, or limitation over upon " alienation," &c., 135 
 
 what assignment incurs forfeiture thereunder, 135, note (d) 
 PowEES, whether trustee can exercise after alienation of estate, 534 ; and 
 
 see 267, 297 
 Eesteaint against anticipation as to separate property of /«me covert, 123, 
 et seq. ; see Feme Coyeet (2) 
 ALLOWANCE. 
 
 for Costs ; see Costs, Ch. xxix. s. 6, p. 872 
 Expenses ; see Expenses, Ch. xx. s. 2, p. 657 
 Time and Teouele : see Tbouble, Ch. xx. b. 1, p. 545 
 Just allowances to assignees, 557, note (e) 
 
 direction for, when inserted in decree for account, 752 
 AMERICA. 
 
 property in, 47 ; and see Jueisdiotion 
 ANNUITANT. 
 
 how far he contributes to fine on renewal of lease, 223 
 ANNUITIES, 
 
 £3 per cent, consols proper investment of trust money, 351 
 ANNUITY. 
 
 trust money ought not to be lent upon, 341 
 trustee of term for securing when a necessary party to suit, 842 
 ANSWER. 
 
 In Chanoeey. 
 
 Limitations, Statute of, how pleaded by, 734, 738 
 may serve as declaration of trust, 63 ; and see 72 
 but plaintiff must read from it terms of trust, 64 
 
INDEX. 939 
 
 ANSWER— com^immcd 
 
 Feme Covert, of, having separate property, 633 
 
 Payment into Cotjet, when directed, on admission in answer, 865, et seg. 
 Stjppbession or chicanery in, visited with costs, 877, 878 
 ANTICIPATION, Restraint aoainst. See Alienation, Feme Covert (2) 
 APPEAL, by trustee, from decree is at his own risk, 368 
 APPLICATION of money paid on sale to trustees, 
 
 whether purchaser, &c., must see to, p. 430, et seg. See Receipts 
 APPOINTED. 
 
 property under power when assets, 768, note (c) ; see 775 
 APPOINTEES. ' 
 
 trustee for should see that power is duly executed, 596 
 APPOINTMENT. See Power, Resulting Trust (charge) 
 of new trustees. See New Trustees 
 
 power of, authorised by "usual powers " in executory trust, 164 
 APPORTIONMENT. 
 
 of fines for renewal, 395, et seg. See Renewable leaseholds 
 APPROPRIATION. 
 
 of legacy by executor permitted without suit, 517 
 ARBITRARY POWERS. See Powers, p. 538, et seg. ; p. 694, et seq. 
 
 trustee appointed by Court cannot exercise, 712 
 ARREARS. See Mesne Rents, 750, 752, note (1) 
 
 Oe interest or rent, recoverable under Limitation Act, 744 ; see 751 , 
 754, note 
 the whole in case of express trust, 748 
 
 or, where there is a tetm under which trustee may obtain pos- 
 session, 749 
 what recoverable, where trustee ignorant of his true character, 751 
 what recoverable in case of fraud, &c., 756, note 
 Op pin-money, 644 
 Oe separate estate, 642 
 ARTICLES. Marriage, construction of executory trusts in. See Executory 
 Trusts, 146, et seq. 
 notice of, how far binding upon purchaser, 727 
 parties to suit for specific performance of, 844 
 ASSETS. See Executor (Assets), Failure oe o. q. t., Feme Covert 
 (Executrix), Judgment, Ch. xxiii. s. 11, p. 681 
 Appointed estate, under general power is assets, 768, note (c) 
 
 secus where donee of power is feme covert, except where fraud, 
 
 ib., and see 775 
 copyhold, formerly not assets. See Exception, 661, note (1) 
 Equitable, what are, 686, 687 ; see 692 
 
 land devised upon trust for payment of debts, 686 ; and see 488 
 separate property of /erne covert, 642 
 
 whether equity of redemption of term legal or equitable assets, 
 687, 688 
 
 trust of chattels, id. 685, et seg. 
 of fee, id. 688 
 Equity oe redemption, whether assets, 684, 685 
 Money to be laid out in lands not considered jpersona? assets, 796 
 Trusts of chattels are assets, 681 
 
 whether of freeholds before Statute of Frauds, 681 ; see 685 
 
 the Act did not extend to complicated trusts, &o., 684, 
 685 
 under late statute 3 & 4 W. 4, c. 104, 691, 692; see 796, and 
 list of statutes 
 ASSIGN. 
 
 loimd, whether in the per or post by a trust, 19, 279, 280 
 
 except purchasers for value without notice, 279, 725 
 originally not bound by a use, 3 
 when assigns can execute power of sale in mortgage, 419 
 
 can execute trust, 266, et seq. 297, 460, 633, 712 
 ASSIGNEE. See Purchaser, Volunteer 
 of equitable interest, 729 
 
940 INDEX. 
 
 ASSIGNEES of bankrupt. See Bankeuptot 
 ASSIGNMENT. 
 
 Equitable intekest, of, how made, 600 ; and see 604 et seq. ; and see Deed, 
 Notice 
 formerly not permitted, 5 
 
 when, to whom, and how notice should be given, 612, 613 ; see 327 
 Feme covert, by, of separate property, see 632 
 FnND IN cooET, of, what inquiries and notice proper, 613, 61i 
 Legal estate, of, effect of upon powers of trustees, 267, etseq., 291 i see 
 
 533, 712 
 Tenant in tail, by, 601, et seq. 
 Use, of a, not permitted, 4 
 AT HOME. 
 
 money to be laid out on land, where so considered, 800, et seq. ; see 823 
 ATTAINDER. See Foeeeitueb 
 of c. 2. t., 323, 674, et seq. 
 of trustee, 287 
 ATTENDANT TERM. 
 
 attended inheritance gained by disseisin, 288, note (1) 
 trust of followed devolution of freeholds, 131 
 ATTESTED COPIES. 
 
 when given by assignees of bankrupts and trustees for sale, 425 
 ATTORNEY. , 
 
 Allowance, attorney, when trustee, has ' none for time and trouble, only 
 
 for expenses out of pocket, 549 et seq. ; see Solicitor 
 Appointment of, or proxy, distinguished from delegation of trust, 297 
 Breach op teust, advising or concurring in, 763, note {d) 
 Constructive trust in case of violating his duty, 226 
 Infant cannot be in suit. 36 ; may, to deliver seisin, 36 
 Trustee may employ, 55Q 
 
 should not allow moneys to lie in the hands of, 295 
 Power of. See Ineant 
 
 dividend, to receive, 594 
 
 furged, 372 ; trustee should see to authenticity of, ib. 
 how to be qualified in assignment of chose in action by trustee, 426 
 ATTORNEY-GENERAL. 
 
 CoMPEOMiSE with, allowed in case of charities, 789 
 
 Information is in name of, 779 
 
 Petition under Romilly's Act, his allowance of, 782 
 
 he must be a party to proceedings under, 783 
 may correct his j udgment, 783 
 ATTORNMENT of tenant, whether it works disseisin, 721 
 AUCTION. 
 
 trustee cunnot purchase trust estate at, 461 ; and see 876 
 trustees may sell by, 422, 423 
 AUCTION DUTY. See 424 
 AUDITOR, 101. See Receiver 
 "AUTHORISING AND EMPOWERING." 
 
 may raise a trust, 168 
 AUTHORITY. 
 
 bare, to several, determines by death of any, 299 
 to receive moneys, how given by c. q. t., 372 
 AVERMENT. 
 
 Trust of, permitted at common law, 56 
 
 ■not upon a bequest, 59 ; how far as against an executor, ib. 
 
 not upon a devise even at common law, 58 
 
 not in contradiction to trust exoressed or implied upon writteu 
 
 instrument, 57 ; see Consideeation, Pension 
 not where deed is necessary to pass legal estate, 67 
 Use of, 56, 57 ; see 6, note (1) 
 
 BAILIFF. 
 
 iufaut cannot be, 36 
 
 mortgagee or trustee may employ, 556 
 
INDEX. 941 
 
 BANK. 
 
 Co-trustees, where safe to pay trust-moneys to their joint account at some 
 
 bank, 330 
 Failure of, where trustees liable for, 333, 336 
 Notes treated as cash, 757 ; whether ear-marked, 274, 757, 758 
 Trust-monet may be deposited in temporarily to trust account, 332, et seq. 
 not otherwise, 336, nor out of trustee's control, 33i 
 paid into, to trustee's private account, presumed to be traded 
 
 with, 361 
 how followed, 760 
 may be transmitted through bank, 295 
 
 but payment should bu to trust account, 296, 333, 336 
 BANK OF ENGLAND. See Distringas, Stock, Trustee Extension Act, 
 ss. 6, 7, p. 905, note (6) 
 Annuities, 351 
 Costs of, 33 
 
 Incorporated, when, 32, note (1) 
 Parties, as to making bank, 33, note (a), 859 
 Stock, whether trustees may invest on, 341 
 
 Transfer, bank will not usually allow unto more than four names, 41 
 Trustee, bank cannot be, 32 
 BANKER. 
 
 not accountable for sale of stock by executor's order, even where mis- 
 application probable, 459 
 BANKRUPT. See Bankruptcy 
 
 Property of, up to certificate vests in assignees, 29 
 
 Trust, bankrupt may create of surplus after payment of debts, ih. 
 
 Trustee, a bankrupt is not absolutely disqualified to be, 40 
 
 his banki-uptcy, ground for appointment of receiver, 870; and 
 comp. 711 
 BANKRUPTCY. 
 
 "Alienation," clause divesting property on, does not extend to bank- 
 ruptcy, 135 
 Assignees, action against, in whose name it must be, 275 
 in case of factor, ih. 
 bankrupt trustee of, when they may have contnhution against 
 
 co-trustee, 773 
 interest, charged with, for balances improperly retained, 359 
 j'mt allowances to, 557,, note (e) 
 taking legal estate, bound by trust, 280 ; see 276 
 may not generally pv/rchase bankrupt's estate, 465 
 what trust estates they take, see Trust Estate, inf., 273, et seq. 
 see Maintenance, inf. 
 Assignment, by trader, of whole property, an act of, 477 
 
 so, of all but colourable part, or necessary stock in trade, 477 
 even where trust for all creditors, or notwithstanding 
 proviso avoiding it, or not intended to be acted on, 
 477, 478 
 or where bankruptcy the object of it, 478, 479 
 but good, (1) where' no existing debts, (2) as between parties, 
 
 (3) as concerns bona fide purchaser, 478 
 upheld when facilitating arrangement with creditors, 478 
 becoming valid under late Bankruptcy Act, 479, 480 
 creditors acquiescing in, cannot treat it as act of, 479 
 if not enforceable, is not an act of, 479 
 executed abroad, 479 
 
 by trader, of part of property, not an act of, 477, note (c), 480 
 unless he contemplated bankruptcy, 480 
 Certieioate under, bars trust debts, 772 ; but bankrupt trustee should see 
 
 proof made, ib. ; see 29 
 District courts op, their jurisdiction in charities whose income under 30?., 
 
 718, note (c), 784 
 Equity to settlement, of feme covert as against assignees, 369, 370 
 Limitation over, on, or until, 135, et seq. 
 
 trader cannot so limit over his own property, 136 
 
 except to extent of portion received with wife on marriage, ib. 
 
942 INDEX. 
 
 BANKRUPTCY— com<MS«ed 
 
 Mainteitanoe, trust for at discretion of trustees, how far assignees take 
 
 under, 133, 134 
 New Trustee may be appointed on bankruptcy of trustee, 276, 711 
 
 how under Bankruptcy Act, 714, 715 
 Obdeb and disposition, of bankrupt, 277 
 
 trust chattels, in hands of bankrupt executor, factor, or trustee, 
 
 are not within, 277, 278 
 secus, where executor has assumed to be absolute owner, 277 
 as to c. q. t. absolutely entitled and bankrupt, 278 
 as to c. q. t, tenant for life and insolvent, 694 
 Pakties in suits, assignees can sue, &c., without presence of creditors, 843 
 Pboof under, where estate amalgamated with that of bankrupt, 276 
 
 for breach of trust, against estate of bankrupt trustee, with 
 
 interest, 771 
 where stock improperly sold, 357, 772 
 
 money laid out on mortgage, 772 
 investment in improper securities, 772 
 bankrupt trustee interested in trust fund, set-off made, 772 
 bankrupt trustee one of several co-trustees, 772, 773 
 effect of release given to one co-trustee, 773 
 where co-trustees severally bankrupt, 773 
 by mortgagee, 485 
 made by trustee, except where trust is simple, 269 
 
 generally all co-trustees must make, 298 
 bankrupt trustee, how far liable in equity, if he 
 does not make, notwithstanding certificate, 773 
 Tbusteb of. See Proof, sup., Ch. xi. s. 2, p. 273 
 
 ground for appointment of receiver, 870 
 trading as such, liable to, 272 
 Tkust estate, on clear trust, does not pass to assignees, 274 
 
 though tortiously converted, if capable of being identified, 274, 275 
 or if money payable at future day, 275 
 whether legal estate passes to assignees when bankrupt has beneficial 
 interest, 276 
 or where trust doubtful, ib., and see Proof, sup. 
 
 BAR. 
 
 to equitable relief, 731, et seq. See Limitation of Suit 
 in charitable trusts, 786, et seq. 
 
 BARGAIN AND SALE. 
 
 for nominal consideration would not now be enforced by way of construc- 
 tive trust, 96 
 
 BENEFICE. See Advowson, Peesentation 
 
 BENGAL. 
 
 Government notes, " lands " within Lord St. Leonards' Trustee Act, 835, 
 note (6) 
 
 BEQUEST. See Legacy, Legatee 
 
 Pbksonal estate of, how made according to Statute of Frauds, 65 ; how 
 under present law, 80 
 passed proceeds of land subject to trust for conversion, 807 
 Residtjaey. See Residuaky, Bequest 
 
 "BESEECHING." 
 
 may raise a trust, 163 
 
 BILL IN CHANCERY. See Information 
 
 Appointment of new teustees, bill or claim for, 583 
 not necessary where suit pending, ib. 
 as to cases provided for by Trustee Act, 713, 714, 840 
 by Bankruptcy Act, 714 
 by Charitable Trusts Act, 718, notes (c) 
 and (d) ; and see New Teustees 
 Declaeation of teust, whether sufScient to prove, 63, note (e) 
 Filing, where co-trustee should file, 317 
 
 trustee may file where equities doubtful, 367, et seq.; see also 376, 
 note (a) ; and see Special Case 
 
INDEX. 943 
 
 BILL IN CHANCERY— cortOTwd. 
 
 Peatee 01', omitting to pray for interest, 359 
 
 for account of rents, 752 
 BILL IN PAKLIAMENT. 
 
 application for, by trustees, 516, and see p. 499 
 opposition to, by trustees, 515 
 BILL OF EXCHANGE. 
 
 distinguished from money and Bank notes, 758 
 followed in equity when, ib. 
 
 whether trust money may be transmitted by, 295, 296 
 BONA VACANTIA, 198, 324. See Ceown 
 BOND. 
 
 Administkation bond, 458 ; cohabitation bond, 138, note (6) 
 Given bt teustbe for due execution of trust, 290 
 Ihdemnitt of, see 721 ; whether trustee should take, 367 
 
 on appointment of new trustee, 580, 681 
 JuDGMEHT, on effect of obtaining, 659, 660, and note (a) 
 Penalty in, creditor cannot claim beyond, 491 
 BREACH OF TRUST. See Bond, Payment into Couet, Beoeivee 
 
 Charities, remedy for breaches of trust in, 502, 778. See Charities 
 Generally, co-tehsteb allowing may be removed, 711 
 
 duty of in case of, 317 
 Receipt op trustee known to contemplate, 331 ; of executor, 458 
 
 after breach of, 450 
 Retire, teustbe should not, in favour of one who contemplates, 580 
 Sale cannot be enforced in breach of, 415 
 SoLioiTOE wilfully advising or concurring in, liable to be struck off the 
 
 Roll, 763, note {d) 
 Xiiability incurred in certain cases 
 
 by allowing destruction of contingent remainders^ 409 
 by neglect of trustee to enforce covenant, 766 ; to insure, 764 ; to 
 purchase stock, 764 ; where trustees have discretion of investing 
 on stock or real security, 355, 764 ; to renew, 392 
 by purchasing trust estate, 465, 469 
 when tortious sale by trustee of land, 763 ; of stock, 356 ; and see 
 
 Bankruptct, Proof in 
 trustee liable even where loser by breach, 765 
 
 not excused by accident in case of misfeasance, 766 
 cannot set off gain in one trust fund against loss in another, 
 
 766 
 not charged with imaginary values, or more than he 
 received, except where great negligence, &o., ib. 
 Nature of liability 
 
 a simple contract debt, 238, 765 
 
 unless trustee accepted under hand and seal, ib. ; but deed 
 must contain words equivalent to covenant and be executed 
 by trustee, 289 ; and see note (a) 
 where co-trustees, joint and several, 767, 772 
 Protection against 
 
 c. q. t. may have administration of trust confided to proper number 
 
 of proper persons, 710, 711 
 may compel trustee to observe duty, 718, et seq, 
 may restraim, trustee from breach of duty, 723 
 Remedy for, 
 
 (a) BY EOLLOWINQ TEUST ESTATE INTO HANDS Of STEANQBE, Ch. XXVL 
 S. 1, p. 724 
 
 into hands of purchaser with notice or volunteer, 
 726. See Purchaser, 724, et seq. 
 not in case of disseisor, 287 
 case of charity, 726 
 notice of doubtful equity, 727 
 
 purchaser without notice. See Purchaser, 725, et seq. 
 purchaser of equitable interest or chose in action, 729 
 time within which estate may be followed, 729. See Limitation 
 
 (6) BY following property substituted for TEUST ESTATE, Ch. 
 
 X2VI. 3. 2, p. 753 
 
944 INDEX. 
 
 BREACH OF TRUST— contiMued. 
 Remedy for — contimued. 
 
 BY FOLLOWING PBOPERTY — C< 
 
 where conversion tortious, c. q. t. has lien as against trustee, or 
 
 those who represent him in right, 756 
 case of assets employed in trade, 760 
 
 Bank notes, bills, &o., 757, 768 ; see 759 
 land. See Money, inf. 
 money, 767, 758 
 
 invested hy trustee in land, 762 ; see 767 
 
 where trust money is only part of purchase 
 money, c. q. t. has lien for trust money 
 and interest, 763 
 where the entirety of purchase money, 
 c. q. t. may take the land itself, semble, 
 763 ; see note (6) 
 mixed with trustee's money, c. q, t, has lien on the 
 
 whole, 759 
 paid into Bank to simple account with trustee, 760, 
 761 
 
 (c) Pebsonal, Ch. XXVI. s. 3, p. 763 
 
 against corporation, 763; corporators, co-trustees, 767, 768; see 773 
 person assuming office of trustee, 765 
 trustee, 763, eisej.; for destroying contingent remainder, 
 406, 409, and see 410; improper lease, 507; improper 
 sale, 415, 428; improper purchase by trustee, 466; 
 neglect to renew, 392 
 representative of deceased trustee, 765 
 unless trustee has distributed assets under sanction of 
 
 Court, 765 
 legatees or next of kin of deceased trustee where assets 
 
 distributed, 765 
 trustee primarily liable, but has his remedy against c. q. t. 
 
 gaining by breach of trust, 392, 768, see note (c) 
 account of mesne rents and profits when against trustee, 
 752; see 224, 466 
 ty proof in bankruptcy, against bankrupt trustee, 357, 771, 772 
 
 in case of co-trustees, 773. And see Bankeuptot, Proof in 
 iy stopping partial interest of c. q. t. who concurs in breach, 771 ; 
 and see 353, 392, 846 
 
 (d) HOW BARRED 
 
 "bj conduct of c. q. t. 
 
 by acquiescence, 471, 775, et seq. ; conoui-rence, 773, et seq. ; con- 
 firmation, 472, 777 ; release, 777. And see these titles and 
 LiMiTATioif OF Suits 
 BEOKER, 819 
 
 of trustee, improperly disposing of Exchequer bills, 342, note (d) 
 BUILDING LEASES. 
 
 of charity estates, dwation of, 610 
 with consent of commissioners, 604, 611 
 BUY IN. 
 
 assignees of bankrupts and trustees for sale not authorised to, 423 
 BUY UP. See Mortgagee 
 
 trustee cannot buy up incumbrance for himself, 318 
 BYE LAWS. 
 
 power of making, will not authorise deviation from original intention of 
 charity, 498 
 
 CANAL SHARES. 
 
 bequeathed in succession, convened, 812 
 CAPRICE. 
 
 Court does not act on, 699 
 
 of c. q. t., trustee not dismissed from, 712 
 
 of trustee, 583, 875 
 CATHOLIC. 
 
 Roman. See Papistry Acts 
 
INDEX. 945 
 
 CESTUI QUE TRUST. See Charities, Costs, Estate Tail, Feme Covert, 
 Infant, Lien, Liability, Parties, Tenant for Liee 
 
 Account, right of c. q. t. to have. See Accounts, Mesne Rents and 
 
 Profits 
 Acquiescence of. See Aoquiescbnob, 471, 776, et acq. 
 Actions by c. q. t. See Actions 
 
 Assignment, how c. q. t. may make, of equitable interest, Ch. zziii. u. 1, 
 600 
 
 c. q. t. may assign even a possibility, and without intervention of 
 trustee, 600 ; and see Assignment, Notice 
 Bequest by, 617 
 Breach of trust. See Concurrence, Protection, and Remedy, inf., and 
 
 Breach of Trust 
 Chattels, c. q. t. entitled to possession of trust chattels during his iuterest, 
 593, 694 ; case of chattels in possession of bankrupt, c. q. t. for life, iJ. ; 
 see 277, 278 
 
 whether c. q. t. may let them for hire, 594 
 Concurrence of, 771, 773, 846. See 363, 392, and Conccerencb 
 Confirmation by, 472, 777. See Confirmation 
 Consent of. See Consent 
 CoNVBTANCB, when c. q. t. should join, in, 427. See 881, note (o) 
 
 when and how c. q. t. may require trustee to make, 695, 595 ; and 
 see 600, Conveyance 
 Devise by, 616, c< seq. 
 
 Dividends, o. q. t. usually put in possession of, by power of, attorney, 694 
 Ejectment, c. q. t. cannot recover real estate in, 591 
 unless surrender can be presumed, ib. 
 
 must bring his action in name of trustee, 591 
 Estate of, 
 
 under simple trust, Ch. xxii. s. 1, 686 
 special trust, Ch. xxii. s. 2, 697 ; and see Special Trust, 
 inf. 
 properties of. See Trust 
 Failure of. See Failure 
 Fraud of, 39, 774. See Fraud 
 Ignorance of, 472, 737. See Ignorance 
 Inquiries to ascertain cs, q. t., 598 
 
 of c. q. t., trustee must answer, 427, 699 
 
 Jus HABENDI AND JUS DISPONBNDI of, 685, 595 
 
 Laches of. See Laches 
 
 Pernancy and profits of trust estate, c. q. t. entitled to, 685, et seq. 
 Possession of chattels by c. q. t. See Chattels, Dividends, swp. 
 of real estate by c. q.t. 
 
 where trust simple, c. q. t. will be put in possession, 585 
 cases where other interests affected, 686, e< seq. 
 of c. q. t, subject to a cha/rge, 586 
 of feme coiiert entitled for separate use, 590 ; see 589 
 c. q. t. entitled to, in equity only, 690 
 
 is at law tenant at will, 590 ; see Ejectment, siip. 
 Privileges of, to be juror, 592 
 
 if iu possession to vote for coroner, 269; but qyt,, 692, 693 
 to sport ; to vote for member of Parliament, 593 ; see 270 
 Protection of, c. q, t. may compel trustee to observe acts of duty, 71&,et seq. 
 may enforce trust, 697 
 
 may have proper trustees, 710, 711. See Nbw Trustees 
 trust money paid into Court in what cases, 864, et seq. 
 receiver appointed, in what cases, 869, etseq. 
 
 in case of tenant for life refusing to renew, 722 
 may restrain trustee from breach of duty, 723 
 security ordered from trustee, 723 
 may have conti/ngent interest secwed, 723 ; see 865, 868 
 Real estate of. See Ejectment, sup. 
 Release by. See Release 
 
 Remedy of, for breach of trust. See Breach of Trust, Mesne Rents, 
 Payment into Court, and Receiver, and Protection, swp. 
 
 by following trust estate into hands of stranger, Ch. xxvi. b. 1, 
 724, et seq. 
 
 3 r 
 
946 INDEX. 
 
 CESTUI QUE TRUST— cmtimted. 
 Remedy oe — continued. 
 
 by following property into which trust estate has been converted, 
 
 Ch. xxvi. s. 2, p. 753 
 personal against trustee, &c., Ch. xxvi. a. 3, 763. 
 for tortious conversion. 825. See Conversion 
 Share, aliquot, c. q. t. of, 850, 865 
 Simple trust, Ch. xxii. s. 1, 585 
 Special trust, Ch. xxii. s. 2, 597 
 
 each c. q. t. entitled to enforce to extent of his interest, 597 
 
 where trust lawful, 599 
 
 where one c. q. t, or all unanimous, special trust becomes a simple 
 
 trust, 697 
 special trust proceeds until c. q. t'a election known, 598 ; and see 
 Special Trust 
 Title deeds, how far c. q. t. has right to custody of, 691, 592 
 Trustee, whether c. q. t. may be. 40 
 
 Who mat be c. q. t., Ch. xii. s. 3, 41 ; and see Alien, Crown 
 Vouchers, c. q. t. may inspect, but pays for copies of, 428 ; see 699 
 Will, t. q. t. may dispose of his equitable interest by, 615, et seq. 
 CHAMBERS. 
 
 administration order at, 856 
 
 jurisdiction of Chancery judges at, in case of charities — with income over 
 £30, 718, and note (c), or of City of London charities, 784 
 CHANCELLOR. 
 
 his jurisdiction over lunatics and idiots, how derived, 835, note (a) ; see 
 827. See as to Jurisdiction of Lords Ju8tices\mdei Trustee Act, 883, note (5) 
 may in certain cases be visitor, 495 
 CHANCERY. 
 
 alone has jurisdiction of trusts, 19 
 its jurisdiction over corporate bodies, 493, 495 
 CHAPfiL. 
 
 Endowment of, how transmissible at law, 105 
 
 Minister op, in case of dissenters, may be dependent on will of congre- 
 gation, 498 
 how elected, where no directions in deed of endowment, ib. 
 in possession, retained till cause heard, ib, 
 tenant at will, of trustees, ii>. 
 Trusts of, trustees cannot change, 496 
 
 Trustees of, how appointed where no direction in deed of endowment, 498 
 CHARGE. 
 
 DEBTS or legacies of in will, raises implied trust in devise, &c., 173 
 
 where it implies power of sale, 261 ; see 248, and.440, et sej. See Receipts 
 
 (Charge of Debts) 
 Devise by trustee in general terms, its operation on, 263 
 
 does not prevent legal fee in mortgage from passing under 
 
 " seewriiies " for money, 264 
 on devise distinguished from exception from devise, 191, et seq, 
 DisTiNQUiSHBD from partial decla/ration of trust, 179 ; and see Resulting 
 
 Trust 
 Duplication of, 167 
 
 Limitation, late Statute of, mere charge not an express trvtst within, 746 
 secjts as to charge, coupled with duty, 746, 747 
 not barred by, whilst secured by unbarred term, 747 
 Power to, not a usual power, 165 
 
 CHARGING ORDER, under 1 & 2 Vict. u. 110, 669, 671. See Judgment 
 CHARITABLE TRUSTS ACT. See Charity Commissioners, 504, 511, 784 
 
 Amendment Act, 785 
 CHARITABLE USES. 
 
 Frauds, Statute of, within, 61 
 
 Purchaser without notice from purchaser with, bound by, 726 
 
 Statute of, commission under, 779 
 CHARITIES. See Information, Mortmain, Visitor 
 
 Account, 786, et seq. See Remedy, inf. 
 
 Administered by trustees, where, 492 
 
INDEX. 947 
 
 CHARITIES— confirmed. 
 
 Alienation, of charitable property by trustees, not permitted, 602 
 whether absolutely, or for reserved rent, 603 
 or by granting long, renewable, or reversionary terms, ib. 
 permitted under special circumstances, 603,615, 782; see note (/) 
 and leases, sale, or exchange can now be made with consent of 
 commissioners, 50i 
 Altekation of scheme or purpose, not permitted, 495, 496 
 notwithstanding power to make bye-laws, 499 
 trust originally intended will be preserved, 497 ; and see 499, 711 
 but letter may be contravened, where spirit of trust preserved, 499 
 Act of Parliament necessary for total alteration, 499 
 how application for Act authorised, 499, 785 
 Beeach of trust, by retainer of Charity Funds, 502. See Ineokmatioit, 
 
 Remedy, inf. 
 Commissionebs of inquiry into, 783, 784 ; see 779 
 CONSTBUOTION OF TRUSTS FOR, 496, et seq. 
 
 for •■' chapel," 495, 496, 497 ; " repairing and rebuilding," 601 
 "free grammar-school" "free-school," (see 3 & 4 Vict. c. 77), 
 
 499, 600 
 loans, 602 
 
 " master, finding a," 501 
 " minister," 498 
 " poor, relief of," 501 
 rates, in aid of, 496 
 " repairing," 496, 501 
 
 salaries, where augmentation allowed, or reduction ordered, 502 
 " worship of God," where executed in favour of established form 
 of religion, 497 
 where in favour of dissenters, ih. 
 species of religious worship primd facie determined by 
 
 trust deed, 497 ; and see 499 
 and if not defined, then by usage ; and see 7 & 8 Vict, c .46, 
 B. 2, 497 ; see also 495, 497, 499, 711 
 BoTiEs OP TRUSTEES for, Ch. xviii. p. 492 
 
 See Alienation, Alteration, sw/). 
 Incorporated, government of corporation belongs to visitor, 492 ; and see 
 Visitor 
 management of revenue subject to Chancery, 493 
 new donations distinguished from original endowment, as respects 
 visitorial power, 494 
 Investment of accumulations, 
 
 whether in purchase of land, 604 
 on mortgage, 504, 506 
 of moneys arising from sale or exchange with consent of com- 
 missioners, 504 
 Limitation, Statute of, as to Charities. See Remedy (6), inf., 749, 750, 786 
 Leases of charity lands. 
 
 Charitable Trusts Acts, how to be made under, 604 
 cormderation for, fines, rents, &c., 606, et seq. 
 
 should be adequate, when granted, 506; see 607 
 whether fines might have been taken for, 506 
 direction by founder that rent should not be 
 
 raised, not taken literally, 507 
 tenant who dealt fairly not turned out, 507 
 
 allowance to tenant for permanent improve- 
 ments, 611 
 granted at undervalue, who shall compensate 
 charity, 507 
 covencmis for trustee's private advantage, should not contain, 605 
 du/ration of building leases should not exceed 60 or 90 years, 510 ; 
 see now, 511 
 husbandry leases, should not exceed 21 years, 508 ; 
 
 see now, 611 
 for years determinable on lives, have been sanctioned, 
 
 609, 610 ; but see 643 
 BO, for lives on payment of fines, 510 
 
 3 p 2 
 
y48 INDEX. 
 
 CRARlTmS— continued. 
 
 Leases os chabitt lands — contitmed. 
 
 governors cannot lease to, or m trust for, one of themselves, 605 ; 
 relation of trustees to, unadviaable, 505, 507 
 Mesne rents and profits. See Eemedy (6), inf. 
 /I New trustees, appointment of, 498, 711, 716; see 718, and note (c) 
 1 1 direction to appoint when reduced to a given number, 527 
 
 Payment, of stock, &o., held on trust for, to official trustees, by order of 
 
 Commissioners, an indemnity, 382 
 Realty, oonvetance op, upon trust for, what formalities necessary Tinder 
 9 Geo. 2, 0. 36, 504 ; see 132 
 where charity may take lease stamped with trust for conversion, 808 
 Remedy fob breach oi' trust 
 (a) MODE OF, Ch. xxvi. s. 4, 778 
 
 ordinarily by information, 779 ; where by Kll, 779, note (1) 
 
 relators joined on accomit of costs, 779 
 commissions under Statute of Charitable Uses, 779 
 by petition imder Eomilly's Act, 779 
 
 construction of Act, 780 ; cases within, 781, 782 
 proceedings under, 782, 783 
 under Chantable Trusts Act, 784 
 
 by equity judge at chambers, where income above SOI. per 
 
 annum, or charity within City of London, 784 
 by District Court of Bankruptcy and County Court, where 
 income less than SOI. per annum, ih. 
 appeal from, when allowed, 784 
 previous consent of Charity Commissioners to proceedings, 
 when required, 785 
 (6) Extent op, 786, et seq. 
 
 Accownt of mesne rents, what directed, 789 ; see 788 
 
 Compromise vrith Attorney-General, when allowed from hardship, 
 
 789 
 Corporation property, how attached, 791 
 Incomvenience, how far applicable as a bar, 787, et seq. 
 lAmitations, Statute of, charitable trusts not within, 786 
 
 whether within late stat. 749, 750, 786 
 Misiahe, trustees acting from, not made to account, 790 
 Parish, no retrospective account against, 791 
 Presumption, how far it applies, 787 
 
 corporation compared with individuals, 790 
 Rents. See Lease, swp.. Resulting Trusts, inf. 
 
 Resulting trusts, how far legacies to charities result, 191, et seq. ; see 193, 
 194, note (6) 
 not presumed on gift in favour of charity, but with no object, &c. ; 
 
 but Court directs application, 198 
 increased rents applicable as original gift, 198 
 exception to this rule, 199 
 Schemes for, under Romilly's Act, 782 
 
 new, approved provisionally by Commissioners, 785. 
 Trustees op, entertaining opinions contrary to founder, removed, 711 
 majority of, binds minority, 298 
 
 Court sometimes appoints part of number to act as quorum, 299 
 Trusts fob, synonymous with public trusts, 23 
 
 CHARITY COMMISSIONERS. 
 
 Advice, may give, and persons acting under, indemnified, 785 
 Attorney-General, they may certify cases for his interference, 784 
 Exchange op lands, may authorise. See Investment, inf., 504 
 Inquiries, may make, 784 
 
 Investment of moneys arising from sale or exchange by, 604 
 Leases, may authorise building, &o., 504 
 
 trustees of charities must have sanction of, for lease longer than 
 21 years, 511 
 New trustees, appointment of, their sanction required for, 718 
 Official trustee of charity lands, who is, 786 
 
 of charity funds, 786 ; see 382 
 Pbooebdinos, before taking, their consent where necessary, 784, 785 
 
INDEX. 949 
 
 CHARITY COMMISSIONERS— coTOimwd 
 
 Sale op lands, may authorise. See Investment, swp., 504 
 Scheme, new, may provisionally approve (to be submitted to Parliament), 
 499, 785 
 CHARTER, charities by, 492 
 
 CHATTELS. See Administration, Chose in Action, Execotor, Deed. 
 Failure oe C. q. t., Forfeitdrb, Investment, Monet, Policy 
 Assets in hands of executor, 261, et seq., 681, 685. See Exeodtob 
 Custody oe, Ch. xiii. s. 2, 332 
 
 Devolution of, to administrator, or executor of trustee, 260; see 279 
 Disclaimer oe, 236 
 Execution, taken in, 647, 648, 662 
 
 whether for debt of trustee, 261, 280 ; and see Execution 
 Executory trust of, in articles, how construed, 149, et seq. 
 in wills, ih., 158, et seq. See Executory Trusts 
 Interest, where trustees take under a charge, 251 ; and see 257 
 under devise, subject to late Wills Act, 259 
 
 limitatwn to A. and his heirs for certain duration, 255 
 Limitation, how far chattels capable of, at law by deed, 104 ; by will, il. 
 chattels may be subjected to, by way of trust, 104 
 limited by way of trust to A. and his heirs are personal estate, 131 
 cannot be entailed, ib. ; and see Executory Trusts 
 Personal, c. g. t. entitled to possession of, 593 
 
 money, notes, &o., distinguished from other chattels, 768 
 trust of, not within Statute of Frauds, 61 
 
 once created by parol, not affected by subsequent parol 
 
 declaration of settlor, 61 
 but in case of will, see QQ 
 voluntary settlement of, good against purchasers, 93 
 
 secus as against creditors if settlor indebted, ib. 
 Real, otfeme covert. See Feme Covert 
 
 prerogative probate, when required for, 261 , 
 trusts of, within Statute of Frauds, 61 
 voluntary settlement of, void against purchaser, 93 
 Reputed ownership of, 277, et seq.; see 593 
 Special trusts and uses, chattels are subject to, 4, 5 
 Tenant for life of, 594 
 Trusts of. See Limitation; sap. 
 
 of chattels, are not affected by Statute of Uses, 7 
 CHILD. See Illegitimate, Infant 
 
 purchase in name is prima fade an advancement, 207. See Advancement, 2 
 CHOSE IN ACTION, 85, 86. See Feme Covert' 
 
 assignment of, by trustee, power of attorney how to be qualified on, 426 
 notice by purchaser of, how it gives priority, 605, et seq. See Notice 
 pwchaser of, from trustee, holds subject to same equity as trustee, 729 
 trust, once considered in the nature of, 9 ; secus, afterwards, 11 
 trustee of, should reduce into possession if possible, 326 
 CHURCH. 
 
 devise of tithes, &c., how carried out in equity, 104 ; and see Advowson, 
 Chapel 
 CHURCHWARDENS, and Oveeseees. See Overseers 
 CIRCUITY. 
 
 Court of equity avoids, 749, 765, note; and see 94, 660, 661 
 CLAIM. See Bill in Chancery 
 
 adverse to c. q. t., trustee should not make, 325 ; see 878 
 CLERK. 
 
 election of, 107. See Parishioners 
 CO-EXECUTOR. See Co-trustee, Executor 
 COHABITATION. 
 
 bonds, 138, note (6) 
 COLLATERAL. 
 
 equitable powers may be, 525 
 
 COLLECTOR. 
 
 trustees may employ, of debts, 557 ; of rents, 656 
 
950 INDEX. 
 
 COLONIES. 
 
 Enactments passed at home, when they are bound by, 62 
 
 Lands in, within Lord St. Leonards' Trustee Act, 835, note (d); and see 
 Trustee Act, 54, 56 
 
 Trust may be usually enforced of personal property in, 47 
 how far, of real estate in, 47, et seq. 
 COMMISSION. See Trouble 
 
 Executors in the East Indies, whether they may charge, 647 ; see note (S) 
 
 Mortgagees, Trustees, &e., cannot charge, 646 
 
 seem as to trustees for absentees of estates in West Indies, 646 
 may be allowed to trustee by settlor, 550 
 may be stipulated for with c. q. t., 651 
 or with Court before acceptance of trust, 663, et acq. 
 COMMISSIONERS. 
 
 charity. See Charitt Commissioners 
 COMMITTEES OF LUNATICS. 
 
 may not cha/rge for time and trouble, 646 
 
 have no interest, and therefore office does not swrvive, 299 
 
 cannot make repairs without previous order, 524 
 COMMON LAW. 
 
 Courts, have no jurisdiction of trusts, 19, 261 ; see 249, note (c) 
 
 qu. whether they can notice breach of trust, 37, note (/), 581 
 
 Trusts at, Ch. v. s. 1, 66 
 COMMON. 
 
 Tenancy in. See Joint Tenancy, Tenancy in Common 
 COMPANY. See Parties, 847, Trustee Extension Act, ss. 6,7 ■ 
 
 Conversion of shares in, where bequeathed in succession, 812 
 
 Public, does not usually take notice of trusts of shares,' &o., 858 
 
 Restraining order under 6 Vict. o. 6, s. 4, applicable to shares in, 860, 863 
 COMPENSATION. 
 
 from person who benefits by breach of trust, 392, 768, 771 ; see 363, 846 
 
 in case of charity, lease at undervalue, 507 
 COMPLICATED. 
 
 where account is, relief in equity on legal title, 763, note 
 
 trust whether within Lord St. Leonards' Trustee Act, 836, note (c) 
 
 Statute of Frauds, s. 10, 696 ; 12 Vict. i;. 110, s. 11, 669 
 COMPOUND INTEREST. 
 
 when charged, 362, 363, 397 
 COMPOUNDING. 
 
 with creditors, whether trustee thereby unfit for office, 711, note (c) 
 
 debts, powers of trustees as to, 520, et seq. 
 COMPROMISE. 
 
 with Attorney-General, in accounts of charitable trusts, 789 
 COMPULSORY. 
 
 payment into Court, Ch. xxix. s. 4, p. 864. See Payment into Court 
 CONCEALMENT. 
 
 of breach of trust, will make co-trustee liable, 317 
 
 of fraud, prevents bar to equitable relief, 734, 743 ; see 754, note 
 
 of right to estate, account carried back to accruer of title, 766, note 
 CONCURRENCE. 
 
 c. q. t. by, estopped from proceeding against trustee, 773 
 
 secus where c. q. t. a. feme covert or infant, 774; except in case oi fraud, ib. 
 or as to feme covert who has separate estate without 
 restraint, 775 ; co«/.'778 
 or where c. q. t. acts in ignorance, 774 
 CONDITION 
 
 legacy for charity charged on devise by way of, creates resulting trust, 193 
 
 CONDITIONS OF SALE. 
 
 what, trustees for sale may impose, 423 
 CONFIDENCE. 
 
 in person explained, 2 ; see 22, 530 
 
 not so strictly applied as to uses, 10 
 
 in what sense a trust said to be, 16 
 
 words expressing testator's confidence may raise a trust, 168 
 
INDEX. 951 
 
 CONFIRMATION by o. q. t. 
 
 of breaches of trust, general requisites of, 472, 777, 778 
 
 feme covert cannot make, except as to separate estate, witbout 
 
 restraint, 471, 777 ; conf. 778 
 by widow, of promise made during coTerture, 776 
 infcmt cannot make, 471, 777 ; see 776 
 CONSENT. 
 
 by c. q. t. to breach of trust, effect of, 768, 769 
 feme covert of, required by trust, 348 
 iwoestment to be made with, 340 
 pwchase to be made with, 807 
 CONSIDERATION. See Charities (Leases) 
 Generally 
 
 family differences, reconciling, a good consideration, 94 
 necessary, is not to support a confirmation, 472 
 
 what sufScient for release or wamier, 751 
 is not for a trust perfectly created, 81. See Voluntart 
 ASSUEANOE 
 will, consideration is implied by, 58, 167 
 Meritdrious, agreement or im/perfect trust founded on, how far enforced, 94, 
 et seq. 
 not against settlor though under seal, 94 ; see note (/) 
 
 creditors of settlor, or purchaser from him, 99 
 whether against heir or volunteer of settlor, ift. ; see note (/) 
 extends to creditor, child, wife, 95 ; see 796 
 cannot be urged by parent against his child, 95, note (a) 
 Nominal, 177, on bargain and sale, 96 
 
 Taluable, where it exists trust not averrahle 57 ; trust enforced, 81 
 to whom consideration of marriage settlement extends, 406 
 may be proved aliwnde as against third persons where deed 
 apparently voluntary, 477 
 CONSOLS. 
 
 £3 per cent, proper investment of trust money, 351 ; see 813 
 CONSTRUCTION. 
 
 Devise, of, to uses, 268 
 
 Instrument, of, is question for Court, 73, 74 
 
 Leqal estate, as to, taken by trustee, Ch. xi. s. 1, 246, et seq. ; and see 
 
 Legal Estate 
 Powers of, 527, et seq. See Powers 
 
 Trusts of, governed by same rules as construction of legal estate, 141 
 for charities. See Charities (Construction), 495, et seq. 
 executory in marriage articles, 147, et seq. 
 
 in wills, 153, et seq. See Exeodtoet Teusts 
 CONSTRUCTIVE TRUSTS. See Trade 
 
 Bankruptcy op Trustee, how affected by, 276 
 
 Cases op agents, factors, &c., 225 ; see 217, 220 ; but see, as to agent, 226, 
 459 
 attorney violating his duty, 226 
 
 decree for sale, person to convey under, 839, note (e) ; see 834, 
 note (/), 836, note (c), 837, note (d), and see 882, note (d), 
 894, note (d) 
 equitahle waste, 225 
 
 holder of title deeds how far constructive trustee for remainder- 
 man, see 227, 228 ; see 691 
 notice of trusts, constructive trustee by means of, 228 
 on renewal of leases by executors, trustees, &c., 217- 
 mortgagee, 218; but see 221 
 
 tenant for life, or other having partial interest, 218 
 yearly tena/nt, 219 ; how far by tenant at will, or by sufferance, 
 
 219 
 what circumstances will not vary rule, 220 ; and see note (i) 
 expenses of renewal by tenant for life, 222 
 
 how far annuitants should contribute to fine, 223 
 trustee's liem for, 222 
 mesne rents and profits and sub-fines, trustee accounts for, 223 ; 
 see 224 
 
952 INDEX. 
 
 CONSTRUCTIVE TBXJSTS— continued. 
 Cases of agents, &c, — continiied. 
 
 renewal, right of, trustee cannot sell, 220 
 
 reversion, how far trustee purchasing, a constructive trustee, 225 
 terms of assignment, from trustee to c. q. t., 223 
 volunteers and pwrchasers with notice from trustee, remedy against, 
 224 
 Distinguished from Implied Trusts and Trusts bt Operation of Law, 
 
 140, note (1) 
 Belief as to, barred by laches, 224, 742 ; see 750 
 
 Statute of Limitations, 729, 730, 746 
 Statute of Frauds, how far it affects, 228, et seq., 762 
 
 distinction between trust arising on a will and on a convey- 
 ance, 230 
 
 CONTINGENT INTEREST. See PossiBiLiTT 
 equitable, c. q. t. may assign, 600 
 
 owner of, entitled to have it secured, 723 ; and see 868 
 
 cost of filing bill for, 368 
 LANDS in, disposable under 8 & 9 Vict. c. 106, 817, note {d) 
 
 CONTINGENT REMAINDERS. 
 
 Effect of Pines and Recoveries Act, 411; of 8 & 9 Vict., c. 106, 156,412 
 Freehold, where legal, must be supported by particular estate ; secus in 
 
 trusts, 104 
 Trustees for preserving DUTIES OF, Ch. XV. 404; see note (a), Waste, m/. 
 
 1. Until eldest son has attained 21, obligation to preserve re- 
 
 mainders imperative, 405, though settlement voluntary, 406 
 Court will not sanction destruction, 407; exceptions to rule, 
 
 407, 408 
 remedy for destruction of, 406 
 
 extended only to those who claim as purchasers, 406 
 issue, during life of parent, cannot sue as " heir," 407 
 
 2. After eldest son has attained 21, the trustees become "hono- 
 
 rary trustees," and the destruction of the remainders is a matter 
 of discretion, 408 
 Court will exercise discretion for trustees, 409 
 
 punishes fraudMUnt, exercise of discretion, iJ. 
 allows destruction on eldest son's marriage, ih, 
 does not allow destruction without cogent reason, ih. 
 
 A fortiori not for culpable object, as payment of 
 
 father's debts, ib. 
 but trustee not necessarily liable because Court 
 would not have so acted, 410 
 whether any distinction between will and settlement, 410, 
 411 
 Trustees for preserving limitation to 
 
 how usually framed, and object of, 404 
 " and their heirs," whether it can be out down, 253, et seq. 
 whether necessary since 8 & 9 Vict. c. 106, 156, 412, 413 
 a special trust not within Statute of Uses, 247 
 Receiver, trustee for preserving, may be, 319 
 Waste, duty of trustees to preserve, to prevent, 408 
 
 " CONTINUANCE OF TRUST." 
 power during, 531 
 
 CONTRACT. See Agreement, Covenant, Specific Performance 
 by feme covert as to separate property, 633 
 
 under Fines and Recoveries Act, 634, note (c) 
 private, trustees may sell by, 422 
 purchase, for, of fee by A., if A. die, executor pays price, but heir entitled 
 
 to purchase, 799. 
 sale, for, raises implied trust, 174 
 
 of land by A., if A. die, fee descends to heir, price belongs to 
 executor, 799 
 CONTRIBUTION. 
 
 charities founded by means of, their trusts, how expounded, 497 
 co-trustees, amongst, on breach of trust, 768 ; as to costs, 767 
 
INDEX. 953 
 
 CONTRIBUTION— comtMimed 
 
 none where fraud, 768 
 
 seem in favour of assignees of bankrupt trustee, 773 
 how worked out, 845, 846 
 rule of, in renewable leaseholds, 395, 398, et seq. See Renewable Lease- 
 holds 
 
 CONTROL. 
 
 how far Court will control powers, 538. See 696, Powees 
 trustee must not put trust property out of his own, 334, et seq. 
 
 CONVERSION. See Gavelkind, Reduction (into possession) 
 
 Implied, in cases of personal property given in succession, 
 
 (o) where investment not wasting, but not authorised by Court, 812 ; 
 see 352 
 e. g. forHgn bonds or stocks, shares in canals, insurance, 
 railway companies, &c., ib. 
 secus where money invested on mortgage 
 
 unless beneficial to call it in, 354 
 where s<oci;,other than £3 per cents, specifi- 
 cally bequeathed, 354 
 India, assets in, as to, 355 
 (6) where property is wasting, as leaseholds, long annuities, &c., 808 ; 
 see 352 
 secus where intention that property should be enjoyed in 
 specie, 809, et seq. 
 e. g. by specific bequest of leaseholds or stock, 809, 
 et seq. 
 by mention of rents or dividends, 809, et seq. 
 by direction to convert, &c., at period subsequent 
 to testator's death, 809, 810 
 Income acoeuing before oonveesiok, application of proportion of tenant 
 for life after testator's death, 813, et seq. 
 
 where accumulation directed, and investment, he takes income 
 
 from end of first year, 813 
 where investment directed, he takes from testator's death, if funds 
 then invested, otherwise from investment, if made iu first year, 
 814 
 before conversion, he takes reasonable fruit of property, 814 ; see 
 
 815, note (a) 
 he must refund if he take undue proportion, 353 
 and if he is insolvent, semile trustees liable, ib. ; and conf, 768 
 rule where property incapable of immediate conversion, 815, 
 816 _ 
 
 where discretion given to trustees as to time of conversion, 
 
 815 
 as to rents of devised estates, 816 
 Land to be converted taken as money, 807. See Resulting Teust 
 e. g. alien may take proceeds, 807 ; ieqwest of personal estate, it 
 passes by, ih. ; not bequeathed, it goes to personal represen- 
 tative, ib. ; is not subject to probate duty, ib. 
 charity, where it may be taken by, 808 ; but see note (a) 
 elect, party entitled may, to take as land, 598, 816. See Election 
 
 how election presumed or expressed, 823, 824 
 imperative, conversion must be, 808 ; and see note (S) 
 judgment, whether subject to, 663 
 mortgagee selling under power of sale, who entitled to surplus 
 
 proceeds, 808 
 option to purchase, whether exercise of, effects retrospective con- 
 version, 808 ; but see note {d) 
 money to be laid out on land, taken as land, 793, et seq. See 
 Resulting Teust 
 e. g. subject to curtesy, 793 ; qucere, whether to dower, 794, 795 
 devised by description of " lands," 796 ; not (formerly) by 
 infant's will, i6. ; conf. 816 
 but formerly bequeathed by unattested will operating 
 by election, 824,825 
 
954 INDEX. 
 
 CONVEESION— cowtMMtcA 
 
 Money to be laid out, &o. — a 
 
 escheat, not subject to, 795 
 
 hotchpot, not brought into (formerly), by child receiving 
 
 oi-phcmage share, 797 
 judgment, bound by, 796 
 
 personal assets, not accounted, and (formerly) not liable to 
 simple contract debts, 796 
 heir of A. on whom lands were to be settled, when entitled to 
 money, 797, et seq. 
 (a) entitled as against strcmger 
 
 e. g. bequest by stranger to purchase and settle on A. and 
 his heirs, and A. dying before purchase, 797; and 
 see note (e) 
 deposit of money in hands of trvMees (whether by A. 
 
 or stranger), &c., ib. 
 covenant by stranger on marriage of A. &o., ib. 
 (6) entitled as against A.'s executor (e. g. under covenant by A. on 
 his own marriage) where at A.'b death third persoa 
 has equitable interest, 798 
 otherwise not so entitled, i. e. where money "at 
 
 home," 800 
 money considered " at home " if received from trus- 
 tees, 801 ; see 823 
 entitled under beqiKSt by A. to purchase with limitation to 
 
 A.'s heirs, 805 
 qncere, whether so entitled under vohmtqiry covenant to lay 
 out money on land, 806 
 elect, party entitled may, to take as money, 816. See Election, 698 
 
 how election presumed or expressed, 823, 824 
 imperative, conversion must be, 806 ; and see 797, note (c) 
 
 considered so, where uses declared exclusively appli- 
 cable to real estate, 806 
 notwithstanding power to invest on personal security, 806 
 mere direction to convert at " request," &c., 
 807 ; unless where " request," &c., intended 
 to be substantial ingredient, i5. 
 Tortious, of trust estate by trustee 
 does not affect rights of c. q. t., 825 
 
 case of infant c. q. t. See iNrANT (Conversion), 829 
 lunatic c. q. t. See Lunatic (Conversion), 825 
 right of c. g. «. to /oJiow substituted property, Ch. xxvi. s. 2, 753. 
 See Follow 
 
 CONVEYANCE. See Grant, Tbustee Acts (Interpretation clause), and 889, 
 note (a) 
 equitable estates, usual form of, 600 ; precautions in, 604, et seq. 
 expense of, from old to new trustee, when borne by trustee, 711. See New 
 
 Tkustees 
 parties to, when c. q. t. should join in, 427 ; and see 881, note (5) 
 
 when trustee to bar dower, 596 
 persof to make, under decree, a constructive trustee, 839, note (e). See 
 Tkusteb Act, s. 29 ; Trustee Extension Act, a. 1 ; and see 882, 
 notes (d ) (e) 
 to require, under Lord St. Leonards' Trustee Act, 837, note (c). See 
 Teusteb Extension Act, s. 2 
 by trustee at direction of c. q. t., 696, 596 ; of assignee of c. q. t., 600 
 
 whether compellable to convey in parts, 595 ; and see note (A) 
 by what description ; not bound to convey fee simple to tenant 
 
 in tail, ib. 
 liability for refusing, 696 
 
 CONVICTION. 
 
 of felon, &c., 28. See Poefeituee, Trustee Extension Act, s. 8 
 
 COPIES. 
 
 of vouchers, whether c. q. t. entitled to, 428 ; of accounts, 599 
 
INDEX. 955 
 
 COPYHOLDS. 
 
 Admission operates retrospectively, 249 
 
 fine on, paid by trustees, 272 ; at what rate, where co-truatees, 
 272 
 
 charged on trust estate how raised, 402 
 of trustee under mandamus, 324 
 Customary Febeholds, copyholds distinguished from, 283, 616, note (1) 
 Dbsoeht of, trust descends to customary heir, 45 
 
 Devise of legal estate in, formerly devisable by will unattested and unsigned, 
 45, note (d) 
 
 whether by nuncupative will, 60, note (1) 
 
 so equitable intefi-est, 45 ; even where legal interest not so, 45, 46, 
 
 616 ; and although no preceding surrender, 616 
 copyholds now subject to late Will Act, 60, note (1), 617. 
 DowEE Act does not affect, 621, 627 
 
 Febebenoh, 260; equitable interest in copyholds is not subject to, 621 
 Foe lives, how they devolve under 1 Vict. c. 26, s. 6, 203 
 
 how far purchase of, in name of stranger, raises resulting trust, 203 
 how far, in name of child, 210, see 214 
 Lord bound by entry of trust on Court roll, 283 
 Eesultinq tedst. See For lives, awp. 
 
 Surrender, estate passed by, remains in surrenderor until admission of 
 surrenderee, 249 
 on what principle supplied in equity, 96 ; and see Devise, sup. 
 
 CORONER. 
 
 trustee in possession votes for, 269 
 
 c. q. t. in possession votes for, 269 ; but see 692, 593 
 
 CORPORATION. See Overseers, Parties 
 
 Beeach of Trust by, 763 ; see 767, 31 
 property how attached for, 791 
 Bye-laws, may make, but not so as to defeat object of foundation, 498 
 C. Q. T., may not be, of lands, without licence from Crown, 43, 131 ; see 31 
 Civil, might, before Municipal Corporation Act, alienate their property and 
 create trusts, 25 
 secus now without consent of Lords of Treasury, 25, 31 
 are now trustees of their property, 31 
 visited by Crown through Court of Queen's Bench, 495 
 Costs, instances where visited with, 505, 877 
 Distinction between corporations and JMdividucds as to presumption of 
 
 notice, 790 
 Ecclesiastical, bound by restraining statutes, 25 
 Eleemosynaey, where Crown visitor of, visitorial power committed to 
 
 Lord Chancellor, 495 
 Teustee, a corporation, may be, 10 ; of personalty, and how of realty, 31 
 Use, cannot stand seised to, 2 
 
 COSTS. 
 
 Generally 
 
 As between party and party — where trustee defendant to bill by 
 stranger which is djpmissed, 872 
 where trustee disclaims, 235, 874 
 As between solicitor and client — allowed in matters between c. q. t. and 
 
 trustee where fund in Court, 874 
 doubtful construction, case of, 368. See Contingent Interest 
 extra, trustee who has been paid between party and party, where 
 
 allowed, 558 
 cs. q. t., and trustees defending in same interest, one set of costs 
 
 allowed, 857 
 as to husbamd of feme covert who sues for separate property, see 858 
 co-trustees of, severing defence, 857 
 
 contribution to, between, 767 
 disclaiming trustee of, 23.'), 874 
 excessive, how moderated, 668 
 executors in creditor's suit entitled to, in preference to plaintiff, 873 ; 
 
 rule at law different. See Of Trustees (5.) inf. 
 
956 INDEX. 
 
 COSTS— co»<i»«ed. 
 
 Generally — contimied, 
 
 interest on, not allowed, 558 
 
 lien of trustee for expenses, 560 ; see 558 
 
 Imialic mortgagee or trustee, 883, note (c) 
 
 new trustees of, appointing, 582, et seq. ; and see 711, and Trustee Act, 
 
 1850, 8. 51, 901, note {a) 
 recovered, how, by trustee, as against c. q. t. or trust- estate, 873 ; see 
 
 558, 560 
 relators, joined in information for, 779 
 
 sale imder decree, petition for vesting order, &c., 903, note (h) 
 solicitor, his costs when trustee, S74;and see Solicitor, astoc. g. t. 
 
 obtaining taxation against, 558, note (e), 561, note (d) 
 specific performance, in suit for, 872 ; see 421 
 try,st to pay, how construed, 564 
 
 Trustee Relief A cts, under. See Trustee Relief Act (Costs) 
 void deed, trustee of, where entitled to costs, 875 
 Of trustees, &c., in suits bet\veen trustees and cs. q. t. 
 Executor (fixed with costs) 
 
 denying assets when they exist, 878 
 improperly retaining balances, 875, 876 ; and see 359 
 putting next of kin to proof of relationship, 878 
 qu. whether, when interest given against them, 878, 879 
 (a) Trustee allowed, 367, 368, 873 
 
 to be paid out of trust fund or by c. q. t., 873 ; see 558, and conf. 
 
 562, 563 
 and where fund in Court, as between solicitor and client, 873; 
 not appearing at hearing, and decree nisi against him, may pay 
 
 costs of day, and have cause re-heard, 784 
 secus, after decree passed, ib. 
 (6) Trustee deprived of or fixed with costs, or portion 
 accounts, keeping confused or misstating, 877 
 answer, severing improperly, 857 
 
 appointing new trustee after hUl filed sometimes pays extra costs, 544 
 convey, refusing to, at c. q. t.'a direction, pays costs, 595 ; see 600 
 denying falsely plaintiff's claims, pays costs, 878 
 ignorance, falsely pleading, pays costs, 878 
 instituting suit for his private ends, pays costs, 877 ; see 325 
 leasing charity lands with covenants for private advantage (deprived 
 
 of costs), 505 
 misconduct, guilty of (pays costs or portion thereof), 875 ; what 
 where misconduct discovered in progress of suit, 
 876; what where misconduct causes administration 
 suit, ib. ; what where doubtful point of law, ib. ; 
 where proved in part, 875 
 trivial, 877 ; purchase of trust propertyat auction, 875 ; 
 see 461 
 mistake, committing, sometimes pays portion of, sometimes deprived 
 
 of, sometimes allowed, 876, 877 
 neglect, as to proceedings caused by trustee's neglect, 558; see876 
 neglecting to make inventory, deprived of costs, 244 
 purchasing trust estate improperly, pays costs, when, 469 
 retaining balaruie. See Executor, sup. 502 
 retiring, from caprice, pays costs, 583 ; but see 584 
 setting up title of his omn, or trust different from existing one, pays 
 costs, 878 ; see 325 
 Trustees, of, in suit<between trustees and strangers, 872, et seq. 
 
 trustee on same footing as ordinary plaintiff or defendant, 872 ; 
 see 421 
 
 made defendant as necessary party and contesting plain- 
 tiff's claim, is not entitled to cuots if plaintiff successful,i6. 
 secus when trustee submits point to Court, ib. 
 case where plaintiff fails in suit, ib. See Generally, sup. 
 and see as to frame of suit, 356, et seq. 
 
 CO-TRUSTEES. See Solicitor 
 
 Akswer, they should generally join in, 857 ; or in suing, ib. 
 
INDEX. 957 
 
 CO-TRUSTEES— com«i««ei. 
 
 ArriDAViT OF, on payment into Court under Trustee Relief Act, 376, 
 
 note (6) 
 Breach o¥ Trust, each is responsible to c. q. t. for whole liability and 
 costs, 767 ; exception, ib. 
 
 each is liable for concealing or permitting, 317 
 co-trustee permitting, liable to be removed, 711 
 CoNTEiBUTiON BETWEEN, 767, 768 ; and see 845 
 DiSAQRBEiKQ, Court will exercise fiower, 696 
 
 receiver appointed, 870 
 Duties, may not delegate discretionary power to co-trustee, 297 
 may not lend trust money to co-trustee, 338, 3i6 
 may not permit trust money to remain in hands of co-trustee, 306, 
 
 309, 330; and see 314, 315 
 may not passively trust co-trustee even though a professional 
 person, 243, 244 ; see 290 
 Indemnity clause, its effect as to co-trustees, 317 
 Joint, their ofSce is, 298 ; see Survivorship, inf. 
 
 t. g. they must jointly give receipts for principal moneys (gene- 
 rally), 298, 448, 449 
 but any one may receive dividends or rents, 299 
 they must all prove in bankruptcy (generally), 298 
 they must join in conveying, 299 
 but in public trusts majority binds, 298 
 and Court sometimes allows a part to form a quorum, 299 
 Liability, one is not liable for the acts or defaults of another, 302 
 nor for joining proformA in receipts, 304 
 unless where money improperly raised, 306 
 and see Breach of Trust, swp. 
 Parties, how they must join in suing and defending, 857 
 
 necessary, see 841, 845, et seq. See Parties 
 Payment to, safe to pay into a bank to their joint account, 330 
 Survivorship of office, 299, 300, note (/), 419, 849 
 
 notwithstanding power to appoint new trustees, 301 ; and see 419 
 
 COUNSEL. 
 
 advice of, 366, 595 ; as to disclaimer, 234 
 trustee allowed fees paid to, 558 
 
 COUNTY COURT. 
 
 Judgment of, enforced in equity, 663 
 
 Jurisdiction of, in charities whose income under £30, 718, note (c), 784 
 appeal from, to Chancery, when, 784 
 
 COURT, 19, 20. See Chancery, Common Law, Spiritual, New Trustees, Powers 
 assignment of fund in, 613, 614 
 
 COVENANT. See Action, Advantage, Lease 
 
 " Grant, Bargain, and Sell" under Yorkshire Registry Acts, has force 
 
 of covenant for title, 596, note (o) 
 Form of, in conveyances, &c. 
 
 by devisees of lessor who has covenanted for renewal, 425, note (a) 
 
 executors of one who has agreed to take a lease, ib. 
 
 mortgagees and trustees for sale, 425 ; for production of deeds, ib. 
 
 on assignment of lease, 426 ; see 223 
 Not to sue, or bond compared with release, 773 
 
 To stand seised, extended to brother, child, cousin, nephew, or wife, 96 
 required a deed, 95 
 
 to use of stranger in blood, not enforced in equity, 94 
 To settle property, 174, 762. See Demerara 
 
 acquired during coverture, 174 
 To transfer stock, liability of trustee for not enforcing, 765 
 Trustee by, a breach of trust is a specialty under, 238, 765 
 Voluntary, carries consideration at law, 93 
 
 not specifically executed in equity, 94, note (/) 
 
 by A. to purchase lands to be settled on A. and his heirs, qu. 
 whether A.'s heir takes under, 805 
 
 COVERTURE. See Feme Covert 
 
958 INDEX. 
 
 CRASSA NEGLIGENTIA, 837. See Neqleot 
 
 CREATION OF TRUST. 
 Bt Act of a party 
 FoEMALiTiES BEQUiEED for, Ch. V. 66. See Avbement; Feauds, Statute 
 
 OE ; Wills, Statdte oe ; Transmutation of Possession 
 Object proposed by, Ch. vi. 103. See Lawful, Unlawful Teustb 
 Parties to, Ch. iii. p. 24. See C. Q. T., Settlor, Trustee 
 Property, what may be subject of, Ch. iv. 45. See Property 
 
 CREDITORS. See Assets, Debts 
 
 Acquiescence, when bound by, in purchase by trustee, &o., 471 ; see 737, 777 
 
 Confirmation, where bound by, 473 
 
 Execution, creditors taking out, may purchase goods sold under, 465 
 
 taking trust estate under, bound by trust, 280 
 Separate property of feme covert, their remedies against, 640, 642 
 Trust, their rights cannot be defeated by means of, 132, el seq. 
 Voluntary settlement, iy one largely indebted, is void against, 93 
 
 for, whether they can enforce its execution, 101 ; see 481 
 CROWN. See 779, Chancellor, 835, note (a), Forfeiture ; Frauds, Statute 
 of; Pension 
 Alien's trust of real estate, Crown how entitled to, 43, 132. See Alien. 
 BoNUM vacans where c, q. t. dies intestate and without next of kin. Crown 
 takes residuary personalty, 198, 324 
 but executor where appointed takes as against Crown, 59, 324 
 C. Q. T., Crown may be, 42 
 Prizes, taken in war, vest in, 25 
 
 grant of, to trustees for distribution revocable until distribution, 
 25, 101 
 Trust, how it may create (of private property), 24, 25 
 declaration of, by or to Crown, 59 
 mode of enforcing against Crown doubtful, 30 
 Use, can declare, by letters patent, 69 
 
 cannot stand seised to, 2 
 Visitor, where, 495 
 Will of Sovereign, 25 
 CURTESY. 
 
 Admitted of, an equity of redemption or trust, 621 
 unless where husband an alien, ib. 
 and Hfeme covert had equitable seisin, 622 
 notwithstanding trust for separate use, 623 
 of money to be laid out on land, 622, 793 
 why curtesy and not dower of a triSst, 625 ; see 12 
 Not admitted of, a use, 4 
 
 Tenant by, bound by a trust, 11, 260, 279 ; not by a use, 3 
 CUSTODY. 
 
 of trust chattels, Ch. xiii. b. 2, 332 
 CUSTOM. 
 
 Of Kent. See Infant (Feoffment) 
 
 CUSTOMARY FREEHOLDS. 
 
 Distinguished from copyholds, 284, 616, note (1). 
 
 Lord taking by escheat, whether bound by entry of trust upon Court roll, 284 
 
 Trust of, must be devised according to the Statute of Frauds, 616 
 
 DAUGHTERS. 
 
 Advancement for, presumed, 216 
 
 Included under " heirs female," " heirs of body," or " issue," in articles, 
 149, 156 
 how the limitation will be executed, 149 
 DEBTS. 
 
 Generally. 
 
 destruction of contingent remainders held justified by payment of 
 
 debts, 408 
 executor may not sell to pay his own debts, 466, qu. if he be specific 
 
 or residuary legatee, 456 ; or jointly with others, 457 
 specialty and simple contract. See Specialty, Simple Cohteaot 
 
INDEX. 959 
 
 DEBTS — contimned. 
 
 Generally — continued. 
 
 trust to pay surplus power of receipts, unless debts scheduled, 
 
 435,436 
 trustee may appoint collector, 55 ; compound, 520 ; may not buy 
 up for himself, 318 
 Trusts for Payment of, Ch. xvii. 474, el leq. 
 
 CBEiTED BT ACT INTEB VrTOS, 474, Ct seq. 
 
 (a) person not trader may create of all or parts of property for all or 
 
 some creditors, 474, 47fi 
 unless where fraudulent within Insolvent Act, 475 
 or where actual fraud, 476 
 vohmtary trust by, whether revocable or valid, 476 
 
 must be strictly fulfilled, 476 
 trust apparently voluntary may be shown aWimde to be founded 
 
 on value, 477 
 (6) trader may not assign whole property upon, 477. See Bankbuftcy 
 
 (Assignment), and 479 
 where assignment unimpeachable under late Bankrupt Act, and 
 
 when trustees may safely act under, 479, 480 
 may assign part of property upon, 480 ; and see 477, note (c) 
 Irrevocable, trusts are, where by way of security to, or arrange- 
 ment with creditor, 481 
 Tolwntwry trusts, how far revocable, 101, 476, 481, 483 
 Ceeated by will, 474 ; and see 485 
 
 Trustees for Payment of their Duties, Ch. xvii. 474 
 Debts, what payable 
 
 (1) in trust created by deed, debts owing at date thereof, (2) by 
 will, debts owing at death of testator, 483, 484 ; unless where 
 contrary intention, ih. 
 construction of " all debts then owing by him and which affect the 
 
 estates thereby conveyed," 484 
 creditors who come in within a certain time, clause is directory, 486 
 but creditor who repudiates deed, cannot afterwards 
 
 take benefit of it, ib. 
 where trustees have discretion to admit creditors' claims, 
 486 
 infcmt, debts contracted by, for necessaries, 485 
 Limitaiion, Statute of, debts barred by, at date of deed, or of 
 testator's death, not revived by trust, 484 ; see p. 520, 
 statute will not run afterwards, 484 ; as to trust by will of 
 personalty, see. 485 
 mortgagee of, with covenant, or other creditor, with specific lien, 
 485, 486 
 Intebest on, hond creditors cannot receivemore than amount of penalty, 491 
 specialty debts carry interest to time of payment, even though 
 
 released by creditors' deed, 491 
 simple contract on debts not allowed under trust, 490 
 
 as to rights of creditors after decree under 46th Order 
 
 of Aug. 1841, 490, note (c) 
 exception to rule, 490 
 unless creditors have stipulated for it, 491 
 Obdbe of payment 
 
 creditors paid before legatees, 487 
 
 all creditors paid pari passu, in absence of contrary directions, 488 
 whether trustee and executor may pay his own debt first, 488 
 Resumption by trustees of property after parting with it, 487, 522 
 
 DECLARATION. 
 
 Peinoiple oe bejeotinq, when not testamentary (as to wUls), 66. See 
 
 Wills, Statute of 
 Teust or, how made at common law, 56. See Ateembnt 
 
 how under Statute of Frauds, 62. See Feauds, Statute 07, and 
 
 see VOLTJNTABY AsSUEANOE 
 
 DECREE. 
 
 Judgment, decree has effect of, under 1 & 2 Vict. o. 110, o. 18, 667 
 
 Sale for, persons to convey under, are constructive trustees, 839, note (e); 
 
960 INDEX. 
 
 DECREE — contimued. 
 
 see 834, note (/), 836, note (c), 837, notes (c) and (d), 882, note (d), 894, 
 note {d), and 903, note (c) 
 SriT .in, paralyses powers of trastees, 523, 624, 644 
 
 DE BONIS, Statute of. 
 
 Estate pnr autre vie, not within, 603, note (1) 
 Trust, not within, 603 
 
 DEED. See Infant, Lunatic 
 
 AooEPTANCB OF TRUST, whether it should be by, 238 
 
 Chattel interest in land (other than copyholds), assignment of, unless 
 
 by deed void at law, 600, note {d) 
 Disclaimer should be by, 233 
 Equitable interests usually assigned by, 600 
 
 Parties to, where good as between though void as against others, 478 
 Voluntary, does not preclude evidence aliu/nde of valuable consideration, 
 
 as against persons not parties, 477 
 
 Will contrasted with, 66 ; and see 104, 230, 251, 253, 410 
 
 instance of deed in form testamentary in cliaracter, 67, note (a), 
 77, note (6) 
 DEFENDANT. See Costs 
 
 how c. q. t. and trustees ought to be brought on the record as defendants 
 
 to suit, 865, et seq. 
 where legal process lost through default of, equity aids, 755, note 
 DEFECTIVE EXECUTION OP POWEES. 
 
 upon what principle aided in equity, 96, 97 
 DEFINITION. 
 
 of a trust, 15 
 of a use, 2 
 DELAY. See Laches 
 DELEGATION. 
 
 Appointment op attorney or proxy, distinguished from, 297 
 CoNVEYAHOB OE TRUST ESTATE does not transfer powers, 266, 267, 297 
 Discretionary trust of, actually void, 296 
 
 though to co-trustee or co-executor, 290, 291 
 ExBOUTOBS by, distinguished at law and in equity, 296 
 Of office op trustee, not permitted, 290, 291 
 unless by settUyi^s direction, 291 
 
 or when trustee acts asagent, and cannot legally retain money, 292 
 or where »«or«J«c(;essi(i/for it, c. jr. transmission ofmoney,293, etseq. 
 case of power to give receipts, 449 
 Trustee for sale may not delegate trust, but may employ agent, 422 
 DELIVERY, OF Deed. See Infant (Deed) 
 
 Of money voluntary, whether any resulting trust upon, 178 
 
 DEMERARA. See Jurisdiction 
 
 Covenant to Settle lands in, not binding against purchaser with notice, 
 
 51 
 Mortgage of lands in, gives no lien unless perfected according to law of 
 colony, 49 
 DEMURRER. See Statute op Frauds 
 
 defendant may avail himself of Statute of Limitations by demurrer, 734 ; 
 whether when bill charges fraud, 735 ; not in case of presumption, 738 
 DENIAL, false by answer, &c. See False 
 
 DEPOSIT. See Mortgage (Equitable) 
 
 on sale by auction, 427 
 DESCENT. See Heir 
 
 Broken by devise upon trust, case of, 680 
 Half blood may now inherit, 680 
 Proceeds prom sale oi gaveVdnd'\a,-ais, 680 
 Trusts of, Ch. xxii. s. 10, 680 
 Trust descends as legal estate, 680 
 
 though there be lex loci, ib. 
 so in copyholds, 45, 680 
 possesdo fratris of, 618, 680 
 
INDEX. 961 
 
 " DESIRE." 
 
 may raise a trust, 167 
 DEVASTAVIT of executor, how it affects co-executor, 304, 316 
 
 Trostee, improperly releasing debt, liable for, 621 
 
 DEVISE. See Copyholds; Customary Feeeholds ; Frauds, Stat, or ; Wills, 
 Stat, or 
 Consideration, a devise implies, 58, 167 
 
 General Words, where legal estate in trustee passes imder, 262 et seq. see 
 note (1) 
 not when cha/rge of debts or direction to sell, 263 
 
 complication of limitations, or devise to A. for life, or in 
 
 tail with remainders, 264 
 devise to woman for separate use, 264 
 passes where estate contracted to ie sold, 268 ; by devise of " my real 
 estates " "to A. and his heirs for his and their own use, &c.," 264 ; 
 devise to two as tenants in common in fee, 264 ; to woman for 
 her own use, 264 
 Implied by the word " trustee," 250 
 Mortmain, devise upon secret trust in, whether void at law, 78, 79, and 
 
 see 73 
 " Seourities for Money," mortgage in fee passes under, 264 
 Several to, good as to one, void as to another, 73 
 
 to alien and British subject, upon trust, 39 
 Trust, devise of, 615 et seq. 
 
 in copvholds, 615 ; in customary freeholds, 616, 617 ; in free- 
 holds, 616, 617 
 Trustee, whether he ought to devise trust estate, 265, 266 ; see General 
 
 Words, Slip. 
 Void, is not, merely because devisee means to execute unlawful trust, 73 
 
 DEVISEE. 
 
 Debtor of, liable to specialty creditor, 239 ; now to simple contract debts, 
 
 ii, note (e) 
 
 Dbtise on, without any reference to Trust, devisee takes beneficially, 68 
 
 even though testator leave unattested declaration of trust, ib. 
 
 exceptions in case of charge of debts, &c., 69 ; in case of 
 
 fraud, 70 ; in case of engagement to execute unlawful 
 
 trust, 71 ; but see 72, 73 
 
 Renewing Lease, where devise subject to debts &c., holds for benefit of all 
 
 parties, 218 
 Secret Trust, devisee must discover, 70, 71, 73 
 Trusts, whether devisee can execute where trust confided to trustee, " his 
 
 assigns," 266, 267 
 Trustee, devisee of is bound by tinist, 279 
 
 DEVOLUTION. See Descent 
 
 Equitable Estate of. See Trust 
 
 Legal Estate of in trustee. See Legal Estate 
 
 DIRECT TRUSTS. 
 
 Ch. viL s. 1, p. 140. See Express Trusts 
 
 DIRECTION to employ A. as auditor, whether it raises a trust, 101 
 trustee required to do an act at direction of c. q. t, 542 
 
 DIRECTORY. 
 
 Clause in Will for settlement of chattels, 158 et seq. 
 Powers, 627 
 
 DISABILITY. 
 
 Persons under, when barred by late Limitation Act, 744 ; see 720, 766, 
 
 note 
 Trustee of, statutes remedial of; see Trustee Acts 
 
 DISAGREE. See Co-Trustees 
 
 DISCHARGE. 
 
 of trustee from office, 290 ; Ch. xxi. p. 565 ; see Relinquishment 
 
 DISCLAIMER. 
 
 Costs of disclaiming trustee, 234, 874 
 
 Counsel, trustee may take opinion of as to disclaimer, 234 
 
 3 Q 
 
962 INDEX. 
 
 DISCLAIMER— co»i*mMed. 
 
 Deed should be by, not by way of conveyance, 233 ; but see note {h), and 
 
 449, 534 
 Effect of, 237; as to parties to suit, 847 ; as to personal contracts, 237; 
 on powers, 237, 532, 534 ; as to receipts, 44& 
 after, trustee may act as agent to tbe trust, 235 
 may pmehase trust property, 462 
 Equity in, by answer, or at bar, 234 ; see costs, sup. 
 by deed, 233 
 
 by evidence of conduct, but this is imprudent, 235 
 Failuke op Teustee through disclaimer relief of c. q. t. against, 693 
 
 IFeme Covert, by, 236 
 Law at what disclaimer will divest legal estate, 235 et seq. 
 as to chattels hj parol, 236 
 as to freeholds by deed, 236, of special occupant, ib. 
 by parol (semble), 236 ; by matter of record, 235 
 under the stat. of uses, 236 
 Pegteotoe 01' Settlement bt, imder Fines and Recoveries Act, 237 
 Eeoeiver, when appointed in consequence of, 870, 871 
 "Who may disclaim, whether heir of trustee, 232 
 
 whether trustee who (1) accepts one devise can disclaim another, 
 234 ; (2) disclaims trust of will, can accept bounty under same 
 will, ib. 
 trustee having accepted, cannot renounce, 289 ; and see AooEET- 
 anoe 
 DISCOVERY. 
 
 of secret trusts when enforced, 70, 72, 73 ; see Devisee, Hbik 
 DISCRETION. See Disobetiokaey Teusts, Feme Coveet, Infant 
 
 of trustees, as to creditors' claims, 486 ; contingent remainders, 408 ; 
 conversion, 806, 808, 815; maintenance, 542, see 697; objects of charity, 
 542; objects of trust, 701, 705; renewal, 386 
 DISCRETIONARY TRUSTS, 21, 22. See Powees, Impeeative 
 
 cowt, how far it controls, 538 et seq.; and see 487, and PowBBS, 542 
 delegation of void, 296 ; even to co-trustee, 297 ; whether exercisable by 
 
 trustees appointed by Court, 450, 712 
 limited to trustees, their'Aeics and assigns, 267, 
 for sale, purchaser cannot question exercise of, 417 
 DISSEISIN. 
 
 may be of a trust, 618, et seq. 
 
 outstanding term attended, inheritance gained by, 288, note (1) 
 DISSEISOR not bound by a trust, 18, 287, 288 ; and see 747, or by a use, 3 
 DISSENTERS. See Chapel 
 
 Court vrill execute trust for, if not contrary to law, 497 
 how trusts of funds contributed by, are expounded, ib, 
 DISTRESS. 
 
 effect of as to confirmation, 473 ; laches, 471 ; release, 778 ; waiver, 737 
 DISTRIBUTION. 
 
 Teust Fund, oe, Ch. xin. s. v. p. 365 et seq.; see Release, Tbustbb Relief 
 Acts 
 under power of selection, 705, 706, note (a) 
 DISTRINGAS. 
 
 Ch. XXIX. s. 3, p. 858 
 Oeigin of, 859 
 
 Resteaiking Oedee under 5 Vict. c. 5, B. 4, and practice as to, 860, 863 
 applies to stock shares in the Bank or any other company, ib. 
 special grounds necessary to obtain it, ib. 
 Writ of, under 6 Vict. c. 5, s. 5, and practice as to, 860 et seq, 
 applicable only to stoch transferable at the Bank, 863 
 effect of, and how and when discharged, 862, 863 
 employed sometimes for general safeguard, 863 
 DIVIDENDS. 
 
 where c. q. t, is tenant for life of, often received by power of attorney, 594 
 DOMICILE. 
 
 Pebsonal Estate follows the person, 47 
 
 Pebbon domiciled abroad generally not a fit trastee, 40; see 674, 676, 710 
 
INDEX. 963 
 
 DOUBTFUL EQUITY. 
 
 PuEOHASBE, whether bound by notice of, 727, 728 
 
 Where it exists, trustee should decline to act without eanction of 
 Court, 368 ; will be allowed costs of application, ih. ; c. q. t. plaintiff, 
 who fails to estabUeh claim, allowed costs ; secns, in case of contingent 
 interest, ib, 
 DOWER. 
 
 Attached to legal estate in feoffee to uses, 3 
 to legal estate in trustee, 260 
 but dowress bound in equity by trust, 11, 18, 279 
 formerly not to trusts or equity of redemption, 12, 621, and why, 
 
 625 
 whether to money to be laid out on land, 793, 794 
 not to a use, 4 
 Dower Act, 626, 795 ; does not apply to copyholds, 621, 626 
 Dowress may recover in equity on legal title, 765, note 
 Trustee, when he should join in conveyance, 596 
 
 of equity of redemption, his costs in foreclosure suit, 872 
 DRUNKEN. 
 
 where executor and in great poverty, receiver appointed, 870 
 
 DUPLICATION. 
 
 of charges, 167 
 
 DURATION. 
 
 of private trusts limited to a life or lives in being twenty-one years (other- 
 wise oi public trusts, 23), see 103, 111 
 trust exceeding this limit void in toto, 111 
 
 DURESS. 
 
 effect of, as to acquiescence, confirmation, or release, 778 ; see 473, 737 
 
 DUTIES OF TRUSTEES. See Bill, Co-trustees, Executors, Investment 
 Acceptance of office, consequent on, 243, 244 
 Advantage trustee must not derive from trust, 318 
 Answer : 1, as to joining in, 856 ; 2, as to submitting disputed point to 
 
 court, 872 
 Breach of trust on, by co-trustee, 317 ; see Co-trustee 
 Care, trustee should take same, of trust property as of his own, 332 
 Charities for; see Charities 
 Chattels, personal of, Ch, xiii. p. 327 
 Contingent remainders, for preserving, Ch. xv. p. 404 ; see Contingent 
 
 Remainders 
 Control trustee must not place trust premises out of his own control, 334 
 Convey, when trustee must convey at dii-ection of c. q. t., 595, .596; see 600 
 CusTODT of trust chattels, as to, Ch. xiii. s. 2, p. 332 
 Debts, for payment of, 483 ; see Debts 
 
 Delegation, trustee must not make of trust, &c., 290 ; see Delegation 
 Dispute the trust, trustees must not, 325 ; see 878 
 Distribution of trust fund, Ch. xin. s. 5, p. 365 
 Expenses, to keep account of, 559 ; to control, see 658 
 Impartial, should be, as between cs. q. t. 414 ; conf. 340, 421, 574, 597 
 Ineormation, to furnish to, c. q. t., 427, 599 ; to court, as to trust, 375 
 Insurance, as to, 332, 516 ; see 764 
 Investment, as to, Ch. xin., s. 3, p. 337 ; see Investment 
 
 in bank must be trust account, 332, 336 
 Lend to co-trustee, trustee must not, 345 ; nor leave money in hands of, 
 
 see 309, 316 and Control, supra 
 Mix, trustee must not, trust premises with his own, 337 ; or stranger's, 350 
 Notice, trustee of equitable interest should give, to holder of legal estate, 
 
 326; see 605 
 Outstanding property and choses in action, to call in, 326, 328 ; see 765 
 Renewal of leaseholds, Ch. xiv. p. 383 ; see Renewable Leaseholds 
 Repairs, 613 ; see 827, (and conf. 524), and 830 
 Sale eor, Ch. xvi. p. 414; see Sale 
 
 Speculate, trustee must not with trast property, 319 ; see 362 
 Suit by trustee, 317, 368 ; or trustee concurring in, 756 
 Trade, trustee must not employ trust money in, 340, 361, et seq.; see 760 
 Trustee may be compelled to perform duties, 718 ; see 597, 723 
 
 3 Q 2 
 
964 INDEX. 
 
 EARMARK. 
 
 meaning of term as applied to money, &o., 275, 767, 758 
 
 EAST INDIA COMPANY. 
 
 securities of, 356 ; see 835, note (6) 
 
 EAST INDIES. 
 
 whether executors in, may charge commission, 547 ; and see note (S) 
 lands in, within Trustee Acts, 835, note (d) ; see 901 
 
 ECCLESIASTICAL COURTS. 
 
 have no jurisdiction of trusts, 19, 261 
 
 EDUCATION. See Poor 
 EJECTMENT. See Actions 
 
 cannot be brought by c. q. t., unless surrender presumed, 591 
 
 may by trustee even against c. j. «., 591 
 
 ELECTION, by c. q. t., as to land to be converted into money, and 
 vice versa 
 
 Bt whom made 
 
 Feme covert cannot elect, 816 
 
 but as to money to be laid out in land, bound by consent in 
 
 court of equity, 817 
 under Fines and Recoveries Act can dispose of estate, or interest 
 
 in land, or money to be laid out in land, 817 
 even contingent interests by 8 & 9 Vict. c. 106, s. 5, 817, note (d) 
 reversionary interest in money to arise from sale of land, 818 
 
 or semble in legacy raiseable out of land, ib. 
 and note (6) 
 when tenant in tail, see inf. 
 Infant, cannot elect, 816 
 Lxmatic, cannot elect, ib. 
 
 Remainder man in fee, may elect, so as to bind real and personal repre- 
 sentatives, inter se, 818 
 but subject to right of prior owner to call for conversion, 818 
 actual conversion by prior owner would defeat intended election, 
 semble, 819 
 Tenant in common, &o. 
 
 cannot singly elect against sale of his share of land to be sold, 
 
 819 
 may singly elect to take as money his share of money to be laid 
 out, 819 
 Tenant in tail might elect by suit as to money to be laid out in laud : — 
 1. Where remainder limited to himself, 819 ; 2. With consent 
 of remainderman, 820 
 or even without suit, 820, 821 ; and semMe, even since Fines and 
 
 Recoveries Act, 822 ; but see 823 
 by petition, under 39 & 40 Geo. 3, c. 66, 821 ; and notes (e) and (g) 
 under Fines and Recoveries Act may dispose of land, or money 
 to be invested in land, 822 
 Trustee, his act shall not alter c. q. t.'a estate, 825, et seq. 
 How MADE, by express declaration, 823 ; as to a will, see 825 
 
 even by parol, as between real and personal representatives, 824 
 excepted out of Lord St. Leonards' Ti-ustee Act, 839 
 Presumed, 823 ; (whether knowledge of c. q. t. necessary, 824) 
 
 (a) where land to be converted ; e. g. by c. q. t., granting lease, reserving 
 rent to himself and his heirs, 824 ; keeping land unsold, 823 ; enter- 
 ing into possession, and taking custody of title deeds, ib. 
 (J) where m,oney to be converted ; e. g., by c. q. t. changing securities, 
 t&c, 824 ; receiving the money, 823; see 804 ; not by mere receipt of 
 income, 823 ; from c. q. t.'a will (formerly even unattested), 825 
 Until made, special trust proceeds, 698 
 
 of clerk by parishioners, 107 — 110 ; see Parishioners 
 of member of parliament, c. q. t. may vote for, 270, 693 
 
 ELEGIT. See Judgment 
 
 Equitable interest, it binds, 649 ; formerly held otherwise, 12 
 
 what portion of trust estate might formerly be takenin execution 
 under, 658 et seq.; and see 659, note {a) 
 
INDEX. 965 
 
 ELEGIT— coBtimited 
 
 Equitable interest — continued. 
 
 of equity of redemption, 660 
 of trust in nature of mortgage, 661 
 entirety under 1 & 2 Viet., e. 110, a. 11, 666 
 ■when elegit must be sued out before application to equity, 662 ; and 
 see note (6) 
 Estate bt, in trust for feme covert, 630 
 Origin of, 647 
 
 Eembdt oe at law by possession, 658, note (a), and see 659, note (a) 
 as to trust estate under Statute of Frauds, 664 et seq. 
 under 1 & 2 Vict., c. 110, 669 
 tenant by not bound by a use, 3 ; is by a trust, 280 
 ENTAILS. 
 
 Equitable, barred how, 602, 604 
 
 customary estates in, depend on custom to entail legal estate, 46, 
 
 and see note (c) 
 history of, 601 et seq. 
 
 " ENTREATING." 
 
 may raise a trust, 167 
 EQUITABLE estates. See Meeqer. 
 
 assignment of how made, 603 ; precautions in, 604 et seq. 
 
 compared with legal, 44, 103 et seq. 140, 141 
 
 purchasers of when bound by trusts, 729 ; see 725 
 
 a series of, 596; see 848 
 Mortgage. See Mortgage, Equitable 
 Powers, 
 
 distinguished from legal, 525 
 
 collateral or annexed to estate, 526 
 Waste, 225 ; and see 514 
 
 EQUITY. Bars to claims in, 731 ; see Limitation, Mesne Rents 
 
 Courts alone have jurisdiction of Trusts, 19 
 
 can act in personam, 47 ; and see Jurisdiction 
 
 Doubtful, 367, whether purchaser bound by, 596, 848 
 
 Redemption oe ; see mortgage, mortgagee ; mortgagor 
 barred by lapse of time when, 733 
 chattel, of a, may be taken under equitable^, fa. 649 
 copyholds of where formerly liable as assets, 661, note (1) 
 distingijished from a trust, 284 
 forfeitable for treason, 677 
 
 judgment creditor entitled to sale of entirety, 660 
 subject to curtesy, formerly not to dower, 12, 621, and see 626 
 
 Settlement to, see Feme Covert 
 
 Trustees op mere equity, 596, 848 
 
 ESCHEAT. See Failure of o. q. t. 
 
 Copyholds not properly subject to escheat, 283 
 
 lord bound by trust entered on the roll, ib. 
 qu. if in case of customary freeholds, 284 
 Equitable interest not subject to, Ch. xxin. s. 9, p. 678, see 14 
 Law oe, now altered by late statute, 285 et seq. 
 
 Lord may redeem mortgage term created by person whose estate has been 
 escheated, 285 ; subject to debts of such person, ib. 
 does not take mortgage in fee on mortgagor's death intestate 
 
 without heirs, 679 . 
 whether formerly bound by a trust, 14, 1 8, 280 e< seq. ; not by use, 3 
 Monet to be laid out on land not subject to, 795 
 ESTATE. 
 
 Pur autre vie, see Pur autre vie 
 
 Trustee, what he takes at law, Ch. XL p. 246, and see Legal Estate 
 
 ESTOPPEL. 305 
 
 EVIDENCE. See Affidavit ; Frauds, Stat, of ; Parol ; Trustee Acts 
 
 EXCHANGE, ■ See 894, Charity lands of, with consent of commission, 504 
 Power of sale and exchange a " usual power," 164; see 166 
 whether it authorises partition, 417 
 
966 INDEX. 
 
 EXCHEQUER. 
 
 Court of, whether it could relieve c. g. t. as against royal trustee, 30 
 transfer of equity jurisdiction to Court of Chancery, 859 
 
 EXCHEQUER BILLS. 
 
 whether government security, 342, note (d) 
 
 EXECUTED TRUSTS, 
 what, 144 et seq. 
 how construed, 141. See Exechtobt Trusts 
 
 EXECUTION. 
 
 Chattels of bjfi.fa. 646. See Judgment 
 
 from what time chattel interests in lands are bound by, 647 
 of trust chattels, 648, 662; of stock, 648, 669 et sej. 
 for debt of trustee, 261 
 Ceeditor, taking trust chattel in, bound by trust, 283 ; whether he can by 
 execution levy debt upon property subject to voluntary trust for debts, 
 476 
 Defeotivb of powers of, upon what principle aided in equity, 96 
 
 EXECUTOR. See Foreign, Infant, Relinquishment (Representative) 
 
 AocBPTANOE of office, what acts constitute, 241, 242 ; and see Acobptance 
 having once acted cannot renounce, 289 
 notwithstanding he has not proved, 290 ; see 838, note (6) 
 may renounce probate and claim legacy, 234 
 executor of executor administering to one testator must to the 
 other, 234 
 Assent of, to bequest, 243, 454 
 
 Assets personal in hands of executor, a species of trust property at common 
 law, 261 
 e, g. cannot be taken in execution for executor's debt not forfeit- 
 able for felony, &c,, 262 
 vest in executor's executor, 260 
 
 not in executor's administrator, 262; and see Feme Covert 
 (executrix) 
 Agent acting under executor's direction, 459 
 Co-EXECTJTOB. See Co-tbustee, Powers, inf. 
 compared with co-administrator, 316 
 
 with co-trustee, 310; see 317 
 duties, he must not depend on mere representation of co-executor, 
 315 
 especially where testator long dead, ib. 
 should call in debt owing from co-executor to testator's 
 
 estate, 329 
 should not leave money in hands of co-executor, 316 ; see 
 
 314 
 whether executors may place money in Bank payable to 
 either co-executor, 336 
 liahility depends on acting, not lai^r^ joining in act, 312 
 
 answerable for putting assets into sole hands of co-executor, 314 
 how far for devastavit of co-executor, 289, 304, 316 
 not generally answerable for acts or defaults of co-executor, 310 
 whether for joining in receipts pro formA, 310 et seq. 
 not for joiniQg in nugatory acts, 311 ; or in acts ex necessitate, 
 315 ; e. g. indorsing bill of exchange payable to two personally, 
 or transfer of stock, ib. ; unless act be with improper view, 
 ib. ; see as to liability at law, 296 ; 
 sv/rvivorship of office, 300 ; of powers, 536 
 Charge, he may not, for time or trouble, 546 
 
 where entitled to commission for administration in East Indies, 
 647, note (h) 
 Cosis allowed to executors in creditor's suit, 873 
 
 executors, who are necessary parties in suit by stranger, unsuc- 
 cessfully contesting his claim, pay, 872 ; and see Costs 
 Covenants, what may be requii-ed, from executors of one who has agreed 
 to take a lease, 425, note (o) 
 by executors of lessee on assignment, 426 
 
INDEX. 967 
 
 EXECUTOR— coKiMmed. 
 
 Decree after, he may not pay debts or invest assets without sanction of 
 Court, 524 
 
 Devastavit. See Co-executor, sup., Liabilities, inf. 
 
 DtriiES OF. See Liabilities, inf. 
 
 he should not allow assets to remain on personal security, 329 
 but not liable if legal proceedings would be useless, ib. 
 may allow assets to remain on mortgage, 329 
 should not allow outstanding debts which carry interest, 358 
 after payment of debts, &c., must account for surplus, or charge- 
 able with interest, 358 
 and no excuse that he did not use the money, 359 
 but not so charged during first year from testator's death, 364 
 must not trade with assets, 360, 361 ; and see 340, 364 
 
 Indemnity, what he may require as to leaseholds, 426, and see Ihdemnitt 
 
 Liabilities. See Co-executor, Duties, sttp. 
 
 whether answerable to creditors when not to legatees, 313, 314 
 for devastavit, 296 ; cmif. 521. See Co-executor, sup. 
 whether for paying debts barred by statute, 520 
 whether for omission to insure, or for robbery, 332. See Insdk- 
 
 ANOE. 
 
 Lunatic, &c., see Trustee Act, b. 6. 
 
 MoRTQAGE. See Powers, inf. 
 
 Next oe Kin, executors are trustees for, of undisposed residue, 59 
 
 where no next of kin executors take beneficially as against the 
 Crown, 59, 324 
 Powers of, to deposit mortgage, or sell personal estate and to give receipts, 
 453, et seq. ; see 467 
 even without concurrence of co-executor, 463 ; or when specifically 
 
 bequeathed, 454 ; but see 458 
 except where fraud, &o., 455 et seq. 
 
 e, g. sale at nominal price or undervalue, 456 
 
 sale or pledge to secure executor's private debt, 456 
 even where executor joint specific or joint residuary 
 
 legatee, or subject to a charge, 457 
 secus, where he is sole specific or sole residuary legatee, 
 
 456 
 case where executor's creditor has express notice of 
 wnpaid debts of testator, 457 
 sale, &o., for executor's private advantage, 457 
 sale, &o., of chattels specifically bequeathed where purchaser 
 
 has notice that testator's debts have been discharged, 458 
 sale, &0., where misapplication probable, 458 
 how far safe to deal with executor after long interval from 
 
 testator's death, 458 
 who may impeach fraudulent sale, &c., by executor, 459 ; and see 
 Decree, sup. 
 Purchase, executor may not purchase assets, 465 
 Eeceipis. See Co-executor, Powers, sup. 
 
 Eecbiveb appointed where husband of executrix out of jurisdiction, 870 
 Eenewal, of lease by, 219, 220 
 Survivorship. See Co-executor, sup. 
 Tbadinq with assets, 360, 361 ; see 340 
 Trust, whether it can be averred against executor, 69 
 Trustee, executor of bound by trust of chattels, 279 
 
 specifically bequeathing trust property, qu, whether executor with 
 
 specific legatee can execute trust, 267, conf. 297 
 when executor converts himself into a trustee, 243 
 
 EXECUTORY BEQUESTS, see 104 
 
 EXECUTORY TRUSTS, see 144, 158, 727 
 
 Construction of, in Marriage Articles, see 146, 152 note (6) 
 Chattels, " heirs of body" applied to, construed limitation to eldest son 
 as heir, and if no son, to daughters, as co-heiresses, 149 
 notwithstanding death of son or daughter in parent's life- 
 time, unless contrary implication, ii. 
 
968 INDEX. 
 
 EXECUTORY TRUSTS— continued. 
 
 Construction of, in Marriage Articles — continued. 
 Chattels — continued. 
 
 agreement to settle on same trusts as real estate, what limitations 
 it authorises, 160—152 
 Joint tenancy in articles construed tenamcy im, common, 152 
 Real Estate " heirs of body," or " issue," applied to, construed first and 
 other sons in tail as purchasers, 147, remainder to 
 daughters, as tenants in common in tail with cross 
 remainders, 149 (except where express provision for 
 daughters by articles, ib.) 
 Exceptions — where hnsicmd's property limited to heirs of 
 body of wife, 148; qucsre, however, since 
 Fines and Recoveries Act, ss. 16, 17 
 where articles, by limitation oipa/i-t of estate, 
 to parent for life, remainder to first and 
 other sons in tail or otherwise negative 
 this construction, 148 
 "heirs female" construed daughters, 149 
 Words Supplied in, articles, 153 
 Construction of, in Postnuptial Settlements, 164 
 Construction of, in 'Wills, 153, et seq. 
 Chattels, how executory trusts as to, construed, 158, 163 
 
 semble, that chattels bequeathed as heirlooms, with real estate, 
 vest absolutely in first tenant in tail, though he die an 
 infant, 163 
 but a limitation over on tenant in tail dying under 21, is lawful, 
 and may probably be inserted where testator manifests dis- 
 tinct intention, 163 
 Real Estate (a) Tieirs of the body, construed to give estate tail to A. 
 e. g. in trust " for A. and the heirs of his body," 1 53 
 
 "for A. and the heirs of his body and their 
 
 heirs," 153 
 " for A. for life, and after his decease to the heirs 
 of his body," 163 
 estate " directed to be settled" upon A. and her children, 
 and if she died without issue, 153 
 upon A. for life, remainder to his heirs 
 male and the heirs male of every 
 such heir male, &c., 154 
 executory trust for A., and trustees not to give up their 
 estate tUl proper entail was made to the heir male by 
 him, 154 
 deviae to A., with direction that estate should be en- 
 tailed on heir male, how construed, 154 
 (6) heirs of the body construed first and other som, &c., where 
 intention shown, 164 
 as by directing settlement to A., for life, "without im- 
 peachment of waste," or with " limitation" to preserve 
 " contingent remainders," 154, 155 
 
 on feme covert for life for separate use, 155 
 or by direction to settle on A. and the heirs of his body 
 
 as cov/nsel shall advise, &c., 155 
 where testator directs settlement, but formally declares 
 limitations, 157 
 Generally, Daughters included in "heirs of body," or "issue," 149, 156 
 Duplication of charges, 167 
 Gavelkind lands, as to, 157 
 
 " Heirs of the body," and " issue" distinguished, 155 
 Limitation to trustees to preserve whether n^w inserted, 156, 
 
 see 408, 418 
 Notice of, 727 
 Powers, what may be inserted, 164, et seq.; "usual," ii.; proper, 
 
 166 
 Protector, special, whether Court will insert under Fines and 
 
 Recoveries Act, 166 
 Eeotipioation of settlement, 148, note (c) ; and see Settlement 
 
INDEX. 969 
 
 EXONERATION. See Contbaot, Mortgagor 
 EXPECTANCY. 
 
 voluntary assignment of, whether it creates a trust, 92 ; see Voluntary 
 Assurance 
 EXPENSES. Oh. xx. s. 2, p. 557. See Costs, extraordinary outlay 
 
 Allowance for, to trustees, 55T, even where express allowance for trouble, 
 558 ■ 
 extra costs, 658, fees to counsel, ib., of fines, 272, of renewal, 222, 
 of release, 375, travelling expenses, 557; and see New Trustees 
 Account of, trustee should keep, 559 
 
 where none kept, what allowance made, ib, 
 LiBN, are upon the trust estate, 560, S61 ; and see 222 
 how far where trust extends to two estates, 662 
 
 secus in respect of trustees' agents, e. g. solicitors, or surveyors, 101, 561 
 Moderated charges may be, and how, 668 
 Reimbursement of, how made, 521, 568, 564, conf. 873 , 
 Remedy for, against c. c[. t., personally, where, 562 et seq. ; see 663, note (5) 
 Trust to pay costs, &c., construction of, 564 
 EXPRESS. 
 
 Trusts, Ch. vil s. 1, p. 140 
 
 Technical Teems, how far necessary for, 140, 141, their force when em- 
 ployed, 141 
 Trusts, executed and executory distinguished, 144 
 
 what are within late Limitation Act, 743, 745, note (/) et seq. 
 a mere charge is not, secus as to a charge coupled with duty, 746 
 not within 42nd section of Act as to arrears, 748 
 EXTENT. 
 
 From Crown, Ch. xxiii. s. 7, p. 673 
 trust affected by, 673 
 
 could not be sold at common law, 673, may by stat. ib. 
 equity of redemption may be sold upon, 674 
 EXTRAORDINARY OUTLAY 
 
 by trustee, whether he can charge, 559 
 
 FACTOR, 225. See Agent 
 
 Bankruptcy Act, operation of as to goods, &c., in his possession, 274, 275 
 only takes special property, 275 
 FAILURE. 
 
 Oe C. q. t. of personalty by death intestate without next of kin, 198, 324 
 of realty by attainder, 323 
 
 by death intestate, and without heirs, 197, 321 
 whether settlor can assert a claim, 323 
 whether trustee can claim advantage, 321 et seq. 
 where c. q. t. has devised estate to another on trusts 
 which fail, devisee entitled as against bare trustee, 
 322 
 Op Trustee 
 
 relief of c. q. t. against, Ch. xxiv. p. 693 
 
 hy death of trustee in testator's lifetime, disclaimer or otherwise, 
 
 693 
 direction to sell, and no person to sell named, 694 
 
 for separate use, and no trustee appointed, 694 
 of imperative power, 694 et seq. See 543 ; Powers 
 
 FALSE. 
 
 Answer, by corporation (pleading ignorance), visited with costs, 878 
 
 Denial, by agent, of his character, 205 
 
 by trustee of claims of c. q. t. visited with costs, 877 
 FAMILY. 
 
 DiFEEBENCBS, Settlement of a good consideration, 94 
 
 Trust for, of freeholds, how construed, 169 
 FARM LEASES. See Leases. 
 FATHER. See Advancement, Parent 
 
 FEE. 
 
 Equitable, the word "heirs" not necessary to create, 141 
 
 Fee upon a fee, distinction between legaj and trust estates as to, 103 
 
970 INDEX. 
 
 FKE— continued. 
 
 Legal, vested in trustee by trust to sell, &c., without " heirs," 250 
 
 so by devise to A. and his heirs upon trust to pay debts, 251 
 aeais where gift to A. and his executors, &o., upon trust to pay 
 
 debts, &c. a. 
 what estate taken under grant to trustees and survivor, and heirs 
 of survivor, 251 ; what under de-me, 252 
 
 FELONY, 28. See Forfeiture 
 of c. 2. (., 323 
 works forfeiture of equitable chattels, 677 
 
 FEME COVERT. 
 
 Generally, See Fine, Fines and Ebooveeibs Act, Husband 
 
 Acquiescence, not bound by, in purchase by trustee, 471, gene- 
 rally, 777 
 except as to separate property without restraint, 471, 777 
 qucere, where restraint, 778 
 Advancement for, by husband, presumed, 216 
 Breach or trust cannot concur in, 774 
 
 unless guilty oi fraud, Iti 
 
 or as to separate property without restraint, 775 ; 
 see 778 
 remedy for, against separate estate, 639, et seq. 
 by, husband liable for, 84 ; and see 261 
 Choses in Action, her disability as to (possessory or reversionary), 26 
 reduction into possession of, possessory, 627, 631 ; whether 
 
 when reversionary, 370 et seq., 627, 628 
 her right by survivorship to, whether possessory (but not re- 
 duced), or reversionary, 627, 628 
 Confirmation by. See Disabilities, infra. 
 Curtesy, in respect of. See Curtesy 
 Disabilities op 
 
 cannot confirm or release breach of trust, 777, as to purchase 
 by trustee, 472 
 except as to separate property if without restraint, ib. 
 cannot consent to trustees' relinquishment of ofSce, 565 ; and 
 
 see Breach of Trust, sup. 
 cannot at common law pass legal estate, 35 
 Disclaim, how she may interest in land, 236 
 Discretion of, 34 
 Dower, her title to. See Doweb 
 Election by, cannot make, 816 
 
 secus under Fines and Recoveries Act, 817 ; and see Election 
 Enoagbments and contracts by 
 
 parol, how far they affect separate property, 634 e< seq. ; but see 
 
 639, and 778 
 written, id. 633 
 
 as to real estate under Fines and Recoveries Act, 634, note (c) ; 
 and see Power, inf. 
 Equity to Settlement, as against assignees in bankruptcy or insol- 
 vency of husband, 369, 370; as against husband's assignee 
 for value, 370; none against assignee for value of life 
 estate, ib, 
 in equitable chattels real, 26, 629, 630, in equitable freeholds, 632 
 how asserted or waived, 628 
 right by survivorship distinguished from, 628 
 ExECUTBix, assets in hands of, disposable by husband dwing cover- 
 ture, 261 
 she may make a will of such assets without husband's consent, 
 261 
 Feoffment on condition she may make, 34 
 Fraud. See Breach of Trust, swpra ; Power, infra 
 Power, she may execute power simply collateral, appendant, or in 
 gross, 34 
 general, when equivalent to separate estate, 775 
 estate appointed under, not assets, except where fraud, 768, 
 note (c) 
 
INDEX. 
 
 971 
 
 FEME COVERT— comJmwA 
 Generally — contimied 
 
 Practice. See Equity to Settlement, swp. ; Sbpabatb Use, mf. 
 Peopebtt of. See Seeabatb Use, inf. 
 
 (a) Equitable not settled to her separate use, her chattels personal, 627 ; 
 
 chattels real, and contingent interest therein, 629 ; (efieot of 
 
 husband's forfeiture upon, 677 ;) Choses in Action, see sup. ; 
 
 elegit, estate by, 630 ; freeholds, 631 ; mortgage term, 631 
 
 as to effect of getting in legal estate in wife's equitable term, 630 
 
 (5) Legal 
 
 chattels real, husband may assign, 629; sectis if they cannot 
 vest during coverture, 630; see 26; freeholds, 35; see 25, 
 632, 634, note (c), 817, 818 ' 
 
 Restraint against ahtioipation. Separate Estate. See inf. 
 Eevbbsionabt interests. See Choses in Action, sup. 
 
 in land, or money arising from, or charged on, 818 
 Survivorship, her right by, 627, 628 
 Trust, how far she can create, 25 
 
 Trustee, she ought not to be appointed, and why, 34, 35 ; see 710 
 Will. See Executrix, sup. ; Separate Use, vnf. 
 Restraint against Anticipation, 123, what words will effect, 123; and 
 see 129, 130, 632 note (4) 
 Arrears of income, does not attach to, 642 ; see 26 
 Discharged, the clause may be, during disooverture, 124 
 Marriage upon, the clause operates during the coverture, 128; see 
 ] 24 c« seq. Power of Appointment, inf. 
 second, effect of, 180 ; see 631 
 Power of Appointment, how far it discharges restraint, 129, 130 
 Separate ITse. See Devise 
 
 Allowed in Trusts, 120, though no trustee interposed, 121, 728 
 
 husband, construed trustee, ib.; and see 126 note (6), 694 ; but 
 see 123 
 Arrears of, 642; and see 26, 131 
 
 received by husband, what recoverable by wife or her represen- 
 tatives, 642 
 where wife is non compos, 644 
 
 whether distinguishable from arrears of pin money, ib. 
 Assets equitable, is administered as, 642 
 Created, by what words, 121, 122 
 
 what words insufficient, 121, 122 
 trust must be clearly expressed, 121 
 Discharged, may be, during disooverture, 124 ; and see 640 
 Engagements. See Engagements, sup. 
 Feme Covert is considered feme sole as to separate property, 26, 632 ; 
 
 and see Acquiescence, Breach of Trust, Disabilities, swp. 
 Judgment, trust for separate use whether within 1 & 2 Vict. c. 110, 
 
 a. 11 ; 666, note (6) 
 Legal Estate, what trustees take where limitations for, 247, 252, 265 
 Liabilities of feme covert in respect of. See Breach of Trust, 
 Engagements, sup, 
 enforced by bill against feme covert and her trustees, not against 
 
 her personally, 640 
 notwithstanding husband's death, 640 
 only against arrears where restraint, &c., 641, 642 
 after death of wife by creditors' suit, 642. See Assets, sup. 
 Marriage upon, the clause operates, 124 
 
 effect of second, 130, 631 ; as to arrears, 1^1 
 Possession, when v. q. t. entitled for separate use is put into, 590 ; 
 
 see 58y 
 Power of appointment when equivalent to ownership for separate 
 
 use, 775 
 Peaotioe as to, in proceedings in equity, 633, 640 
 
 wife sues for by next friend, 858 ; see 348 
 Real Estate, her acknowledgment in conveyance of separate use 
 unnecessary, 646 
 
972 INDEX. 
 
 FEME COVERT— continued. 
 
 Separate Use — contimied 
 
 Savings of. See Arrears, sap. ; Will, inf. 
 
 Will, by feme covert, may dispose of separate estate and accumula- 
 tions, 6i2 
 undisposed of survives to husband, ib. 
 FEME SOLE. 
 
 ought not to be trustee, and why, 35 
 trustee marrying may be removed, 710 
 FEOFFMENT. Fokfeitueb, by, 678 
 
 Infant, by, not void, but voidable, 26 
 Lunatic, by, or idiot voidable only by heir, 27 
 FIERI FACIAS, writ of See Execution ; Judgment 
 FINE. 
 
 Effect op, in cases of election, 817 
 
 upon equitable entails, 601, 602 
 Infant feme covert, formerly conveyed by, under Trustee Act, 835, 
 
 note (/) 
 Infant, Idiot, or Lunatic, of, 26, 27. See Recovery 
 NoNCLAiM WITH, a bar against infant c. j. t. of term, 721 
 secus in case of fraud, ib. 
 a bar against constructive trust in favour of a volwnteer without 
 
 notice, 733 
 no bar in case of notice, 224 
 FINES. 
 
 Admission to copyholds, for, 272, 402. See Coptholds 
 Lease of charity lands, upon, 605, 606 ; see 610 
 Renewals on, 386 et seq. See Renewable Leaseholds 
 Under-leases of, 392 
 
 FINES AND RECOVERIES ' ACT. See Protector 
 
 Acknowledgment by feme covert, under, 25, 632, 634, note (c) 
 
 its effect as to her reversionary interest in land, 817, 818, to be 
 
 converted, ib. legacy charged on, ib. ; see note (6) 
 whether necessary for dealing with wife's separate property, 646 
 Effect of, in election by tenant in tail, 822 
 
 as to limitation to preserve contingent remainders, 411 
 
 under settlement of husband's property to heirs of 
 body of wife, 148 
 Infant tenant in tail, conveyance by, in pursuance of Trustee Act, 
 
 835, note (/) 
 Vesting order, under Trustee Act, 1850, 886, note (a) 
 
 FOLLOW. Where c. q. t. may, Trust estate itself, if wrongfully converted, 
 Ch. XXVI. s. 1, 724. See Breach of Trust (Remedy, 1) 
 Where property substituted in place of Trust Estate, Ch. xxvi. a. 2, 
 753 
 where conversion in pursuance of trust, 754 
 
 tortious, 756 et seq. See 825, Breach of Trust 
 (Remedy, 2) 
 
 FORECLOSURE. See Abroad; Mortgagee 
 
 FOREIGN. See Abroad ; Frauds, Stat, of ; Jurisdiction 
 Funds, 812 
 Law, whether trustee or executor presumed to know, 367 
 
 FORFEITURE. See Felon; Outlaw; Treason 
 Case of Felony, Outlawry, or Treason, 28 
 
 as to chattels and goods, takes place on conviction, ib. 
 felon, &o., may sell goods, ifcc, before conviction, ib. 
 how far he may make a settlement- of, 28, 29 
 Equitable interests of, none at common law, in trusts of lands, 674 
 qu. under 33 H. VIII. o. 20, s. 2, 674 et seq. 
 equities of redemption within the statute, 677 
 trust for alien, 677, how Crown prosecutes its rights, ib. 
 of chattels, real or personal, 677 
 for felon's wife, ib. 
 
INDEX. 
 
 973 
 
 FORFEITURE— comimijed. 
 
 Legal estate in teusteb, of, 
 
 chattels in trustee, subject to, at common law, 260 
 
 secus now, 260, 286 (but see 287), and sems as to assets in 
 hand of executor, 262 
 freehold estate in trustee, subject to, at common law, 260 
 sems now, 260, 285, 286, (but see 287) 
 Pebson takinq trust estate under, formerly bound by same equity as 
 
 forfeitor, 280 
 Tenant eoe liee by, at law from feoffment, &c., 678 
 not by equitabk tenant for life, ih. 
 FORGERY. 
 
 Lbttbe of attorney, of, 372 
 
 Teustbe absconding on charge of, removeable, 711 
 
 FORMALITIES. 
 
 required for creation of trust, Ch. v. p. 56 
 
 and see Avbement ; Feauds, Stat, oe ; Wills, Stat, of ; Teansmdtation 
 OE Possession 
 FOUNDER. 
 
 Chaeitt, of, when visitatorial power belongs to heirs of, 492 
 
 when heir of, unknown or lunatic, visitatorial power in Crown, 
 496 
 FRAUD. See False ; Fine ; Suit 
 
 Bae, none from time whilst fraud concealed, 734, note (b) 
 and see stat. of limitation, s. 26, 743 
 accoimt carried back to accruer of title, 766, note 
 secViS, after discovery, 734 
 By agent, 204 ; devisee or heir, 70 
 
 feme covert, 774 ; grantor, 178 ; infant, 39, 774 
 Chaeged by bill, defence, whether by demurrer or plea, 735 
 Geound poe, accoimt of mesne rents in equity, though upon a legal 
 title, 754, note 
 
 court^s interference in exercise oi powers, 643 
 court's novrinterferenee, 137, 139, 768; conf. 178 
 Laches, effect of, where plaintiff alleges fraud, 742 
 Paeol, may be established by, 74 ; and see 205 
 Vitiates trust for payment of debts, 476 
 
 FRAUDS, STATUTE OF. Ch. v. s. 2, p. 60 ; and see Devisee, Heie 
 Assignment op tetjsts, must be by writing signed, &e., 600 
 CoNSTEUOTiVE TEUSTS, how far it affects, 228, et seq. ; see 206, 762 
 
 distinction in case of will and conveyance, 230 
 Devises op lands, and bequest of personal estate, how made according to 
 
 statute, 65 
 Inteebsts within the Act 
 
 charitable uses, 61 ; chattels, real, 61 ; copyholds, 60 
 HOT chattels personal, 61 ; lands in colonies planted before statute 
 passed, 62 ; nor foreign lands, 62 ; nor trusts arising hy impli- 
 cation or operation of law, 204, 228 
 whether it binds the Crown, 62 
 Pleading the statute, as to, 62 ; see 137 
 
 Trdst to be PROVED by, not declared in writing, statute satisfied if trust 
 manifested by subsequent acknowledgment of trustee ; e. g. by answer, 
 express declaration, letter, memorandum, recital, 63 ; qu. whether by bill 
 in chcmcery, 63, note (e) 
 
 but relation to subject matter and nature of trust must be 
 
 clear, 64 
 writing must be signed, 64 ; by whom, 65 
 may refer to unsigned paper, 64 
 Teust estate, how far assets under section 10 of Act, 684 
 
 when to be taken in execution at law under same section, 664 
 
 FRAUDULENT. 
 
 Appointment of teustee, 580 
 
 CoNVETANOE, within Bankruptcy Act, 479, 480 ; within Insolvent Debtors' 
 Act, ilS 
 of estate abroad relieved against, 48 
 
974 INDEX. 
 
 FRAUDULENT— cowiMMed 
 
 COEPORATOES, fraudulent alienation or misrepresentation by, 847 
 Dealing with exeoutoe. See Execctoe, Powers, 456, et seq. 
 Exercise oe bisoretion by trustee. See 409, 415, 543 
 Purchase bt trustee of trust estate, repairs only allowed, 466 
 
 FREE. 
 
 Grammar aoliool, "school," (see 3 & 4, Vict., u. 77), 499, 500 
 
 PREEBENCH. 
 
 attaches on legal estate in trustee, 260 
 
 not on equitable estate in copyholds, 621 
 
 FREEHOLD. See Disclaimer 
 
 whether estate for life may be devised to trustee notwithstanding, 1 Vict., 
 r. 26, 259 
 
 " FUNDS." 342 
 
 in Court, assignment of, 613, 614 
 
 GAME ACT. 
 
 qualification under extended to c. q. t. of lands, 693 
 
 GAMEKEEPER 
 
 must not be appointed for pleasure of trustees, 318 
 
 GAVELKIND LANDS. 
 
 descent of money arising from sale of, 681 
 
 trust in, 680 
 SETTLED, how, under articles, 157 
 GENERAL ORDERS, as to distringas, 1 to 5 of 17 Nov. 1841, 861, 862 
 ^ ^ » as to interest on simple contract debts, from decree 46th, 
 
 ^^^.^.^,,,4^^ \d£-<.^i-ii'-<— of Aug. 1841, 490, note (c) 
 
 V^^ ^ • ~3 ^^,^ f» —jl^as to parties to suits, 30th and 32nd of 26th Aug. 1841, 
 
 2_aSL. — yP^s-^/fei^c- 2.^'^ ^^ ^^ t° service of petition for Stop Order, 614, note (a) 
 ^^ - *,^3 '^-r'^^^i— as to Trustee Relief Act, 379, e( se J. 
 
 /V«--f/X GOVERNMENT. 
 
 securities, 341, 342, 353. See Investment 
 
 GRANDCHILD. 
 
 advancement for, presumed, 216 
 
 "GRANT." See Covenant 
 
 whether inserted in conveyance by trustees, 424 ; see 596, note (a) 
 
 GRANTEE. 
 
 guilty of mala fides, 178 
 
 GREEK BONDS, 342. 
 
 GUARDIAN. 
 
 Advantage, cannot gain by abuse of his office, 321 
 
 Infant cannot he, 36 
 
 Oeeioe SDEvrvES as to testamentary guardians, 300 
 
 secus, if joint guardians appointed by court, ib. note (c) 
 
 HARDSHIP. 
 
 court will not enforce against trustees contract which involves, 424 
 
 HEIR. See 141, Devise ; Resulting Trust 
 
 C. Q. T. attainted, whether his heir may sue trustee, 323 
 
 Common law heir, when entitled to proceeds of sale of gavelkind lands, 
 
 681 ; customary when entitled to trust estate, 680 
 Engagement bt, to make provision, &c., if estate allowed to descend, 
 
 enforced, 70 
 Failure oe. See Escheat, Failure or o. q. t.. Trustee acts 
 Favored, whether more than executor, 188, 805 ; conf. 181 
 " Heies female " in articles, 149. " Heir male " in will, 154 
 Monet to be laid out in land, where heir entitled to, 797 et seq. See 
 
 Conversion 
 under bequest to be settled on testa- 
 tor's heir, 805 
 
INDEX. 973 
 
 HEIR — continued. 
 
 " Nemo est HiEEES viventis," 407 
 Resulting trust. See Trustee, inf. 
 
 (a) HEIE TAKES 
 
 upon devise on trust where trust not defined by will, 68, 181 
 unattested documents, whether admissible to prove trust, ib. 
 whether case altered by parol information of trust by testator to 
 
 trustee, 75, et seq. • 181 et seq. 
 upon devise to one without reference to trust where engagement to 
 
 execute unlawful trust, 71 ; and even though such engagement 
 
 does not relate to definite part of estate, 73 
 defendant must discover the secret trust, 72, 73 
 case of engagement to execute trust, but no trust declared, li 
 
 (5) HEIR DOES NOT TAKE 
 
 upon devise to one without reference to trmt, where no commu- 
 nication to devisee in testator's life, though testator leave 
 unattested declaration of trust, 68 ; and see p. 72. 
 or devisee means to execute unlawful trust, 73 
 heir not excluded from by mere conjecture, 181; whether by a 
 
 legacy, 181 
 in money or devise for conversion, where heir takes, 182, et seq.; 
 
 but see 194, 197; and see Resulting trust 
 whether resulting interest devolves as realty or personalty, 182 
 Settlor, heir of, when bound by trust, 693, 694 
 Specialty debts, how heir is liable to, 239 
 Trustee, heir of, is bound by trust, 279; whether he can disclaim, 232 
 
 twenty years' possession by, no bar to heir entitled to resulting 
 surplus rents under express trust, 745 
 Use, the heir is bound by, 3 
 
 Volunteer, when the heir is, under limitation in marriage settlement to 
 heirs of husband, 406 
 
 HEIRLOOMS. 
 
 Bequest of, to same uses as freeholds in strict settlement, how construed, 
 
 158 et seq. See Exboutort Trusts. 
 0. Q. T. his rights in, 594 
 
 HEIRS OF THE BODY. Equitable entail, may be created without these 
 words, 141 
 Construction of, in marriage articles as to chattels, 149 
 
 as to freeholds where construed, first and other sons, 147, 148 
 in wills where construed first and other sons, 153 et seq.; and see 
 142, 143, and Exeoutoht Trusts 
 Include daughters, 149, 156, not synonymous with "issue," 155 
 Purchaser with notice, whether bound by these words, 727 
 
 HERIOT. 
 
 when payable, as to copyholds, 272, conf. 402 
 
 HERITABLE bond, 53 
 "HONORARY TRUSTEES," 408 
 
 "HOPING" 
 
 may raise a trust, 168 
 
 HOUSEHOLD GOODS, how c. q. t. of may use, 594 
 
 HUSBAND. See Feme Covert 
 
 EXEOUTKIX, husband of, may administer assets during coverture, 261 
 Liable for wife's breach of trust, 34 
 
 Trustee of wife's separate estate, construed to be, 44, 121, 125, note fi^ 
 694, 728 _ ^ ^ " 
 
 husband appointed with another upon trust, (inter al.) for wife 
 not a trustee for her separate use, 123 
 Wife's property, how ear he may dispose of, chattels personal 627 • 
 chattels real, (equitable), 26, 629 et seq.; and 'see 9' 
 12, 631, (legal) 629 
 choses in action, 26, 627, and see 369; (and as to her 
 
 life estates, see 370) 
 freeholds (equitable and legal), 631, 632 
 
976 INDEX. 
 
 HUSBAND— cojiimwed 
 
 Wipe's sbi' abate estate, what airea/rs of can be claimed from hustand, 
 642, as to pin money, see 644 
 if undisposed of, husband surviving, entitled to, 642 
 suit as to, husband how made party and his costs, 858 ; 
 see 348 
 HUSBANDRY LEASES. See Leases 
 
 IDIOT. See Lunatic 
 
 IGNOEANCE, 
 
 0. Q. T. of, as to his rights 
 
 Acquiescence, defeated by it, 778, and so confirmation, 472, 778 
 
 Concurrence in breach of trust prevented by it, 774 
 
 Laches excused by it, 471 
 
 Law, ignorance of the, 472, 778 
 
 Presumption of waiver, how far rebutted by it, 737 
 
 Selease defeated by it, 224, 778 
 
 Statutory bar, not prevented by it from running in equity, 733 
 Trustee oi', as to his true character, 751, conf. 790 
 
 ILLEGAL Trust. See Umlaweul Trust 
 
 ILLEGITIMATE CHILD. 
 
 advancement for presumed, 216 
 future, trust for not good, 131 
 
 IMAGINARY VALUES 
 
 trustee not charged with, 766 
 
 IMBECILITY. See Luhatio 
 
 IMPERATIVE powers. See Failure oe Trustee, Powers 
 
 IMPERTINENCE. 
 
 Statement of trustee's misconduct is not, 711 
 
 IMPLIED. See Notice. 
 Devise, 250 
 
 Powers, whether charge implies power of sale, 251 ; and see 257, 268 
 Tedsts, defined, 140, note (1) ; and see Ch. vii. 2, p. 167 
 agreement to settle under, 173. See Settlement 
 Charge, under, 173. See Charqe 
 Contract for sale, under, 174, 175. See Purchaser 
 Words precatory from, 167, no trust created 
 where uncertainty, 168 et seg, 
 doctrine of, discouraged, 173 
 not a question of mere grammatical import, 171 
 trustee of, not bound so strictly as by common trust, 172 
 Words, "subject thereto," implied, 191. See Resulting Trust 
 
 IMPROVEMENTS. 
 
 Allowance for, on setting aside Chanty Lease, 511 
 
 pv/rchase by trustee, 466, 468 
 
 not allowed in case of fraud, 466 
 tortious sale by trustee, 764 
 Lasting, lien of trustee for, 222 
 On lunatic's estate from his personalty, 827 
 
 c. g. for draining, engine at mine, inclosure, ih., C(ynf. 830 
 Ornamental by trustee, expense of not allowed, 513 
 Tenant eor life, whether directed at his instance, 514 
 
 IMPROVING LEASES. 
 
 of charity lands, 504 
 INACTIVITY. 
 
 of one co-trustee, 674, whether ground for appointing receiver, 870 
 
 INCAPACITY of trustee, ground for appointing new trustee, 710, see 693; 
 receiver, 870 
 
 INCONVENIENCE, 
 
 of granting relief a bar to suits 739, et seq, 
 
 how far applicable as to charities in suits for account, 787 et seq. 
 
INDEX. 977 
 
 INCUMBRANCE. 
 
 trustee cannot buy up for himself, 318 
 
 INDEMNITY. See Attorney (power of ) 
 
 ADVICE OF CHARITY COMMISSIONERS, persons acting under indemnified 
 
 785 ; see Payment, inf. 
 Bond of, on appointment of new trustees, 580, 581 
 
 on distribution of trust fund, 367 ; and see 721 
 c. Q T. bringing action in name of trustee must give, 591 ; see 719 
 CouET TRUSTEE ACTING UNDER SANCTION OF, obtains without release, 375 ; 
 and see 368, 765 
 
 as to future instalments when one payment made under Court's 
 direction, 376 
 Leaseholds when trustees and executors can require in respect of, 
 
 426 ; and see 223 
 Legal liability trustee who has incurred at request of c. g. t. may claim 
 
 indemnity, 562 ; but see 563, 564 
 Payment by trustee, &c., of charity funds to ofBcial trustees, 382 
 into Court by, under Trustee Relief Act, 377, note (c) 
 
 INDIA. See Bengal, East Indies 
 
 INFANT. See Advancement, Maintenance, Trustee Acts 
 
 Acquiesce cannot, in breach of trust, 777 ; purchase by trustee, 471 
 
 Administration, dwante minoritate, 834, note (a) 
 
 Assurances by, be may avoid, 37, 38, in/. 
 
 Attorney, cannot be in suit, might be to deliver seisin, 36 ; see Power, 
 
 inf. 
 Bailiff, cannot be, 36 
 
 Breach of trust, cannot commit, 39, 373 ; or concur in, 774 
 unless guilty of fraud, 39, 775 
 cannot acquiesce in, confirm, or release, 777 
 protected after attaining 21, until he has full information, 777 ; 
 and see Remedy, inf. 
 Capacity, has no legal, 35 
 
 Confirm cannot, breach of trust, 777 ; purchase by trustee, 472 
 Conversion of his property, not permitted, 829 
 
 case distinguished from that of Iwnatic, and why, 829 
 
 but since late "Wills Act, see 831 
 mortgage, &o., paid off out of his money, considered persbnalty, 830 
 timber cut, proceeds with accumulation remain really, 829 
 
 except perhaps where he is tenant in tail, and why, 830 
 but necessary outlay for realty thrown on personalty, 830 
 
 e. g. keeping up house, option to purchase at given price, 
 repairs, ib. 
 seisin changed from ex parte maternd to ex parte paternd, on 
 renewal of lease, 831 
 Debts, confirmed by, after attaining majority, 776 
 
 contracted by, for necessaries, 485 
 Deed, his delivery of, its effect 
 Disability of, how remedied, 36. See Trustee Acir ; and as to settlement 
 
 of infant's estate on marriage, see 18 & 19 Vict. c. 43. 
 Discretion, he has not any legal, 36 
 Elect, cannot, 816 
 
 Executor, when he might formerly have acted as, 36 ; have appointed, 25 
 Feoffment by, not void, but voidable, 27 
 
 by custom of Kent, infant of 15 years may make for value, and 
 semble without, 27 
 Fine of. See Fine, Recovery, inf. 
 Fraud, may not practise, 39 ; and see 373, 775 
 Gift to, presumption that he takes beneficially, 39 
 Guardian to a minor, he cannot be, 36 
 Laches, of his trustee, in not prosecuting legal right whether barred by, 
 
 720, et seq.; see 744 
 Liable, noi personally, to trustee for expenses, 563, note (5) 
 Limitation of suit. See Limitation, Stat, of, Mesne Rents and Profits, 
 
 inf., and 754, note 
 Mesne bents and Profits, may file bill for account of, on legal title, 753, 
 755, notes 
 
 3 K 
 
978 INDEX. 
 
 INFANT.— (!o»«MMied. 
 
 Mesne Rents and Promts — continued. 
 
 account bai-red unless brouglit within six years after majority, 
 7.55, note 
 carried back to accruer of title, 754, note 
 
 but where defendant ignorant of true character as 
 trustee only to filing of bill, 751 
 Ministerial acts, he may discharge, ^6 ; e. g. as lord of manor he may 
 
 give elFect to custom 
 Payment to, by trustee, 372 
 Power of attorney by, void, 37 
 
 ■ Collateral cannot execute if requiring discretion, 36 
 Receiver, he cannot be, 36 
 
 Eeoovert oe, formerly reversible only during nonage, 26 
 Release, he cannot, 777 
 
 Relinquishment, by trustee of of&ce, he cannot consent to, 665 
 Steward oe manor, he cannot he, 36 
 
 but acts by him in this character cannot be avoided, 36 note (a) 
 Tenant in tail. See Recovery, Fines and Recoveries Act 
 Trust, how far he can create, 26, 27 
 
 created by him would not be enforced to his prejudice, semlle, 27 
 Trustee, infant ought not to be appointed, 35 ; substitution of new trustee 
 for, 895, note (a) 
 how infant conveyed under Trustee Act, 83S , note (/) 
 for infant, how he may purchase trust property, 465 
 Will, cannot make, 27 ; formerly might of personalty if 14 years of age, ib. 
 
 INFORMATION. See Duties. 
 
 0. Q. T. MAT REQUIRE as to state of trust, 699 ; see 427 
 Ordinary remedy for breaches of trust as to charities, 779 
 
 where an information proper, and where a bill, ib., note (6) 
 advowson where vested in trustees for parishioners, information 
 
 improper, 107 
 corporation against, for removal of governors dismissed with costs, 
 
 493 
 but where maladministration of property Court interposes, ib. ; 
 and see, 31 
 
 INHABITANTS. 
 
 Election of clerk by. See Parishioners, 107, 108 
 Oe a place, trustees required to be, 711 
 
 INJUNCTION. 
 
 Breach of trust, c. q. t. may have against, 723 
 
 where co-trustee should apply for, 317 
 Improper sale, whether c. q. t. may have against, 422 
 
 whether mortgagor, 423, note (a) 
 Lands abroad, from taking possession of, 48 
 Payment into Court, notwithstanding injunction, 869 
 Timber as to, 753, note 
 
 Waste where tenant for life threatens, trustee to preserve should apply 
 for injunction, 408 
 
 INQUIRIES. 
 
 Assignee of equitable interest should make, of trustee, 605 
 
 0. Q. T. by, trustee must answer, 427; and see 599 
 
 Charity commissioners by, 784 ; see 779, 783 
 
 INQUISITION, 132, 677. See Alien 
 
 INSOLVENCY. See Bankruptcy, Insolvent 
 
 Debts trust for, how affected by insolvency, 475 
 
 Equity to settlement oifeme covert as against assignees, 369 
 
 Limitation over, on or until, 135, et seq. 
 
 person cannot so limit over his own property, 136 
 except to extent of portion received with wife on marriage, ih. 
 Maintenance, trust for, at discretion of trustees how far assignees take 
 
 under, 133, 134; and see, 597 
 Proof under. See Bankruptcy (Proof) 
 
 Trust estates, where they pass to assignees on trustee's insolvency, 278. 
 See Bankruptcy (Trust Estate) 
 
INDEX. 979 
 
 INSOLVENT. 
 
 c. Q. T. TENANT FOR LIFE, goods left in his possession not forfeited, 594 
 Co-trustee, whether necessary party to suit, 848 ; whether representatives 
 
 of deceased are solvent co-trustees, 847 
 Judgment against future property, effect of, 29 
 Phopertt of, up to final discharge vests in assignees, 29 
 Trust, how far he can create, 29 
 
 Trustee, insolvent is not absolutely disqualified from being, 40 ; but see 
 711, and note (c) 
 his insolvency a ground for appointing receiver, 870 
 INSPECTION. 
 
 Accounts of c. q. t.'s right to, 599 
 Vouchers of, 428 
 INSTRUMENTAL TRUSTS, 21 
 INSURANCE. 
 
 Company, shares in, given in succession should be converted, 812 
 Executor held not liable for omitting, against fire, 332 ; see Trustee, inf. 
 Fines, for renewal, payable out of rents, as to insurance, 391 
 Mortgagee not allowed for, in absence of stipulation, 516 
 Statute, 14 Geo. III., c. 48, does not prohibit on life of A. in name of B., 
 
 when both names appear on policy, 136 
 Trustee, whether he should iiwwre agairtst fire, 516 
 
 when liable for omitting to maintain policy, 764 
 his lim for premiums, &c., advanced for, ib. 
 INTENTION. 
 
 will, if possible, be carried into eflTect in trusts, 100, 103; and see Volun- 
 tary Assurance 
 will not control the operation of the Statute of Uses, 246 
 
 INTEREST; 
 
 Ch. xiiL, s. 4, p. 358. See Investment 
 
 c. Q. T. receiving on improper loan, where estopped from charging trustees, 
 
 776 ; conf. 769 
 Charged against assignees 
 
 executor, receiver, trustee, &c., for moneys improperly retained 
 
 by them, 358, 359 ; see as to retainer of charity funds, 602. 
 no excuse that money was not used, 359 
 but delay may be explained by mistake, ib. ; and conf. 790 
 executors, from what period charged, 364 
 
 not on money that never came to hand, 365 ; and see 
 329, Rate, Trade, inf. 
 Compound, charged where accumulation directed, 364 ; and see Trade, inf. 
 Costs, interest on, not allowed to trustee, 658 
 Debts on, what allowed under trusts for creditors, 489; see Debts 
 Fines eok renewals, what interest charged in contribution for, 397 
 Mesne bents and peoeits, not charged on account of, 752 
 
 nor where purchase by trustee set aside, 466 
 Prooi' eor, by c. q. t. on bankruptcy of trustee guilty of breach, 771 
 Rate oe, £4 per cent, charged usually where simple retainer, 361, 362 
 
 £5 per cent, where direct breach, &c., 362 ; and see Trade, ivf 
 Trade, money employed in, by trustee ; u. q. t. has option of £5 per cent. 
 or actual profits, 319, 361 
 
 whether with rests, 362, 363 ; and see Trade 
 money lodged at bankers' in trustee's name considered so 
 employed, 361 
 INTESTACY. 
 
 0. Q. T. of, as to personal estate without next of kin, executor entitled, 324 
 
 as to fee, without heirs, whether trustee entitled, 321, et seq. 
 Mortgagor op, in fee, without heirs, mortgagee entitled, subject to mort- 
 gagor's debts, 322, 679 
 Of Purchaser of fee, without heirs after purchase money paid, but before 
 
 conveyance, vendor keeps money and estate, , 322 
 Trustee, when he should avoid, as to trust estate, 265, et seq. 
 
 INTESTATE. 
 
 Trastee not within Lord St. Leonards' Trustee Act, s. 10, 838, note (b) 
 
 INTIMIDATION. See Terror 
 
 3 R 2 
 
980 INDEX. 
 
 INTRUDER. 
 
 not bound by a use, 3 
 INTRUSION. 
 
 may be of a trust, 621 
 
 INVENTORY. 
 
 when desirable, 244 
 
 trustee neglecting, may be deprived of costs, ih. 
 
 INVESTMENT. See Reoeipts. 
 Construction of particular expressions, as 
 
 " to call in securities not approved of by executors," 329 ; such securities 
 as trustees may approve, 345 ; " consent of tenant for life," " of wife " 
 to loan to husband, 340 ; see 339 ; " convert with all convenient speed," 
 329; "to lay out at trustee's discretion," SS8 ; " to employ," SiO ; "to 
 lay out on such good security as trustee can procure, &c.," 338 ; govern- 
 ment or good secwrities, 353 ; and see 341, 342 ; " to place out at interest, 
 or other way of improvement," 340 ; " to call in and lay out 3.t greater 
 interest" 341; trustees "required," 339, 349 
 
 Court of Chancery. 
 
 Bank Annuities, sometimes refuses to sell out for investment on mort- 
 gage, even where express power, 346 
 MoKTQAGE, does not call in, without previous inquiry whether advisable, 
 
 355 
 Peksonal Security, will not invest on, even where express power, 338 ; 
 
 see 343 
 Selects for investment £3 per cent. Consols, 351 ; sometimes (on account, 
 of time of payment of dividends) allows £3 per cent. Red., 354 
 Duties, &4C., of trustees as to investment. See Conversion, India 
 
 Bank private, trustees may invest for temporary purposes to trust account, 
 
 330, 332 ; but not otherwise, 336 ; and see 357, 361 
 Call in, trustee should, personal property outstanding, 327, 328 ; see 329 ; 
 
 on hazardous security, 543 
 Consols or Bank Annuities, should not sell out to invest in irregular 
 
 funds, 353 
 Control, must not put money out of his own, 334 ; must not put money 
 
 under control of co-trustee or co-executor, 316, 357 
 Inquiry, should make due as to value of security, 345, 349, 350 
 as to reversion, 350 
 
 as to title of borrower, 345; and see, 349 
 Lend, must not, to co-trustee, 338, 345 ; conf. 329 
 Mix, must not, trust property with his own, 332, 337 ; see 759 ; or with 
 
 stranger's, 350 
 Part with trust money, should not, except on delivery of security, 351 
 Power oe investment, must construe strictly, 340 ; see 346 
 
 where no expi-ess power, trustee should invest in £3 per cents., 
 ■ and execute declaration of trust, 351 
 especially where successive estates, 352 ; see 812 
 except where other premises specifically bequeathed, 354, 809 
 Productive, should make trust fund, 336, 337 ; see 357, 358 
 Receipts, whether power to give implied by trust for investment, 523. 
 
 See Receipts 
 Solicitor, trustees should not, when lending, employ borrower's solicitor, 
 
 358 
 Tenant eor liee, trustees must not favour at expense of remainderman, 
 
 339, 344, 352 ; and see 343, 346, 348, 415, 421, 808 
 Trade, must not invest in, or speculation, 319, 340 ; see 361 et seq., 760 
 Varying securities, power of trustees as to, 523 ; see Receipts, sup. 
 Liabilities incurred by improper investment or non-investment. 
 Capital, as to, where money improperly retained 
 
 (a) where no direction to invest, 353 
 
 (b) where express direction to invest in funds, and neglect so to 
 do, 355 ; and see 357, 764 
 
 (c) where direction to invest in funds or real security, 355, 764 
 when stock improperly sold, 356, 772 ; and see Conversion (im- 
 plied AND tortious) 
 
 Interest, as to, Ch. xiii , s. 4, p. 358 ; see Interest 
 
INDEX. 981 
 
 INVESTMENT— coraJmwd. 
 Securities, particular kinds, tvhether authorised. 
 
 (a) Generally 
 
 Annuity with policy, 341 ; bank or government annuities, 351 ; bank, 
 private, 336; bank etock, 341, 352; copyholds for lives, 350; East 
 India Company, securities of, 355 ; exchequer bills, 342, and note {d) ; 
 foreign bonds &c., 329, 812 ; funds, 342 ; government securities, 341, 
 342, 353 ; Greek bonds, 342 ; judgment, 350; leaseholds for lives, 349 ; 
 for years, ib.; long annuities, 340, 350, 352, 810; Mexican bonds, 329; 
 mortgage, see inf. ; real securities (as to second or joint, 350) ; navy 
 £5 per cents., 353 ; personal security, inf. ; public securities, 352 ; 
 purchase, 349 ; railway mortgages, 345 ; reversion, 350 ; shares of canal, 
 insurance, railway &c. companies, 812; South Sea Stock, 341 ; stock of 
 private company, ib. ; £3 per cent. Consols, 351 ; £3 per cent, reduced, 
 354 ; £3i per cent., 340 ; tolls and road bonds, 346 ; trade, 340 ; and 
 see Trade 
 
 (b) Personal 
 
 executor should call in investments on, 328, 329 
 
 trustee should not invest on ; and see instances, 337, 338 
 
 unless where express authority, 338 ; what equivalent to such authority, 
 
 see 338, 341. See Court, Trade, sv,p. 
 whether on bank stock, &c., 341, note (d) ; exchequer bills, 342 
 
 (c) Real. 
 
 1. whax not expressly authorised 
 
 quwre, whether trustees may invest upon, 342, 343 ; and see 523 
 not where express direction to invest in the funds, 344 ; and see Court, 
 supra 
 
 2. where expressly authorised 
 
 trustees may retain existing mortgages, if sufficient, 346 ; and see 329 
 trustees may sell out stock, and invest on mortgage, 344, 346 
 
 should not do so for mere accommodation as to secure equal 
 amount of stock and interim dividends, 344 
 
 secus, where security for equal amount and interim interest, ib. 
 
 3. what property it authorises 
 
 not loans on raUway mortgages, 345 
 
 nor on leaseholds for lives, with policy, 349 ; {secus as to leaseholds 
 
 renewable for ever, ib.) 
 nor personal security with judgment entered up, 360 
 gM. as to leaseholds for years, 349 ; reversion, equity of redemption, joint 
 
 mortgage, 350 
 when it authorises road bonds and mortgages of tolls, 346 
 when mortgage of real security in Ireland under 4 & 5 W. 4, o. 29, 347 
 purchase, 349 ; and see 421 
 (4) generally 
 trust, how kept out of sight on mortgages and transfers, 346, 347 
 IRREVOCABLE trusts, 481, et seq. See 101, Debts 
 IRELAND. See Jttbtsdiction 
 
 lands in, within Lord St. Leonards' Trustee Act, 835, note (d) 
 as to Trustee Act, 1850 ; see a. 55, 901, note (c) 
 partition of lands in, not decreed here, 50 
 semile, unaffected by Thellussou Act, 120 
 " ISSUE." See Executokt- Trusts 
 
 CONSTRUED in articles, where to mean first and other sons, 147 
 DISTINGUISHED from heirs of the body, 155 
 Includes daughters as well as sons, 149, 156 
 Purchase, a word of, not of limitation, 156 
 
 JOINT. 
 
 Account, payment to, 330; money belongmg on, 347 
 
 Contract, effect of disclaimer as to, 237 
 
 Co-trustees, then- joint and several liability for breach of trust, 767, 772 
 exercise joint of&ce, 298. See Co-exeoutob, Co-trustee 
 JOINT TENANT. See Coptholds (Fines) 
 
 Devise id two as joint tenants, wbere one an alien, 39 ; and comp. 73 
 
 Forfeiture by one joint tenant, of chattels, 260 
 
 Renewal of lease by, 218 
 
982 INDEX. 
 
 JOINT TENANCY. 
 
 CoNSTEUED in articles, tenancy in common, 152 
 secus in executory tnists m wills, 163 
 
 except where testator provides for children or puts himself 
 m loco parentis, 164 
 Implied, in equity, where purchase by several contributes equally, 201 
 secus where contribution tmeqvM, 202 
 
 not implied in advance on mortgage, 201, or in partnership, 202 
 whether implied at law by grant to two and survivor, and heirs of 
 survivor, 251 ; whether on a devise, 252 
 MiHOES between, whether it can be severed, 152 
 
 JOINTUEE. 
 
 power to charge not authorised in executory trusts by " usual 
 powers," 165 
 
 JUDGMENT. See Bond, Decree 
 
 Chaeginq oedek op stock, shaees, &o., under 1 & 2 Vict o. 110, s. 14, 670 
 
 3 & 4 Vict. c. 82, B. 1, 670, note (6) 
 by whom and when made, 670, 671 
 its effect, 671 
 Efebot op, in equitt 
 
 as to tmsts hjfi. fa. 648, 662 
 
 by levari facias, 649 
 by elegit, 649 et seq. 
 (o) cases in which judgment creditor has remedy in equity, 
 after death of conusor, 663 
 for redem/ptixm of mortgage, 650 
 for removing legal impediment, 650, 658 
 
 against equitable interest, 650, 651, 652, 658, note (a) ; whether 
 
 as against assignee of owner of equitable interest, 653 
 money to be laid out in land, 796 
 whether against lamd subject to trust for conversion, 653 
 
 vendor's interest after contract for sale, 654 
 surplus proceeds under trust for sale, or 
 power of sale in mortgage, 656; see 657 
 under 1 & 2 Vict. o. 110, 656, 666 
 
 against mortgagee, 657, note (a) 
 (5) how equity facilitates by sale, 658; see notes (a) and (6), 663, 664 
 
 (c) how much of estate taken in execution, 
 
 formerly moiety of trust, 658, 659 ; see note (a) 
 entirety of equity of redemption, 660 
 
 trust by way of mortgage, qu, 661 
 now entirety under 1 & 2 Vict. c. 110, a. 11. 666 
 
 (d) when elegit, <Scc., must be sued out, 662 ; and see note (6) 
 
 EPPECT OP, AT LAW 
 
 at common law, 646 ; under Statute of Westminster, 647 
 execution at law of trust estate, under Statute of Frauds, 664 ; 
 under 1 & 2 Vict. c. 110, a. 11, 666, 669 
 
 Insolvent, entered up against, 29 
 
 Late statutes, relating to 
 
 1 & 2 Vict, c. 110, 666 
 
 2 & 3 Vict. c. 11, 668 
 
 3 & 4 Vict. c. 82, 669, 670, note (5) 
 
 18 & 19 Vict. c. 15, 669; see 657, note (a) 
 Eegistee codntt, priority of judgments as to lands in, 672 
 Registeation and ee-eegistration op, 668, and note (i) 
 
 old law applicable, as to purchasers without notice of registered 
 judgment, 668 
 
 purchaser, &c., not bound by unregistered judgment, 669 
 Seaeohes poe, 668 
 Tacking, 660; see note (a), and 662 
 Teustees' estate, judgments bind, 279 
 
 but c. q. t. will be protected, ih. 
 
 JUDGMENT CREDITOR. 
 
 Postponed to prior equitable mortgagee, 280, and note (a) 
 
 PuEOHASER for value, judgment creditor is not, ib. 
 
 Taking trustee's legal estate in execution bound by trust, 261, 280 
 
INDEX. 983 
 
 JURISDICTION. See Abboad, America, Dbmeeaea, Ireland,. West Indies, 
 Scotland, Sicily, Trustee Acts 
 equity can enforce trust of personal property out of, if parties within, 4T 
 
 equities of Icmds out of, if parties within, and if no obstacle to 
 execution of decree, 47 ; not if such obstacle exist, 49 
 case where lex loci does not permit equitable estate, nor limitations of 
 
 legal estate, 53 
 trustee on voyage to India not out of, under Lord St. Leonards' Trustee 
 Act, 838 note (c) 
 JUROR. 
 
 c. q. t. of lands, when qualified to be, 592 
 JUS DISPONENDI. 
 
 of c. }. «., 21, 595, et seq. 
 JUS HABENDI. 
 
 of c. q t., 21, 585, et seq. 
 
 KENT. 
 
 custom of. See Iniant. 
 KING. See Crown. 
 KNIGHT OF A SHIRE. See Member of Parliament. 
 
 LACHES. See Acquiescence 
 
 Bar trom, to relief in equity, 373, 741, et seq. See Limitation 
 account restricted to filing of bill, 756, note 
 constructive trust to, 224 
 impeaching fraud of executor to, 459 
 resulting trust to, 207 
 setting aside trustee's purchase, 470 
 Not imputable to persons in distress, 471 ; and see 737 
 or in ignorance, 471 
 
 to remainderman of renewable leaseholds during life of tenant 
 for Ufe, 402 
 Trustee oe, in enforcing covenant, 765; investing trust property, 764; 
 insuring, 764 
 shall not pr^udice c. q. t., effect of the rule, 719, et seq, 
 
 LAND. See Resulting Trust. 
 
 converted to be taken as money. See Conversion 
 Discharged from trust where money has been raised, 428 
 ToRTiouSLT SOLD BY TRUSTEE, c. q. t. may require purchase of other lands 
 of equal value, 763 
 or may take proceeds of sale with interest, 764 
 or present estimated value of lands sold, allowing for improve- 
 ments, ib. 
 Trust money tortiously invested in, by trustee, may be followed, 206, 
 762, 763 ; but see 767 
 
 " LANDS." 
 
 devise of will pass money to be laid out on land, 796 
 
 LAND-TAX. 
 
 of lunati<fs estate, redeemable by sale of tinibetr fit to be cut, 826 
 
 LAPSE. 
 
 of time. See Laches, Time 
 
 LAPSED LEGACY. 
 
 out of real estate. See Legacy 
 LAWFUL TRUSTS, 22, Ch. vi. s. 1, p. 103. See Unlawful Trusts 
 
 LEASE. See Charities. Leasing, power of 
 
 Covenants, indemnity against, executor of lessee entitled to, 426 ; unless 
 he has assented to bequest, ib. 
 trustee for sale cannot insist on where settlor is an assignee, 426 ; 
 
 and see 223 
 what inserted, when lease granted by devisees, or to executors, 425, 
 note (a) 
 
984 INDEX. 
 
 LEASE — contirmed. 
 
 Duration of building, 510 
 
 of husbandry, 508, et seq, 
 Teustees, their power to graat generally, 522 
 
 not to or for benefit of themaelves, 462, 505 
 
 for sale cannot grant, 416 
 
 LEASEHOLDS. See Renewable Leaseholds, Renewals 
 
 Converted, they should be when bequeathed in succession, 808 
 
 unless contrary intention can be collected, 809, el aeq. 
 Power to purchase, 349 
 Seouritt, when authorised as, 349 
 
 LEASING, POWER OF. 
 
 Eeeeot op in determining legal estate taken by trustee, 259 ; see 257 
 
 as to effect of trust for leasing, see 256 
 " Usual power," is a, 164 ; so of granting building or mining leases where 
 property requires, ib. ; but see 165 
 where inserted under executory trust, silent as to powers, 164 
 
 LEGACY. See Legatees, Residuart Legatee 
 
 Devised real estate out of, and which lapses or is void, sinks for benefit 
 of devisee, if by way of charge, 179, 189, 193 
 if by way of exception, results to heir, 193 
 unless subject to residuary devise under 1 Vict. c. 26, s. 25, 195 
 whether it can be passed under gift of residuary personal estate, 
 196, 197 
 Executor may appropriate, 517 ; his assent to, 243, 426, 454 ; he may 
 claim though he renounce probate, 234 ; in East Indies to, for trouble, 
 may be disclaimed and commission taken instead, 547 
 Heir to, will not necessarily rebut resulting trust, 181 
 Limitation, Stat, op, when legacy is barred by, 744, note (a) 
 Sale oe estate, charged with legacy not yet payable, 430 
 
 LEGAL CHARGE. See Charge, Purchaser 
 trust distinguished from, 18 ; and see 282 
 
 LEGAL ESTATE. 
 
 Assign it, trustee may, 262 ; but assignee bound by trust, unless purchaser 
 
 without notice, 279 
 Bankruptcy of trustee, how it is affected by, 273, and see 287 
 
 assignees, if they take trust estate, are bound by trust, 280 
 Burdens annexed to legal estate in trustee. See Privileges, &c. inf. 
 Chattels, devolution of, to administrator or executor of trustee, 260; subject 
 
 to trust, 279 , and See Execution, Executor, Probate (Prerogative) 
 Curtesy, is subject to, in trustee,- 260 ; but tenant by, bound by trust, 279 
 Devise it, trustee may, or bequeath it, 262 
 
 when it passes under general devise, 262 et seq. See 
 
 Devise 
 when trustee should devise trust estate, 265 
 whether devisee can execute the trusts, 268; as to leaseholds, 
 see 267 
 Disseisor of trustee is not bound by the trust, 287 
 Dower is subject to, in trustee, 260, but dowress, bound by trust, 279 
 Equitable, compared with, 44, 103 
 Escheat, estate in trustee formerly subject to, secus now, 260 
 
 whether lord taking by, bound by the trust, 280 et seq. 
 as to copyholds and customary freeholds, see 283, 284 
 as to equity of redemption, see 284 
 Forfeiture, estate in trustee formerly subject to, secus now, 260 ; see 
 286 
 
 but the lord was liable to the trust, 280 
 Heir, devolution of trust estate to, 260 ; bound by trust, 279 
 Insolvency of trustee, how it is affected by, 278. See Bankruptcy, sup. 
 Judgments against mortgagee 
 
 against trustee bind trust estate, but c. q. t. protected, 278, 279 ; 
 and see 280 
 Outlawry op trustee, its effect, 287 
 Privileges, &c., annexed to legal estate in trustee, 268 et seq. 
 
INDEX. 985 
 
 LEGAL 'ESTATE— continued. 
 
 Pkivileges, &o. — continued. 
 
 e. g. he brings actions, 269 ; see 590, 591, proves in lamlcrwptay, presents 
 to living, appoints steward,.i6^ ; pays admisBions for copyholds, 272 ; 
 liable to rates, 271 ; trading as trustee is amenable to bankrupt laws, 
 272 ; title deeds as to, 592 
 
 whether entitled to vote for coroner, 269 ; see 592; not for member of 
 Parliament, 271 
 Settloe, becoming re-vested in, will not defeat trust, 99 
 Tkusteb in, Ch. xi p. 246. See 512, 590, Privileges, &c. sup. Uses, Stat, of, iro/. 
 
 (1) commensurate with ti'ust if possible, 249 ; see 252 
 
 legal estate, enlarged, 250; supplied in toto, e. g.hj nature of trust 
 for feme covert ; by appointment of " trustee," " trustee of in- 
 heritance," by devise to A. as trustee, and nomination by codicil of 
 B. " as trustee" in place of A., 250 
 
 (2) legal est!).te curtailed, from nature of trust, 252 
 
 limitation in fee to trustees to preserve when cut down, 253 
 fee where trustees take without " heirs," 251 et seg. 
 
 where given to trustees on partial trust, remaining interest 
 executed by Stat, of Uses, 253 et seq.; see 252, 257, and 
 Uses, Statute of, inf. 
 exceptions, e. g. where trusts for separate use intervene, 255, 256 ; 
 trust for leasing, to raise money by sale, 256 ; discretionary 
 powers in trustees, 257; secKS, if such powers do not effect fee, 258 
 late Wills Act,, its effect on devises to trustees, 259 
 Uses, Statcte op, when legal estate executed by, in c. q. t., 246 ; partially, 
 252, 253 
 special trusts are not within, 247, e. g. under trust to " apply 
 rents," " conveif' estate, 247, see 252 ; " hold for separate use, 247, 
 see 265 ; " pay rents" 247 ; see 252 ; " preserve contingent 
 remainders," " raise money," " sell," 247 — trustee takes legal estate 
 secus where trust under deed "for A.&c, for her separate 
 use," 247; to permit A. to receive, 248, see 252; copy- 
 holds "to be transferred," 248; ov mere charge of 
 debts, 248, see 251 
 whether under trust " to pay unto, or permit to receive," 
 249 
 
 LEGAL POWEES. 
 
 distinguished from equitable, 525 
 
 LEGAL TITLE. 
 
 relief upon in Court of Equity ; see 752, note (1) 
 
 LEGATEE. See Legacy 
 
 Accounts may require inspection of, but no copy, 599 
 
 Fkaudulent sale of assets by, executor may impeach, 459 
 
 Payment, may claim, when exclusively interested in legacy, 597; legacy 
 
 to purchase annuity, ib. 
 Teust cannot be averred against, 59 
 
 LESSEE. 
 
 not prejudiced where purchase by trustee for sale set aside, 467 
 
 LETTER. 
 
 may prove declaration of trust, 63 
 
 how far parol evidence may be admitted to writer of, 64 
 
 LETTERS PATENT. 
 
 necessary for declaration of a use by Crown, 59 ; see 24 
 
 LEVARI FACIAS. See Judgment 
 
 execution under, as to equitable estates, 649 
 
 legal estates, 646 
 writ of, from the Crown, 646, note (1) 
 
 LEX LOCI. See Jtjeisdiction 
 
 descent of trust is subject to, 680 ; see 681 , 
 
 LIABILITY. See Corporation, Co-Tetjstees, Executor, InvestmenI' 
 
 0. Q. ■!'. of, who has concurred in breach of trust, 771 ; see 353, 392, 768, 846 ; 
 for trustees' expenses, 562; see 873 
 
986 INDEX. 
 
 hlASlhlTY— continued. 
 
 Feme Covert, separate property of, 633 et seq., 639, 64G, 642. See Feme 
 
 COTEET 
 
 Husband, of, for wife's breach of trust, 34 ; see 261 
 
 Solicitor, of, for wilfully advising or concurring in breach of trust, 763, 
 note (d) 
 
 Trustee, of, for breach of trust ; see Beeaoh oe Trust ; for destruction 
 of contingent remainders, 406, 409, 410; for improper sale, 415; for 
 misrepresentation, 604, 847 ; for parting with fund after notice of incum- 
 brance, 605 ; and see Conveyance 
 
 LIFE. See Tenant eor Life 
 
 LIEN. See Mortgage (Equitable) 
 
 c. Q. T., of, on property into which trust estate is tortiously converted, 756 
 et seq., 759, 763 
 not against laud properly sold for misapplication of proceeds, 428 
 Creditor having specific lien, as to proof of debt by, 485 
 
 whether he releases by executing trust deed for payment of 
 debts, 486 
 Joint tenant, of, for improvements, 202 
 Judgment oreditoe, of, 689, 691 
 Purchaser with notice of lien, bound by, 725 
 Tenant eoe hee of, who renews for contribution from remainderman, 398, 
 
 400 
 Trustee, for expenses, 560 
 
 who has renewed for improvements, 222, see 224 ; renewal, 222 
 on policy for money advanced for premiums, 764 
 persons employed by trustees have no lien upon trust fund, not- 
 withstanding charges of expenses, 101, 661 ; and see Solicitor 
 
 LIMITATIOK. 
 
 Generally, how far 
 
 chattels capable of, at Icvm, by will, 104 ; as to deed, ib. 
 
 by way of trust, 104 
 words of, how far required to create equitaMe fee under a will or 
 deed. 141 
 
 Of suits in equity. See Mesne Rents and Prohts, Statutes of, inf. 
 (a) by Analogy to statutes, 731 et seq. 
 
 twenty yeai's an equitable bar by analogy to statute of James, 733 
 
 when time ran as against remainderman of equity of redemption, 
 
 733 
 five years in case of fine by volunteer without notice of con- 
 structive trust, 733 
 notwithstanding distress, ignorance, mistake, poverty, 733, note (/); 
 
 see 737 
 seem in case of concealed fraud, 734, note (5) ; and see 743, 754, note, 
 
 and 756, note 
 how defendants should plead statute, 734 ; and in case of fraud, 735 
 (6) from Inconvenience, 739 et seq.; as to charities, 787 et seq. 
 
 when parties dead, and vouchers, &o., lost, 739 ; see 741 
 whether mere lapse of time a bar, 739, 741, 742 
 
 (c) from Laches in application to Court, 741 et seq. 
 
 where alleged fraud, 460, 742 ; accounts between partners, 742 
 purchase by trustee, or of reversion, 470, 741, 742, 776 ; specific 
 
 performance, 742 
 where there is a Statute of Limitation, 742, 743 
 
 (d) from Presumption, 735 et seq. ; as to charities, 786 ; corporation, 790 
 
 when raised, 735 ; ground of, 736 ; favoured in law, ib. 
 
 raised within twenty years where aided by evidence, 736 ; see 
 
 224 
 secus where rebutted by evidence, ib. 
 wliver and acquiescence distinguished, 737 
 not raised in case of ignorance, 737 ; weakened by distress, ib. 
 not raised against a class as against individuals, 471, 738, 777 
 defendant cannot avail himself of by demurrer, 738 
 
INDEX. 987 
 
 LIMITATION— co«(m«ed 
 Statutes of. 
 
 Qenbeallt, » 
 
 apply as between c. q. t., or trustee and stranger, 719, 720 
 claiming by adverse possession, 288, 720, 747 ; see 735, note (1) 
 purchaser with notice, 725 ; and see 722, 745 (as to volunteer 
 
 claiming under trustee, see inf.) 
 even vfhere c. q. t. is an infant, 720 ; and see 744 
 do not apply as between c. q. t. and trustee m direct or express 
 trusts, 719, 729, 745 ; see 748, 762 note (1), 763, and 
 volunteers claiming under trustee, 745 ; and see 279, 724 
 secus in constructive trusts, 729 ; see 733, 746 
 charities, whether they apply to, 786; and see 749 
 debts, how far applicable to trusts for payment of, 484, 485, 747 
 
 to charges for payment of debts, 746 
 debts, whether executor liable for paying debts barred by, 520 
 pleaded, how they should be, 734, 735 ; as to rents and profits, 
 751, 764, note 
 Late Statute of, 743 et seq. ; its effect as to 
 Acquiescence, 743 
 
 Arrears of rent &e., six years, 744 ; as to pleading statute, see 751, 
 754, note 
 but in case of express trust c. q. t. may recover all, 748, 752, 
 
 note (1) 
 or where subsisting term under which trustee may recover 
 
 possession, 748, 749 
 as to case of express trustee ignorant of his true character, 
 see 751 
 Charities, whether within the Act, 749, 750, 786 
 Charge, 744, 746 
 
 coupled with duty, 746; and see 747 
 Constructive trust, not saved by section, 25, 746 
 Disabilities, 744 
 Disseisor, 747 ; see 288 
 Dower, arrears of, 755, note 
 Express Trusts, what are within the Act, 743, 745 et seq.; and see 
 
 748 
 Fraud, 743, distinguished from mere charge, 746 ; and see 747 
 Interest, arrears of, 744, 748 
 Lands, 743 et seq. 
 Legacy, 744 
 Possession, effect of, 744 ; by one of several cs. q. t., 748 
 
 adverse, 747 
 Purchaser, as against, 743, 745 
 
 under marriage settlement, 745 
 Remainderman, 745; see 722, and compare 733 
 Rents, see Arrears of, sv/p. 
 Residue or share of, 744, note (as) 
 Volunteer claiming under trustee, 745 
 
 LIS PENDENS. 
 
 effect of upon powers, 523, 544, 581. See Decree, SniT 
 
 trustee appointed during, should be sanctioned by Court, 544, 582 
 
 may during lis pendens solicit discharge by petition or motion, 683 
 
 LOANS. 
 
 trust for, 502 
 
 LONG ANNUITIES, 340, 352, 353 
 where to be converted, 808 
 when to be enjoyed in specie, 809 et seq. 
 
 LORD OP MANOR. See Escheat 
 
 infant may give effect to custom, 36 
 
 LORD CHANCELLOR. See Chancellor. 
 
 LOST. 
 
 where part of trust estate is, how Court makes appointment of new 
 trustees, 244 
 
988 INDEX. 
 
 LOTS. 
 
 ■whether trustee for sale may sell in, i2S 
 LUNATIC. See ChancblloIb, Committee, Trustee Acts 
 
 CoNVEBSiOH of his estate made for his own benefit, 825, 826 ; otherwise 
 not ; see 828 
 
 real estate sold for payment of debts, 826 
 
 timber cut on estate ex parte paternd, applied to relief of estate 
 
 ex parte maternd, 826 
 proceeds of, applied to pay debts, redeem land tax, 827 
 not required, go to next of kin, 827 
 so when felled tortiously by stranger, 828, 829 
 should not be purchased for repairs, &o. (to serve committee's 
 
 interest), where it might be cut, 828 
 'personalty applied to bring action of trespass ; to relieve charge on 
 realty ; for improvements ; necessary expenses, e. g. repairs ; 
 renewal or admission fines, 827, 828 
 as to building farm-house, see 827, note (Z) 
 CoNVEESioif not suffered but where clearly for lunatic's benefit, 828 
 Deed oe void, 27 ; feoffment voidable by heir, ib. 
 Disability, how remedied where mortgagee, trustee, &c., 832, 895, note (a); 
 
 and see Trustee, inf. 
 Elect, cannot, 816 
 
 Fine or eecoveet by, valid unless reversed, 27 
 Heik of founder of charity lunatic, visitatorial power exercised by Crown, 
 
 495 
 Trust declared by. Court may set it aside, 27 
 
 but would not interfere against purchaser without notice, ib. 
 Trustee, disability of; see Trustee Acts, and 16 & 17 Vict. c. 70 ; Lunacy 
 
 Regulation Act, 1853, s. 137, et seq. 
 Trustee Eeliee Act, repayment ordered to guardians out of lunatic's 
 funds of expenses incurred for his support, 375, note (c), see p. 376 
 
 MAINTENANCE. 
 
 Assignees ih bankruptcy, &c., take under trust for maintenance, &c., of 
 
 bankrupt, &o., 133, 134; see 598 
 Discretion of trustees, fund applicable at, 542 
 Ineaht may be allowed to by executor out of interest of legacy, 517 
 
 in what cases out of capital, 517 
 Power of, whether authorised by, executory trust silent as to powers, 164, 
 
 note (d) 
 Reference to ascertain whether proper, 697 
 Trust, for a special trust, 247 
 
 MAJORITY. 
 
 of cs. q. t. cannot consent to trustee's relinquishment, 565 
 
 of co-trustees, 298. See Co-trustees. Tramfer directed at their instance 
 
 under Trustee Relief Amendment Act, 381 
 of creditors, whether they can sanction purchase by trustee, 464 
 
 MANDAMUS. 
 
 to compel admission of trustee to copyholds, 324 
 MANAGEMENT. See Powers (General) 
 MARRIAGE. See Feme Covert, Feme Sole, Husband 
 
 of eldest son justifies destruction of contingent remainders, 409 
 
 a valuable consideration, 745 ; to whom it extends, 406 
 MARRIAGE ARTICLES. 
 
 construction of executory trusts in. See Executory Trusts 
 
 MARRIED WOMAN. See Feme Covert 
 
 MASTER. 
 
 of school trust for finding, 501 ; and see as to salary of, 502 
 
 MEETING-HOUSE, 497, 498 
 
 MEMBER OF PARLIAMENT. 
 
 trustee cannot now vote for, 270; but c. j. t. may, ib., and 593 
 
 MEMORANDUM. See Writing 
 
 may prove declaration of trust, 63 
 
INDEX. 989 
 
 MERGER. 
 
 takea place where legal and equitable estates meet, if commensurate, 1 6 
 et seq. 
 
 MERITORIOUS CONSIDERATION. See Consideration 
 
 MESNE RENTS AND PROFITS. 
 
 Account of on equitable title, see 752, Note 1, Part I., at commencement, 
 
 752; Part II., 765 
 Charitable trusts in, extent of, 786 et seq. ; and see 789, for limits 
 adopted 
 
 compromise with Attorney-General, 789 
 
 how affected by inconvenience, 787 et seq. ; by mistake of trustee, 
 790 ; in case of parish, 791 
 Constructive trusts in, 224, 750 et seq.; see 752, note (1) 
 
 prima facie from time when rents intercepted, 751, note (o) ; and 
 
 756, note 
 exception 1, if statute pleaded, only for six years, 751 
 
 2, where defendant has no notice of plaintiff's title, only 
 
 from filing of bill, 751, though plaintiff an infant 
 (see 554, 565, notes), or defendant (in fact) express 
 trustee, 751 
 
 3, where plaintiff guilty of laches only from filing of 
 
 bill, 751 
 or from decree in great laches, 752 
 Express trusts in, from time when rents were withdrawn, 752, note 1, 748 
 secus where trustee ignorant of his true character, 751 ; and see 
 Charitable Trusts, sup. 
 Form of order to account, 752 
 • Person to account in first instance, assignee but without interest, 752) 
 if assignee insolvent, trustee personally liable, 762 
 Purchase by trustee for sale on, 466 
 Relief bill for, followed by bill for account, 752 
 Renewal of lease by trustee, &c., on, 224 
 
 (a) on legal title where account independent of other relief 
 
 cannot he had in equity except where axcotmt complicated, plaintiff 
 infant, or in case of mines or tithes, 753, note ; qv,. after deatt 
 of person an account of assets, ib. ; qu. timber, ib. ; if had in 
 equity, is confined to legal limit, 754, note 
 where former legal remedy has expired equity will not assist, 
 754, note ; except where defendant at fault, 755, note ; or fraud 
 or mistake, 754, note 
 (5) on legal title where account is incident to oilier relief 
 
 cannot be had m equity, "(55, note; unless plaintiff dowress or in- 
 fcmt, ih. ; or where plaintiff applies to equity to aid action at 
 law, he may come back for account, ib. ; or being obliged to 
 come to equity on one ground and to avoid circuity, ib. 
 if had in equity, is confined to Ugal limit, 756, note 
 unless where defendant guilty of concealment, fraud, or misrepre- 
 sentation, ib. 
 but if plaintiff guilty of laches confined to filing of bill, ib. 
 
 MILL, suit to, 505 
 
 MINES. 
 
 account of profits of, may be sought on legal title in equity, 753, note 
 
 MINING LEASE. See 504, Leasing, power of 
 
 MINISTER. See Chapel 
 
 MINISTERIAL, or Instrumental Trusts, 21 
 
 MISCONDUCT of trustee ground for appointment of receiver, 870, 871 
 fixing him with costs ; see Costs 
 for his removal, 711 
 
 MISREPRESENTATIONS. See Fraud 
 
 Liability of trustee for making fraudulent, 847 ; to purchaser of equi- 
 table interest, 604 ; making as to accounts, &c., 877 
 Dependant bt, where plaintiff kept out of estate by, account of rents from 
 accruer of title, 766, note 
 
990 INDEX. 
 
 MISTAKE. 
 
 Grantee does not take benefioially, where mistake of grantor, 178 
 Ground, for refusing accounts of mesne rents, &c. against trustees for 
 charities, 790 
 for seeking account of rents in equity upon legal title, 754, note 
 Presumption ojp release, mistake rebuts, 737 
 Settlement rectified where mistake, 148 note (d) 
 Statutory bar, mistake does not prevent from running in equity, 733; but 
 
 see note (/) 
 Trustee by mistake as to rights of parties is at his own expense, 365 
 investing in Bank Stock instead of Bank Annuities, 342 
 person assuming office of, by mistake, accountable as trustee, 244, 
 765 
 
 MIXTURE OP TRUST AND POWER, 22 
 
 distinguished from trust to which power is annexed, ib. and 
 see 526 
 
 MONEY. See Rebultinq Trust 
 At home, 800, 804 ; see 823 
 
 Bills and notes, distinction between and money, 758 
 Deposited, may be in bank to trust account, 296 
 
 Distributed, how it may be to creditors by assignees, 294 ; and see Distri- 
 bution 
 Earmarked, when, 757, 758 ; see 275 
 
 Followed in equity, where, 757 et seq. ; mixed with trustees' money, 759 ; 
 paid into bank to account of trustee, 760 ; into laud even by parol, 206, 762 
 Land, money to be laid out in, treated as land. See Conversion, c. q. i. 
 may elect to take as money, 598 ; see Election 
 results on failure of purpose to executor for next of kin, 187 
 Transmitted, may be through a bank, &c., 295 
 Trust to raise, is a special trust, 247, and see Leqal Estate 
 
 MORTGAGE. See Demerara, Equity of Redemption, Mortgagee, Mortgagor, 
 Renewable Leaseholds 
 Assets, may be left outstanding on, by executor, 329 
 Conversion of, into 3Z. per cent, whether required where successive estates, 
 
 354 
 Costs, dower trustee of mortgagor not entitled to, against mortgagee, 872 
 Devise mortgage in fee passes under "Securities" for money, 264 
 Executor or Administrator may, make of personal estate, 453 
 
 with power of sale, 454 
 Equitable, as to lands in Scotland, 48 
 
 overrides subsequent judgment, 280, note (o) 
 Infant's realty of, whether relieved by his personalty, 830 
 Investment on. See Investment (real securities), in case of accumula- 
 tions from Charity Estate, 504, 505 
 
 as to value oisecw-ity, &c. See 346, 349, 350, 351, 358 
 whether trustees can release part of secmity, 521 
 trust how kept out of sight on, or on transfer, 346, 347 
 JuDQMENT CREDITOR, may redeem, 650 ; as to tacking, 660 
 
 his right against entirety o( eumty of redemption, 660, 661 
 against surplus proceeds under power of 
 sale in, 656 
 Limitation Statute ob", where equity of redemption barred by time, 733 
 Lunatic's realty, relieved, of by his personalty, 827 
 Paid off, the heir of mortgagee is trustee for mortgagor who may present 
 
 petition for re-conveyance, 836, note (c) 
 Power oI' sale in, who are assigns within meaning of, 420, 529, 530 
 mortgagee may exercise without mortgagor's concurrence, 427 
 exercising covenants against his own acts only, 425 
 mortgagor whether, he can restrain sale under, 422 
 surplus under is real or personal estate of mortgagor according as 
 
 sale takes place before or after his death, 808 
 survives, 419 
 Reoonvey, by what description mortgagee should, 695. See Paid Off, sup. 
 Suit, for foreclosure or redemption necessary parties to, 842, 855, 856 
 Tacking. See 660, 662 
 Tenancy in common, implied in equity, on joint advance on, 201; see 202 
 
INDEX. 991 
 
 MORTGAGE— cowiOTMcA 
 
 Trust to, will not authorise sale, 417 ; survives, 419 
 to sell whether it authorises mortgage, 416 
 
 whether included in the word "trust," under Lord St. Leonards' 
 Trustee Act, 836, note (c) ; see 882 
 Tbustees. See Assets, Ihvestment, mp. 
 MORTGAGEE. See Equity oi' Redemption, Mortgage, Mortgagor 
 Agent, &c. he may employ, 566 
 Charge, whether he may buy in for his own benefit, 319, note (a) 
 
 he cannot, for insurance in absence of stipulation, 616 
 Disability oe. See Trustee Acts 
 Equity op Redemption, in fee, he takes (subject to mortgagor's debts), 
 
 where mortgagor dies intestate without heirs, 322, 679 
 Feb in, hbik oe, trustee for mortgagor, after mortgage paid off, 836, note (c) 
 he and his heirs, trustee for himself and his executors, 17, and 
 
 see 799 
 so where foreclosure, or release after his death, 18, and see note (1) 
 infant, &c. 835. See Trustee Acts 
 Judgments against, 657, note (a) 
 
 Prooe by, in administration suit, bankruptcy or trust for creditors, 485 
 Purchase, he may from mortgagor, 465 
 Renewal of lease by, 218 ; see 221 
 Sale by. See Mortgage (Power of Sale) 
 Trustee, how far a mortgagee is to be so considered, 318, 616 
 MORTGAGOR. 
 
 Fee in dying without heirs and intestate, 322, 679 
 
 heir of, may require exoneration out of personalty, 799; but see 
 Mortgage (Power of Sale), and 17 & 18 Viet. c. 113 
 Notice with, of trust, should see to application of trust money, 365 
 Trustee for sale, under Lord St. Leonards' Trustee Act, where equitable 
 mortgagee has obtained decree for sale, 836, note (c), 837, note (d) 
 MORTMAIN. 
 
 Accumulations from Charity Estate, whether they may be invested (1) in 
 purchase of land, 504, (2) on mortgage, 604, 605. See Charity 
 Commissioners 
 Charity trusts, of realty for, what formalities required for creating, 132 
 Defendant bound to answer whether legal estate devised to him on secret 
 
 trust for, 71, 73 
 Devise upon trust to sell and pay part of proceeds to charity, how far 
 avoided by, 182, note (6) 
 upon secret trusts for, whether void at law, or only in equity, 78 
 et seq. 
 Legacy to charity, charged on realty, 192 et sej. ; see 195, note (6) 
 MURDER. See Attainder 
 
 NATURALISATION. 
 
 act of, see 39, and note (2) 
 
 NEGLECT. 
 
 of trustee, as to caUing in estate, 328 ; costs of trustees in case of, 876 ; 
 investment, 337 ; legal proceedings, cause of, 568 ; to pay premiums, 
 enforce transfer, 764 ; see 766 
 
 NEPHEW. 
 
 advancement for presumed, 216 
 covenant to stand seised extends to, 96 
 
 NEW TRUST. 
 
 created without intervention of new trustees, 91 
 
 NEW TRUSTEES. 
 
 Court oe Chancery, appointment by. See Trustee Act, s. 32 ; Trustee 
 
 Extension Act, s. 9 
 application for, under Lord St. Leonards' Trustee Act, 713, 834 et seq. 
 under Trustee Act, 714 ; see Trustee Act, bs. 32, 37, 43, App. 
 under Bankruptcy Act, 714 et seq. 
 in case of charitable trusts, 716, 718, and note (c) 
 charity corporation, 716, 717 
 
992 INDEX. 
 
 NEW TB.VSTE'ES— continued. 
 
 CouET OP Chancery, appointment bT' — continued. 
 
 appointed by Cov/rt, cannot exercise arbitrary powers, kc, 712 ; but as to 
 receipts, see 450 ' 
 
 Court will not give to, power of appointing other trustees, 713; 
 
 and see Trustee Act, s. 33 
 how satisfied as to fitness of proposed, 712, 715, 896, note [d) ; and 
 see 583 
 appoi/ntment ofly Cowrt, Ch. xsv., s. 1, p. 710 
 
 where no trustee, or not proper number, &c., 710 
 on bankruptcy, &c., death, marriage (of feme trustee), misconduct, 
 opinions (of charity trustees), refusal to act, residence abroad, &c., 
 710, 711, and note (c) 
 where power to appoint which cannot be exercised, 713 
 not from mere caprice of c. q. t., or misunderstanding of duty by 
 
 trustee, 712 
 c. q. t. in remainder may apply for, 710. 
 
 Generally 
 
 breach of trust trustee should not retire in favour of one who 
 
 intends to commit, 680 
 charity where endowment does not provide for appointment, 408 
 costs of appointment payable out of corpus, 582 ; and see Trustee 
 
 Act, 1850, s. 51 
 
 if no fund, then often paid by tenant for life, ii. ; and see 
 
 684 
 case of trustee removed for misconduct, 711 
 directory power to appoint when trustees reduced to given number, 
 
 627, 680 
 impartial, exercise of power should be, 574 
 ineffectual attempts to exercise, powers of old trustees remain, 581 ; 
 
 and see 570 
 legal estate transferred without conveyance on appointment by 
 
 Court of trustees for charity, 717 ; and see Vesting Order 
 lis pendens, after decree trustees should not exercise power 
 
 without sanction Of Court, 644, 581 ; see 582 
 lost, when part of trust estate is, how Court appoints, 244 
 powers, what exercisable by trustee appointed under power, 533 ; 
 
 appointed by Court ; see Court, swp. 
 severance of estate from powers, 635; of trusteeship relating to 
 
 several estates, whether proper, 679 
 tenant far life who has sold or mortgaged his estate, whether he 
 
 can exercise, 580 
 
 Number to be appointed; see 40, 41 
 
 Court does not limit itself to original number, 675; see 895, 
 
 note (d) 
 two trustees retiring, appointment of single successor improper, 574 
 one of two retiring, appointment of co-trustee sole trustee im- 
 proper, 577 
 appointment of one in place of several improper, 577 
 cases in which such appointment has been supported, ib. 
 single trustee retiring should not appoint two suooessors, 574 ; 
 unless authorised, 575, 676 
 
 Persons proper for oeeioe. See Trustee (who may be) 
 
 should be within jurisdiction, 40, 576, 677 ; see 574, 710 
 
 c. q. t. or near relative undesirable, 40, 579 ; c. q. t. sometimes 
 
 appointed by Court, 579 
 fitness of, how shown, 712, 716, 896, note (d) 
 
 Power to appoint, usual form of and suggested additions, 566 
 (ffl) Construction of 
 
 "acting," 671, 578, and see 415, 449, 612; "incapable to act," 
 does not extend to bankniptcy, and qu. whether to residence 
 abroad, 674 ; " refusing or declining," includes " disclaiming," 
 571 ; or retiring after having acted, 672 ; " refusing or de- 
 cliniug or other," 51i; " survivor," 670 ; "unfit," extends to 
 bankruptcy and semble to residence abroad, 574 ; and see 710, 71 1 
 
INDEX. 993 
 
 NEW TUVS1EES— continued. 
 
 PoWBR TO APPOINT, Scc— Continued. 
 (a) Construction of — continued. 
 
 trustee surviving testator may appoint new trustee in place of 
 
 one who predeceased testator, 672 
 power for tenant for life with consent of " surviving, continuing, 
 or acting trustee" to appoint, how construed, 573 
 (5) Mode of appointing under 
 
 where power to surviving or continuing trustees or trustee, and 
 both, or the survivor, are to retire, two appointments usual, 578 
 secus, where power to surviving continuing or other trustee, 578 
 ntode of vesting trust estate in new trustees, 568 
 as to money in funds, &o., 568 ; see App. IV. 
 chattels real, &o., 668 ; see App. V. 
 freeholds, 668, 569 ; see App. VI., VII., VIII. 
 whether necessary to complete appointment, 567, 568 
 (c) Trustee should see that^owcr contemplates precise case, 670, 581 
 NEXT OF KIN. 
 
 c. Q. T. dying intestate without leaving, 198 
 CoNSTEUED " nearest of kin," 707 
 
 Entitled to undisposed interest of money to be laid out on laud, 187. 
 See Resulting Trusts 
 but not to undisposed proceeds of sale of land. See Residuary 
 Legatee, 183, 197 
 NOTES. 
 
 may be followed in equity, 757, 758. See Bank Notes 
 NOTICE. See Purchaser, Volunteer 
 
 Assignee of equitable interest by, 604 ; its effect, 92; see 280, note (a) 
 How GIVEN TO TRUSTEES, 605 ; and see 611, 612 
 
 to one of several trustees good during his life, 609 
 
 not after his death, 610 
 
 to all trustees and all dying, 611 
 
 time of giving, 612 ; and to whom (written or unwritten) it should 
 
 be given, 612 ; and what it should state, 613 
 where trust fund consists of share in company, 612 
 
 fund in Court, 613, 614. See Stop Order 
 Prioeitt of charge from priority of notice, 605 
 
 as against assignees in bankruptcy in case of choses in action, 607 
 
 whether doctrine applies to real estate, 605, 606 
 
 whether second incumbrancer giving notice, but without making 
 
 inquiries, preferred, 608 
 want of, whether an objection to title, 612 
 Purchaser, with or without. See Purchaser 
 
 to one purchasing from executor, that debts are not paid, 357 
 Recitals presumed from, 224 
 Solicitor, implied notice by employing, 358 
 Trustee of equitable interest should give to holder of legal estate, 327 
 
 to, of paramount title, 325 
 Voluntary Assignment of equitable interest, whether it requires notice, 
 
 92, 280, note (a) 
 Will of, notice of its contents, 454, see 467 
 
 NUMBER OF TRUSTEES, 710. See Co-Trustees, New Trustees 
 oiily four allowed of Bank Annuities, except in special cases, 41 
 what is proper, 40 ; and see 574 et seq., 577 
 
 NUMEROUS. 
 
 cs. q, t., when some may sue or defend for all, 851, 852 
 
 OFFICE. 
 
 of trustee, its general properties, Ch. xii. p. 289 
 
 OPERATION OF LAW. 
 
 Trusts by, distinguished from implied and constructive trusts, 140, note (1) 
 how affected by Statute of Frauds, 228 
 constructive trusts ; see Constructive Trusts 
 
 3 s 
 
99-1 INDEX. 
 
 OPERATION AT LAW—cmtinned. 
 Trusts bt — contimued. 
 
 mtention from, expressed or preswmed, that grantee or devisee should not 
 take beneficial interest, Ch. Tin. s. 1, p. 176 ; and see Resulting 
 Trust 
 pwrchases in names of third persons upon, Ch. viii. s. 2, p. 199; and 
 see Resultinq Trust 
 
 OPINION. See Counsel 
 
 Charity Commissioners of, its Indemnity, 785 
 
 trustees of chapel holding, contrary to those of founder, 497, 499, 711 
 
 OPTION. 
 
 to purchase, whether exercise of effects retrospective conversion, 808, and 
 see note (d) 
 ORDER AND DISPOSITION, 277. See 594 
 
 '< ORDERING AND DIRECTING." 
 may raise a trust, 168 
 
 ORPHANAGE SHARE. 
 
 money to be laid out on land in favour of child formerly not brought into 
 hotchpot, 797; see note (a) 
 OUTLAWRY, 28. See Fobeeiture ; of trustee, 287 
 
 OVER-PAYMENT. 
 
 by trustee, 373 ; and see 376, note (c) 
 
 OVERSEERS AND CHURCHWARDENS. 
 
 how they hold property by parliamentary succession under 59 Geo. 
 3, c. 12, s. 17, 106 
 not CSS corporation having common seal, 106 
 Act extends to freeholds and chattels real, 106 
 
 if held on trust exclusively parochial, 107 ; not otherwise, 106 
 not to copyholds, 106 ; nor to land vested in existing trustees, 106 
 
 PAPISTRY ACTS. See 137 
 
 purchase in contravention of, does not raise resulting trust, 203 
 
 PARAMOUNT. 
 
 title to trusts, notice of to trustee, 325 
 PARCELS. 
 
 by what description trustee should convey, 595 
 
 whether trustee can be required to divest himself of trust estate in, ib. 
 
 PARENT. 
 
 cannot urge meritorious consideration against child, 95, note (a) 
 
 PARISHIONERS. 
 
 AOQUIESOENCE, whether bound by, 777 
 
 Advowson trust of, enforced for by bill, not information, 107, and see 
 
 note {g) 
 Breach oe trust by, retrospective account not ordered upon, 791 
 Clerk, election op, prima feme in trustees, 107; whenin parishioners, 108 
 meaning of " parishioners and inhabitants," 108 ; of " ohiefest and 
 
 discreetest," i6.; of " rate-payers," 109 
 vestrt/not usually the representative of a parish for an election, 109 
 TOtes, whether women, children, and servants entitled to, 108 
 
 PARLIAMENT. See Index oe Statutes ; Member op Parliament 
 Act of, necessary for total alteration of scheme of charity, 499 
 Resulting trust not implied in evasion of, 203 
 
 PAROL EVIDENCE. See Averment 
 
 Acceptance op trust, admissible on question of, 243 
 
 Advancement, how far it may prove or rebut presumption of, 214, 215 
 
 Crown not admitted to prove declaration of trust by, 24. See Pension 
 
 Disclaimer, whether it may be by, 236. See 234, 235 
 
 Election, whether it is sufficient to express, 824 
 
 ExEODTOES, how far admitted against title of executors to residue, 59. See 
 
 Executor 
 Investment of trust money on land, admissible to prove, 206, 762 
 
INDEX. 995 
 
 PAROL EVIDENCE— con«i«Med 
 
 Purchase with another's money, admissible to prove, 204 
 
 how far on purchase by agents, ib. 
 Rbsultino trust not rebutted by, when devisee or grantee is expressly 
 made trustee, 68, 182 
 seem if arising from mere presumption, 181 
 on purchase in name of stranger may be rebutted by, 206. See 
 
 Resultinq trust 
 whether admissible against defendant's denial ly answer, 205; 
 whether after his death, 205, 206 
 Trust is inadmissible to prove, since Statute of Frauds, 178 : see 60, 62, 
 65, 600 
 (where admissible to rebut, 181, 205, 206, 214, 215) 
 secvs in case of chattels personal, 61 ; but in case of a will, see 66 
 PARTIES 
 
 In suits respecting trusts, Ch. xxix. s. 1, p. 841 
 Generally. 
 
 General practice, 841, etseq. 
 
 under 30th order of 26th Aug. 1841, where trustees under devise 
 
 may represent cs. q. t., 852, 853 
 under 32nd order of 26th Aug. 1841, as to plaintiff having joint 
 
 and several demand, 853, 864 
 under Chancery Amendment Act, rules of, s. 42, 854, 855 
 where, under rule 9, trustees may represent cs. q. t., 855 
 under s. 47, as to real estate in trustees by devise, 856, note (6) 
 under s. 51, Court may adjudicate in presence of some only 
 of parties interested, as to portion only of trust estate, and 
 without taking accounts, 856 ; and see 865 
 under Trustee Relief Acts. See Trustee Relief Acts 
 Bank. As to making the Bank' a party, 33, note (a), 859 
 Order and manner in which trustees and cs. q. t. ought to appear on the 
 
 record a^ plaintiffs or defendants, Ch. xxix. s. 2, p. 856 
 Trustee in suit for determining equities, should see that proper parties 
 are before Court, 368 
 Suits betvtreen Parties interested, inter se, under trust, 845 
 (a) As TO cs. Q. T., GENERAL RULE; all CS. q. t, necessary, 845, 849 
 c. 2. t. abroad, how suit may proceed, 849 
 
 entitled to aliquot share of ascertained fund, whether other cs. q. t. 
 
 necessary, 850 
 having assigned his interest unnecessary, ii. 
 cs. q. t., numerous, where some may sue or defend for all, 851 
 c. q. f. standing out process, how suit may proceed, 850 
 suit by trustee to recover fund, cs. q. t. unnecessary, 851, 852 
 recent variations in practice, whether 30th order of 26th Aug. 1841, 
 applies, 853 
 as to rules of Chancery Amendment Act, s. 42, and particularly 
 rule 8, see 854, 855 
 (J) As TO co-trustees, general RULE : all co-trustees necessary, 845 
 
 even though future suit necessary to adjust equities between 
 co-trustees, 845, 846; see 768; or though co-trustee insolvent, 
 848; trustee becoming bankrupt, 85i ; so third party, who by 
 reaping benefit of trust becomes quasi co-trustee, 846 ; see 768, 
 771 
 exceptions : ■■ 
 
 purchaser without notice, 846; or stranger dealing with trust fund 
 without notice, and who has parted with fund, 846; trustee of 
 outstanding te^'m or mere equity, 848 
 trustee who is mere agent, and .whose authority revocable un- 
 necessary, 848 ; so trustee who has assigned to new trustees, 
 848; or who has disclaimed, 847; trustee of mere equity or 
 outstanding term, 848 ; 848 
 trustee guilty of fraudulent or wrongful act, co-trustees not neces- 
 sary parties, 846, 847 : e.g. incase of corporators' company, 847 
 representative of deceased co-trustee, whetlier necessary, when co- 
 trustee insolvent, 847 ; no party to breach of trust, 849 ; and 
 comp. 853 ; not personally charged by bill, 849 ; relief waived, 
 847, but see 854 
 
 3 s 2 
 
996 INDEX. 
 
 TARIIES— continued. 
 Suits between Parties, &ic.-^contimied. 
 As TO CO-TRUSTEES, &0. — contirmed, 
 
 trustee out of jwriadiction, or who cannot be found, how suit may 
 
 proceed, 847, see 900 
 where two classes of trustees, 849 
 Suits by or against Strangers. 
 
 General rule, all cs. g. t. and trustees necessary, 841 et seq. ; for modi- 
 fications of rule, see 852 et seq. 
 Assignees of bankrupt, &c., sue or are sued without presence of creditors, 
 
 843 
 Creditors. See Real Estate, inf. 
 
 Marriage Articles, specific performance of, 844 ; and see Settlement, imf. 
 Mortgagee foreclosing. 
 
 mortgage to A. in trust for B., A. necessary, 84 1 
 cs. q. t. interested in mortgage or equity of redemption, whether 
 necessary, 842 ; and see now 855 
 Mortgagor redeeming, 842 ; see now 856 
 
 Keal estate in trustees for payment of debts, &c., whether cs. q. t. neces- 
 sary, 843 
 whether persons having specific charges on, 843 
 under s. 42, rule 9, of Ch. Am. Act, 855 ; as to devise ahd efiect 
 of (1) 30th order of Aug. 1841, see 852 ; (2) Ch. Am. Act, s. 
 47, see 856 
 Representative specially constituted for all purposes, c. q. t. unnecessary, 
 
 844 
 Settlement setting aside, cs. q. t. necessary, 855. See Marriage Articles, sup. 
 Speoieio performance 
 
 if trustees contract as principals, cs. q. t. unnecessary, 844 
 if as agents, principals are necessary, ib. 
 contract to convey to A. in trust for B., A. necessary, 842 
 Term, trustee oe, in annuity deed, when necessary, 842 ; see 848 
 
 PARTITION. See Ireland. 
 
 cases of, excepted from Lord St. Leonards' Trustee Act, 339 ; see now, 
 
 894, note (c) 
 whether powers to "sell," "to sell and exchange," authorise, 417 
 
 PARTNER. 
 
 Accounts bt partners against estate of deceased partner when barred by 
 
 laches, 742 
 Jus ACCRESOENDi, excluded, 202 
 Payment bt trustees to, 373 
 Renewing a lease is trustee for partnership, 218 
 
 PAYMENT. See Receipts. 
 Assignees, by, 294 
 Bank, into, to account of trust, 296 ; where co-trustees, to their joint 
 
 account, 330 
 Instalments by, directions as to under Trustee Relief Act, 375, note (c), 
 
 p. 376 
 Legatee, when he may claim payment of legacy to buy annuity, or when 
 
 accumulation directed, 597 
 Trustee bt, to agent, 372 ; comp., 294 
 
 husband of feme covert, 627 ; infant, 372 ; partner, 373 
 Trust money or charity of, to ofBcial trustees, 382 
 
 PAYMENT INTO COURT. 
 Compulsory, 
 
 At the hearing, where made though not on motion, 868 
 
 On motion, must be founded on admissions in answer, 865, 866, note (a) 
 
 but payments mentioned in answer may be verified by affidavit, 
 
 867 
 answer must contain admission of plaintiff's title or probable 
 
 title, 866 
 and this, upon the equity alleged by bill, sufficient, if defendant 
 
 admits that he once received the money and has parted with 
 
 it improperly, 866, 867 
 or that he is debtor to trust estate, 868 
 
INDEX. 997 
 
 PAYMENT INTO COVRT-continued. 
 Oompnlaory—continmed. 
 On Motion — continued 
 
 admission that he made interest amounts to receipt, 867 
 
 but generally not ordered on admissions from which liability 
 
 merely inferred, 867 
 notice of, on whom it must be served, 865 
 Paeties, what must be before Court, 864, 865 
 
 Rise of stock where purchase money paid into Court and invested, 467 
 bHAhE of fund when it maybe ordered into Court, 865 
 Title sufficient if plaintiff have a partial title, 864 ; and he may move 
 on a possible title if all parties before the Court, 865; see 868 
 Under Trustee Relief Acts. See Trustee Relief Acts, p. 375, et seq. 
 " PAY THE RENTS." 
 
 trust to, not within the Statute of Uses, 247, 248 ; and see 252 
 
 " PAY UNTO, OR PERMIT AND SUFFER TO RECEIVE." 
 whether within the Statute of Uses, 249 
 
 PENSION. 
 
 from Crown to A., tmst cannot be raised by parol for B., 57 
 " PER, 
 
 assign in the," meaning of expression, 279 
 PERFECT. 
 
 trust where under voluntary assurauce, 81, et seq. ; see Voluntary 
 Assurance 
 once created not subsequently defeasible, 99 
 
 PERISHABLE PROPERTY. See Wasting Peopeett ; and 594 
 
 PERJURY, 205 
 
 « PERMIT AND SUFFER A. TO RECEIVE RENTS." 
 within the Statute of Uses, 248 
 
 PERPETUITY. 
 
 cannot be obtained through medium of a trust, 103, 111, 132 
 trust for accumulation must not lead to, 110, ei seq. 
 
 PERSONAL. 
 
 Conteact with A., B., and C. jointly, effect of disclaimer by A., 237 
 Estate of testator must, properly speaking, be such at his decease, 
 196 
 gift of, will not pass undisposed of proceeds of sale of lands, ii. 
 unless proceeds directed to be taken as personal estate, ib. 
 or intention collected from will specially worded, ib. 
 secus where testator himself entitled to money, 807 
 how far intention gathered from blending real and personal 
 estate, 196 ; and see 183 
 Incapacity. See Feme Coveet, Inpaht, Incapacity, Lunatic, Teusteb 
 
 Acts 
 Repbesentative of trustee, bill against, for trustee's breach of trust, 
 765 ; and see Paeties, 3 
 entitled to proceeds of real estate to be converted, 807 
 Security, assets must not be left outstanding upon, 328. See Invest- 
 ment 
 
 PETITION. 
 
 Lord St. Leonards' Trustee Act, imder, 839 ; as to service of, see 837, 
 
 note (c) 
 Or RIGHT, whether open to the subject where the Crown is trustee, 31 
 Restraining Order, for 860, 863 
 Romillt's Act, under, 780, etseq.; see 782, 783 
 Stop Oedee for, 614, note (a) 
 
 Teustee Acts, under, 896, note (c) ; 897, note (b) ; 903, note (c) 
 Teustee Relief Act, under, 378, note (a) ; 380, note (o) ; 381, note (o) 
 
 PIN-MONEY. 
 
 arrears of, whether recoverable, 644, and note (e) ;. aiid' see Feme Covert 
 
998 INDEX. 
 
 PLEADma. 
 
 Frauds, Statute of, whether it must be pleaded, 62. See 137, 138. 
 Limitations, Statute of, how defendant avails himself of, 734, 735 
 
 as to account of mesne rents, &c,, 751, 754, note 
 Presumption in matters of, 738 
 
 POLICY OF INSURANCE. See Ihsubanoe 
 
 POOR OF A PARISH. 
 
 Limitation to, void at law, 44, 105, and see 836, note (b) 
 Trust for, good, 105; applied to education of, 601 
 
 who take under such trust, 105 ; see note (/) ; and see Parishioners 
 
 POOR OR NECESSITOUS RELATIONS. 
 Gift to, how construed, 698, note (1) 
 Power of distribution amongst, how construed, 698 
 
 PORTIONS. 
 
 Power to charge not authorised in executory trust by " usual powers," 
 165 
 
 Time of raising, by trustee, 420 ; see 430 
 POSSESSIO FRATRIS. 
 
 of a trust, 618, 680 
 
 POSSESSION. 
 
 0. Q. T. of, when a bar to Statute of Limitations, 744, 748 
 
 where entitled as to chattels, 693 ; as to lands, 585, et seq. 
 his right recognised in equity only, 591 
 Transmutation op, where necessary to the creation of a trust, 81 ; and 
 
 see Voluntary Assurance 
 Trustee fob sale should not give up, before payment of purchase money, 
 424 ; whether receiver appointed if he do so, 871 ; comp., 351 
 POSSIBILITY. 
 
 in a trust assignable, 12, 60O 
 
 " POST, 
 
 aasign in the," meaning of expression, 279 
 
 POVERTY. 
 
 Laches, whether it will excuse, 471 
 
 Presumption of release of right, its effect as to, see 737 
 Statutory ear, it does not prevent from running in equity, 733 
 Trustee of, whether ground for appointing receiver, 870, 871 
 
 POWERS. See Appointed ; Appointees ; Appointment ; New Trustees ; Feme 
 Covert; Infant; Uses 
 Arbitrary, 526, 538, 694 ; and see Court, Survivorship, inf. 
 Assignment of estate, its effect on powers, mere conveyance of estate will 
 not carry powers, 533 
 new trustees appointed under a power take powers, 533 
 
 appointed by Court, whether they take special dis- 
 cretionary powers, 633 ; see 450 
 they cannot exercise such legal powers as are un- 
 assignable, 712 
 whether power will remain in trustee after alienation of estate, 
 
 534 
 Court may sanction severance of estate from power, 535 
 Bare powers, and powers coupled with trust, distinguished, 526, 696 ; 
 
 and see 22, 701 
 Consteuction of powers, 527, et seq. 
 
 to A. and his assigns, 529 ; to sell in mortgage, ib. 
 to trustee and his executors, 630; to A. and B. and their heirs, 
 627 ; to trustees and the survivors of them, 531, and see note 
 (ffl) ; to trustees and survivor of them, 631, and see note ( J) ; to 
 executors, sons-in-law, trustees, trustees for the time being, 530; 
 during continuance of the trust, 531, 532, and see note (a) 
 Court, its control over powers, 538, et seq. See Imperative, inf. 
 (a) Court cannot interfere with mere discretionary powers, 638, et seq. 
 e. g. to advance legacy, 538 ; to approve A.'s conduct, 540 ; to pay 
 annuity, 539 ; to purchase leaseholds, 641, but see 542 ; to sell 
 at request, 640 ; to treat with creditors, 541 
 
INDEX. 999 
 
 vow ERS— continued. 
 
 Court, its control over powers — continued. 
 (a) Court cannot interfere, &c. — contimted. 
 
 nor where trust imperative, but mode of exercisvng it discretionary, 
 642 
 e. g. maintenance of children at trustees' discretion ; distribution 
 of fund among testator's relatives ; selection of objects of cha- 
 rity, ib. 
 ■whether trustees should state reasons for their choice, 543 ; see 
 542 
 (6) Court will interfere wbere fraud, misbehaviour, or trustees decline 
 to exercise discretion, 543 
 e. g. upon improper investment or improper leases, ii>. 
 Decree in suit pai-alyses trustees' powers, 524, 544 
 
 secus as to mere institution of suit, 524 
 Deleqation of discretionary trusts not permitted, 296; see 449 
 Directory explained, 627 
 Disclaimer upon, continuing trustees may exercise special powers, 632, 
 
 633 ; and see 534 
 Discretionary, 526, 701 ; see 22, 386, and Arbitrary, sup. 
 Distinguished, 524 ; and as to mixture of trust and power, see 22 ; and 
 
 see Gift, inf., and 429 
 Executory trusts, what powers may be introduced under, 164, et seq. 
 Equitable distinguished from legal powers, 625 
 
 , may be annexed to estate or simply collateral, ih. 
 General powers op trustees, Gh. xix. s. 1, p. 512 
 
 trustee may do without suit what is compellable by suit, 513, 619 
 as to advancement, 518, 519; alienation of charity estates, 615, and 
 see 603, and Sale; appropriation of legacy hy executor, 617; 
 bill in parliament opposing, 615 ; promoting, 516, and see 
 494; debts admitting, 622, and see 487; compounding, pay- 
 ing, or releasing, 620, 624; improvemsnts, 613, 614; iniwranoe, 
 516; investment, &ee Investment, and 624; leasing, 522, see 416, 
 and Leases; maintenance, 517; mortgaging, 416, 417, see 
 Executor (powers); receipts, see Receipts and Executor 
 (powers) : reimbursements of expenses, 621 ; releasing, see Debts, 
 sup. and Release; repairs, 513, 514; sale, see Executor 
 (powers) ; timber, as to, 516, and see Timber ; varying securities, 
 523 
 Gift, words of distinguished from words of powers, 700 
 Imperative, 526, 536, 694, 701, et seq. 
 
 Court will execute on failure or default of trustee, 696 ; and see 
 543 
 where settlor has prescribed any rule. Court adopts it, 696 
 where no rule, equality is equity, 700 ; see 707 
 in favour of what objects Court will execute where immediate 
 
 exercise is contemplated, 703 ; see note {d) 
 where immediate exercise is not contemplated, 704 ; where 
 power testamentary, ib. ; not merely testamentary, ib. ; by 
 deed or will, 705 
 "next ofhin," in favour of, construed "nearest of kin," 707 
 "relations," in favour of, how construed, 705, et seq. ; poor " rela- 
 tions," 698, note (1) 
 to whom donee of power may appoint, 705, 706 ; to whom Court 
 may appoint, 706, 707; whether pea- stirpes or per capita, 706, 
 707, and note (b) 
 when to one of a class exclusively, 707, 708 
 Implied ; see Implied Powers 
 Legal ; see Construction, Equitable, snp. 
 New trustees of, appointing; see New Trustees 
 " Proper," what authorised by this term, 164 
 Sale of, authorised under settlement by reference, 165; and see Sale 
 
 distinguished from trust for sale, 429 
 Selection of ; see Selection 
 
 Special powers of trustees, Ch. xix. s. 2, p. 524 ; see Assignment, Con- 
 struction, Control, Disclaimer, sup., Survivorship, inf. 
 Strict, explained, 527 
 
1000 
 
 INDEX. 
 
 FOVfERS— continued. 
 
 SuRVivoESHip OP, mere power to several does not survive, SS6 
 trust or power imperative survives, ib. 
 where given to trustees by name, semble, 538 
 qu, as to arbitrary power annexed to trust, ib. 
 "Usual," 164 
 
 Will to appoint bt, contemplates those who answer description at death 
 of donee, 170, 704 
 
 PRACTICE. See Answer, Bill, Costs, Ikeoematiok, Parties, Pleading, 
 
 Petition 
 Alterations in, 368, et seq. ; 852, 864, 865 
 Application to Lord Chancellor, when visitor of charity, by petition to 
 
 Great Seal, 495 
 Appointment of new trustees, 583. See New Trustees 
 Distringas, as to, 858. See Distringas 
 Feme Covert, having separate estate, as to, 633, 640, 858 
 Patmbnt of MONET INTO COURT, as to, 864. See Payment of mokei 
 
 into court 
 Eeoeivee, as to, 869. See Reoeiveb 
 Stop orders, as to, 613, 614 
 
 Wilful default, account with, not ordered on further directions, 765 
 conf. as to interest, 359 
 PRECIPE. 
 
 equitable tenant to, 604 
 
 PREACHER. 
 
 gift to find a, 495 ; and see Minister 
 
 PRECATORY WORDS, 
 force of, 167 
 
 wUl not create trusts where objects or subject-matter of trust uncertain, 
 168, et seq. 
 
 PRECAUTIONS to be adopted by trustee. See Duties of Trustee, Invest- 
 ment 
 
 PREROGATIVE. See Probate 
 
 PRESENTATION. 
 
 tmst to purchase in favour of a particular person within statutes against 
 
 simony, 136 
 trustee presents, but at discretion of c. q. t, 269, 318 
 
 PRESUMPTION. See Advancement,' Resulting trust. 
 
 Bak^jCpbom to relief in equity, 735 (see Limitation of suits) ; how far 
 
 applicable to trusts for charities, 787 
 Election of, by c. q. t., 823, 824 
 
 Infant, gift to, presumption that he takes beneficially, 39 
 OF Law, may be rebutted by parol evidence, 181 
 
 PREVENTION. 
 
 of breach of trust; rights of c. q. t. in Ch. xxv. p. 710. See 0. Q. t. 
 
 PRINCIPAL. See Investments (Liabilities) 
 
 has absolute property, factor has only special property, 275 
 release of, discharges accessory, 777 
 
 PRIORITY. See Notice, Stop order 
 PRIVATE. 
 
 Contract, whether trustees, &c., may sell by, 422 
 
 Trusts, 23; limits of their duration, 23; see 103, 111 
 
 PRIVILEGES. 
 
 of c. q. t., 592, et seq. See c. Q. T. of trustee, 268 
 
 PRIVITY. 
 
 as applicable to cestui qite use, explained, 3 ; where released as to trusts, 11 
 
 estate, of, explained, 3, 18 ; extent of term "privity of estate," 18 
 
 person, of, explained, 19 
 PRIZES. 
 
 taken in war, 25, 101. See Crown 
 
INDEX. 1001 
 
 PROBATE. 
 
 Duty not payable on proceeds of land to be converted into money, 807 
 Pkeeogative, when required, 261 ; sovereign, will of private property of, 
 not admitted to, 25 
 
 PRODUCTION. 
 
 DooWMENTS OF, how trustees should covenant for, 425 
 
 VouOHBES OF, trustee must make, 428. See 599 
 PROHIBITION. 
 
 issued against spiritual court interfering in a trust, 20 
 PROMISSORY NOTE, 338. See Bill of Exohanqe 
 PROOF. 
 
 bankruptcy in. See 269, Trustee, inf. 
 
 mortgagee, by, in administration suit, bankruptcy, and trust for creditors, 
 485 
 
 Tbustee, on bankruptcy of. 357; and see 771, 772 
 "PROPER POWERS." 
 
 to tenants for life, what powers authorised by, 166 
 PROPERTY. 
 
 what may be subject of trust. Oh. iv. p. 45 
 
 how far property out of jurisdiction, 47 ; and see Abroad, Jubisdiotion 
 PROTECTION. 
 
 c. Q. T. of. See c. Q. T. (Protection), Distringas, Payment into ConRT, 
 Rboeitbr 
 
 Trustee, of. See Indemnity, Trustee Relief Acts 
 PROTECTOR. 
 
 Of settlement under Fines and Recoveries Act, 411, 412 
 
 Consent of, to vesting order under Trustee Act, 885, note (a) 
 
 Disclaimer, how he must make of office, 237 
 
 Special, whether one will be appointed of settlement, in pursuance of 
 executory trust, 157 
 
 Trustee he is not, in respect of his power of assent, 412 
 PROVING WILL. 
 
 an acceptance of trust, 239 ; but see 240 
 
 PROXY. 
 
 appointment of, distinguished from delegation of office, 297 
 
 PUBLIC. 
 
 Policy ; see 497. Securities,, 352 
 
 Trusts same as charitable trusts, their duration permanent, 23 
 
 PUR AUTRE VIE. See Copyholds (for lives) 
 
 not within stat. de donis, and cannot be entailed, 603, note (1) 
 limited to one and heirs of his body, not a fee conditional, ib. 
 
 PURCHASE. 
 
 Power to purchase by way of investment, 349 
 
 Resulting trust, where created by purchase in name of third person, 
 199, etseq. See Resulting Trust 
 not when in name of child, &c., 207, et seq. See Advancement 
 Trustees by, reversion of renewable leaseholds, 225 
 Trdstees for sale by, of trust property, 460, et seq. See Sale; 
 Tenant foe life 
 
 PURCHASE MONEY. 
 
 whether bound by judgments against vendor, 654, 666 
 
 PURCHASER. See Settlement (Rectification) 
 
 Accidental damage to estate purchased, he must bear, but is entitled to 
 
 improvements, 174 
 Application of purchase money, where he must see to, 430, et seq. See 
 
 Receipts. 
 0. Q. T., purchaser is a c, q. t. suh modo, 175 ; see 799 
 Charity estate, of, 503, 504. See 515, 782, note ^) _ 
 Chose in action of, from trustee bound by same equity as trustee, 729 
 Dying intestate and without heir, after payment of purchase money, 
 
 but befoi-e conveyance, vendor keeps estate, 322 
 
1002 INDEX. 
 
 PURCHASER— comfanued 
 
 Equitable interest, of, must inquire of trustee as to prior incumbrances, 
 604 
 must give notice of his own, 605 ; (and see Notice) ; how he takes 
 priority, 729 
 Equity to settlement oifeme covert, as against, 370 
 Heie taking as, see 17, 148, 680 
 
 JnDSMENT CEEDITOE, is Dot a purchaser, 280 ; and see 668, note (a) 
 Legal charge, purchaser bound by, whether with or without notice, 18, 
 
 282 
 Lunatic ob idiot, purchaser from without notice, 27 
 Notice. See Equitable interest and Legal charge. Lunatic swp. ; Trust 
 
 and Use, inf. 
 Security to solicitor for costs, set aside even as against purchaser, 550 
 Trust, where bound by 
 
 purchaser of legal estate with notice bound, 725 
 
 rule applies to cofistructive trusts, equitable incum- 
 brance, or lien, 725 
 to conveyance by fine, 224 
 notice presumed from recitals, 224 
 without notice, not bound, 725. See 224, 406, 469 
 
 whether he can protect himself by getting in legal 
 estate, 726 
 with notice from purchaser without, not bound, ib. 
 without notice from purchaser with, not bound, ii. 
 in case of equitable interest, see 729 
 but rule does not apply to charitable use, 726 
 trustee selling to purchaser without notice, and then becoming 
 
 owner, trust revives, 726 
 whether purchaser bound by notice of doubtful equity, 727 ; of 
 title long neglected, 728 ; and see Chose in action, and Equit- 
 able interest, sup. 
 VoLUHTAEY SETTLEMENT of realty uot good as against purchaser, 92, 93. 
 See Voluntary Settlement 
 
 QUALIFICATION. 
 
 of c. q. t. to be juror, 592 
 
 QUASI-TRUSTEE. 
 
 person becoming, by reaping benefit of breach of trust, 768, 771, 846. 
 See 244 
 QUEEN. See Crown. 
 
 QUEEN'S BENCH. 
 
 civil corporations visited by, 495 
 
 " QUI PRIOR TEMPORE, 
 
 potior jure," 606; and see note (6) 
 
 QUORUM, 299. See Co-trustees 
 
 RAILWAY SHARES. 
 
 bequeathed in succession, converted into £3 per Cents., 812 
 
 RATES. 
 
 trustees liable to, unless where trustees exclusively for public purposes, 
 
 271, 272 
 trust, in aid of, 496 ; in aid of church rates, 107 
 
 RATE-PATERS, 109. See Parishioners 
 
 REAL 
 
 Estate in trustees for creditors, &c., what parties necessary for suit, 843, 
 
 see 855 
 Securities. See Investment 
 
INDEX. 1003 
 
 REALTY. 
 
 effect of hlendmg into onefimd with personalty under a will, 183, 196 
 
 REBUTTER. 
 
 of resulting trust n-pon advancemeia,'21i ; presumption of law, 181, see 182; 
 purchase in name of stranger, 206 
 
 RECEIPTS. 
 
 Agent or attoeubt, of, 372 
 
 Beeaoh 01' TEUST ; see Trustee, inf. 
 
 Chaeoe of debts implies power of giving receipts, 433, 440 
 
 who can give receipts in case of, 440 ; true principle, 448 
 
 1. Devise to trustees ; trustees and executors can sell together, 440 
 
 whether executors have legal power and can pass the estate inde- 
 pendently of trustees, qu., 441 ; and see 443 and notes 
 
 2. Beneficial devise, with charge of debts, 443 
 
 devisee where executor also can make a title, 444 
 and semble devisee, without concurrence of executor, can make a 
 title, ii. 
 
 3. Where no devise of estate, 444 
 
 heir cannot give good receipt, semble, and why, ib. 
 whether executor takes legal power of sale, 445 
 executor takes equitable power of sale, semble, 445, 446, note (c) 
 and on his exercising it conveyance must be made by person 
 having legal estate or under Trustee Acts, 446 
 
 4. Simple devise which lapses, 447 
 
 whether executor can take power of sale, qii., 447 
 
 5. Tf here estate subjected to various limitations, ib. 
 
 semble executors take an equitable power of sale, 448 
 Co-ADMIKISTEATOES on Same footing as co-executors, 316 
 Co-EXEOUTOK liable for joining ia pro formd, 310, et seq. 
 
 unless his joining nugatoi-y, 311, or ex necessitate, 314 ; and see 
 
 EXEOUTOE 
 
 Co-TEUSTEES must all join in giving, 298, 330 
 
 even co-trustee who has conveyed estate to the others, 449 
 secus as to co-trustee who has disclaimed, ib. 
 
 co-executor, 310 
 co-trustee joining in but not actually receiving, not Hable, 304 ; 
 
 secus where money improperly raised, 306 
 but joint receipt conclusive at law of actual receipt, 305; and 
 
 see 313 
 and involves onus probandi that co-trustee did not receive, 305 ; 
 see Co-TBUSTEE, Indemnity, Investment 
 DisoHAEGB OF, 428, 430 ; see Power of Giving, inf. 
 ExECniOE, where his receipt will discharge a purchaser, 453, et seq.; see 
 
 EXEO0TOE (Powers) 
 ExEOUTOET Tbust silent as to powers whether it authorises power to give, 
 
 164, note (d) 
 Husband of feme covebt, of, 627 
 Infant, of, 372 * 
 
 Liability for joining; see Co-executors, Co-trustees, sup. 
 Official trustees, of charitable funds ot, 382 
 Partner of, 373 
 
 Power of giving; see 451, Charge of debts. Executor, su/p.. Purchaser, 
 Time, in/. 
 
 1. Express, 430 ; see 331 
 
 2. Implied, 431, et seq. 
 
 (1) By direction in power of immediate sale, 431 ; see 330 
 
 e.g. when future distribution of proceeds directed, 431 
 
 or cs. q. t. are infants, 432 
 
 qu. as to cs. q. t. abroad, 432 ; see 453 
 
 (2) By special trust annexed to purchase money, 
 
 e. g. trust for investment, 433; and see 523 
 
 to pay debts, 434 ; debts and legacies, 435 
 secus where for particular debts, 435 
 or legacies only, ib.; as to legacies not yet payable, see 430 
 ihicepiJoms, purchaser is not indemnified (1) where collusion; (2) after 
 
1004 INDEX. 
 
 RECEIPTS— com^MiMed. 
 
 PowBK OF Givi'sa— continued. 
 
 institution of suit ; or (3) where notice of intended misappli- 
 cation, 436, and aee 331, 458 ; (4) where sale not justified, 428 
 PuEOHASEB discharged by receipts of executors ; see Executors, swp. 
 
 when by receipts of trustees, 430; see Power of Giving, sup, 
 
 and 428 
 practical directions where several pwrchasers and no power to give 
 
 receipts, 451 
 principle of requiring him to see to application, 430 ; new prin- 
 ciple suggested, 452 
 Time, purchaser from administrator or executor after lapsed, 458 
 from trustee after lapse of, 436 
 
 power of signing receipt a question of intention at date of deed 
 or of testator's death, and not altered by subsequent events, 
 436, 437 
 TntrsTBES ; see Charge of Debts, Power of Giving, sv^. 
 appointed by Court, their power to give, 450 
 assignee of, whether he can give receipts, 449 
 breach of trust after, whether their receipts are good, 450 
 
 who intend, id. 331, 436 
 receipts, they retain the vouchers for, 428 
 sale, should see that it is justified, 428, 430 ; see Sale 
 where no money passes to trustee, 451 
 
 whether they must actually receive purchase money, 451 ; see 
 330, 422 
 Vaetinq seoueitibs, power of, whether it implies power to give receipts, 623 
 
 RECEIVE 
 
 rents, whether trust to, identical with trust for possession, 588 
 trust money, how trustees should, 296, 330 
 
 HECEIVEE. 
 
 ArPOINTED ET COTJET 
 
 y at instance of all cs. q. t., but usual recognizances necessary, 869 
 
 at instance of individual c. q. t, 870 
 
 where trust estate in danger from circumstances, or 
 conduct of trustees, or unprotected, 870 ; see 871, note {d) 
 where executor drunken, &c., and in great poverty, 870 
 executrix /emc covert, and husband abroad, ib. 
 tenant for life of renewable leaseholds refuses to renew, 
 
 402, 722 
 trustee of bankrupt or insolvent guilty of misconduct, 
 
 waste, &c., or incapable of acting, 870 
 where all trustees disagree or are abroad, ib. 
 not appointed on slight grounds, 870, 871 
 
 e. g. where one co-trustee abroad has disclaimed, or is 
 inactive, 870 
 not generally discharged at mere instance of party procuring 
 appointment, 871 
 exception where new trustees, ib. 
 DiEBOTlON TO BMPLOT AI AS, with proper salary, constitutes a trust, 101 
 
 secns as to mere recommendation, 102 
 Infant cannot be appointed, 36 
 
 Inteeest, he will be charged with, for improper retainer, 359 
 Salary, case of receiver appointed without, 590 
 Time oe teouble, he cannot charge for, 546 
 
 Teustee cannot be appointed at a salary unless mere trustee to preserve, 
 &c., 314 
 
 RECITAL. 
 
 Deolaeation of trust, it hiay prove, 63 
 
 False, effect of, 875 
 
 Notice by recital of surrender of former lease, 224 
 
 Teustbb executing trust deed should see that recitals are correct, 238 
 
 RECOMMEND. 
 
 may raise implied trust, 168, but see 102, 172 
 
INDEX. 1005 
 
 RECONVEYANCE. See Moetqaqe 
 RECOUP. 
 
 right of trustee to, after making over-payment, 373 
 RECOVERY. 
 
 Equitable emtail, its effect on, 601, et seq. 
 how it must have been suffered, 604 
 
 Infant tenant in tail conveyed by, under Trustee Enabling Acta, 835, 
 note (/) 
 
 Ikeant, op, formerly only reversible during nonage, 26 
 
 LuNATio OR Idiot, op, formerly valid unless reversed, 27 
 
 Trustees to preserve when they could have prevented, 404 
 
 Vacation, could not be suffered in, 819 
 
 RECTIFYING. 
 
 settlement ; see Settlement » 
 
 REDEMPTION OF LAND TAX. 
 
 of lunatic's estate, may be effected from proceeds of timber, 827 
 
 REDUCTION. 
 
 into possession oifeme covert's chose in action, 26, 370, 627, 628, 631 
 not where reversionary, 870, et seq., 628 
 
 into possession of trust estate, Ch. xin. s. 1, p. 326 ; and see Investment 
 (Duties) 
 
 REFERENCE. 
 
 words of, creation of trusts by, 167 
 
 creation of powers by, 433, note (b) 
 
 REFUSAL. 
 
 of trustees to act, 710 ; and see 543, 696 
 
 to convey or transfer, at request of c. q. t., 695, 600 
 
 how remedied under Lord St. Leonards' Trustee Act, 837, see note (c) ; 
 
 838, see note (d) 
 how under Trustee Acts ; see Trustee Acts 
 
 REGISTRY. 
 
 Acts, as to register, counties, 672 ; ships, 203 
 Decrees, Judgments, &c., of, 667, 668, note (5) ; 669 
 
 REIMBURSEMENT. 
 
 of trustees' expenses, 521 ; and see Ch. xx. b. 2, p. 557; Expenses, and 873 
 
 RELATIONS. 
 
 Bequest to poor relations, how construed, 698, note (1) 
 Power in pator of, how to be executed hy donee, 705 ; see 542 
 
 on failure of trustees by Oowt, 706 ; see Powers (Imperative) 
 Trust por, how construed, 170 
 Trustees whether they should grant leases to, 505 
 
 undesirable to have relations as trustees, 40 ; but see 789 
 
 RELATORS. 
 
 necessary in information on account of costs, 779 
 
 RELEASE. 
 
 Breach op trust from, by c, q. t, requisites of, 777, 778 
 
 "bj feme covert or infant, 777 
 C. Q. T., by, in ignorance of hia rights, 224 
 Oo-trustee, of one, discharges another, 773 ; secus as to bond not to sue, 
 
 ib. ; comp. 854 
 Consideration, what sufficient for, 737 
 Creditor of, by accepting composition, 486 
 Debts, whether trustee may release, 520 , 
 
 Equity op redemption of no value, whether trustee may release, 521 
 Mortgage seouritt, release of part, whether trustees may make, 521 
 Principal, op, discharges accessory, 777 
 Seal under, its effect, and whether trustee may require, 373 
 Trust from, how trustee can obtaiu, 289. See Relinquishment 
 Trustee paying under direction of Court not entitled to, 375 
 
 whether trustees on payment to trustees can require, 374 
 expense of release to trustees and by whom prepared,375 
 
1006 INDEX. 
 
 BELIEF. See Teustee Relibp Acts 
 
 RELIGION 
 
 Established, when Court executes trust in favour of, 497 
 
 RELINQUISHMENT 
 
 of trust by trustee, how effected, Ch. xxi. p. 665 
 (a) Consent, by, of all cs. q. t. if mi juris and im esse, 665, 566 
 (J) Court, by application to, 682, and see 584 
 
 by representative of deceased trustee, 584 
 where no new trustee can be found, 682 
 application, how made and costs of, 583 
 
 when new trustee appointed on petition under Bankruptcy Act, 
 714 ; Lord St. Leonards' Trustee Act, 713, 834 ; Trustee Acts, 
 714 ; see Trustee Acts ; and s. 36 of Trustee Act 
 (o) Power by virtue of a, 566 ; see New Trustees 
 
 REMAINDERMAN. 
 
 Election, how far be is capable of, 818 ; see Election 
 
 Equit^t op redemption of, when time runs against, 733 
 
 Limitations, stat. oe, whether s. 25 abridges rights of c. q. <.in remainder, 
 
 722, see note (a) ; 745; as to receiver of renewable leaseholds, 402, 722 
 Remedies of bill to have number of trustees filled up, 710, and comp. 
 
 368, 723, 733, 868 
 Renewable leaseholds of, fines apportioned between him and tenant 
 for life, 305 
 laches not imputable to him during life of tenant for life, 402 
 Trustee must not favour'tenaut for life at expense of, 339, 344, 348, 415, 
 418, 421 
 
 REMAINDERS, CONTINGENT. See Contingent Remainders. 
 
 REMEDY. 
 
 t. q. t., of, is in Chancery, 19 
 
 not in common law court for breach of implied contract, 20 
 nor in spiritual court, ib. 
 
 for breach of trmt, see Breach of Trust (remedy) 
 Trustee of (where breach of trust), against (1) c. q. t., 363, 392, 768, 771, 
 846 ; (2) co-trustee, 317, 767, 768, 845 ; and see 309 
 where construction of trust doubtful, 367, 368, and 37.5, 
 et seq.; see Trustee Relief Act 
 
 REMOVAL OF TRUSTEES, 710, 711 
 
 RENEWABLE LEASEHOLDS. 
 
 Ch. XIV: p. 383 ; see Constructive Trusts 
 
 Accumulations for renewal, who entitled to when renewal cannot be 
 
 obtained, 392 
 Copyholds vested in trustee, admission fines how raised, 402, 403 
 Fines for renewal, whether out of annual rents or by mortgage, 
 (a) where fmnd pointed out by settlor, 386, et seq. 
 as to leaseholds for years : how to be raised " out of rents and 
 profits," 386; "out of rents and profits or by mortgage," 387, 
 388 
 as to leaseholds for lives : whether to be raised out of animal 
 rents and profits, 388, et seq., and see 391 ; payable out of 
 insurance may be adopted, 391 
 (6) witere no direction by settlor, 393, etseq. 
 
 fine may be raised by tenant for life and remainderman, or one 
 of them, 393 ; if they refuse, how far mortgage by trustee is 
 feasible, semble application to the Court necessary, ib. ; see 
 note (6) 
 apportionment of fines (if necessary), bow made, 395, et seq. 
 
 tenant for life and remainderman pay in proportion to their 
 
 actual enjoyment, 397; see 387, 391, 400 
 Court will not act on speculative calculations, 396 ; but see case in 
 same page 
 proportion, how ascertained as to leaseholds for years, 397 
 
 compound interest allowed tenant for life on his share, and for 
 
 what period, ii. 
 tenant for life having had no enjoyment does not pay, 398 
 
INDEX. 1007 
 
 RENEWABLE LEASEHOLDS— cortimed. 
 Fines toe Renewal — conimued. 
 proportion^confinued, 
 
 how ascertained as to leaseholds for lives, 398, 399, and see 400 
 and 394 
 contribution, how secured, 398, 400, 402 
 
 if made by tenant for life he has a lien, 400, and see 398 
 
 if made out of trust fund or by i-emaindermen, tenant for 
 
 life giyes security, 402 ; see 398, 400 
 when by appointment of receiver, 402, 722 ; or sequestration of 
 
 rents, 402 
 but suit for compensation cannot be instituted till death of tenant 
 for life, 402 ; until then remainderman not guilty of laches, ib. 
 Liability of trustees and tenant for life for neglect to renew, 392; 
 
 see 769 et seq. 
 Oehqation to renew, 383, et seq. 
 
 obligation not necessarily imposed where successive estates limited 
 
 but no trustee, 383 
 implied in articles for settlement, 385, 386 
 
 whether implied by interposition of trustee, 384, and see note (A) 
 whether implied in marriage settlement, 385 
 discretionary renewals, construction of, "it shall he lawful for 
 trustees to renew," ftc, 386 
 Person renkwikq when a constnwtive trustee, 218 
 Tenant eoe lis'e entitled to fines paid by under-lessees, 392 
 when regarded as a trustee, 402 
 
 RENEWAL OF LEASES. See Renewable Leaseholds 
 
 Lunatic, leases of, may be made out of his personal estate, 828 
 Right of, trustee, &c., cannot sell, 220 
 
 RENT. See Mesne Rents, Renewable Leaseholds 
 
 Arrears of, what recoverable under Statute of Limitations, 744, 748 
 Charity estate of, increasing surplus how applied, 198 
 Grantee op, dying without heirs, rent sinks into land, 321 
 Rack, 505 
 " Raised, not to be," construction of as to charities, 506 
 
 RENUNCIATION. See Acceptance, Disclaimee, Executor 
 of the trust not permitted after acceptance, 289 
 
 REPAIRS. See Expenses 
 
 Allowances for, when made by trustees, 513; upon setting aside pur- 
 chases by trustees for sale, 466 
 Infant's lands, upon, may be made out of his personalty, 830 
 
 so as to lunatic, 827 
 Tenant foe life, by, 514 
 
 Trust for, a special trust, 247; and see Legal Estate 
 repairing chapel, 496, see 501 
 
 REPUTED OWNERSHIP. 
 
 of chattels ; see Order and Disposition 
 
 REQUEST. 
 
 Order of Court not considered as " request " of party, 839, note (a) 
 Power of sale at request, 540 
 Purchase to be made at, 807 ; sale at, 419 
 
 " REQUESTING." 
 
 may raise a trust, 167 
 
 REQUIRED. 
 
 to lend, 339 ; to purchase, 349, and see 542 
 
 RE-SALE. 
 
 of property purchased by trustees for sale, upon what terms ordered, 467; 
 see 465, Sale 
 
 RESIDUARY. 
 
 Bequest passes proceeds of lands, subject to trust for conversion, 807 
 will not pass resulting trust of proceeds of sale of lands, 195 
 
1008 
 
 INDEX. 
 
 RESIDUARY— coaiMweA 
 Bequest — continued. 
 
 unless guch proceeds directed to be taken as personal estate, 
 
 196, 197 
 where it passes void or lapsed legacy out of land directed to be 
 
 sold, 196 
 passes, accumulation void under Thelluason Act, 118 
 ' Devise, whether it passes resulting trusts in real estate, 196 ; accumula- 
 
 tion void under Thellusson Act, 118 
 " Executor," 196 
 
 Legatee, distinction between claim of and of next of hin to un4isposed 
 proceeds of sale of land, 197 ; and see 184 
 takes under present law in case of bequest with insufficient 
 declaration of trust, 68 
 
 " RESIDUE," 195 ; within " legacy " in s. 40 of late Limitation Act, 744, note (a) 
 
 RESTRAINING ORDER. 
 
 under 5 Vict. c. 5, s. 4 ; see Distringas, 860, 863 
 
 RESTRAINT. 
 
 against alienation, 132 
 
 against anticipation ; see Feme Coteet 
 
 RESULTING TRUST, Ch. viii. p. 176 
 
 On Disposition of Leg^al but not of Equitable Interest 
 
 Abises (a) by expression of intention 
 
 e. g. on conveyance, grant, or bequest " wpon tiitst " where trust is 
 
 not declared vague or fails, 181 ; see 118 
 parol evidence inadmissible to rebut, 182 
 (6) by pre^wmption ; see Implication, infra 
 
 whether on voluntary grant of whole estate to stranger, 177 ; see 
 
 note {d) 
 conveyance to wife or son ; an advancement, ib. 
 case of mistaJce or fraud, transfer ofstoch, or delivery of money, 178 
 conveyance, devise, or bequest where trust declared of part of 
 
 estate, 179; see Charge, imfra 
 devisee or legatee, effect of relationship, 180; not necessarily 
 
 excluded from beneficial gift by use of " trust," " trustee," ib. 
 parol evidence admissible to rebut, 181 ; see 178 
 Charge distinguished from exception out of devise, 191 ; from partial 
 trust, 179 
 of debts on devise to A., no resulting trust, 179 
 of legacy for charity, 192, etseq.; contingent or which fails, 190 
 of sum to be appointed, and no appointment, 190 
 " subject thereto," effect of, 191 ; when implied, ib. 
 Charities, in gifts to, 198; legacy for, 192 ; see Charities 
 Failure of o. q. t. by, 197 
 Heir, 176, 184 ; see Heir, Land, Money, infra 
 Implication, whenyarria^ trust raised by, surplus does not result, 173 
 Land devised on trust pok sale, undisposed of proceeds result to 
 heir, 182 
 notwithstanding direction that proceeds shall be considered per- 
 sonalty, or that nothing shall result to heir, 182, 183, note (c); 
 or blending of realty and personalty, 183, but see 196 
 whether as realty or personalty, 184 ; and see 118, 177 
 aecus if resulting interest disposed of, what disposition sufficient, 
 
 194, et seq. ; see 197 
 effect of blending realty and personalty : " personal estate," 196 ; 
 "residue," " residuary executor," 196 ; and see 184 
 Monet to be laid out on land, undisposed of interest results to exe- 
 cutor for next of kin, 1 87 
 Parol evidence, when it may rebut resulting trust, 181, 182 ; see 178 
 Personal estate of for next of kin, effects of residuary bequest, 197 
 Purchase in cases of: 
 
 (a) Purchase in name op stranger generally constitutes resulting trust, 
 199 
 so on a, jomit purchase in name of stranger, 199 201, 
 
INDEX. 1009 
 
 RESULTING imjST—contmued 
 Purchase in Oases of^contmued. 
 
 (a) Purchase in Name oi?, &c. — continued. 
 
 so tencmcy in common is implied in case of joint loan, 201 ; or 
 where two, possessed of. mortgage term, pwchase equity of re- 
 demption, 202 
 in joint purchase where purchasers contribute unequally, 202 ; 
 
 or in joint undertaking in trade, ib. 
 but where contribution is equal, joint tenancy is implied, 201 ; 
 
 and see Joint Tenanot 
 how far rule applies in purchase of copyholds for lives, 202 ; and 
 
 as to personalty, 200 
 rule does not apply to advance by A. not in the character of pur- 
 chaser, 200 
 nor to purchase in contravention of Papistry Acts, of ship, or for 
 giving votes, 203 
 Laches, resulting trust may be rebutted by, 207 
 
 Parol, pwchase is provable by, though otherwise expressed in purchase 
 deed, 204; or against defendant's denial, 205, note (/) 
 or after death of nominal purchaser, semble, 206 
 but evidence must be clear, 205 ; and see Frauds, Stat, of 
 secus where purchase by agent and no money paid by employer, 
 204 
 resulting trust may be rebutted by, 206 
 subsequent declcuration, effect of, 207 
 (6) Purchase by father in name of child, &o., implies advancement, not 
 resulting trust, 207, et seq, ; see Advancement 
 RETAINER. 
 
 of trust funds by assignees, 359 ; executors, 358, 875, 876 ; receiver, 359 ; 
 trustees, 358 ; of charities, 502 
 RETIREMENT. 
 
 of trustee from the office; see New Trustees, Relinquishment 
 REVERSION. 
 
 Laches, effect of, in suit to set aside purchase of, 742 
 Mortgage of, 350 
 
 Renewable Leaseholds of, how far trustee purchasing is a constructive 
 trustee, 225 
 
 REVOCABLE. 
 
 trusts, 25, 101, 481 ; see Debts, nature of, 483 
 ROBBERY. 
 
 of trust property, 332 
 
 ROMILLY'S ACT, 779, etseq. 
 
 RULE OF COURT. 
 
 when with 1 & 2 Vict. u. 110, h. 18, 667, note (a) 
 
 SALE. See Abroad, Purchaser, Receipts, Specific PEBFORmANCB, Volun- 
 tary Settlement, Trustee Acts (petition) 
 Charity Lands, of, 503, 504, 615, 782, note (/) 
 Contract for, raises implied trust, 174 
 Decree for, person to convey under a constructive trustee, 839, note (e) ; 
 
 comp. Trustee Act, ss. 29, 30; Extension Act, 5, 2 
 Devise upon trust to sell passes the fee, 250 ; see 247 
 Direction for in will raises a trust, 173 
 Power of ; see Executors (power). Mortgage 
 implied, where by charge, 251 ; see 257 
 personal estate on deficiency of, 428 
 pwtition is not authorised by, qu. whether by power to sell and 
 
 exchange, 417 
 usual in settlement, effect of, 417, see 421 ; whether exercisable 
 unless trustees have another purchaser in view, 418 
 Trust for, whether a ministerial trust, 21 ; survivorship of, 419 ; see Sale, 
 Trustees for 
 to mortgage, does not authorise a sale, 417 
 
 3 T 
 
1010 INDEX., 
 
 SALE, TRUSTEES FOR. See Moktgaqeb ; Sale, Tbust fob ; Timber 
 Generally. 
 
 Attested copies, when they must give, 425 
 
 ConvEtanoe bt, concurrence of cs. q. t. where necessary, 427 ; covenants, 
 what, tmsteea must enter into, 425, note (a) ; for production, 425 ; of 
 indemnity on sale of leaseholds, 426 ; grant, effect of, 424, note (g) ; see 
 696, note (a) ; power of attorney, form of, on assignment of clwses in 
 action, 427 
 CouET, trustees may sell without applying to ; secus where suit pending, 
 
 414, 429 
 Discretion oe trustees sale at, purchaser cannot question its exercise, 
 
 417 
 Duties or : should sell to greatest advamtagc of all cs. q. t. impartially, 414, 
 and see 418 
 should not delegate the trust, 422 ; see 415 ; and see Court, s«p.. 
 Preliminaries, Quantity, Time, mf. 
 Mode oe conducting sale, agents, by, 422 ; auction or private contract, hy, 
 ib. ; buying in, conditions of sale, as to, 423 ; lots, trustees may sell in, 
 423 ; possession to purchaser, when to be given, 424, see 871 ; receipt of 
 purchase money, 422 ; see Receipts ; and Preliminaries, Quantity, inf. 
 Personal estate, trust for sale on its insufficiency for debts, 428 
 Powers oe : leases they may not grant, 416, and see 462 ; mortgage, whether 
 
 they may make, 416, 417; and see Receipts ; and Quantity, infra 
 Preliminaries : advertisements, if by auction, 422 ; title should be 
 investigated before sale, 421 ; value of property should be ascer- 
 tained, ib. 
 Quantity, whether trustees may sell larger than trust requires, 429 
 Request; sale at, &o., how it must be testified, 419 
 Specific pebeormanoe, costs of, 421, 872; not enforced if involving breach 
 
 of trust, 415 ; whether when involving hardship, 424 
 Time for sale: reasonable time allowed, 415; trust to sell with "all 
 convenient speed," 415, see 527 ; " after death of A.," 419; 
 within limited period, 416 
 where legacies not yet raisable are charged, 430 ; where portions 
 are raisable, 420, 430 
 Their disability to purchase property, Ch. xvl s. 3, p. 460; and see 
 Lease 
 
 (a) Rule applies to purchase from trustee, or co-trustee, 461 ; even 
 
 by means of agent, or as agent for another, 462 ; at auction or 
 private contract, 461 ; however fair the transaction, ib. ; in name 
 of trustee or another, i5. ; and whatever the trmt property, 460 
 
 applies to assignees, administrators, executors, receivers, &c., 465 
 does not apply to execution creditor on sale by sheriff, nor to 
 mortgagee, 465 ; nor to trustee who has disclaimed, 462 
 
 whether to trustee without active duties, 460 
 
 (b) But trustee mat purchase from o. q. t., if relation of trustee and 
 
 c. q. t. dissolved, and no concealment, 463 
 cases where purchase sustained from conduct of c. q. t., 464; 
 
 whether c. q..t.'s solicitor can authorise purchase, iS. 
 cs. q. t., creditors, whether all must sanction purchase, ii>. 
 cs. q.t., sui juris. Court cannot authorise trustee to bid ; secus where 
 
 cs. q. t. are infants, 465 
 
 (c) Confirmation of purchase, 471, et seq.; requisites of, 472 ; considera- 
 tion, it does not require, ib. 
 
 (d) Laches, when a bar to relief, 470, see 742 ; in case of class (as creditors), 
 
 feme covert, infa/nt, 471 
 no laches in case of ignorance, 471 ; whether in case of distress, i6. 
 
 (e) Terms on which purchase set aside, 466 
 
 1. c. q. t. may pray recormeyance on payment of purchase money and 
 interest at il. per cent., 466 
 
 trustee accounts for rents (without interest), compen- 
 sates for deteriorations, but allowed for repairs and 
 (unless where fraud) lasting improvements, 466 
 
 trustee paying money into Court not entitled to rise in 
 stock, 467 
 
 re-conveyance when ordered, 467; without prejudice to 
 bond fide lessees, &o., ib. 
 
INDEX. 1011 
 
 SALE, TRUSTEES FOR— continued. 
 
 Their disability to purchase property — contimted. 
 (c) Teems on which purchase set aside — continued. 
 
 2. t. g. t. (even a single creditor) wMy pray re-sale, 467, 469 
 
 trustee, where no advance, held to his purchase, 468 
 
 how allowed for repairs and improvements, ib. 
 whether re-sale in lots can be required, ih, 
 c. q. t., remedy of, in case of shares, 469 
 
 against subsequent purchasers, ib. 
 costs follow decree, ib. ; not where plaintiff guilty of 
 delay, 470 
 (/) Time within which relief must be sought, 470 ; see Laches, sttp. 
 SALE AND EXCHANGE, Power op. 
 
 whether authorised by " usual powers " in executory trusts, 164 ; under 
 covenant to settle realty similarly to stock where power of varying 
 securities, 167 
 whether it authorises partition, 417 
 whether it implies power to give receipts, 433, note (i) 
 SCANDAL. 
 
 statement of trustee's misconduct is not, 711 
 SCHOOL. 
 
 chapel for, 496 
 
 "free grammar and free school," 499, et seq. 
 
 trust for poor applied for school-house, &c., 501 
 
 SCIRE FACIAS, 663 
 SCOTLAND. 
 
 Equities in respect of lands in, administered here, 48 ; but see 63 and 
 Jurisdiction 
 
 Executors here not bound to know the law of, 367 
 
 Thellusson Act, Scotland is excepted from, 120 
 
 SECRET TRUSTS. 
 
 discovery of, where enforced, 70, 72, 73 ; see Devisee ; Heir. 
 
 as to, under deed enrolled under 9 Geo. 2, o. 36, 132 
 SECURITIES. 
 
 For MONET, gift of in will may pass mortgage in fee, 264 
 
 Negotiable, where they may be followed, 275, 759 
 
 SECURITY. See Investment 
 
 Agent, trustee not called upon to require from, 295 
 
 Tenant pob life op renewable leaseholds, what he gives where fine 
 
 paid by remainderman, 398, 400, 402 
 Trustee required to give for due execution of trust, 723 
 Vary, power to, 523 ; a " usual power," 164 
 
 SEISIN. 
 
 Inpants of, ex parte maternd of leaseholds may be changed to seisin ex parte 
 
 patemd, 831 
 ex parte materna, 680 
 
 equitable, 617 ; what required to give curtesy, 617, 622, 623 
 possessio fratris of a trust, 618, and see note (a) 
 
 SELECTION. 
 
 power of, 22, 542, 701, 705, 706, note (a) 
 SEPARATE USE. See Feme Covert 
 SEQUESTRATION. . 
 
 of rents ordered where tenant for life of renewable leasehold refuses to 
 renew, 402, 722 
 
 SET-OFF. See 334 
 
 where bankrupt trustee (indebted to trust) has beneficial interest, 772 ; 
 conf. Ill 
 
 SETTLED. . . , ^^„ 
 
 account opening against solicitor trustee, 550 
 
 SETTLEMENT. 
 
 Equity to. See Feme Covert 
 
 Executory Trust, what directed under. See Executory Trusts 
 
 3 T 2 
 
1012 INDEX. 
 
 SETTLEMENT— co««im«cd. 
 
 Postnuptial, executory trusts in, construed as in wills, 164 
 Off KEALTY, usual frame of, 404 
 
 effect of usual power of sale in, 417 
 re-settlement of estate, 409 
 
 object of limitation to trustees to preserve in, 404, 405 
 Keotii'ioation or, how far by means of articles, 148 
 
 not when settlement executed priw to marriage, 148 
 
 unless stated to be made in pursuance of articles, or where 
 
 mistake, 148 
 semble not against a purchaser, 148, note (c) 
 Separate use of feme covert for ; see Feme Covert 
 Volttntakt, of lands or chattels real (but not of personalty), defeated by 
 subsequent sale by settlor, 92 . 
 of any property void as against creditors, if settlor indebted at 
 the time, 93 ; see Volontaet Settlement 
 
 SETTLOR. 
 
 Legal Estate becoming re-vested in, will not defeat trust, 99 
 whether he can claim benefit on failure of c. q. t., 323 
 who may be, Ch. in. s. 1 , p. 24. See also Alien, Bankrupt, Crown, 
 Corporation, Feme Covert, Husband, Infant, Insolvent, Lunatic ; 
 and as to Felon, Outlaw, Traitor, see 28 
 SEVERANCE. ^^ 
 
 „»/ of trusteeship, 579 ; of estate from powers, 535 <i ^2' .^il^ /^t^^^ftr 
 
 aliquot, payment of into Court sometimes ordered, 865 
 c. q. t., of suing, who should be parties, 850 ; see 856 
 
 SHARES. 
 
 Charging order under 1 & 2 Vict. c. 110, its effect, 669 
 Companies, in restraining order under 5 Vict. c. 5, s. 4, applicable to, 
 860, 863 
 in canal, insurance, railway companies, &o., when to be converted, 812 
 Purchase of, by trustee, 469 
 
 SHELLEY'S CASE. 
 
 rule in, applicable to trusts executed, 142. See Executory Trusts (heir 
 of body) 
 
 SHIP. 
 
 no resulting trust on purchase of, in stranger's name, 203 
 
 registry Acts do not apply to transfers by mere operation of law, 203 
 
 SICILY. See Jueisdiotion 
 
 whether trusts of land' in, can be enforced here, 54 
 
 SIGNATURE. 
 
 required for delegation of trust, 64 ; by whom, 65 
 
 SIMONY. 
 
 direction to purchase next presentation in favour of persona designata 
 falls within, 136 
 
 SIMPLE CONTRACT DEBTS. See Breach of Trust 
 
 Lands of Trustee trading, liable to under Sir S. Romilly's Act, 273 
 Monet to be converted into land was not formerly liable to, 796 
 Real assets they are now payable out of, 239, 273, note (a), 285, 435 
 
 as to devise for payment of debts, see 474 
 Trusts for, debts, how paid under, 484, 488 ; and see 843, and Debts 
 
 interest on, not allowed, 489 ; but see 490, note (c) 
 
 SIMPLE INTEREST. 
 
 usually charged for improper retainer of trust money, 359, 361 
 
 SIMPLE TRUST. See Special Trust. 
 explained, 2, 21 
 in what the c. j. t.'a estate consists, Ch. xxii. s. 1, p. 585 
 
 SOLICITOR. 
 
 Breach of Trust, if he wilfully advises or concurs he may be struck off 
 the Roll, 763, note (d) 
 
INDEX. 1013 
 
 SOLICITOR— ctwfenwd. 
 
 Bbeaoh op TRVsi—continued. 
 
 effect of, in negotiating loans, &c., 358 
 BOEEOWEE OF, Undesirable for lender to employ, 358 
 0. Q. T. of, whether he can authorise trustee to purchase, 464 
 CoNOTEtjCTivE TRUSTEE, Case where solicitor violating hia duty held to be, 
 
 PUEOHASE IN NAME OF SON (a Solicitor), held not an "advancement" from 
 
 the relation of solicitor, 216 
 Secueitt to for professional charges set aside, when, 550 
 bETTLED ACCOUNT, Containing professional charges opened against, 550 
 lEUSTEE, solicitor of, has no lien on trust fund, 561 ; taxation against at 
 
 instance of c. q. t., 558, note (e), 561, note (d) 
 Tedstee who is, cannot charge for time cmd trouble, but only for costs out 
 of pocket, unless where special contract, 320, 549 ; as to nature 
 of contract, see 553 ; rule same where co-trustee is one of a 
 firm, 320, 549 
 proportion of costs allowed to country solicitor (executor) de- 
 fending suit by agent, 320 ; co-trustee and solicitor acting in 
 a suit for himself and co-trustees, ib. ; none allowed to single 
 trustee defending himself by his partner, ib., and see 550 
 SOUTH SEA. 
 
 stock.aud annuities, 341, note (d) 
 ■ SOVEREIGN. See Crown 
 
 s Deolaeation of trust by or to, 25, 59 *■ ' 
 
 Will op, as to private property, 25 
 SPECIAL. 
 
 Case, 368 
 
 Conditions, 423 
 
 Occupant, heir taking as, may disclaim, 232 
 
 Teust, nature of, 4, 21 ; must be lawful, 599 
 
 in what c. q. t.'a estate consists, Ch. xxii. a. 2, 597, et seq. 
 how converted into simple trust, 597 
 proceeds till countermanded by e. q. t., 598 
 Uses, Stat. of. is not within, 246, 247 
 
 SPECIALTY. See Beeaoh of Teust, Simple Conteact Debts 
 
 heirs where bound by, 238, 239 ; see 692, 765 
 SPECIALTY CREDITOR. 
 
 devise avoided against, 239, 474 
 
 trusts for payment of debts, his claim under, 484, 488 ; for interest on, 491 
 SPECIE. 
 
 where presumed that leaseholds, &o., though bequeathed in succession, are 
 to be enjoyed in, 809 
 SPECIFIC. 
 
 Bequest, distinguished from direction to enjoy in specie, 812; and see 
 
 note (a) 
 Chaeoes on realty, persons having, where necessary parties, 843 
 Perfoemance, costs of trustee in, 421, 872 
 
 enforced, is not, against trustees who have sold improperly, 415 ; 
 
 whether where hardship, 424 
 laches in suit for, effect of, 742 
 lands abroad, as to, when enforced, 47 
 parties to suit for, 844 ; and see 842 
 person who has made a previous voluntary settlement cannot 
 
 enforce against purchaser, 93 ; but purchaser may enforce, ib. 
 Trustees' Acts, provision for under Trustee Acts, 839, and see 894 
 voluntary contract of not enforced, 93, 94 ; and see Covenant 
 SPIRITUAL COURTS. 
 
 have no jurisdiction of trusts, 19, 261 ; and see Peohieition 
 SPORTING. 
 
 trustees not entitled to where it can be let, 318 
 qualification of c. q. t. for, under old law, 593 
 
 STATUTES. See Feauds, Stat, of; Limitations, Stat, of; Wills, Stat, 
 op; Teustee Acts; Trustee Relief Acts, and Index op Statutes 
 
1014 
 
 INDEX. 
 
 STATUTE MERCHANT. 
 
 tenant by, bound by a trust, 11 
 lien of, 689 
 
 STEWARD. 
 
 of manor. See Infant 
 
 trustee appoints but must observe direction of c. g. t., 269 
 
 STOCK. See Patmeht into ConET 
 
 Charging oedeb under 1 & 2 Vict. c. 110, 642, 649, 669, et seq. 
 
 Co-BXECUTOHS, transfer by, 315 
 
 Creditor, how available to, see Charging order, sup. 
 
 Devises of, statutes relating to, 32, note (1) 
 
 Distringas, writ of, applicable to, 860, et seq., 863 
 
 Dividends, c. j. t. put in possession by power of attorney, 594 
 
 Executors' assent to bequest, effect of, 32, note (1) 
 
 Private company, trust money must not be invested upon stock of, 341 ; 
 
 Bank Stock, South Sea Stock, ib. 
 Public investment upon, 351 ; see 354 
 
 case of trustees improperly selling out, 366 
 
 secus where power to do so, 344 
 
 neglect to purchase, 764 
 Restraining order, under 5 Vict. c. 5, s. 4, 860, 863 
 
 STOP ORDER. 
 
 petition for on whom it should be served, 614, note {a) 
 p>-ionty given by, 613, 614. See Notice 
 
 STRANGER. 
 
 Advancement for, whether presumed when purchaser has placed himself 
 
 im loco parentis, 216 
 Purchase in name of, where it creates resulting trust, see Purchase 
 
 parties to suits respecting trust by or against, 841, et seq.; and 
 see Parties 
 
 SUBPOENA. 
 
 origin of, 1 
 
 SUIT. See Costs, Decree, Parties 
 
 Barred by lapse of time, when ; see Limitation 
 
 Collusive, 429 
 
 Decree in, takes administration from trustee, 414, 429, 436, 523 ; and see 
 
 624, 544 
 Trustee, for protection of, 367 
 
 appeals at his own risk, 368 
 
 should see that proper parties are before Court, ib. 
 sustain rather than originate, ib. 
 for removal of, 710, 711 ; and see 582 et seq. 
 
 SUPPLYING WORDS, in articles, 153, and see 191, 250 
 
 SURRENDER. See Coptholds, Customary Freeholds 
 
 SURVEYOR, 561. 
 
 SURVIVORSHIP. See Feme Covert, Guardian 
 Administratorship or executorship of, 300 
 
 not of bare power, 299, 536 ; or committeeship of lunatic, 299 
 Power of sale of, in mortgage, 419 
 Powers oe trustees, 536. See Powers 
 
 Trust of, 299 ; even where power to appoint new trustees, 301 
 Trust for sale of, 300, 419 
 
 TACKING. See Mortgage 
 
 TAXES. See Rates 
 
 TECHNICAL. 
 
 terms, how far necessary for creation of express trusts, 140 
 their force when employed, 141 ; and see Executory Trusts 
 
 TENANCY IN COMMON. See Joint Tenancy 
 Elect, how far tenant in common can, 818 
 
INDEX. 1015 
 
 TENANCY IN COM.UON- continued. 
 
 Implied in case of joint loan, 201 ; or where two possessed of mortgage 
 
 term purchase equity of redemption, 202; in jomt purchase, where 
 
 pwrchasers contribute unequally, 202 ; or in joint undertaking in trade, 
 
 202 
 MoRTGAOEE, tenant in common of equity of redemption, 733 
 Phesumption of ouster between equitable tenants in common, 735, note 
 
 (1) ; but see 747 
 
 TENANT AT WILL. 
 
 c. q. t. is to trustee, 586, 590 
 
 or by sufferance renewal of lease by his executor, 219 
 TENANT FOR LIFE. 
 
 BBEiOH OF TRUST reaping fruits of, how he contributes, 768, et seq. 
 
 participating in, his interest may be stopped for compensation, 771 
 Chattels or heir-looms as to, his rights, 593, 594 
 Conversion income accruing before, his proportion in, 813. See Con- 
 version (income) 
 having received whole income, when conversion proper, liable 
 to refund, 853 
 Costs, he bears of suit instituted for relinquishment of trust by trustees 
 
 on account of incumbrances by him, 584 
 Dividends, how put in possession of, 594 
 
 Feme covert, as regards equity to settlement of wife, who is, 370 
 Forfeiture by, 678 
 Improvements and repairs, 514 
 Powers, whether' having sold or mortgaged his estate, he can exercise, 
 
 appoint new trustees, 580 
 Real estate, of his rights, 586, et seq. 
 Renewable leaseholds of, 
 
 fines entitled to on under-leases, 392 
 
 fines, apportionment of between prior remainderman, and con- 
 tribution, how secured, 395, 398 ; and see Renewable Lease- 
 holds 
 liability in case of neglect to renew, 392 ; see 383 
 refusing to renew, 402, 722 
 regarded as trustee for renewal, when, 402 
 renewing is trustee for those in remainder, 218, 384 
 Trust por sale, he may buy under though his consent necessaiy to sale, 462 
 Title deeds, whether entitled to, 591, 592, note (c) 
 
 Use of his power under 1 Rich. 3, c. 1, 601, note (6) ; see 227, in possession 
 Waste by, 225, 614. See Waste 
 TENANT IN TAIL. See Uses 
 
 Assj:qnment of his equitable interest, 601, et seq. 
 Election by, 81 9, et seq. ; see Election 
 
 Equitable, he cannot require trustee to convey legal fee, 595 
 Forfeit his estates, he cannot, by disseising the remainderman of an equit- 
 able interest, 560 
 TENANT TO PRECIPE, 412; see 404, 405 ; Equitable, 604 
 TENANT YEARLY, renewal of lease by, 219 
 TENANT RIGHT, 225 
 TENDER. 
 
 of conveyance, under Lord St. Leonards' Trustee Act, 837, note (c) 
 
 TERM. 
 
 attendant. See Attendant Tbbm 
 
 TERROR. 
 
 confirmation must not be obtained by, 473, 778 
 
 TESTAMENTARY DISPOSITION. See Will 
 THELLUSSON ACT, 112, et seq. See Ireland, Scotland 
 
 Accumulation can be for one only of the periods allowed by statute, 113 
 commencing after testator's death, must end at 21 years from 
 
 such death, 113 
 trust exceeding limits is good pro tanto, 113, 114 
 Act applies to simple and compound accumulation, and where 
 enjoyment suspended, though right vested, 113 
 
1016 INDEX. 
 
 THELLUSSOK ACT— continued. 
 
 AoonMDLATlON, &c. — continued. 
 
 whether Act applies where accumulation only implied by instru- 
 ment of trust, 115, 116 
 Exceptions from the Act, and their construction, 119 ; see 120 
 Excess, to whom it belongs, 116, et aeq. 
 
 resulting for heir, when it devolves as personalty, 118 
 Subsequent limitations not accelerated, ib. 
 
 Wills Act, under, void accumulations of realty go to residuary devisee, of 
 personalty to residuary legatee, 118; and where residue is settled 
 form capital, ih. 
 void accumulations from residue itself result, if realty to heir, if per- 
 sonalty to next of kin, ib. 
 
 TIMBER. 
 
 AcoonNT OF, in equity on legal title without injunction, qu. 753, note 
 On infant's estate, see Infant 
 On lunatic's estate, see Lunatic 
 
 Trustees may not buy wood estate in favour of tenant for life, sans waste, 
 their power to cut, 615 ; with power of sale, may not sell separately 
 from estate, 421 
 
 TIME. 
 
 Bae from. See Laches, Limitation of Suits 
 
 Teust foe sale, vrithin what it should be executed, 415; and see 419, 
 
 420, 429, 436, 458 
 Teustee not entitled to any allowance for his time, 545 ; and see Teouble 
 
 TITHES. 
 
 account of, in equity on legal title, 753, note 
 
 TITLE. 
 
 power of vendor to sign receipt for purchase money, a matter of, 430 
 trustee for sale bound to make a good title, 421 
 
 TITLE DEEDS. 
 
 Custody of, who entitled to, where legal estate in trustee, 591, 692 
 
 where all estates legal, 692, note \c) 
 Holder of, how far a constructive trustee for remainderman or part 
 
 owner, 227, 228 
 Pueohaseb, if not delivered to assignees, must give attested copies, and 
 covenant for production, 425 
 
 TORTIOUS. 
 
 Conversion of trust property, 275, 754, 825 ; and see Conversion, Follow 
 Sale of land by trustee, 763 
 of stock by trustee, 356 
 
 TRADE. 
 
 Allowance for management is given to constructive trustee, 548 ; secus as 
 
 to express trustee, 549 
 Bank, money lodged in to executors' account considered to be traded 
 
 with, 361 
 FoLLOwiNQ TEUST, property employed in, 760 
 Tenancy in common implied on joint advance for, 202 
 Teustee employing trust money, charged at option of c. q. t. with profits, 
 361, 362, see 319 ; or with interest at &l. per cent., 362 
 whether with compound interest, 362, 363 
 
 TRADER. See Bankeupt, Debts 
 
 TRANSMUTATION OF POSSESSION. See Voluntaet Assueanob 
 where there is, the trust though voluntary will be enforced, 81, 99 
 and where there is not, if trust be perfectly created, 81 
 
 TRAVELLING. 
 
 Expenses, trustee allowed when proper, 657 
 
 TREASON, 28. See Foefeituee 
 
 TROUBLE. See Trade 
 
 Allowance, none for to trustees generally, 646 
 
 nor to committees of lunatics, executors, mortgagees, receivers, 
 &o., 646 ; and see Solicitor 
 
INDEX. 1017 
 
 TROUBLE— co»im«d. 
 
 Commission, whether allowed to executor in East Indies, 547 ; and see note (b) 
 
 when to trustees of West India estates, 546 
 CoNTKAOT, whether trustee may, with c. q. i. for allowance for, 551, et seq. 
 
 must be fulfilled to the letter, 653 
 
 trustee may, with Ooii/rt, before accepting trust, 653, et seq. 
 
 whether mortgagee may, for allowance, 656 
 Settlor may direct the trustee an allowance, 550 
 
 it will not cease on institution of a suit, 551 
 
 amount where not known, settled by reference, 551 
 
 TRUST. See Abeoad, Advowson, Alien, Breach of Trust, C. q. t., Feme 
 Covert, Infant, Overseers, Trustee, Will 
 AocuMULATioN for, 110, et seq.; see Accumulation, Thellusson Act 
 Alienation, restriction of, not allowed by way of trust, 132 ; but see 123 
 AvERRABLE at common law, 66 
 Charitable or public trusts, 23 ; see Charities 
 Classified, Ch. n., p. 21 
 
 Consideration for, 81, et seq.; see Consideration, Covenant, Volun- 
 tary Assurance 
 Construction of, 141, et seq.; see Construction 
 
 Constructive, Ch. ix., p. 217 ; distinguished, 140, note (1) ; see Con- 
 structive Trusts '. 
 Continqent remainders, for preserving, Ch. XV., p. 404. See Contin- 
 gent Remainders 
 Created, how ; see Creation of Trusts 
 Creditors for, Ch. xvii., p. 474 ; see Debts 
 
 cannot be defeated by means of trust, 132, et seq. 
 Declared, how trusts may be, 66, et seq. ; see 62, 65 
 Defined, 15 
 
 Delegation of, not permitted, 290, et seq.; see Delegation 
 Discretionary, 21 ; see Discretionary 
 Duration of, 23, 103, 111 
 
 Enforced, where consideration valuable or if perfectly created, 81 
 Estate tail in, 46, 604 • 
 
 Executed and Executory distinguished, 144 ; see Executory Trusts 
 Express, Ch. vn., p. 140 ; within Stat, of Limitation, 745, 743 ; see Ex- 
 press Trusts 
 Frauds, Stat, of, how it affects trusts, Ch. v. s. 2, p. 60. See Frauds, 
 
 Stat, of 
 Imperfect, p. 81, et seq. 
 
 Implied, Ch. vn. s. 2, p. 167, et seq.; distinguished, 140, note (1) 
 Instrumental, explained, 21 
 
 Intention will be followed where lawful, 44, 100, 103 
 Lawful, Ch. vi., s. 1, p. 103 ; see 22 and Unlawful Trusts 
 Law, by operation of, 140, note (1) ; see Operation of Law 
 Limitation of, compared with legal limitation, 44, 103, et seq. 
 Ministerial, explained, 21 
 
 Money followed into land, 206, 762 ; see 753, et seq. 
 Mortmain in, 132. See Mortmain 
 Nature and origin op, 1 ; of modern trust, 8 
 
 administered at first on the principles of uses, 9 ; afterwards 
 treated as an estate, 11, 12 
 Objects of, Ch. vl, p. 103 
 Parol, as to chattels personal, 61 ; but see 66 
 Perfect, 81, et seq.; see Consideration, Voluntary Assurance 
 Perpetuity cannot be created by, 23, 110, 132 ; but see Public Trusts 
 Powers, distinguished from, 22, see 636, 701, et seq. 
 Precatory, 167, et seq. ; see Implied Trusts 
 Principles governing at present day, 13 
 Properties of, in analogy to legal estates, Ch. xxiiL, p. 600 
 
 assignment of a trust, 600, et seq.; assets, a trust as, 681, et seq.; 
 curtesy and dower of a trust, 621, et seq.; descent of a trust, 680, 
 et seq.; devise of a trust, 616 ; escheat, whether it affects a trust, 
 678; extents from the Crown against a trust, 673, et seq.; feme 
 covert, her estate in a trust, 627, e« seg. ; fm'feitwe of a trnat, 
 Qli; judgments, how they affect trusts, 646 ; seisin and disseisin 
 of a'trust, 617 ; and see these Titles 
 
1018 INDEX. 
 
 TRUST-continued. ^Z**.^ S^^ /^^^^*^ V*^^***^*^*"*^ 
 
 Propeett, what may be made the subject of a trim, Ch. x¥v., p. 45 ^e*''Z-^c2^2. 
 
 Pdblio, explained, 23 
 
 Eeoommehdation, whether raised by, 102 ; see 168 
 
 Renewable leaseholds of, Ch. xiv., p. 383 ; see Rehewable Leaseholds 
 
 Resulting, Ch. vin., p. 176 ; see Resultinq Trusts 
 
 Sale, Ch. xTi., p. 414 ; see Sale, Trustees for 
 
 Secret, 71, et seq., 132 ; see Heir, Detisee 
 
 Separate use oi,feme covert for, 120 et seq., 632 et seq.j see Feme Covert 
 
 Settlor, who may be, Ch. in, s. 1, p. 24; see Settlor 
 
 Simple, 2, 21, 685, et seq.; see 597 
 
 Special, 2, 21, 697 
 
 Stat, de bonis, not within, 603 
 
 Survivorship of, 299 ; see Survivorship 
 
 Unlawful, 22, 131, 699; see Umlaweul Trusts 
 
 Uses, Stat, of, special trusts not within, 8, 247 
 
 VoLUNTAKy, 81, 101 ; see Debts, Voluntary Assurance 
 
 Word " Trust " may raise a trust, 168 
 
 TRUSTEE. See Acceptance, Accident, Bebach'of Trust, Charities, Con- 
 structive Trust, Contingent Remainder, Corporation, Costs, 
 
 Co-TEUSTEES, DEBTS, DISCLAIMER, DoWER TRUSTEE, FaLSE, FORQERT, 
 
 Fraud, Implied Trust, Indemnity, Insolvent, Insurance, Invest- 
 ment, Judgments, Lien, Misconduct, Mistake, Neglect, Notice, Quasi- 
 trustee, Receipt, Sale, Solicitor 
 
 Actions, where to be brought in his name ; see Actions 
 
 Accounts, he must be ready with, 599 ; and see 427, 559 
 
 Advantage, shall not derive from trust, 318 ; see Advantage, but see 
 Failure of c. q. t. 
 
 Allowances to, Ch. xx. 545 ; see Costs, Expenses, Trouble 
 
 Bankruptcy of, 273, 287, 711, 714, 771, 854 ; see Bankbuptot 
 
 Babe, see 318,, 460, 636 
 
 Bare equity of, 696, 848 
 
 Burdens of, 268, et seq., 271 
 
 Claim adversely to c. q. t., trustee must not, 325 ; see 878 
 
 Conveyance by, at request of c. q. t., 595 ; of assignee of c. q. t., 600 
 on sale, 424, et seq.; see Conveyance 
 
 Custody of trust chattels by, 332 
 
 Delegation, may not make, of his office, 290 ; see Delegation 
 
 Disability of; see Sale, Trustee Acts 
 
 Discharge of, how obtained ;' see Indemnity, Release, Relinquishment 
 
 Distribution of trust fund by, 366, et seq. 
 
 Duties,, how compelled to observe, 718, 723 ; and see Duties 
 
 Failure of, remedy of c. q. t. against, Ch. xxiv., p. 693 
 
 Injoined, may be against breach of trust, 723 
 
 Laches of, its effect as to right of c. q. t., 719, et seq.; see Laches 
 
 Legal estate in its devolution, properties and quantity taten by trustee, 
 Ch. XL, p. 246 ; see Legal Estate 
 
 Liability of; see Co-trustees, Liability 
 
 New, appointment of ; see New Tedstees and Trustee Acts 
 
 Number of, what is proper, 40, 41, 710 ; see Number 
 
 Outstanding trust estate he should get in, 326 
 
 Payment by, 372 ; see Payment, Receipts 
 
 Possession of trust estate, how he may obtain in court of law, 324, 690 
 
 PowEES of, general, 512; special, 624; and see Powers 
 
 Privileges and burdens of, 268, et seq. 
 
 Purchase of trust estate by, 460, et seq.; see Sale, Trustees for 
 
 Receiver, he cannot be of trust estate, 319 
 
 Release by or to, 373, et seq. 
 
 Relinquishment of office, Ch. xxi,, p. 666 ; see Relinquishment 
 
 Renewal op lease by, 383, 392 ; see 402 
 
 Suit by, 367, 582, 768, 846, 850 
 
 Tort of, see 755, 825 
 
 Who may be, Ch. iii. s. 2, p. 30 
 
 alien may be, of chattels personal, but not of freeholds or chattels 
 real, 39 ; BomJc of England cannot be, 32 ; hankrv^ts and insol- 
 vents not absolutely disqualified, 40, see 711 ; t. 5. t. or relative 
 
INDEX. 1019 
 
 TRUSTEE— coniinwd 
 
 Who mat be — cowlmued. 
 
 generally undesirable, 40, 579 ; corporation may be, except 
 where in contravention of Statute of Mortmain, 31 ; Crown, 
 may be, but qu. as to remedy of c. g. t., 30 ; feme covert or sole 
 may be, but undesirable, and why, 34, 35, see 710 ; infaM ought 
 not to be appointed, 35, 895, note {a) ; person domiciled abroad 
 generally not a fit trustee, 40 ; and see 674, 576, 710 
 Words " trustee," " trustee of inheritance," construction of, in devise, 250 
 
 TRUSTEE ACTS, GeneraUy, Ch. xxviii. p. 832 
 Construction of 
 
 7 Anne, c. 19, infancy (as to lands), 832, 833 
 4 Geo. 2, c. 10, lunacy (as to lands), 833 
 36 Geo. 3. o. 90, infancy, lunacy, &c. (as to stock), 833, 834 
 
 amended by 1 & 2 Geo. 4, c. 114, 834 
 6 Geo. 4, 0. 74, consolidating and extending previous Acts, 834 
 Lord St. Leonards' Trustee Act, 11 Geo. 4 & 1 W. 4, c. 60, 834, et seq. 
 sections relating to infants (as to land), 835 
 
 to lunatics (as to land and stock), 834, 835 
 to persons out of jurisdiction, &c. (as to laud), 
 835 ; (as to chattels real), 837 ; (as to stock, 
 &c,), 838 
 mode of application to Court, 839, notes (c) and {d) 
 cases of constructive trusts, specific performauce, trustee having 
 interest, 839. See Trustee Act, sa. 2, 30 
 Trustee Act, 1850, and Extension Act, 840; m extenso, 880, et 
 
 seq. 
 Colonies, as to, sa. 54, 56 
 Contingent rights; see ss. 4, 8, 11, 12, 16, 18 
 
 Conyetanoe under, 889, note (a), see 896, note (e) ; as to copyhold.a, 893, 
 note (6) ; see s. 30 
 of legal estate sufficient where all parties before the Court, 881, 
 note (6) 
 Costs under, generally, 901, note (a) ; infant trustee, &c., ii. 
 
 in case of lunatic mortgagee or trustee, 883, note (c) ; of sale, 
 903; note (c) 
 Decree for conveyance, exchange, partition, sale, specific performance, 
 
 under, 893, 903; see sec. 30 
 DiEEiouLTT or expediency of appointing new trustees, &o., 895, notes 
 
 («), (b), {c) 
 
 Durham and Lancaster, lands m, s. 21 
 
 Evidence on petition, 895, note {d) ; of trustees' assent of trustees' fit- 
 ness, ib.j and see 890, note (c). Orders, imf. 
 
 Existing trustee, where none. Court may appoint new trustees, see 895, 
 note (d) ; Extension Act, s. 9 
 
 Ineant trustee or mortgagee, ss. 7, 8; Extension Act, s. 3; see 894, note 
 (c), 895, note (a), 901, note (a) 
 
 Ireland ; see ss. 65, 56, p. 901 ; see note (c) 
 
 Jurisdiction, trustee out of, ss. 9, 10, 11, 12, 22 ; mortgagee, s. 19 
 
 Lunatic personal representative, s. 6; trustee or mortgagee, see ss. 3, 4, 6, 6 
 
 Mortgagee, see ss. 4, 5, 7, 8, 19 
 
 Number of trustees appointed by Court, 895, note (d) 
 
 Orders made under by Court, on allegation evidence thereof, s. 44 
 
 Petition, who may present, 896 ; in case of sales, see note (p) ; in lots, 903, 
 note (c) ; service of, 897, note (6) ; and see 890, note (c), 891, note (c) 
 
 Refusing trustee, ss. 23, 24; Extension Act, sa. 2, 4, 5; mortgagee, 19 
 
 Scotland, Trustee Act does not extend to, a. 54 ; see s. 56 
 
 Unborn trustee, s. 16 
 
 Unknown heir, &c., of trustee, 13, 14, 16, 22 ; of mortgagee, 19 
 
 Vesting oedeb, see ss. 26, 27, 28, 35 ; Extension Act, s. 2 ; as to copy- 
 holds, 893, note (a), 904, note (a) ; chose in action, s. 27 
 
 in devisees of mortgagor subject to cluvrge, 884, note (a) ; to uses to 
 
 bar dower, ib. 
 as to estate tail, 885, note (a) 
 
 in new and continuing trustees as joint tenants, 896, note (a) 
 as to stock, 896, note (5), 905, note (J) 
 
1020 INDEX. 
 
 TRUSTEE RELIEF ACTS. See Lunatic (Majority) 
 
 10 & 11 Vict. c. 96, p. 375 et seq. ; General Orders under, 379, 381 ; Amend- 
 ment Acts, 12 & 13 Vict. c. 74, p. 381; and as to money, &c., belonging 
 to charity, see 18 & 19 Vict. o. 124, s. 22, p. 382 
 affidavit by trustees, 379, 376, note (6) ; Petition, inf. 
 application by petition (not motion, nor in the first instance at Chambers,) 
 
 378, note (a) 
 account, heading of, 376, note {d) ; and see note (c) 
 
 costs of trustees, 376, note (6), 378, note (a), 380, note (a), see 377, note (c) 
 out of what fund, 380, note (a) 
 
 on petition by tenant for life for payment of dividends, ib. 
 discharge, how far payment into Court is, 377, note (c) 
 inquiry or issue, Court may direct, 377, note (6), 378, note (6) 
 payment into Court, after, proceedings must be under the Act, 376, note (a) ; 
 
 see also 377, notes {a) and (6) 
 petition, trustees can, but should not, present, 378, note (o) 
 by claimant m formd pauperis, ib. 
 
 how far it should set out affidavit of trustee, 378, note (a) 
 what order may be made upon, 378, note (6) 
 service on trustee, 380, note (a) ; on claimant, 381, note (a) 
 subject matter of payment or transfer, what may be, 376, et seq., 
 375, note (c) 
 suit, when directed, 378, note (6) 
 
 UNCERTAINTY. 
 
 Implied trusts not raised where it exists, 168 
 
 of objects of trusts, 169; of subject matter of trust, 170 
 
 Kesultihq trust, on conveyance where trusts too vague, 181 
 UNDER-LESSEES. 
 
 fines of, 392 
 UNFITNESS. 
 
 of trustee, 574, 710, 711 
 
 UNLAWFUL TRUSTS. 
 
 Ch. VI. s. 2, p. 131 ; and see 22, 71, 73, 182, 599 
 
 Alien for, 132 ; alienation (restraint against), 132, et seq. ; charity for, 132 ; 
 
 chattels, limitations of, 131 ; corporation for, 131 
 illegitimate child (future), 131 ; maintenance, 133 ; simony, 136 ; split- 
 ting votes, 137; and see those titles and Cohabitation, Mortmain, 
 Secret Trusts 
 Consequences oe creatino, 137 
 
 estate may be recovered by person claiming under settlor, 138 ; 
 or by. settlor himself, where no fraud, 139 ; otherwise Court will 
 not interfere, 137 et seq. 
 USAGE. 
 
 how far evidence in construction of religious trust, 497 
 
 USE. 
 
 Averrable, 56 ; but not where deed required to pass estate, 57 ; and see 
 
 6 note (1) 
 Charitable. See Charitable Uses 
 Deeined, 2 
 
 Devisable before statute, 615 
 Disclaimer of, 236 
 Estate on which it could be declared, 6 ; whether on a feofiment in 
 
 tail, 5 ; and see 7, note (1) ; whether upon an estate for life, 5, 6, note (1), 
 
 7, note (1) 
 Executed under statute, whether designated as trust or use, 246, 254 
 Powers before Statute of Uses, 537, note (1) 
 Trusts, special, and of chattels excepted from, 7, 247 
 
 USUAL POWICRS. 
 
 what powers authorised by these words, 164, note (d), 165 
 how qualified by context, 1 65 
 
 VALUATION. 
 
 how trustee for sale should make, 421 
 
INDEX. 1021 
 
 VALUE. See Consideration, Investment 
 VARY. 
 
 power to vary securities, 523 ; see 169 
 
 whether it implies power to give receipts, 523 ; a " usual power," 164 
 VENDOR. 
 
 a trustee svib modo for purchaser, 175 
 
 accountable to purchasers for rents, &c., unhusbandlike farming, wilful 
 waste or neglect, 174 
 
 VESTING ORDER. See Trustee Acts 
 
 VESTRY, 109. See Parishioners 
 
 VISITOR. 
 
 Crown is, in civU corporations, by Court of Queen's Bench, 495 
 
 may be in eleemosynary corporations, by terms of foundation, or 
 
 where heir of founder unknown or limatic, 495 
 visitatorial power committed to Lord Chancellor, 495 
 Office oe, he must follow statutes of the founder, 492 
 
 whether his decision can be appealed against, 492 
 new donations distinguished, in respect of visitatorial power from 
 original endowment, 493 
 
 VOID. See Infant, Lunatic 
 
 AccnMULATioN. See Acoumitlation, Thellusson Act 
 Trust. See Duration, Mortmain, Perpetuitt, Uncbktaintt 
 
 VOIDABLE. See Infant Lunatic, Voluntary Settlement 
 
 VOLUNTARY AGREEMENT. See Covenant 
 
 not specifically executed though under seal, 93, 94, and comp. 207 
 how far provable in equity as a debt, 94, note (/) 
 
 VOLUNTARY ASSURANCE. See Consideration, Meritorious 
 Trust supported if perfeotlt created, 81 
 
 not perfectly created when further act intended, 81 
 
 once perfectly created is not subsequently defeasible, 99 ; comp., 
 
 207, 215 
 distinction between voluntary assignment of expectancy and 
 
 interest, 92 
 no trust unless intention to create it, 100 
 Equitable property, of, where settlor declares himself trustee, trust 
 
 is perfectly created, 82 
 where settlor appoints stranger trustee, assignment to new trustee 
 
 sufficient, 89 
 and good against assignor without notice to former trustee, 91 ; 
 
 see 280, note (a) 
 where new trustee created without new trustee, 91 
 assignment to stranger for his own benefit, 91 
 Legal property where settlor declares himself trustee, trust is perfectly 
 
 created, 82 
 where settlor appoints stranger trust transfer necessary, if 
 
 possible, e. g. in land, chattels, or stock, 84 
 case of legal property incapable of legal transfer, e. g., chose m 
 
 action, 85 ; and see 89 
 
 VOLUNTARY SETTLEMENT. 
 
 Land or chattels real, of, defeasible by subsequent sale by settlor, 92 
 but not by settlor's heir or devisee, 93 
 c. q. t. cannot prevent sale or obtain redress, 93 
 settlor cannot enforce contract for sale against purchaser, but pur- 
 chaser may against settlor, 93 
 power of settlor to defeat by sale, not a disposing power under 
 
 1 & 2 Vict. c. 110, s. 11, 13 ; 666, note (6) 
 real or personal estate, of, by one indebted, defeasible by creditor. 
 
 Trustees of, bound to preserve contingent remainders, 405 
 
 VOLUNTARY TRUST. See Debts, Voluntary Assuranoi 
 
1022 
 
 INDEX. 
 
 VOLUNTEER. 
 
 Assign of trust estate presumed to have notice, 19 ; and see 224, 228, 279, 
 
 40§ 
 Trust estatu followed in his hands, 724 
 Time no bar in case of express trust, 745 
 
 as to constructive trust, see 729, 733 
 
 VOTES. See Member of Paeliament, Pakishioners 
 
 purchase for purpose of giving, 137; does not raise resulting trust, 203 
 
 VOUCHERS. 
 
 c. Q. T. may inspect, but must pay for copies of, 428 ; and see 599 
 Trustees may keep, 428 
 
 need not be kept for ever, 741 ; lost, 739 
 
 "WAIVER. 
 
 what is, 737 
 
 what consideration sufSoieut for, 737 
 
 WARD. See Guardian 
 
 WASTE. 
 
 Equitable, 225 
 
 Permissive, by equitable tenant for life, 514 ; by legal tenant for life, 
 
 614, note (a) 
 Tenant for life without impeachment of, trustees should not purchase 
 
 wood estate in his favour, 421 
 Trustees to preserve, their duty to prevent, 408, 413 
 
 WASTING PROPERTY. 
 
 as leaseholds, long annuities, where to be converted, 808, et seq. See 
 Conversion 
 
 WEST INDIES. 
 
 equities relating to estate in, enforced here, 47; and see Jurisdiction 
 trustees for estates there, whether entitled to commission, 546 
 WESTMINSTER. 
 Stat, of, 647 
 WIFE. See Feme Covert 
 WILFUL DEFAULT. 
 
 account for, not given on further directions, 765 
 where directed, 752, see 766 
 WILL. See Deed. Wills, Stat, of 
 
 Ambulatort till testator's death, 66 
 Consideration it implies, 58, 167 
 
 Copyholds of, 45, see note (d), 60 ; see note (1) ; of eqidtable estate in, 
 45, 615, 616 ; where no custom to devise legal estate, 45, 616 
 under late Wills Act, 60, 617 
 Customary freeholds, of, 617 ; equitable estate, in, 617 
 Executory TRUSTS, construction of in wUls, 163, ee sej. ; see Executory 
 
 Trusts 
 Feme covert of, as to separate estate, 642 
 Freeholds of, under Stat, of Frauds, 65 ; equitable estate; in, 615 
 
 under late Wills Act, 617 
 Infant of fourteen might formerly make, of personal estate; seem now, 27 
 Land of, to be converted into money, 807 
 Monet of, to be laid out in land, 796 
 Power to appoint bt, contemplates those who answer description at 
 
 death of donee, 170, 704 ; and see Assets 
 Personal estate of, under Statute of Frauds, 66 ; under late Wills Act, 
 
 617 
 Settlement, will distinguished from aa regards duties of tmstees to 
 
 preserve, 410 
 Sovereign of, 25 
 
 Stock op, how formerly made, 32, note (1) 
 Use, devise of, 615 
 
 devise to uses, construction as to, 258 
 
 WILLING AND DESIRING, 
 may create a trust, 167 
 
INDEX. 1023 
 
 WILLS. 
 
 STATUTES OP, Ch. v. a. 3, p. 65 ; see Legal Estate, Residuary (devise) 
 trusts cannot be created by devise or bequest without formalities required 
 
 for wills, 66 ; see as to personal estate, 68, and see 69, note (a) 
 except in case of charge of debts and legacies on real estates before 
 
 1st Jan., 1838, 69 ; (and how far exception extends), and in case of fraud, 
 
 70 
 devise to uses, 258 
 
 WISHINa AND REQUESTING. 
 
 WORBS. See Consent, Constktjotion, Exeootokt Trusts, Grant, Invest- 
 ment, Technical Terms ; " heirs," 141 ; " heir male," 154 ; " heirs 
 female," 149 ; " heirs of the body," see this title ; " issue," 149, 156 ; " it 
 shall be lawful," see 386 ; " shall and may," in Act of Parliament, 301, 
 note {d) ; " request," " require," see these titles, " subject thereto," 191 ; 
 " trustee," " trustee of inheritance," 250 
 implying restraint against anticipation, 123, 632, note (J) ■; separate use, 
 
 121, et seq. ; trust, 167 ; but see 170, 171 
 supplied in articles, 153 
 
 WORSHIP OF GOD. 
 
 construction of trust for maintaining, 497, et seq. 
 
 WRITS OF. 
 
 distringas, see Distringas, 860, et seq. 
 execution at common law, 646 
 
 WRITING. 
 
 Assignment of equitable interest by, 600 
 
 Request for sale to be testified by, 419 
 
 Trust, note in (not under seal) sufficient to declare, 56 
 
 but in case of wills, see 66, 68, and 69, note (a) 
 Trustee may sue before having accepted the trust by, 243 
 
 THE END. 
 
 URADBUnY AND EVANS. PRINTERS, WUlTJiFRIARS. 
 
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